The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court is the motion of certain defendants to dismiss the first amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (b)(2), (b)(3), and (b)(6). For the reasons explained below, the motion is granted in part.
This is an action in which plaintiff Kennelsource, Inc. ("Kennelsource"), an Illinois corporation, alleges that defendants misappropriated its software. Kennelsource's software is called Pawtracker and is designed to facilitate the management of pet-care businesses. Pawtracker is available for license via Kennelsource's Web site. In January 2005, plaintiff filed copyright applications for the Pawtracker application code and for the Pawtracker text, images, and screens with the United States Copyright Office.*fn1
On plaintiff's Web site, www.kennelsource.com, prospective customers may request a working demonstration of Pawtracker after checking a box acknowledging that the prospective customer (1) will be the "Recipient" of access to the "Pawtracker Demo Application"; and (2) has read the "Confidentiality and Non-Disclosure Agreement below" and agrees to its terms and conditions. (First Amended Complaint ¶¶ 11, 16-17.) The Confidentiality and Non-Disclosure Agreement (the "Agreement") provides, inter alia, that the Recipient agrees that he will use the software only for purposes of evaluating its functionality for possible future license by the Recipient and for no other purpose. (Id. Ex. A.)
Kennelsource alleges that on March 17, 2004, defendant Heather McCall went to plaintiff's Web site, completed a form requesting access to the Pawtracker Demo Application, and checked the acknowledgment box described supra. In the "organization" field on the request form, McCall indicated that she was affiliated with "Barking Hound Village" and that its Web site was www.barkinghoundvillage.com.
The complaint alleges that www.barkinghoundvillage.com is the Web site of defendants Barking Hound Village, LLC and Barking Hound Village Franchise, LLC (collectively, "Barking Hound"). Barking Hound operates pet care and grooming facilities in Georgia and Texas and and is co-owned by defendants John Hogg and David York. According to plaintiff, McCall "operates, manages, is employed by, volunteers resources to and/or otherwise is an agent of" Barking Hound. (First Amended Complaint ¶¶ 4-7.)
Approximately one month after McCall requested access to the Pawtracker demonstration software, Kennelsource discovered that Barking Hound's Web site contained portions of Kennelsource's Web site--specifically, the Pawtracker logo, application text and graphics. Kennelsource alleges upon information and belief that the logo, text, and graphics were knowingly obtained by defendants through McCall's request for the demonstration software, in violation of the Agreement. Kennelsource further alleges that defendants Hogg and York directed McCall to fraudulently enter into the Agreement with plaintiff.
Some time thereafter, plaintiff again visited Barking Hound's Web site and discovered a new page entitled "BHV Family Login" that provided a link to an online reservation system at the address www.secure.barkware.com/bhkm/client/index.php. Plaintiff then deactivated McCall's access to the Pawtracker demonstration software based on its belief that Barking Hound was creating its own software application modeled on Pawtracker. Plaintiff also visited the www.barkware.com Web site and discovered that the site offers pet-care service providers access to software to manage their businesses (the "Barkware software"). The description of services and products on the Barkware Web site is a verbatim replication of the description of plaintiff's Pawtracker services on plaintiff's Web site.
The www.barkware.com Web site is registered to defendant Mark Peeples, who plaintiff alleges "operates, manages, is the administrator of, webmaster for, employed by, volunteers resources to and/or otherwise is an agent of" Barking Hound "and otherwise is doing business as www.barkware.com." (First Amended Complaint ¶ 8.) Plaintiff alleges upon information and belief that the Barkware software is "copied, based upon and/or derived from" Pawtracker and was created "from information only obtainable to" Recipients of the Pawtracker demonstration application. (Id. ¶ 27.)
Plaintiff also contends the following upon information and belief: prior to entering into the Agreement, McCall intended to violate the Agreement by providing Peeples with access to the Pawtracker demonstration application; York and Hogg directed McCall to do so; and Peeples, York and Hogg sought to create a company that provides pet-care providers with business software and conspired with McCall to request access to Pawtracker with the intent to copy Pawtracker without plaintiff's consent or authorization.
The First Amended Complaint contains ten counts. In Count 1, plaintiff seeks injunctive relief, and in Count 10, plaintiff seeks punitive damages. The complaint also alleges breach of contract (Count 2); fraud (Count 3); civil conspiracy (Count 4); copyright infringement and willful copyright infringement (Counts 5 and 6); plagiarism (Count 7); misappropriation of trade secrets (Count 8); and conversion (Count 9). Counts 1 and 3-10 are alleged against all of the defendants, and Count 2 is alleged against all of the defendants except Peeples.
Barking Hound, Hogg, York, and Peeples move to dismiss the First Amended Complaint for lack of personal jurisdiction, lack of venue, lack of subject matter jurisdiction, and failure to state claims.*fn2 At a hearing on defendants' motion in April 2006, we instructed the parties to brief only the ...