Home Show Tours, Inc. v. Quad City Virtual, Inc.

• Citation: 827 F.Supp.2d 924
• Decision Date: 23 March 2011
• Docket Number: No. 3:08–CV–00127–JEG.,3:08–CV–00127–JEG.
• Parties: HOME SHOW TOURS, INC., an Illinois Corporation d/b/a Qchomeshow.Com a/k/a Quadcityhome Show.com, Plaintiff, v. QUAD CITY VIRTUAL, INC., an Iowa Corporation, d/b/a QCFSBO.com a/k/a QCFSBO, and Symmetry Mortgage Corp., an Iowa Corporation, Defendants.
• Court: U.S. District Court — Southern District of Iowa

827 F.Supp.2d 924

HOME SHOW TOURS, INC., an Illinois Corporation d/b/a Qchomeshow.Com a/k/a Quadcityhome Show.com, Plaintiff,

v.QUAD CITY VIRTUAL, INC., an Iowa Corporation, d/b/a QCFSBO.com a/k/a QCFSBO, and Symmetry Mortgage Corp., an Iowa Corporation, Defendants.

No. 3:08–CV–00127–JEG.

United States District Court,S.D. Iowa,Davenport Division.

March 23, 2011.

Mark R. Fowler, Gomez May Cartee & Schutte Ian J. Russell, Lane & Waterman LLP, Davenport, IA, for Defendant.

James S. Zmuda, Califf & Harper PC, Moline, IL, for Plaintiff.

ORDER

JAMES E. GRITZNER, District Judge.

Before the Court are motions for summary judgment brought by Defendant Quad City Virtual, Inc. (QCFSBO) and Defendant Symmetry Mortgage Corp. (Symmetry), which Plaintiff Home Show Tours, Inc. (Home Show) resists. The matter came on for hearing on December 13, 2010. Attorney James Zmuda (Zmuda) represented Home Show; Attorney Ian Russell represented QCFSBO; and Attorney Mark Fowler represented Symmetry. The matter is fully submitted and ready for disposition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Since 1999, QCFSBO co-founders Rebecca Banerjee (Banerjee) and Sam Banerjee have owned and operated QCFSBO.com, a for sale by owner (FSBO) real estate website that advertises FSBO real estate listings and other real estate-related services. Troy Vavrosky (Vavrosky) owns Home Show, which also operates a FSBO website, QCHomeshow.com (aka QuadCity Homeshow.com). Both QCFSBO and Home Show serve the Quad City Area.¹ QCFSBO has a strict policy prohibiting parties who list with QCFSBO from co-listing with a realtor or with any other real estate website; Home Show has no such policy.

Symmetry, which is primarily owned by Greg Franich (Franich) and Erin Franich, sells and services home mortgages. Approximately twenty-five percent of Symmetry's mortgage services go to FSBO buyers.² Symmetry and QCFSBO lease adjacent office space in a duplex building owned by Franich Properties, LLC, which, in turn, is wholly owned by Greg and Erin Franich. ³

On June 18, 2003, QCFSBO and Symmetry entered into a written mutual advertising/referral agreement (the QCFSBO–Sym Agreement), under the terms of which QCFSBO would “not refer to any other mortgage service provider other than Symmetry” and Symmetry would “not refer a seller or someone that wishes to advertise anywhere but QCFSBO.” Franich Dep., QCFSBO's App. 83, ECF No. 37–3. QCFSBO and Symmetry did not exchange money for the QCFSBO–Sym Agreement. The terms of the QCFSBO–Sym Agreement did not require Symmetry customers to use QCFSBO's services nor did it require QCFSBO's customers to use Symmetry's services.⁴

Franich is a licensed real estate broker and a member of the Quad City Board of Realtors and, as such, has access to the Quad City Area Multiple Listing Service (MLS). Symmetry admits that it shared certain MLS information with QCFSBO approximately once every three-to-four months but that the information is limited to (1) verbal verification as to whether or not a current or potential client of QCFSBO's is listed with a realtor on the MLS, and (2) gross marketing statistics to assist in the preparation of general marketing information for joint seminars with QCFSBO and others.⁵ Symmetry denies ever advising QCFSBO when an MLS listing was about to expire so as to give QCFSBO a competitive advantage.⁶

In 2002 or 2003, QCFSBO entered into a sponsorship-advertising package (sponsorship package) with Clear Channel Communications (Clear Channel), which operates several radio stations in the Quad City Area.⁷ The sponsorship package gave QCFSBO exclusive sponsorship rights for two Clear Channel broadcast shows, “the Top 40 Countdown Show” and “the Jazz Patio.” Clear Channel's sponsorship packages give sponsors like QCFSBO semi-exclusive advertising rights within that sponsor's industry category, in QCFSBO's case, the real estate marketing industry, to advertise on the broadcast station during the airing of the sponsored show. QCFSBO's sponsorship package did not prevent other companies within the real estate marketing industry, such as Home Show, from buying their own exclusive advertising packages or from advertising during the same time slot on other Clear Channel-operated stations not broadcasting the QCFSBO-sponsored show. Home Show asserts that it first learned of Clear Channel's exclusive sponsorship policy after QCFSBO purchased its sponsorship-advertising package.

On September 30, 2008, Home Show filed a complaint against QCFSBO alleging claims for libel per se, libel per quod, false light, and violations of the Lanham Act, 15 U.S.C. § § 1501 et seq. On May 5, 2009, Home Show amended its complaint adding a claim for intentional interference with business relationships against QCFSBO, and on October 7, 2009, Home Show amended its complaint a second time naming Defendant Symmetry in Count VI and therein adding an anti-trust claim against QCFSBO and Symmetry under the Sherman Act, 15 U.S.C. §§ 1, 2.

QCFSBO moves for summary judgment on all six counts, and Symmetry moves for summary judgment on Count VI, asserting that Home Show has produced no evidence to support its claims or to demonstrate it has been damaged by the Defendants' alleged conduct. Home Show resists, arguing that it has established multiple questions of material fact with respect to each of its claims.

II. DISCUSSIONA. Standard for Summary Judgment

Summary judgment is appropriate when the evidence, viewed in the light most favorable to the non-moving party, demonstrates there are no outstanding issues of material fact and the moving party is entitled to judgment as a matter of law. MSK EyEs Ltd. v. Wells Fargo Bank, NA, 546 F.3d 533, 540 (8th Cir.2008). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” P & O Nedlloyd, Ltd. v. Sanderson Farms, Inc., 462 F.3d 1015, 1018 (8th Cir.2006) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Home Show “may not merely point to unsupported self-serving allegations, but must substantiate [its] allegations with sufficient probative evidence that would permit a finding in [its] favor, without resort to speculation, conjecture, or fantasy.” Reed v. City of St. Charles, Mo., 561 F.3d 788, 790–91 (8th Cir.2009) (internal quotations and citations omitted). “In sum, the evidence must be ‘such that a reasonable jury could return a verdict for the nonmoving party.’ ” Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

B. Counts One through Four

Home Show does not specifically identify in the body of its complaint those statements that form the bases of its Lanham Act, libel, and false light claims.⁸ Instead, Home Show's second amended complaint obliquely outlines the statements that form the bases of its claims, stating,

QCFSBO has published and continues to publish false and defamatory statements and information concerning QCHomeshow on its website, www. qcfsbo. com and has made and continues to make false statements of fact about QCFSBO and QCHomeshow.com and/or claims that may be literally true or ambiguous but which implicitly convey a false impression, are misleading in context, or likely to deceive customers, including the statements and information described in correspondence from counsel for QCHomeshow to QCFSBO attached to this Second Amended Complaint as Exhibit A.Second Am. Compl. ¶ 7, ECF No. 28 (emphasis added). Exhibit A to Home Show's second amended complaint (Exhibit A) is comprised of a cease and desist letter from Home Show's attorney, Zmuda, to QCFSBO and sixteen screenshots from QCFSBO.com. The screenshots contain Home Show's cryptic annotations identifying Home Show's objections and why Home Show believes those statements are actionable. Ex. A, Second Am. Compl., ECF No. 28–1.

The Court is never obligated to go beyond a party's efforts and sift the record for facts to support a claim. See Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1032 (8th Cir.2007) (“Courts have neither the duty nor the time to investigate the record in search of an unidentified genuine issue of material fact to support a claim or defense.”); Crossley v. Georgia–Pacific Corp., 355 F.3d 1112, 1113 (8th Cir.2004); White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir.1990) (“A district court is not required to speculate on which portion of the record a nonmoving party relies ...” (quoting InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989))). It appears the only reasonable way to summarize the claimed harmful and actionable statements is to set forth the notations in Exhibit A. The following list includes a description of the QCFSBO.com web page link, the challenged statement(s) therein set out in quotation marks, and Home Show's (quoted) annotations set out in italics:

1. A screenshot of the top portion of the “Most Popular & Successful FSBO Website in QCA” link:

a. Bullet point links to other QCFSBO®com web pages, including: “Best Exposure in the QCA” and “FSBO Home Sales in QCA.”

i. Untrue and Unproven

b. “Through the years countless successful sellers and buyers have learned that the place to go to sell or buy FSBO homes is the one and only 100% FSBO website of the Quad Cities ... QCFSBO®.com. From their repeated success we were not only able to grow into the most successful FSBO website in the Quad Cities but indeed one of the most successful FSBO websites in the United States.”

i. Untrue and Unproven

c. “However, our customers continue to get mailings from far smaller local websites claiming to provide more exposure than QCFSBO®.com! So we decided to compile a[sic] listing data from these other local websites on a weekly basis. The information we gathered is quite revealing but you are probably not going to be surprised by these statistics if you are a regular...