Judge upholds ruling in Dice v. Bold

Michigan company’s motion denied; judge calls its assertions 'troubling'
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Wednesday, April 10, 2013

BAY CITY, Mich.—A federal judge has denied Dice Corp.’s motion for reconsideration in its intellectual-property case against Bold Technologies, stating that Dice did not provide the court with any new information and faulting the company for “mischaracterization” of evidence.

Dice, a Michigan-based provider of central station automation platforms, filed suit against Bold, a Colorado-based competitor, in August 2011. Dice alleged that Bold unlawfully accessed Dice’s servers and stole its proprietary software while assisting ESC Central of Birmingham, Ala., when the alarm company made the transition from Dice’s software to Bold’s in July 2011.

U.S. District Court Judge Thomas L. Ludington dismissed Dice’s trade and copyright claims on Oct. 25 last year, stating that the company’s case was based on “conclusory assertions, not evidence.” Dice filed its motion of reconsideration on Nov. 8.

According to court documents, the motion was based on two claims. The first was that the affidavits of one of Bold’s computer programmers, Matt Narowski, were “clearly at odds with his deposition testimony” regarding Dice’s source code. The second was that Bold improperly withheld new evidence during case proceedings. Ludington rejected both claims in a ruling on March 28.

On the first claim, the judge stated that Dice’s assertion lacked “a factual foundation—in his deposition Mr. Narowski never said that he used Dice source code or required customers to provide him with such information. And in his affidavit he made plain that he did no such thing.” Ludington added that “contrary to plaintiff’s contention, this case did not turn on Mr. Narowski’s credibility.”

The second claim centered on what Dice said was new evidence—a copy of Bold’s “entire extraction program”—that Dice said was improperly withheld until after it had filed a motion for summary judgment on June 29. Dice said the evidence demonstrated that Bold’s program “was dependent on Dice source code.”

Ludington disagreed. He said the “new” copy of the extraction program was identical to a version that Bold submitted to Dice’s counsel on May 12, with the exception of comments added later by Dr. William McUmber, an expert witness for Bold. 

“Plaintiff’s mischaracterization that [Bold] wrongfully withheld evidence, as noted, is troubling,” Ludington wrote in his decision. “Equally troubling is plaintiff’s mischaracterization of the evidence itself [as new]. … Although the court chooses not to impose sanctions at this time, it cautions plaintiff’s counsel that such mischaracterizations will not be condoned.”

Dice spokeswoman Molly Neymeiyer told Security Systems News that the company had no comment on the judge’s decision. Dice also filed a notice of appeal in November with the 6th U.S. Circuit Court of Appeals in Cincinnati that is still pending.