Motion for Summary Judgment – McNamara
From McNamara’s Motion for Summary Judgment:
From documents BCS produced in discovery, it is clear that this lawsuit is no more than retribution against Defendants for perceived wrongs against BCS’s principals who had been plotting to sue Defendants long before the alleged deindexing. BCS’s goals in prosecuting this litigation were to: (1) trigger an insurance payout which BCS could then use to pay the attorneys’ fees of Chelsea Papciak and others (Ex. 50, 118:6-121:22, 130:21-133:18, 213:5-215:9; Ex. 46, 58:17-60:20, 61:17-63:3); (2) see Defendants “destroyed financially and socially” (Cook Decl., ¶3; Ex. 4); (3) capture McNamara’s .Org Domain (McNamara Decl., ¶¶41, 43; Ex. 17); and (4) avoid repaying over $100,000 in loans McNamara made to BCS (Ex. 17).
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Here, McNamara purchased the .Org Domain over a year prior to the founding of BCS. (UMFs 13, 16.) She paid for the domain with her own money, placed the domain in her own Hover domain registrar account, and paid for the renewal each year. (UMFs 14-15.) McNamara never transferred or assigned the ownership of domain to BCS, and refused to execute an intellectual property assignment. (UMFs 15, 34.) Analogously, the Second Circuit recently held, in a case involving disputed ownership of social media accounts, that the relevant accounts “should be treated . . . like any other form of property. This includes determining the original owner.” (JLM Couture, Inc. v. Gutman, Case Nos. 21-2535, 22-1694, p.17 (2nd Cir. January 17, 2024) (opinion provided at Exhibit 116).) “When [appellant] created the [relevant accounts], any associated property rights belonged to someone. And if she created them using her personal information and for her personal use, then those rights belonged to her, no matter how the Disputed Accounts may have been used later.” (Id. (citing 2 William Blackstone, Commentaries *389).)
Further, “the fact that [appellant] transferred some or all of her rights in particular content posted on the [relevant accounts] does not by itself support an inference that she transferred ownership of the Disputed Accounts themselves. Nor should it ordinarily matter to the question of ownership whether an account owner permits others to assist in managing the account, or whether one or the other party holds itself out as owning it.” (Id., 18.)
Moreover, BCS’s pre-lawsuit demands never included a demand for the .Org Domain. (UMF 35.) Whether or not McNamara legally owns the domain (and Defendants believe that she does), McNamara at all times believed that she was the domain owner and had the authority to legitimately delegate permissions to Whiteley and take any other actions she could legally take via the Google Tools for the .Org Domain. (UMF 39.)
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BCS claims it learned its website was not appearing on Google Search sometime on March 11 and that Jensen resolved the issue by 3:00 or 4:00 the next day. (Ex. 48, 89:4-92:4; Ex. 54.) Yet, BCS claims Hughes, Jensen, and Magill alone spent more than 800 hours investigating the deindexing. (Ex. 52, Response 2.) Clearly, BCS is including in its calculation hours not spent to remediate the harm. Asked at deposition to differentiate the hours spent on the alleged deindexing from the other allegations of the Complaint no longer at issue, Magill was unable to do so. (Ex. 77, 64:14-67:3.) Magill also could not state how much time was spent investigating the deindexing between March 11 and March 12 when Jensen fixed the issue. (Id., 61:13-20, 64:2-21.)
The volunteer time claimed in BCS’s verified discovery response is a fabrication. In BCS’s interrogatory responses (verified by Magill), and at Magill’s deposition, Magill claimed Hughes spent 324 hours investigating the allegations and that Magill spent an additional 368 hours. (Ex. 52, Response 1.) According to Magill, the majority of this time was spent related to the deindexing. (Ex. 77, 66:8-13.) However, at Hughes’s deposition, she testified that she was unsure of the specifics of the investigation, that she was only “loosely” a part of the investigation, and that her involvement was limited to answering questions by BCS’s attorneys. (Ex. 45, 74:17-75:10.) Notably, when Hughes was asked who was involved in the deindexing investigation, she did not identify anyone but Jensen and failed to identify herself or Magill. (Id., 59:14-60:15, 65:21-66:23.) Jensen’s testimony was similar. According to Jensen, neither Hughes nor Magill “helped meaningfully with the investigation of the technical components” and their involvement in the investigation was limited to advising about BCS’s history with Defendants and confirming email addresses. (Ex. 48, 114:22-115:15.)
Additionally, despite her claim that she spent the majority of 368 hours investigating the alleged deindexing, Magill could not answer even the most basic questions about the alleged deindexing. For example, Magill did not know:
- The date or time of day when BCS discovered its website was not appearing on Google Search (Ex. 77, 26:6-8, 57:1-8);
- The duration of time the website did not appear on Google Search (Id., 58:5-7);
- What changes Hughes was making to the website immediately before BCS noticed that the website was not on Google Search (Id., 53:24-54:1);
- Whether it was McNamara or Whiteley who submitted the deindex request (Id., 87:2-88:8.); or
- Whether BCS investigated the other potential causes of alleged deindexing (Id., 79:21-84:3).
Notably, BCS did not investigate potential alternative explanations for the alleged deindexing such as a Soft 404 error and a no-Index tag error. At one point, Magill was “confident” that BCS looked into these issues, but could not remember what the investigation entailed. (Id., 77:5-78:21). Minutes later, after reviewing BCS’s interrogatory responses (verified by Jensen), Magill was forced to recant her testimony and admit that she did not know. When asked why she did not investigate these errors, Magill explained that it “wasn’t [her] role.” (Id., 83:22-84:3.)