Ground Zero Museum Workshop v. Wilson

• Decision Date: 04 November 2011
• Docket Number: Civil Action No. DKC 09–3288.
• Citation: 813 F.Supp.2d 678,2011 Copr.L.Dec. P 30145
• Parties: GROUND ZERO MUSEUM WORKSHOP, et al. v. William WILSON.
• Court: U.S. District Court — District of Massachusetts

2011 Copr.L.Dec. P 30,145

813 F.Supp.2d 678

GROUND ZERO MUSEUM WORKSHOP, et al.

v.William WILSON.

Civil Action No. DKC 09–3288.

United States District Court, D. Maryland.

Aug. 24, 2011.Order Denying Reconsideration Nov. 4, 2011.

Elizabeth Pugliese, Law Office of Elizabeth Pugliese, Rockville, MD, Thomas Coffin Willcox, Law Office of Thomas Willcox, Washington, DC, for Ground Zero Museum Workshop, et al.

Sterling Garrett Mead, Law Office of Sterling G. Mead, Rockville, MD, for William Wilson.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending are five motions: the motion to dismiss or for summary judgment filed by Defendant William Wilson (ECF No. 46); the motion for leave to file an amended counterclaim filed by Defendant William Wilson (ECF No. 47); and three motions to strike filed by Plaintiffs: to strike Defendant's motion to dismiss or for summary judgment (ECF No. 51), to strike Defendant's response to Plaintiffs' motion to strike the motion for summary judgment (ECF No. 56), and to strike Defendant's reply to Plaintiffs' opposition to the motion for summary judgment (ECF No. 57). The issues are fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion for summary judgment will be granted in part and denied in part, Defendant's motion for leave to file an amended counterclaim will be granted, and Plaintiffs' motions to strike will be denied.

I. BackgroundA. Factual Background

Plaintiff Ground Zero Museum Workshop (“GZM”) opened as a museum in 2005 and exhibits photographs and artifacts from the aftermath of the attack on the World Trade Center buildings on September 11, 2001. (ECF No. 39 ¶ 9). Plaintiff Gary Marlon Suson is an off-Broadway actor and photographer who personally took many of the photographs on display at GZM. ( Id. at ¶¶ 10–11). Suson resides in New York City and is the executive director and founder of GZM. ( Id. at ¶¶ 2, 9).

After a visit to GZM with his partner in 2007, Defendant William Wilson, a resident of Maryland, offered to donate his website expertise to GZM. ( Id. at ¶ ¶ 16, 17; ECF No. 46–2, Wilson Aff., ¶ 6). Wilson is a sole proprietor who owns and operates a business under the trade name “Cart Designs” that provides internet shopping cart services. (ECF No. 46–2, Wilson Aff., ¶ 2). Wilson's shopping cart services are typically located on his own web server and are external to the seller's website. ( Id. at ¶ 4).¹ At the time, GZM's website was hosted on a web server maintained by a company called Intercom.com. Wilson suggested that GZM switch to a new hosting service, A1–Hosting Services (“A1–Hosting”). ( Id. at ¶ 9–10). Wilson had prior experience with A1–Hosting and contacted it to see if it would agree to donate its services to GZM, as GZM was then in the process of obtaining 501(c)(3) status. ( Id. at ¶¶ 11, 22). When A1–Hosting agreed, Wilson facilitated the transfer of the GZM website from Intercom.com to A1–Hosting. ( Id. at ¶ 13). Over time, Wilson made additional changes to the GZM website, and in the spring of 2009 he offered to design a donations page for GZM. (ECF No. 39 ¶¶ 26–27; ECF No. 46–2 ¶ 16).²

The parties' relationship began to deteriorate in the summer of 2009. In early August, derogatory comments regarding GZM and Suson were made on a travel forum page that was part of the tripadvisor.com website. (ECF No. 39 ¶ 33). Wilson posted a response to one of the critiques to defend GZM and Suson but encouraged Suson to avoid commenting personally. (ECF No. 46–2 ¶ 20). Suson did not agree with Wilson's approach, posted his own response, and expressed his disapproval of Wilson's actions and advice in a heated email exchange. ( Id., Ex. 8). Wilson interpreted Suson's comments to mean that his services were no longer wanted and sent an email notification that he would “contact my people and have them pull the plug.” ( Id.). Wilson sent an email resignation on August 10, 2009, and used the user account and password that had been issued to him by A1–Hosting to access the GZM website to remove his shopping cart service and the “Cart Design” notifications from the various web pages within the GZM site. (ECF No. 46–2 ¶ 22). Wilson avers that he returned the GZM website to its configuration at the time in 2007 before he first introduced his shopping cart service. He also maintains that he contacted A1–Hosting to inform it of the situation.

Plaintiffs maintain that Wilson accessed the GZM website without authorization on August 10, 2009. They also contend that he deleted or hid certain files or default pages so it would appear to an outsider trying to access the GZM website that it was no longer in existence. (ECF No. 39 ¶¶ 44–46). Plaintiffs allege that Wilson's deletion of the website caused a loss of ticket sales and gift shop sales and decreased the website's ranking in search engines. (ECF No. 39 ¶ 52).

On August 11, 2009, Wilson sent an email to A1–Hosting stating “please be advised that I have resigned my position as webmaster for the Ground Zero Museum.” (ECF No. 46–2, Ex. 11, at GZM127). The email further explained that Wilson had been operating under the assumption that GZM had very little income but that in an email and over the phone Suson had indicated that daily ticket sales met or exceeded $2,000. Wilson also included a link directing A1–Hosting to an article from the New York Post asserting that Suson had donated only a few hundred dollars to charities. ( Id.).

That same day, A1–Hosting sent Suson an email confirming that the password for the GZM website account had been changed so that Wilson no longer had access. (ECF No. 46–2, Ex. 12–1). A1–Hosting also requested information about GZM, its charitable mission, and copies of its tax returns. (ECF No. 46–2, Ex. 10). Approximately ten days later, having received no documentation from Suson or GZM regarding its tax status, A1–Hosting informed GZM that it was no longer willing to donate its services and told GZM it had 30 days to find a new host. (ECF No. 39 ¶ 58).

Meanwhile, Suson had contacted law enforcement officials in Montgomery County, Maryland, alleging that Wilson had committed a crime by hacking into the GZM website. As a result, Detective Patrick Word with the Gaithersburg, Maryland police department contacted Wilson. (ECF No. 46–2 ¶ 26). Wilson contends that the Detective told him that if he did not agree to mediate the dispute a search warrant for all his computers would be issued. ( Id.). As a result of the mediation, Wilson agreed to restore the GZM website to its prior configuration. To accommodate Wilson's work, Suson provided him with a new password from A1–Hosting. (ECF No. 46–2 ¶¶ 26; ECF No. 39 ¶¶ 59–60). Wilson also asked for, and received, access to GZM's Google Adwords account and its Google Analytics page and used this access to add metadata to optimize the website for search engines. (ECF No. 46–2 ¶ 27; ECF No. 39 ¶ 61). It appeared the two parties had worked through their differences.

The temporary détente between the parties ended on August 18. Suson sent a harshly worded email to Wilson regarding Wilson's comments to A1–Hosting wherein Wilson had expressed doubts about GZM's tax status. (ECF No. 46–2, Ex. 15). Wilson refused to vouch for GZM to A1–Hosting and told Suson to send A1–Hosting the documentation it had requested. When Suson refused to apologize, Wilson resigned a second time. ( Id. at Exs. 16– 17). Thereafter, Suson contacted A1–Hosting, who again changed the password for the GZM web hosting account so that Wilson no longer had access.

On August 20, 2009, in an email to GZM, Wilson claimed ownership of the shopping cart and donations page that were created as part of his collaboration with the GZM website. (ECF No. 39 ¶ 71). The following day, Wilson informed A1–Hosting via email that he believed GZM and Suson were using his intellectual property without authorization. (ECF No. 46–2, Ex. 20).

On August 21, 2009, A1–Hosting sent an email to Suson informing him that A1–Hosting would no longer provide free hosting services and giving Suson notice to move the GZM website to a new web hosting service provider by September 2, 2009. (ECF No. 46–2, Ex. 21). A1–Hosting provided a list of several alternate service providers and responded to questions from Suson regarding the GZM website's requirements. A1–Hosting also extended its original deadline beyond September 2, 2009, because GZM was still working to transfer the site to the new host, LunarPages.com, on that date.

Also in its August 21, 2009 email, A1–Hosting notified Suson that “it appears someone has uploaded malicious files to our server using your FTP credentials. The nature of the files lead us to believe that they are a type that would be used to compromise a server to gain illegal access to it.” (ECF No. 52–7, at 17, GZM 468). Plaintiffs contend that its webmaster, Nakka Murali ³ and Benjamin Briggs, an employee of Global Market Exposure and a “specialist in the search engine optimization process”, have expressed opinions that Wilson was responsible for uploading the malicious files. (ECF No. 52, at 13). The affidavits submitted by Messrs. Murali and Briggs do not express this opinion, however. ( See ECF Nos. 52–10 and 52–11). In addition, the affidavit of Don Lockaby, the owner of A1–Hosting, stated that the malicious files could not have been uploaded by Wilson because Suson “created a very powerful password and it is impossible that [Wilson] or anyone else could have guessed it” and the files were not present on A1–Hosting's server until August 19, 2009, after the password had been changed at Suson's instruction and Wilson no longer had access. (ECF No. 46–6, Lockaby Aff., ¶ 18.) ⁴

On September 13, 2009, Suson sent an email to A1–Hosting alleging that “some individual has hacked into our 9/11 website http:// www. groundzero museum workshop. com/ catalog. asp.” (ECF No. 46–2, Ex. 27)....