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John F. Tamburo, D/B/A Man's Best Friend Software, and Versity v. Estate of Steven Dworkin

December 29, 2010


The opinion of the court was delivered by: Judge Joan B. Gottschall


Kristen Henry, Roxanne Hayes, Karen Mills, and the estate of Steven Dworkin have moved to dismiss the seventh amended complaint of John F. Tamburo ("Tamburo") d/b/a Man's Best Friend Software ("MBFS") and Versity Corporation ("Versity"), which did business as MBFS from March 1999 to May 2004. For the reasons set forth below, the motion is granted in part and denied in part.


MBFS operates The Breeder's StandardTM.NET (also known as "TBS.NET"), a web-based database that customers can use to research the pedigrees of dogs. (Seventh Am. Compl. ¶¶ 39-43.) MBFS populated its database, in part, by using an automatic browsing program to harvest dog pedigree information from the websites of dog enthusiasts, including Dworkin, Henry, Hayes, and Mills. (Id. ¶¶ 42-44, 46-47, & 59.) Tamburo and Versity allege that Dworkin, Henry, Hayes, and Mills knew that it is common practice and industry standard on the internet that a website that does not use commonly accepted methods of excluding automatic browsing programs is understood to have invited all comers to copy the information therein. (Id. ¶¶ 57-58.) Dworkin, Henry, Hayes, and Mills allegedly did not equip their websites with any commonly accepted method of excluding automatic browsing programs. (Id. ¶¶ 47-58.) Accordingly, Tamburo and Versity allege that the dog pedigree information that appeared on their websites was free and publicly available. (Id. ¶ 44.) Tamburo and Versity complain that they were injured when Dworkin, Henry, Hayes, and Mills made website postings and sent email blasts accusing MBFS of stealing the dog pedigree information that appeared on their websites. (Id. ¶¶ 73-100 & 106-108.) Tamburo and Versity filed their seventh amended complaint seeking a declaratory judgment that, inter alia, their conduct was lawful and seeking damages under Illinois law for defamation, trade libel, civil conspiracy, and tortious interference with contractual relationships and prospective economic advantage. For a more complete recitation of the underlying facts and history of the case, see the court's prior opinion and that of the United States Court of Appeals for the Seventh Circuit. See Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010); Tamburo v. Dworkin, No. 04 C 3317, 2007 WL 3046216 (N.D. Ill. Oct. 9, 2007).


Rule 12(b)(6) enables a defendant to seek dismissal of a complaint that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, the court must "tak[e] all well-pleaded allegations of the complaint as true and view[] them in the light most favorable to the plaintiff." Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (quoting Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000)). Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief" so as to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Although "detailed factual allegations" are not necessary, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Rather, the plaintiff must provide enough factual allegations to state a claim for relief that is not only conceivable, but "plausible on its face." Id. at 555 & 570; see Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) ("a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law.") "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.


1.Whether Tamburo is the true party in interest

As the court stated in its June 24, 2005 order, Tamburo is not the real party in interest in this suit "because 'all of the actions alleged in the complaint arise from conduct initiated by Versity' and the context of the allegedly defamatory or otherwise unprivileged statements makes clear that the statements referenced [Man's Best Friend Software] as a business." (Order 3, June 24, 2005, ECF No. 114.) Accordingly, counts III, V, VII, VIII, and IX -- which are brought on behalf of Tamburo alone -- are dismissed and counts I and X are similarly dismissed insofar as they are brought on behalf of Tamburo.

2. Count I: Declaratory Judgment

The defendants argue that Versity's declaratory judgment claim should be dismissed because "there is no actual controversy between the parties as to any of the issues on which Plaintiffs seek declaratory judgment." (Defs.' Mot. to Dismiss Pls.' Seventh Am. Compl. at 17.) Versity seeks a declaration that:

a) copying facts from websites is not a violation of state or federal law, and "claims by Defendants as to 'copyright' to such information [sic], or as to the ownership thereof, are void as a matter of law,"

b) "website 'terms of use' that prohibit non-automated copying of animal pedigree data into commercial pedigree software are unlawful and unenforceable,"

c) "the defendants, by the placement of restrictive terms that purport to ban the non-automated copying of data from their web sites if it can be commercially used constitutes a misuse of the underlying copyright(s) of their web sites, rendering said ...

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