Tamburo v. Dworkin

• Decision Date: 26 September 2013
• Docket Number: Case No. 04 C 3317.
• Citation: 974 F.Supp.2d 1199
• Parties: John F. TAMBURO, et al., Plaintiffs, v. Steven DWORKIN, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

974 F.Supp.2d 1199

John F. TAMBURO, et al., Plaintiffs,

v.Steven DWORKIN, et al., Defendants.

Case No. 04 C 3317.

United States District Court,

N.D. Illinois,

Eastern Division.

Sept. 26, 2013.

John F. Tamburo, Frankfort, IL, pro se.

Heidi I. Schmid, Cinnamon Mueller, Stephanie Margaret Solera, Mudd Law Offices, Chicago, IL, for Defendants.

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, District Judge.

The essential facts in this 2004 case are undisputed. Defendant Kristen Henry, a dog breeder and computer programmer, spent almost five years creating an extensive database of dog pedigrees, which she made freely available for use by fellow breeders through her web site. Plaintiffs John Tamburo and Versity Corporation (“Versity”) used an automated web browser to harvest the data from Henry's website. They incorporated it into software which they attempted to sell to dog breeders for a profit. Henry was outraged. When the plaintiffs spurned her requests to cease using her data, she reached out to the dog breeding community, through emails and online messages, for assistance in responding to the plaintiffs' misappropriation of her work. This lawsuit arose from her statements.

Tamburo and Versity filed a Seventh Amended Complaint on June 28, 2010. The counts remaining in the case are tortious interference with a contractual relationship (II), tortious interference with prospective economic advantage (IV), defamation per se (VIII), and defamation per quod (IX). Henry filed a motion for summary judgment on January 31, 2013. After repeated extensions and the withdrawal of the plaintiffs' counsel, a pro se response was filed by Tamburo on August 26, 2013, and Henry replied on September 10, 2013. ¹ For the reasons explained below, Henry's motion for summary judgment is granted in its entirety.

I. Legal Standard for Summary Judgment

Summary judgment is appropriate when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir.2009). The court ruling on the motion construes all facts and makes all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.2012).

A brief discussion of the rules governing summary judgment motions is warranted here. In addition to complying with the Federal Rules of Civil Procedure, the parties must also adhere to the Local Rules for the Northern District of Illinois and this court's Standing Order. Local Rule 56.1 provides that the moving party shall serve and file:

1) any affidavits and other materials referred to in Fed.R.Civ.P. 56(e);

(2) a supporting memorandum of law; and

3) a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law ....

The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.

L.R. 56.1(a). All argument must be contained in the party's brief, not in the Rule 56.1 statement. Standing Order at 1–2.

The party opposing summary judgment is required to respond with its own supporting evidence, memorandum, and “concise response to the movant's statement....” L.R. 56.1(b). The opposing party's Rule 56.1(b) statement should also contain “any additional facts that require the denial of summary judgment.” Id. The opponent must include references to its supporting materials. Id. Failure to respond to a statement results in the court admitting the uncontroverted statement as true. See Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir.2006). Henry has not responded to Tamburo's Statement of Additional Facts, and those facts are deemed admitted to the extent that they are supported by record evidence.²

II. Facts

Tamburo is an Illinois citizen. Versity was incorporated in March 1999 and voluntarily dissolved on May 10, 2004. Versity's principal place of business was Frankfort, Illinois. Versity did business under the name “Man's Best Friend Software” (“MBFS”). After Versity's dissolution, Tamburo conducted business as MBFS. Defendant Henry is a Colorado citizen. The other defendants in this action are or were Steven Dworkin, a Canadian citizen who is deceased; Roxy Hays, a Michigan resident who filed for bankruptcy on November 24, 2010 (ECF No. 371); Karen Mills, an Ohio resident; and Wild Systems Pty, Ltd., an Australian company that was previously dismissed for lack of personal jurisdiction. The court previously held that Tamburo could not proceed against Dworkin on Counts VIII and IX, because the defamation claims did not survive Dworkin's death. (Order Jan. 11, 2012, ECF No. 483, 2012 WL 104545.) A default was entered against Mills on May 11, 2011. (ECF No. 421.)

A. Bonchien.com and the Data Mining Robot

Henry operated breeding kennels and sold dogs, but also has substantial knowledge of web development and computer programming. During the relevant period, she operated a website, Bonchien.com, containing a database of pedigree data for a small, mischievous Belgian dog breed called the Schipperke. See http:// www. akc. org/ breeds/ schipperke/ breed_ standard. cfm. According to Henry's affidavit, the website was developed for non-commercial use by the dog breeding community. The site provided free access to the information. A user could conduct a query search for an individual dog's pedigree. The data collected included dogs' names, dates of birth, gender, parents' names, offspring's names, showing titles, color, medical certifications, and registration numbers. Henry states that she marked the individual dog pedigrees with a unique code in order to identity the pedigrees she had compiled, although Tamburo states that her “code” merely involved inserting slashes into the pedigrees. Henry spent almost five years collecting the dog pedigree data contained in her database from different sources. As of around April 2004, she had collected data in her database on over 23,900 dogs.

From December 8, 1991, through May 2004, Versity created software products for use by animal breeders and pet groomers. On January 9, 2004, Versity launched The Breeder's StandardtNET (“TBS”), a web-based dog pedigree software program. The program operates as a database designed for research and genetic calculations. Tamburo developed a computer program that used a web browser to scan the internet for information about dog breeds and copy data from dog pedigree websites (“the Data Mining Robot”). The data was saved as a text file and incorporated into TBS. Tamburo copied only data, not the formatting of the sites.

On or around April 17, 2004, the Data Mining Robot created by Tamburo visited Bonchien.com and copied the information on the website. It also copied information in databases belonging to Dworkin, Hayes, and Mills. The information was incorporated into TBS. On April 29, 2004, Tamburo posted a statement on the MBFS website describing the Data Mining Robot's gathering of data. On May 4, 2004, Dworkin sent an email to Henry stating that her database might have been harvested by the Data Mining Robot. Henry thus learned of the plaintiffs' conduct.

B. Henry's Statements

Henry states in her affidavit that she felt frustrated and violated by the plaintiffs' use of her database. Henry told Tamburo that he had no right to collect data from her website in an automated manner and requested that he remove her data from TBS. The plaintiffs refused to comply with Henry's request.

On May 4, 2004, Henry posted a message to the Schipperke Yahoo!Group, an online message board for dog breeders. The subject line of the message was “My Schipperke Database has been stolen, and The Breeders Standard is the thief.” The message stated:

“Breeders Standard has stolen my Schipperke database and is offering it as a perk if you buy their software. Schipperkepeople, you don't need that perk, as you already have my site to use for free. Steve, I too noticed that the 23900 dogs that I keyed in all by myself to chronicle the history of the Schipperke breed have been stolen.... I feel frustrated and violated.

I am asking the Schipperke fancy [sic] to complain loudly to MBFS. Why should I do all this work so MBFS can steal it and sell their software with this stolen perk?

I will add a statement to my website about MBFS deceitful practice.... Perhaps if we contact news service who would be interested in a story on intellectual capital rights and the internet. I offer my data free for use to the Schipperke fancy [sic], not for a price, or to be held hostage by MBFS.

(Pl.'s Statement of Facts (“SOF”) Ex. U, ECF No. 536–8.)

On May 5, 2004, Henry sent Tamburo an email, copying members of the Schipperke Yahoo!Group, stating that Tamburo was trying to sell his customers “stolen goods.” (Pl.'s SOF Ex. R, ECF No. 536–5.) Later that day, she sent another email to Tamburo, copying the Schipperke Yahoo!Group, the American Kennel Club, and other breeders, stating:

You keep saying that you aren't charging for the data on your site that you took from mine. Your perspective is such a Joke because without the data on your site you would not have any value.... Will you also be using a Robot to mine data from the AKC.org site? I am sure they wouldn't appreciate that either.... I feel violated and your perspective escapes me you alleged unethical dolt.

(Pl.'s SOF Ex. H, I, ECF No. 532–8.) The email displays an earlier message from Henry stating:

You are not entitled to the endless hours I spent...