SalesTraq America, LLC v. Zyskowski et al

Filing 74

ORDER denying 62 defendants' Motion for District Judge to Reconsider Order and denying 64 defendants' Motion to Consolidate Cases. IT IS FURTHER ORDERED that 65 parties' Stipulation to extend time to file a joint pretrial order is GRANTED. The parties shall lodge their proposed joint pretrial order within 30 days from entry of this order. See order re specifics. ( Proposed Joint Pretrial Order due by 4/15/2010.) Signed by Judge Larry R. Hicks on 3/16/2010. (Copies have been distributed pursuant to the NEF - SL)

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** ) ) ) ) ) ) ) ) ) ) ) )

SALESTRAQ AMERICA, LLC, Plaintiff, v. JOSEPH A. ZYSKOWSKI, DEVMARKETING, INC.,

2:08-cv-01368-LRH-LRL ORDER

Before the court is defendants' motion for reconsideration filed on January 28, 2010. Doc. #621. Plaintiff SalesTraq America, LLC ("SalesTraq") filed a response on February 12, 2010. Doc. #66. Thereafter, defendants filed a reply on February 19, 2010. Doc. #68. Also before the court is defendants' motion to consolidate. Doc. #64. I. Facts and Background Since 1994, SalesTraq has been in the business of publishing, on a fee-for-subscription basis, a compilation of floor plans for residential property in the Las Vegas area through its website salestraq.com. The SalesTraq compilation also includes a wide variety of additional content; pictures, measurements, architectural features, age of homes, builders and developers ("Information Content"). On September 10, 2008, SalesTraq was issued a copyright (TX0006864245) for its

Refers to the court's docket number.

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compilation. In conjunction with the compilation, SalesTraq developed numeric designators that are searchable through salestraq.com's unique computer search algorithms and which reference different portions of the Information Content. Defendant Joseph A. Zyskowski ("Zyskowski") is the president of defendant devMarketing, Inc. ("devMarketing"). In 2007, defendants created a property database for the Las Vegas area and began operating a website, devMLS.com, which publishes active listings of all open home developments. Defendants purchased a six-month subscription to salestraq.com to expand the database by copying SalesTraq's archived floor plans. SalesTraq brought suit for copyright infringement. Doc. #1. Defendants subsequently moved for summary judgment (Doc. #39) which was granted in-part and denied in-part (Doc. #60). Thereafter, defendants filed the present motion to reconsider the court's order. Doc. #62. II. Motion to Reconsider The federal district court has the inherent power to revise, correct, or amend interlocutory orders at any time prior to a final judgment. See School Dist. No. 5 v. Lundgren, 259 F.2d 101, 105 (9th Cir. 1958). A previous order may be reconsidered when the decision is clearly erroneous, there has been an intervening change of law, or there is manifest injustice. See United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998). Defendants argue that reconsideration is warranted because the court misinterpreted their arguments regarding SalesTraq's state law claims. The court, in its January 15, 2010 order denying in-part defendants' motion for summary judgment, concluded that none of the state law claims remaining after dismissal of SalesTraq's copyright claim were preempted by the Copyright Act. Defendants argue that, as to SalesTraq's breach of an implied license claim, their position was that there was insufficient evidence in the record to support SalesTraq's claim, not that the claim was preempted. The court will take this opportunity to clarify its denial of summary judgment. Summary judgment is appropriate only when "the pleadings, depositions, answers to 2

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interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). Defendants argue that SalesTraq has failed to put forth evidence that defendants, by purchasing a subscription to SalesTraq's website and copyrighted content, impliedly promised to not use the provided content on their own independent website. However, viewing the evidence in the light most favorable to SalesTraq, the court finds that there is sufficient evidence to infer that by subscribing to SalesTraq's website, defendants entered into an implied license which governed defendants' ability to access and use content from SalesTraq's website. Specifically, SalesTraq licensed its product through a subscription service license which prevented copying of the compilation, use of the compilation for financial gain, or for direct competition with SalesTraq. Additionally, Zyskowski testified in his deposition to the existence of the subscription license. Accordingly, the court finds that there is sufficient evidence to raise a genuine issue of material fact as to the existence of an implied license. III. Motion to Consolidate Defendants move this court for an order separating defendants' counterclaims against SalesTraq and consolidating those counterclaims with a separate action, case no. 2:10-cv-0062, which defendants initiated against new defendant SalesTraq Inc., a separate legal entity from SalesTraq America LLC, the plaintiff in this matter. Defendants' motion appears to be in response to the court's previous order denying defendant's motion to amend Scheduling Order and to add an additional party (#42). The motion was denied on January 7, 2010, and shortly thereafter plaintiff filed a new action seeking to 3

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accomplish what it was unable to achieve through its motion to add an additional party in this action. Defendants now seek to consolidate their counterclaim in this action with the newly filed action. Defendants' motion is clearly untimely, has previously been decided by the court, and is futile. Accordingly, the court shall deny the motion to consolidate. However, the court takes notice of the parties' stipulation to extend the time to file the joint pre-trial order. Doc. #65. The request for an extension of time shall be granted and the parties shall have thirty days after the filing of this order to file a joint pretrial order. IT IS THEREFORE ORDERED that defendants' motion for reconsideration (Doc. #62) is DENIED. IT IS FURTHER ORDERED that defendants' motion to consolidate (Doc. #64) is DENIED. IT IS FURTHER ORDERED that the stipulation to extend time to file a joint pretrial order (Doc. #65) is GRANTED. The parties shall lodge their proposed joint pretrial order within thirty (30) days from entry of this order. See Local Rules 16-4 and 26-1(e)(5). IT IS SO ORDERED. DATED this 16th day of March, 2010.

__________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE

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