Dice Corp. v. Bold Techs.

• Decision Date: 28 March 2013
• Docket Number: Case No. 11–13578.
• Citation: 913 F.Supp.2d 389
• Parties: DICE CORPORATION, Plaintiff, v. BOLD TECHNOLOGIES, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

913 F.Supp.2d 389

DICE CORPORATION, Plaintiff,

v.BOLD TECHNOLOGIES, Defendant.

Case No. 11–13578.

United States District Court,

E.D. Michigan,

Northern Division.

Oct. 25, 2012.

Opinion Denying Reconsideration March 28, 2013.

Craig W. Horn, Braun, Kendrick, Saginaw, MI, for Plaintiff.

David S. McDaniel, R. Christopher Cataldo, Jaffe, Raitt, Southfield, MI, Peter M. Falkenstein, Jaffe Raitt Heuer & Weiss, PC, Ann Arbor, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING COMPLAINT WITH PREJUDICE

THOMAS L. LUDINGTON, District Judge.

In this intellectual property dispute, Plaintiff Dice Corporation alleges that Defendant Bold Technology accessed Plaintiff's servers and stole its software. Defendant denies that it did any such thing. Relying on deposition testimony, affidavits, and other evidence showing that it neither accessed Plaintiff's servers nor its software, Defendant now moves for summary judgment. Plaintiff opposes the motion. The opposition, however, is based on conclusory assertions, not evidence. The Court will grant Defendant's motion.

I

A

Plaintiff is a Michigan corporation with its principal place of business in Bay City, Michigan. Second Am. Compl. ¶ 1. It was founded in 1992 by Mr. Clifford Dice, who is its president, chief executive officer, and sole owner. Dice Dep. 7, Feb. 29, 2012, attached as Def.'s Mot. for Summ. J. Ex. A. Defendant is an Illinois corporation with its principal place of business in Colorado Springs, Colorado. Id. ¶ 2.

Competitors, Plaintiff and Defendant both provide software for companies in the alarm industry. Dice Dep. 8, 13; Coles Aff. ¶ 3, attached as Def.'s Mot. Ex. B. That is, Plaintiff and Defendant license software enabling alarm companies to monitor their customers' alarms. Customers pay the alarm companies to monitor various types of alarms (such as burglar and fire alarms). Coles Aff. ¶ 3; see Dice Aff. ¶ 4, attached as Pl.'s Resp. to Def.'s Mot. for Summ. J. Ex. A. The alarms send signals to receivers located at the alarm companies. Coles Aff. ¶ 3. When an emergency signal is sent, the company contacts the appropriate authorities (such as police or fire departments). Id. Larger alarm companies have hundreds of thousands of customers. Id. ¶ 4. Companies like Plaintiff and Defendant create the software that monitors the signals. Id.

To operate their businesses, the alarm companies must also collect large amounts of data regarding their customers, including “names, addresses, contact information, billing information, [and] information regarding the type and location of alarms.” Id. The data is compiled in databases within software that the alarm companies license from companies like Plaintiff and Defendant. Id.

On a basic level, Plaintiff's and Defendant's software thus performs the same functions: compiling information and monitoring signals for the alarm companies. Coles Aff. ¶ 3. On a technical level, however, the software is much different. Plaintiff's software operates on a Linux platform and is written in the Thoroughbred Basic computer language.¹ Narowski Aff. ¶ 5, attached as Def.'s Mot. Ex. D. Defendant's software operates on a Windows platform and is written in the Microsoft computer languages C÷÷ and Visual Basic. Id. Plaintiff licenses its software simply as “Dice software”; Defendant licenses its software under the trade name “Manitou.” Coles Aff. ¶¶ 2–3.

B

One such alarm company, ESC Central, was one of Plaintiff's customers for a decade; it is now one of Defendant's customers. See Jennings (formerly Harris) Dep. 13, attached as Def.'s Mot. Ex. F. The present litigation arises out of this transition.

ESC Central provides services to about 400 dealers and 50,000 customers. Jennings Dep. 7. Located in Birmingham, Alabama, it began licensing Dice software in 2001. Id. at 6, 10.

ESC Central's operations manager is Kristi Jennings (formerly Harris). During the decade that ESC Central was one of Plaintiff's customers, Ms. Jennings was actively involved in Plaintiff's operations, chairing its “user group,” serving on its “chart committee,” and even selling software on Plaintiff's behalf.

The “user group” received suggested software changes to Plaintiff's software from customers. Id. at 12. The group would then meet and vote on which features to incorporate into future editions of Plaintiff's software. Id. Ms. Jennings chaired Plaintiff's user group from 2005 through 2010. Id. at 11.

Ms. Jennings was also a member of Plaintiff's “chart code committee.” Id. at 20. The alarms are programed to send signals to receivers located at the alarm companies' offices. Signals include alerts for fire, flood, burglary, and other types of events. The “event codes,” however, vary from manufacturer (for example, one manufacture would code fire as “1” while another would code fire as “3”). Id.

Plaintiff's chart code committee compiled this manufacturer information to update Plaintiff's “ALSCHART” file. Id. This file, Plaintiff's user manual explains, is a data file containing information regarding “incoming signals from zones and other information about processing.” Dice Knowledge Base Article 3–1.2 (Sept. 12, 2003), attached as Def.'s Mot. Ex. G. Discussing the chart committee's responsibility, Ms. Jennings explained in her deposition: “Our task was to chart codes from manufacturers and submit them to Dice.” Jennings Dep. 20. She was then asked:

Q: So how would you go about doing that?

A: We would contact the manufacturers and ask them....

Q: So what did Dice do with the chart codes that were submitted by the committee?

A: They would take it and update it inside Dice software.

Q: And where in the Dice software would we go to find this listing of all the codes?

A: Within their chart codes.

Q: Where is that? What is the name of that file?

A: The ALS[CHART] codes.

Q: ALS[CHART]?

A: Yes....

Q: And just to be clear, they were—these codes were simply the manufacturers' codes that had been assigned by the various manufacturers for these various types of signals, and then these codes were all accumulated within this file called ALS[CHART] which was part of the Dice software?

A: Yes.

Jennings Dep. 20–22. See also Dice Knowledge Base Article (Sept. 12, 2003). And Ms. Jennings also sold software on Plaintiff's behalf. Id. at 13. In her deposition, she was asked:

Q: Well, to be able to do that, did you have any particular training or knowledge on the software that would allow you to effectively sell the software for Dice?

A: The best sales tool to me is the fact that I used it every day, and I knew the in's and out's of the software and how it worked.

Q: Would you consider yourself to be extremely knowledgeable on the Dice software?

A: Yes.

Q: So how many times do you think you actually did sales demos for Dice?

A: I don't know an exact number. If I was to estimate, I would say at least 20 times.

Jennings Dep. 13–14.

C

Before the Dice user group meeting in August 2010, Ms. Jennings emailed Plaintiff with concerns. Def.'s Mot. Ex. H. “I'm going to tell you that this may be a make or break year for [the Dice user group],” Ms. Jennings wrote, elaborating: “There are several companies not coming because ‘Dice is going to do what they want not what the users want’ and ‘it's just a waste of time and money.’ ... I am not going to sugar coat all the things that I have heard and I don't want a call telling me how great things are or how many systems are being sold. There are a number of unhappy customers.” Id. at 2.

Plaintiff's founder and CEO, Mr. Dice, responded via email: “[W]e are not trying to sell anything. We have to [pare] down the number of clients we have and serve due to the larger scale of the product line currently. Once folks see what our direction is and what our development cycles are[,] [i]f they are not pleased with our direction, they should contact the competition and move quickly to another [software provider] as you indicated, [and] I would encourage it.” Id.

In September 2010, Ms. Jennings again emailed Plaintiff with concerns. Def.'s Mot. Ex. I. Noting that the software had crashed ESC Central's phone system, Ms. Jennings wrote: “We are aware that DICE seems to think that the Altigen flakiness might be fixed by upgrading. However, before doing anything else with this stupid phone system I want assurances in writing from someone at DICE that this will stop these issues.” Id. at 2.

Mr. Dice responded: “On one hand, I feel responsible for not configuring multiple boxes, but after kicking myself over and over again[,] I am not sure how I would have known that I needed to. Given the fact that you were a beta site, we all know that the expectation is, that we will all learn things and may change the situation. To make things worse, the relationship between you and I has not been good, and getting worse.” Id. at 1. He concluded: “So I am sorry that you have had the bad experience. And I want you to know that I want to fix it, but you have to trust us and we have to work closely again. Otherwise, I think it's just better if you start backing out of what you have and planning longer term a change to some other automation system.” Id. at 2; but see Dice Aff. ¶ 9 (“ESC was not asked to terminate its relationship with Dice and did not leave Dice because of quality issues.”).

D

In October 2010, Ms. Jennings took up Mr. Dice on his suggestion that she should contact the competition if she was dissatisfied and emailed Defendant. Jennings Dep. 32–33. In Ms. Jennings' deposition, she was asked:

Q: [Was] this the first contact that you had in terms of moving from Dice over to Bold?

A: Yes.

Q: At this point in time in October 2010, I mean, had you absolutely made up your mind you were leaving or you were just looking around?

A: No, I just started looking.

Q: Did you look at other Dice competitors beside Bold?

A: Yes.

Id. Also in October 2010, Mr. Dice disbanded the users group. Id. at 22.

In February 2011, Ms. Jennings reached what...