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Stevo Design, Inc. v. SBR Marketing Ltd.

United States District Court, D. Nevada

August 29, 2013

STEVO DESIGN, INC., a Florida corporation; STEVEN BUDIN, an individual; and ALAN ROLLI, an individual, Plaintiffs,
v.
SBR MARKETING LTD., a foreign corporation; and BRIAN DANIELE, an individual, Defendants

Page 1083

[Copyrighted Material Omitted]

Page 1084

For Stevo Design, Inc., a Florida corporation, Steven Budin, Alan Rolli, Plaintiffs: Brian M Akkashian, LEAD ATTORNEY, Dickionson Wright PLLC, Detroit, MI; Steven A. Gibson, LEAD ATTORNEY, Jonathan M.A. Salls, Jodi Donetta Lowry, Dickinson Wright PLLC, Las Vegas, NV.

For SBR Marketing Ltd., a foreign corporation, Defendant: Chad A Bowers, The Law Office of Chad A. Bowers, Ltd., Las Vegas, NV; Colin Arthur Hardacre, Gary Jay Kaufman, The Kaufman Law Group, Los Angeles, CA; Jonathan M.A. Salls, Dickinson Wright PLLC, Las Vegas, NV.

Brian Daniele, Defendant, Pro se, Springfield, VA.

OPINION

Page 1085

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

ORDER

This is an intellectual property dispute. Before the court is defendant SBR Marketing Ltd.'s (" SBR" ) Motion to Dismiss (#59 [1]). Plaintiffs Stevo Design, Inc. (" Stevo" ), Steven Budin, and Alan Rolli have responded (#65), and SBR has replied (#69). Also before the court is Plaintiffs' Motion for Entry of Default (#58).

I. Facts and Procedural History

Plaintiff Stevo is a Florida corporation with its principal place of business in Florida. Stevo is in the business of selling, on pay-per-view and subscription bases, licenses to access electronically-distributed sports betting reports, including compiled sports handicapping information. Plaintiffs Budin and Rolli are Stevo officers, and neither are Nevada residents.

Defendant SBR is a foreign corporation with its principal place of business in Costa Rica. SBR operates a website, www.sbrforum.com, which publishes sports betting and handicapping information. SBR also operates a message board allowing users to post messages related to sports betting and handicapping and to send messages to other users. [2] Pro se defendant Brian Daniele, a Virginia resident, is an SBR user.

SBR encourages users to frequent its website through the award of " loyalty points." For instance, a user receives two loyalty points for logging on to the website, and a user receives four loyalty points for contributing content to the message board. SBR awards more than four loyalty points for well thought-out " original" content. Users can also give each other loyalty points. These loyalty points may be turned in for " credits" at off-shore gambling websites, and these credits are redeemable for cash as long as they are gambled with first.

Plaintiff Stevo originally filed its complaint against SBR on February 24, 2011 (#1). Stevo then amended its complaint to add the individual plaintiffs and defendant Daniele, as well as several claims against Daniele (#7). Plaintiffs' claims collectively alleged--in over 1000 paragraphs and 65 claims--that SBR and its users unlawfully published Plaintiffs' protected works on SBR's website. For example, Plaintiffs alleged that Daniele purchased sports analysis from Stevo and unlawfully posted this analysis on SBR's message board. The court dismissed the amended complaint (#52), finding (1) the court did not have personal jurisdiction over Daniele; (2) Plaintiffs had failed to properly allege ownership of the relevant copyrights; (3) Plaintiffs' trademark claims hit the legal barrier of nominative fair use; and (4) SBR was immunized from Plaintiffs' state law claims by the Communications Decency Act (" CDA" ), 47 U.S.C. § 230(c).

Page 1086

The court granted Plaintiffs an opportunity to amend, and they have taken it.

II. Discussion

In their Second Amended Complaint (" SAC" ), Plaintiffs have again alleged--this time in over 900 paragraphs and 55 claims--that SBR and its users unlawfully published Plaintiffs' protected works on SBR's website. The SAC meets with mixed success: while Plaintiffs still fail to establish personal jurisdiction over Daniele or the plausibility of their ...


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