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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Civil Action No.: AW-07-1182
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`* * * *
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`******
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`COSTAR REALTY
`INFORMATION, INC., et al.,
`Plaintiffs
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`vs.
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`CENTERS & MALLS, LLC, et al.,
`Defendants.
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`MEMORANDUM OPINION
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`Plaintiffs CoStar Realty Information, Inc. (“CoStar”) and National Research Bureau, Inc.
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`(“NRB”) (collectively, “Plaintiffs”) bring this action against Defendants Centers & Malls, LLC,
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`Robert Gavin and Guy Hays (collectively, “Defendants”) alleging, among other things, copyright
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`infringement, breach of contract, and tortious interference with contractual relations. On June 8,
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`2007, the Court granted Plaintiffs’ Motion for Temporary Restraining Order, and extended the
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`restraining order by telephonic conference on June 18, 2007. Currently pending before the Court
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`is Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction and for Failure to State a
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`Claim upon which relief can be granted (Paper No. 13). In their response to the Motion,
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`Plaintiffs have requested leave to amend their Complaint. The Court has reviewed the entire
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`record, including the Pleadings with respect to the instant motion. A hearing on the Motion was
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`held on July 2, 2007. See Local Rule 105.6 (D. Md. 2004). For the reasons stated below, the
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`Court will grant-in-part, deny-in-part Defendants’ motion to dismiss. The Court will also grant
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`Plaintiffs leave to amend their Complaint consistent with this Memorandum Opinion.
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`FACTUAL & PROCEDURAL BACKGROUND
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`The facts are taken in the light most favorable to Plaintiffs, and are gleaned, in large part,
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`from Plaintiffs’ Complaint. Defendant Centers & Malls markets and sells an online database
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`which contains information about malls and shopping centers located throughout the United
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`States and Canada. Centers & Malls is a Delaware limited liability company with its principal
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`place of business in Illinois. Centers & Malls was founded by Garrett Van Siclen. Plaintiff
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`CoStar is a leading national commercial real estate information services provider. CoStar
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`acquired the assets of NRB in 2005, including a database which collects comprehensive
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`commercial real estate information. Plaintiffs license their information services to businesses,
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`real estate brokers, investors, and other professionals. Plaintiffs have obtained copyright
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`protection for their database. In order to detect unauthorized use of their product, Plaintiffs
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`inserted into the database certain “seed listings,” which contain fictitious information that could
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`not be duplicated by third parties.
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`Defendants Galvin and Hays were employees of NRB and became employees of CoStar
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`in January 2005 upon CoStar’s acquisition of NRB. As employees of CoStar, Galvin and Hays
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`had access to and knowledge of the NRB database, and executed employment agreements which,
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`among other things, contained a confidentiality provision and a covenant not to compete
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`provision. Plaintiffs allege that during their employment at CoStar, Galvin and Hays became
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`acquainted with Van Siclen. Galvin’s employment with CoStar terminated on June 21, 2006,
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`and Hays’ employment with CoStar ended on July 5, 2006.
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`In October 2006, a CoStar employee came across a Centers & Malls promotional booth
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`at a convention of the International Conference of Shopping Centers. Suspicious of such a new
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`company purporting to have a database of over 20,000 listings of shopping centers and malls,
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`Plaintiffs began to investigate the company. An investigator hired by Plaintiffs subscribed to the
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`Centers & Malls database. A review of the Centers & Malls database revealed that Centers &
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`Malls was listing several properties that contained the seed listings inserted by CoStar into their
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`own proprietary database.
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`On May 8, 2007, suspecting that the owners of Centers & Malls had misappropriated
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`their database, Plaintiffs filed the instant action and a motion for a temporary restraining order.
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`At a telephonic conference on the motion, Defendants raised several defenses. The Court
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`granted Plaintiffs leave to conduct limited discovery on the jurisdictional defenses raised by
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`Defendants and reserved ruling on the motion (Paper No. 4). During the pendency of limited
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`discovery, Defendants filed the instant Motion to Dismiss.
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`STANDARD OF REVIEW
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`Rule 12(b)(2)
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`“When a court’s personal jurisdiction is properly challenged by motion under Federal
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`Rule of Civil Procedure12(b)(2), the jurisdictional question thereby raised is one for the judge,
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`with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance
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`of the evidence.” Mylan Labs., Inc. v. Akzo, 2 F.3d 56, 59-60 (4th Cir.1993)(citing Combs v.
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`Bakker, 886 F.2d 673, 676 (4th Cir.1989)); Dowless v. Warren-Rupp Houdailles, Inc., 800 F.2d
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`1305, 1307 (4th Cir.1986). When, however, as here, the district court decides a pretrial personal
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`jurisdiction dismissal motion without conducting an evidentiary hearing, the plaintiff need only
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`make a prima facie showing of personal jurisdiction. Mylan, 2 F.3d at 60 (citing Combs, 886
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`F.2d at 676). The Court must resolve all factual disputes and make all reasonable inferences in
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`3
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`favor of the plaintiff. Id. (citing Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctr., Inc.,
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`334 F.3d 390, 396 (4th Cir. 2003).
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`Rule 12(b)(6)
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`A court must deny a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
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`Procedure “unless it appears beyond doubt that the plaintiff can prove no set of facts in support
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`of its claim which would entitle it to relief.” See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
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`In determining whether to dismiss a complaint pursuant to Rule 12(b)(6), this Court must view
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`the well-pleaded material allegations in the light most favorable to the plaintiff and accept the
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`factual allegations contained within the plaintiff’s complaint as true. See Flood v. New Hanover
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`County, 125 F.3d 249, 251 (4th Cir. 1997) (citing Estate Constr. Co. v. Miller & Smith Holding
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`Co., Inc., 14 F.3d 213, 217-18 (4th Cir. 1994)); Chisolm v. TranSouth Finan. Corp., 95 F.3d 331,
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`334 (4th Cir. 1996).
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`The Court, however, is “not bound to accept as true a legal conclusion couched as a
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`factual allegation.” See Papasan v. Allain, 478 U.S. 265, 286 (1986) (citing Briscoe v. LaHue,
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`663 F.2d 713, 723 (7th Cir. 1981)); Young v. City of Mount Ranier, 238 F.3d 576, 577 (4th Cir.
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`2001) (the mere “presence . . . of a few conclusory legal terms does not insulate a complaint
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`from dismissal under Rule 12(b)(6)”). Nor is the Court “bound to accept [Plaintiff’s] conclusory
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`allegations regarding the legal effect of the facts alleged.” United Mine Workers of Am. v.
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`Wellmore Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1994); Neitzke v. Williams, 490 U.S.
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`319, 326-27 (1989).
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`Therefore, a complaint may be dismissed as a matter of law only if it lacks a cognizable
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`legal theory or if it alleges insufficient facts to support a cognizable legal theory. See Robertson
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`4
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`v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984) (citing 2A J. Moore,
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`Moore’s Federal Practice ¶ 12.08 at 2271 (2d ed. 1982)).
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`DISCUSSION
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`A. Personal Jurisdiction
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`After granting Plaintiffs leave to conduct limited discovery on the jurisdictional issues,
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`the Court heard from the parties on Plaintiffs’ Motion for Temporary Restraining Order. At that
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`time, the Court ruled that it did have jurisdiction over the individual defendants by virtue of their
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`consent to jurisdiction under the employment agreements. The Court also ruled that it had at
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`least specific jurisdiction over the corporate defendant due to its contacts with the Maryland
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`forum. That decision was made in the context of deciding a request for emergency injunctive
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`relief. While not binding on the instant motion to dismiss, as Plaintiffs suggest, the Court’s
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`analysis with respect to jurisdiction as to the temporary restraining order is certainly relevant to
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`the present motion. Because the Court has directed its consideration of Defendants’ motion
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`beyond merely the motion papers and allegations of Plaintiffs’ complaint, Plaintiff bears the
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`burden of establishing personal jurisdiction by a preponderance of the evidence. Mylan Labs.,
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`Inc. v. Akzo, 2 F.3d 56, 59-60 (4th Cir.1993).
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`A federal district court may only exercise jurisdiction over a non-resident defendant in
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`the manner and extent authorized by state law in the forum state. See Fed. R. Civ. P. 4(k); ePlus
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`Tech. v. Aboud, 313 F.3d 166, 175 (4th Cir. 2002). Thus, a federal court only has personal
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`jurisdiction over a party if a state court in the federal court’s forum state would have personal
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`jurisdiction. Copiers Typewriters Calculators, Inc v. Toshiba, 576 F. Supp. 312, 318 (D. Md.
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`1983). To evaluate whether personal jurisdiction exists, a federal court will engage in a two-part
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`analysis. First, the court will determine whether the state long-arm statute authorizes the
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`exercise of jurisdiction in the particular circumstances presented. Second, if the court finds that
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`the long-arm statute permits the court to exercise jurisdiction, the court must then consider
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`whether such an exercise of jurisdiction comports with the due process standards of the
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`Fourteenth Amendment. Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d
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`390, 396 (4th Cir. 2003); Christian Sci. Bd. of Dir. of the First Church of Christ v. Nolan, 259
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`F.3d 209, 215 (4th Cir. 2001); Ellicott Mach. Corp. v. John Holland Party Ltd., 995 F.2d 474,
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`477 (4th Cir. 1993).
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`1. Maryland Law on In Personam Jurisdiction
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`Because Plaintiffs filed this action in federal court in Maryland, this Court must first
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`examine whether it may exercise personal jurisdiction over the Defendant under Maryland law.
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`Maryland’s long-arm statute provides, in pertinent part:
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`(2)
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`(b) A court may exercise personal jurisdiction over a person, who
`directly or by an agent:
`(1)
`Transacts any business or performs any character of
`work or service in the State;
`Contracts to supply goods, food, services, or
`manufactured products in the State; ...
`Causes tortious injury in the State or outside of the
`State by an act or omission outside the State if he
`regularly does or solicits business, engages in any
`other persistent course of conduct in the State or
`derives substantial revenue from goods, food,
`services, or manufactured products used or
`consumed in the State ...
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`(4)
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`Md. Code Ann., Cts. & Jud. Proc. § 6-103(b) (2006). Courts have interpreted Maryland’s long-
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`arm statute as coterminous with the limits of the Due Process Clause of the Fourteenth
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`Amendment. ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 710 (4th Cir.
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`Case 8:07-cv-01182-AW Document 33 Filed 07/05/07 Page 7 of 14
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`2002). Therefore, “the statutory inquiry necessarily merges with the constitutional inquiry and
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`the two inquiries become one.” Id. Although the Maryland long-arm statute extends to the
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`limits of the Due Process Clause, courts cannot dispense with an analysis of the long-arm statute.
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`Mackay v. Compass Marketing, Inc., 391 Md. 117, 141 (Md. 2006).
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`The exercise of personal jurisdiction over a non-resident defendant comports with the
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`Due Process Clause only where the defendant has certain “minimum contacts” with the forum
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`state “such that the maintenance of the suit does not offend traditional notions of fair play and
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`substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations
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`and citations omitted); Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 941-42 (4th Cir.
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`1994). As explained in ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617 (4th Cir. 1997), the
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`jurisprudence of minimum contacts developed to determine whether a defendant had a surrogate
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`presence in the state. Id. at 623. Thus, a court must focus its inquiry on whether “a defendant’s
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`contacts with the forum state are so substantial that they amount to a surrogate for presence and .
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`. . render the exercise of sovereignty just, notwithstanding the lack of physical presence in the
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`state.” Id. Where a defendant purposefully availed himself of the privilege of conducting
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`business in a particular forum, the defendant has sought both the benefits and protections of that
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`state’s laws. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). In such situations,
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`“it is presumptively not unreasonable to require him to submit to the burdens of litigation in that
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`forum as well.” Id.; see also Foster v. Arletty 3 Sarl, 278 F.3d 409, 415 (4th Cir. 2002).
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`In considering the question of personal jurisdiction, the Supreme Court has drawn a
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`distinction between “specific” and “general” jurisdiction. See Helicopteros Nacionales de
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`Columbia v. Hall, 466 U.S. 408, 414 (1984). Specific jurisdiction exists where a suit “arises out
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`Case 8:07-cv-01182-AW Document 33 Filed 07/05/07 Page 8 of 14
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`of” a defendant’s contacts with the forum state. Id. General jurisdiction, which permits a court
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`to subject a non-resident defendant to a suit in the forum wholly unrelated to any contact it has
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`with the forum, exists only where a foreign defendant’s in-state activities amount to “continuous
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`and systematic” contact with the state. Id. at 414-15. The level of contact required for the
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`exercise of general jurisdiction is significantly higher than that required for specific jurisdiction.
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`ESAB Group, Inc., 126 F.3d at 628.
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`2. Jurisdiction Over Corporate Defendant
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`Limited discovery in this case has revealed several contacts between Centers & Malls
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`and the state of Maryland. Centers & Malls has subscribed its database to least five Maryland
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`customers. It has issued marketing materials to thousands of prospective customers in Maryland.
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`It has listings for over 500 Maryland properties in its database. It has sent contractors into
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`Maryland to take photographs of Maryland properties, which are then posted in the Centers &
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`Malls database. Plaintiffs’ action for copyright infringement arises out of the fact that Centers &
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`Malls sent agents into the state of Maryland to survey and photograph Maryland properties,
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`posted those photographs into Plaintiffs’ copyrighted database, and then sold and offered to sell
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`the copyrighted database to customers in Maryland. These contacts with the Maryland forum are
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`certainly sufficient for this Court to exercise at least specific jurisdiction over the corporate
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`defendant.
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`3. Jurisdiction Over Individual Defendants
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`Defendants argue that the Court does not have personal jurisdiction over Defendants
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`Galvin and Hays because the employment agreements in which the individual defendants
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`consented to the jurisdiction of the Maryland courts are not supported by consideration and are
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`Case 8:07-cv-01182-AW Document 33 Filed 07/05/07 Page 9 of 14
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`therefore unenforceable. The Court disagrees with Defendants. The Employment Agreements
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`between Plaintiffs and the individual defendants are routine conditions of employment. The
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`quid pro quo for the employment of the individual defendants by Plaintiffs was the individual
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`defendants’ agreement not to disclose confidential information and not to compete with
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`Plaintiffs for a limited time after the termination of their employment. The Court believes that
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`this standard bargained-for-exchange between employer and employee is sufficient consideration
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`to sustain these employments contracts. As such, Defendants Galvin and Hays are subject to the
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`jurisdiction of this Court.
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`B. Defendants’ Rule 12(b)(6) Motion
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`In their Rule 12(b)(6) Motion, Defendants move the Court to dismiss Counts I, II, III, IV,
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`V, VI, VIII, IX, and X of Plaintiffs’ Complaint.1
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`1. Count I: Copyright Infringement
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`Plaintiffs allege that Defendants infringed their copyright by misappropriating their
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`copyrighted database and selling services using the misappropriated database. Defendants argue
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`that the database is not copyrightable, and therefore Plaintiffs have not stated a claim for
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`copyright infringement. The parties agree that in order to prove copyright infringement,
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`Plaintiffs must show that they owned a valid copyright to the work that was allegedly copied,
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`and that Defendants copied protected elements of the work. Bouchat v. Baltimore Ravens, Inc.,
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`241 F. 3d 350, 353 (4th Cir. 2001). A plaintiff’s registration of a copyright, when “granted by
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`the Copyright Office, is prima facie proof of the validity of plaintiff’s copyright, including the
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`1 Defendants do not contest Plaintiffs’ claims for Violation of Maryland Uniform Trade
`Secrets Act (Count VII) and Violation of 18 U.S.C. § 1030 (Count XI).
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`Case 8:07-cv-01182-AW Document 33 Filed 07/05/07 Page 10 of 14
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`existence of the elements of originality and fixation.” M. Kramer Mfg. Co. v. Andrews, 783 F.2d
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`421, 434 (4th Cir. 1986).
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`Plaintiffs have alleged that they own a registered copyright on their “Shopping Center
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`Directory” database. Compl. ¶¶ 47-48. Plaintiffs further allege that Defendants copied the
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`database, including the “spacing, punctuation, and presentation appearance of data.” Compl. ¶
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`42. Because the registration of a copyright is prima facie proof that the work contains protected
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`elements, Plaintiffs have met the Rule 8 notice pleading standards. Therefore, Defendants’
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`motion to dismiss Count I will be denied.
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`2. Count II: Breach of Contract
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`Plaintiffs allege in Count II of the Complaint that Defendants Galvin and Hays breached
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`their employment contract (Section 2.1) by disclosing confidential information. Defendants
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`argue that this claim is pre-empted by the Copyright Act because the only confidential
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`information Plaintiffs allege was disclosed was the copyrighted database itself. Plaintiffs allege
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`at ¶ 58 of the Complaint that Defendants disclosed confidential information “regarding” the
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`database. At the motions hearing, Plaintiffs argued that the language of the Complaint should
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`not be read so narrowly as to limit Plaintiffs’ allegations to the disclosure of the database alone.
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`The Court agrees with Plaintiff and will construe the “regarding” language in Plaintiffs’
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`allegations to include confidential information including, but not limited to, the copyrighted
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`database.2 As such, Plaintiffs’ claim for breach of contract is not pre-empted by the Copyright
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`Act. Defendants’ motion to dismiss this count must be denied.
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`2 The Court will grant Plaintiffs leave to amend their Complaint. See supra. Should
`Plaintiffs seek to amend Count II of the Complaint, Plaintiffs may want to specify the items that
`give rise to the “regarding” language in the current Complaint.
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`Case 8:07-cv-01182-AW Document 33 Filed 07/05/07 Page 11 of 14
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`3. Count III: Breach of Contract
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`In Count III of the Complaint, Plaintiffs allege that Defendants Galvin and Hays
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`breached Section 2.5 of their employment agreements by working for a direct competitor within
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`the time period proscribed by the covenant not to compete. Defendants argue for the dismissal
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`of this count on the grounds that the convenant was not supported by consideration and is overly
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`broad. The Court disagrees with Defendant, and finds that the noncompete agreements are
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`supported by consideration and are reasonably limited as to duration, geographic scope, and
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`breadth of activity. As such, Defendants’ motion to dismiss Count III of the Complaint will be
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`denied.3
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`4. Count V: Tortious Interference with Prospective Business Relationship
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`Defendants argue that Count V of the Complaint for Tortious Interference with
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`Prospective Business Relationship is pre-empted by the Copyright Act. The Court finds that the
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`allegations in Count V are “equivalent” to Plaintiffs’ claim for copyright infringement. As such,
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`the extra intent element does not alter the scope of the right which gives rise to the cause of
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`action. See CoStar v.Loopnet, 164 F. Supp. 2d 688, 714-15 (D. Md. 2001); Wharton v.
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`Columbia Pictures Indus., 907 F. Supp. 144, 146 (D. Md. 1995). Therefore, Count V is pre-
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`empted by the Copyright Act and must be dismissed.
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`5. Count VI: Violation of Lanham Act § 43(a)
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`Plaintiffs’ Lanham Act claim alleges that Defendants “falsely and misleadingly
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`designated the true origins of [its] information.” Compl. ¶ 82 (emphasis added). In Dastar
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`3 Defendants base their arguments for dismissal of Plaintiffs’ claim for Tortious
`Interference with Contractual Relations (Count IV) on the same grounds that the noncompete
`agreements are void and unenforceable. As such, the motion with respect to Count IV will be
`denied as well.
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`Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), the Supreme Court held that the
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`Section 43(a) of the Lanham Act does not protect the author of an idea, concept or
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`communication embodied in a tangible good. Dastar, 539 U.S. at 37. Plaintiffs database is the
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`subject of a copyright registration. To extend the protections of Section 43(a) to the information
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`contained in the copyrighted database would, the Court believes, violate the spirit of Section
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`43(a). As such, Plaintiffs’ Lanham Act claim must be dismissed.
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`6. Count VIII: Constructive Trust
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`The parties agree that a constructive trust is a remedy and not a separate cause of action.
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`As such, Count VIII of the Complaint will be dismissed.
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`7. Count IX: Conversion
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`In order to avoid the preemption of Plaintiffs’ conversion claim, Plaintiffs must allege
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`that Defendants have retained a physical object embodying its work. Although Plaintiffs direct
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`the Court’s attention to ¶ 99 of the Complaint, nowhere in the Complaint does Plaintiff allege the
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`retention of a physical object. Because Plaintiffs have not alleged an element of conversion
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`beyond those which are required for the copyright violation, Count IX of the Complaint must be
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`dismissed.
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`8. Count X: Civil Conspiracy
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`Plaintiffs’ Complaint alleges that Defendants Galvin and Hays are employees of Centers
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`& Malls. In Count X, Plaintiffs allege that Centers & Malls conspired with Galvin and Hays to
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`commit many of the tortious acts alleged in the Complaint. The law makes clear that a
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`corporation or legal entity is incapable of conspiring with its employees or agents. Marmott v.
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`Maryland Lumber Co., 807 F.2d 1180 (4th Cir. 1986), cert. denied, 482 U.S. 929 (1987); Hodgin
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`Case 8:07-cv-01182-AW Document 33 Filed 07/05/07 Page 13 of 14
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`v. Jefferson, 447 F. Supp. 804, 807 (D. Md. 1978). Therefore, Plaintiffs have failed to state a
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`claim for civil conspiracy and Count X of the Complaint must be dismissed.
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`Plaintiffs have requested leave to amend their Complaint. To the extent that Plaintiffs’
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`dismissed claims are curable by facts that are learned through the course of discovery, Plaintiffs
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`are granted leave to file an Amended Complaint. However, the Court does not believe Counts
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`V, VI, and VIII are curable by amendment. As such, if Plaintiffs wish to file an Amended
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`Complaint, the amended pleading should not include these claims. Inasmuch as the Court has
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`conducted an extensive phone conference and two hearings in this matter, and because the
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`parties have already engaged in some discovery, the Court will permit the parties to commence
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`general discovery. As such, in addition to this Memorandum Opinion and Order, the Court will
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`be issuing a Scheduling Order in this case.
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`CONCLUSION
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`For all of the reasons stated above, the Court will GRANT Defendants’ Motion to
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`Dismiss with respects to Counts V, VI, VIII, IX, and X. The Motion is denied with respect to
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`Counts I, II, III, and IV. An Order consistent with this Opinion will follow.
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`Date: July 5, 2007
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` /s/
`Alexander Williams, Jr.
`United States District Judge
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