Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 1 of 9
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`SOUTHERN DIVISION
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`****************************************************************************
`
`
`
`AMERICAN HOME REALTY NETWORK,
`INC., et al.,
`Defendants.
`
`and
`
`AMERICAN HOME REALTY NETWORK,
`INC.,
` Counterclaim Plaintiff,
`
`
`
` v.
`
`
`METROPOLITAN REGIONAL
`INFORMATION SYSTEMS, INC., et al.,
` Counterclaim Defendants.
`
`MEMORANDUM OPINION
`
`Pending before the Court is Defendant and Counterclaim-Plaintiff American Home
`
`Realty Network, Inc. (“AHRN”)’s Motion for Reconsideration of the Court’s November 1, 2013
`
`Order on the Counterclaim-Defendants’ Motions to Dismiss. Doc. No. 251. The Court has
`
`reviewed the motion papers and exhibits and concludes that no hearing is necessary. See Loc. R.
`
`105.6 (D. Md. 2011). For the reasons that follow, AHRN’s Motion for Reconsideration will be
`
`DENIED.1
`
`                                                            
`1 Also pending are the parties’ respective motions to seal the briefs and exhibits on AHRN’s Motion for
`Reconsideration. Doc. Nos. 252, 274. These unopposed Motions to Seal will be granted pursuant to Local Rules
`104.13 and 105.11.  
`
`
`
`Civil Action No. 12-cv-00954-AW
`
`METROPOLITAN REGIONAL
`INFORMATION SYSTEMS, INC.,
` Plaintiff,
`
`
`
` v.
`
`

`
`Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 2 of 9
`
`I.
`
`PROCEDURAL BACKGROUND
`
`On November 1, 2013, the Court granted-in-part Metropolitan Regional Information
`
`Systems, Inc. (“MRIS”)’s Motion to Dismiss AHRN’s Second Amended Counterclaims. See
`
`Doc. Nos. 239, 241. Count III, which alleged violations of the California unfair competition law,
`
`was dismissed with prejudice. Doc. No. 241. The Court deferred ruling on Count II (Maryland
`
`unfair competition) and Count IV (Sherman Act § 1) based on AHRN’s allegation that MRIS
`
`committed fraud on the Copyright Office by failing to disclose in its copyright registrations that
`
`CoreLogic, not MRIS, is actually responsible for the selection and coordination of content in the
`
`MRIS Database. Doc. No. 239 at 9. The Court held:
`
`Accepting AHRN’s allegations as true, MRIS’s representation that it was
`responsible for the selection and coordination of content in its database would be
`materially inaccurate, as the Copyright Office would not have granted copyright
`protection to MRIS had it known that another entity was responsible for arranging
`the database. AHRN would therefore have a plausible claim that MRIS’s
`copyright litigation and enforcement efforts were a sham, and as a result, MRIS
`would not be entitled to Noerr-Pennington immunity.
`
`
`Id. at 10. The Court further held that to dismiss AHRN’s claim of fraud on the Copyright Office
`
`(and therefore grant MRIS’s Motion on Counts II and IV), it would be required to rely on
`
`evidence outside the pleadings, in particular, the declaration of MRIS CEO David Charron who
`
`averred that MRIS uses its own proprietary software, not CoreLogic, for the MRIS Database. Id.
`
`at 11. Therefore, the Court determined that it would treat MRIS’s Motion as one for summary
`
`judgment, and granted AHRN an opportunity for limited discovery and to present a genuine
`
`issue of material fact on the CoreLogic issue. Id. at 12. Pursuant to the Court’s November 5,
`
`2013 scheduling Order, the limited discovery deadline is January 13, 2014, with all supplemental
`
`briefing on MRIS’s Motion due by January 27, 2014. Doc. No. 249.
`
` 
`
`2
`
`

`
`Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 3 of 9
`
`
`
`As part of its November 1 Order, the Court also granted-in-part and denied-in-part the
`
`National Association of Realtors (“NAR”)’s Motion to Dismiss the Second Amended
`
`Counterclaims. Doc. No. 241. Although Count III (California unfair competition) was
`
`dismissed with prejudice, the Court held that AHRN’s particularized allegations against NAR
`
`were sufficient to withstand a Motion to Dismiss on Counts II and IV. Doc. No. 239 at 13-17.
`
`II.
`
`STANDARD OF REVIEW
`
`Rule 54(b) of the Federal Rules of Civil Procedure provides that any order or decision
`
`“that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties
`
`. . . may be revised at any time before the entry of a judgment adjudicating all the claims and all
`
`the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Courts in this district generally have
`
`identified the following grounds for reconsideration of an interlocutory order: “(1) there has been
`
`an intervening change in controlling law; (2) there is additional evidence that was not previously
`
`available; or (3) the prior decision was based on clear error or would work manifest injustice.”
`
`Coulibaly v. JP Morgan Chase Bank, N.A., No. DKC 10-3517, 2013 WL 3507096, at *1 (D. Md.
`
`July 10, 2013) (quoting Akeva L.L.C. v. Adidas Am., Inc., 385 F. Supp. 2d 559, 565-66
`
`(M.D.N.C. 2005)).
`
`III. ANALYSIS
`
`
`
`AHRN’s Motion for Reconsideration purportedly relies on new evidence that was not
`
`previously available and also argues that the Court committed clear error in its November 1,
`
`2013 Opinion and Order. The litany of alleged errors identified by AHRN can be roughly
`
`categorized as follows: (1) the Court erred by parsing the Second Amended Counterclaims and
`
`ignoring allegations and evidence of MRIS’s participation in the NAR-led group boycott; (2) the
`
`Court erred in rejecting AHRN’s allegations regarding MRIS’s “work for hire” representations to
`
` 
`
`3
`
`

`
`Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 4 of 9
`
`the Copyright Office; and (3) the Court erred in converting MRIS’s Motion to Dismiss into a
`
`motion for summary judgment. The Court will address each of these alleged errors in turn.
`
`A.
`
`Parsing of Counterclaims and MRIS’s Participation in Group Boycott
`
`
`
`AHRN argues in its Motion for Reconsideration that notwithstanding the CoreLogic
`
`allegations, its Second Amended Counterclaims should have survived MRIS’s Motion to
`
`Dismiss based upon MRIS’s alleged involvement in the NAR-led group boycott. AHRN
`
`complains that the Court parsed the Second Amended Counterclaims in violation of the Supreme
`
`Court’s admonition that “[t]he character and effect of a conspiracy are not to be judged by
`
`dismembering it and viewing its separate parts, but only by looking at it as a whole.” Phillips v.
`
`Crown Cent. Petro. Corp., 602 F.2d 616, 625 (4th Cir. 1979) (quoting Cont’l Ore Co. v. Union
`
`Carbide, 370 U.S. 690, 699 (1962)).
`
`The Court discerns no such error in its analysis of the boycott allegations against MRIS.
`
`In its November 1 Opinion, the Court concluded:
`
`As with the First Amended Counterclaims, AHRN’s allegations against MRIS are
`focused upon MRIS’s writing of the Guidance Paper and promotion of its
`copyright registration program. Although AHRN refers to MRIS as NAR’s co-
`conspirator in its briefs, it has failed to set forth a plausible claim of an illicit
`agreement between MRIS and NAR. Allegations that MRIS attended industry
`meetings with NAR, that NAR expressed agreement with MRIS’s Guidance
`Paper and its legal opinions, and that NAR sought to fund MRIS’s lawsuit do not
`warrant deeming MRIS a co-conspirator. Conclusory allegations of MRIS’s role
`in a conspiracy fare no better.
`
`
`Doc. No. 239 at 9 n.2. The Court’s determination followed an extensive analysis of AHRN’s
`
`refusal to deal and group boycott allegations against MRIS in the First Amended Counterclaims,
`
`see Doc. No. 159 at 28-36, allegations which remained in the Second Amended Counterclaims.
`
`Contrary to AHRN’s suggestions, the Court did not isolate the new factual allegations made in
`
` 
`
`4
`
`

`
`Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 5 of 9
`
`the Second Amended Counterclaims.2 Rather, the Court reviewed the allegations from the
`
`Second Amended Counterclaims as a whole and determined that there was no plausible basis for
`
`Sherman Act § 1 or Maryland unfair competition claims against MRIS based on the refusal to
`
`deal and group boycott allegations. AHRN has had ample opportunity to present its arguments
`
`and the Court has given them extensive consideration. AHRN’s current attempt to recast the
`
`factual allegations is improper in a motion for reconsideration. See Royal Ins. Co. of Am. v.
`
`Miles & Stockbridge, P.C., 142 F. Supp. 2d 676, 677 n.1 (D. Md. 2001) (“[A] motion to
`
`reconsider is not a license to reargue the merits.”).3
`
`
`
`AHRN also points to “recent discovery” which purportedly “sheds light” on MRIS’s
`
`participation in the NAR-led group boycott. AHRN attaches portions of an e-mail chain
`
`covering the approximate period from November 2011 through March 2012 in which executives
`
`                                                            
`2 Although the Court did not expressly say so, the original factual allegations from the First Amended
`Counterclaims, as described in the Court’s June 10, 2013 Memorandum Opinion, were incorporated by reference in
`the November 1 Memorandum Opinion:
`
`
`As before, the crux of AHRN’s claims is that MRIS, NAR, and unnamed Does engaged in a series
`of concerted, anti-competitive conduct, including the industry-wide adoption of a sham copyright
`registration and enforcement program and refusals to deal with AHRN. Many of the factual
`allegations from the Second Amended Counterclaims restate the allegations from the First
`Amended Counterclaims. These allegations were thoroughly documented in the Court’s June 10,
`2013 Opinion and will not be repeated here.
`
`
`Doc. No. 239 at 3.  
`
` 3
`
` AHRN also maintains that the Court erred in distinguishing AHRN’s counterclaims against RMLS in the related
`Minnesota action from its counterclaims against MRIS in this case. AHRN takes issue with the following finding in
`particular:
`
`
`The Minnesota court also relied on AHRN’s allegation that third-party syndicators informed it that
`they would not extend a license to AHRN, which raised the specter of concerted action by MLSs
`to prevent dealing with companies that did not comply with their business model. Id. Such
`allegations are absent in AHRN’s Second Amended Counterclaims.
`
`
`Doc. No. 239 at 11 n.4. However, the Court distinguished the Minnesota action on multiple grounds, not just on the
`allegations regarding third party syndicators. There is no indication that this particular finding was dispositive to the
`Court’s ruling. Furthermore, AHRN cites multiple paragraphs from the Second Amended Counterclaims that are
`purportedly “counterparts” containing “nearly identical allegations” to those made against RMLS in the Minnesota
`action. Doc. No. 251 at 26-27. However, the allegations cited by AHRN either do not mention third party
`syndicators or make no mention of MRIS’s conduct in particular.
`
` 
`
`5
`
`

`
`Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 6 of 9
`
`from NAR and various multiple listing services (“MLSs”) discuss possible copyright litigation
`
`against AHRN. See Doc. No. 255-2. Even accepting the authenticity of the e-mails, it is unclear
`
`how they support AHRN’s Sherman Act § 1 or Maryland unfair competition claims against
`
`MRIS. AHRN concedes that MRIS CEO David Charron is merely copied on the beginning of
`
`the e-mail chain, and AHRN does not allege that Charron wrote any of the e-mails. See Doc. No.
`
`251 at 12-15. There is no inference to be drawn from the e-mails that MRIS supported NAR-led
`
`refusals to deal with AHRN or engaged in any conduct or action in furtherance of a boycott of
`
`AHRN.4 Accordingly, the e-mails do not support AHRN’s Motion for Reconsideration. To the
`
`extent AHRN requests leave to amend its counterclaims to add allegations regarding the e-mails,
`
`such amendment would be futile.
`
`B.
`
`“Work for Hire” Allegations
`
`
`
`In support of its claim that MRIS committed fraud on the Copyright Office, AHRN
`
`alleged in its Second Amended Counterclaims that MRIS’s “work for hire” designations in its
`
`copyright registrations were false. See generally Doc. No. 167 ¶¶ 76-77, 80-84. In its November
`
`1 Opinion, the Court rejected AHRN’s argument that MRIS’s “work for hire” designations
`
`supported its Sherman Act or unfair competition claims. Doc. No. 239 at 8-9. The Court relied
`
`in large part on its rejection of similar “work for hire” arguments AHRN set forth in its Motion
`
`to Vacate the preliminary injunction, which the Court denied on July 31, 2013. Id. (citing Doc.
`
`No. 186). AHRN contends, inter alia, that the Court ignored or parsed the “work for hire”
`
`                                                            
`4 The incomplete e-mail chain cited by AHRN includes one e-mail in which the thoughts of David Charron are
`depicted, and that depiction comes from a third party. Doc. No. 255-2 at 3. Furthermore, Charron is depicted as
`questioning, not endorsing, the approach of other MLS executives on the e-mail chain. However, even if the Court
`accepted that the e-mails raise an inference that MRIS supported copyright enforcement efforts against AHRN, such
`a conclusion is unremarkable given the obvious fact of MRIS’s lawsuit against AHRN. As the Court previously
`held, MRIS is entitled to Noerr-Pennington immunity to the extent AHRN’s claims are premised upon MRIS’s
`lawsuit and the incidents of that litigation, and AHRN has been granted opportunities for limited discovery on the
`CoreLogic issue and to present evidence that MRIS’s litigation activities are a sham.
`
` 
`
`6
`
`

`
`Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 7 of 9
`
`allegations from AHRN’s other allegations of conspiracy, and that it failed to take AHRN’s
`
`“work for hire” allegations as true.
`
`
`
`There is no support for AHRN’s parsing argument. As discussed above, the Court
`
`considered the allegations of the Second Amended Counterclaims as a whole and did not view
`
`the new allegations (including the “work for hire” allegations) in isolation. The Court further
`
`notes that AHRN’s “work for hire” allegations largely concern MRIS’s writing and promotion of
`
`the Guidance Paper in 2005 and 2006. There is simply no inference to be drawn from MRIS’s
`
`Guidance Paper or its promotion thereof that MRIS participated in the alleged NAR-led group
`
`boycott of AHRN, particularly where the alleged boycott and refusals to deal occurred in 2011
`
`and 2012 and where AHRN did not even come into existence until after the Guidance Paper was
`
`published. See Doc. No. 159 at 31.
`
`
`
`AHRN next complains that the Court relied on its July 31, 2013 Opinion and Order
`
`denying its Motion to Vacate the preliminary injunction, a motion which did not involve
`
`AHRN’s antitrust and unfair competition counterclaims. Regardless of the underlying relief
`
`sought by AHRN in its Motion to Vacate or the context in which that Motion was brought, the
`
`legal analysis in the Court’s July 31 Opinion was directly relevant to whether AHRN’s “work for
`
`hire” allegations supported its argument that MRIS committed fraud on the Copyright Office.
`
`The Court discerns no error in relying upon that analysis.
`
`
`
`AHRN also maintains that the Court failed to consider its “work for hire” allegations as
`
`true. However, the Court is only required to accept well-pleaded factual allegations as true and
`
`to construe them in a light most favorable to the claimant. See, e.g., Albright v. Oliver, 510 U.S.
`
`266, 268 (1994); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
`
`1999). The Court is not required to accept legal conclusions that are wholly devoid of facts or
`
` 
`
`7
`
`

`
`Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 8 of 9
`
`not supported by the specific facts pleaded. See, e.g., Revene v. Charles Cnty. Comm’rs, 882 F.
`
`2d 870, 873 (4th Cir. 1989); see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (“[W]e are not
`
`bound to accept as true a legal conclusion couched as a factual allegation.”). The Court was not
`
`required to accept what boiled down to a legal allegation by AHRN—that MRIS’s “work for
`
`hire” representations in its copyright registrations were “false” such that it committed fraud on
`
`the Copyright Office.
`
`
`
`The remaining arguments in AHRN’s Motion for Reconsideration are merely attempts to
`
`relitigate the merits of the issues decided by the Court in its November 1 Opinion (as well as its
`
`July 31 Opinion). Such arguments are improper in a motion to reconsider, and regardless, the
`
`Court has already rejected virtually identical arguments in prior opinions.
`
`
`
`
`
`C.
`
`Conversion of Motion to Dismiss to Motion for Summary Judgment
`
`AHRN argues that the Court committed clear error by converting MRIS’s Motion to
`
`Dismiss to one for summary judgment. AHRN contends that the CoreLogic issue is “unworthy
`
`of summary judgment.” Doc. No. 251 at 22. According to AHRN, “the ‘CoreLogic issue’ is
`
`unidentified as a claim or defense in accordance with Rule 56(a).” Id. at 23. This argument is
`
`without merit, as the limited discovery ordered by the Court will permit adequate consideration
`
`of AHRN’s contention that MRIS committed fraud on the Copyright Office, which is directly
`
`relevant to the disposition of Counts II and IV of the Second Amended Counterclaims. The
`
`Court discerns no inconsistency between its Order and the dictates of Rule 56 and Rule 12(d) of
`
`the Federal Rules of Civil Procedure. AHRN also complains that the Court’s November 1 Order
`
`improperly places the burden on AHRN to present a genuine issue of material fact on the
`
` 
`
`8
`
`

`
`Case 8:12-cv-00954-DKC Document 295 Filed 12/30/13 Page 9 of 9
`
`CoreLogic issue. However, supplemental briefing on the CoreLogic issue has not been
`
`completed, and no such burden has been imposed.5
`
`
`
`AHRN also argues that there are disputed issues of material fact with respect to MRIS’s
`
`use of CoreLogic and other software systems, and cites a variety of evidence in support of its
`
`assertion. Doc. No. 251 at 23-27. Such arguments are premature, as the parties will be permitted
`
`to file supplemental briefing and evidence following limited discovery.
`
`IV. CONCLUSION
`
`
`
`For the foregoing reasons, AHRN’s Motion for Reconsideration will be DENIED. A
`
`
` /s/
`
`Alexander Williams, Jr.
`United States District Judge
`
`
`
`
`
`separate Order follows.
`
`
`
` December 30, 2013___
` Date
`
`
`
`                                                            
`5 The Court further notes that MRIS has presented evidence outside the pleadings (the Charron declaration) in
`support of its Motion. Once the moving party carries its burden under Rule 56(c), the nonmoving party must come
`forward with evidence to show that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith
`Radio Corp., 475 U.S. 574, 587 (1986).
`
` 
`
`9