                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-4167
                                     _____________

                               COLLEGESOURCE, INC.,
                                A California Corporation,
                                                       Appellant

                                             v.

                  ACADEMYONE, INC., A Pennsylvania Corporation;
                      DAVID K. MOLDOFF, An Individual
                        __________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 2-10-cv-03542)
                     District Judge: Honorable Mary A. McLaughlin
                             __________________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  December 8, 2014

           Before: VANASKIE, COWEN, and VAN ANTWERPEN, Circuit Judges

                                 (Filed: February 5, 2015)
                                      _____________

                                       OPINION*
                                     _____________

VANASKIE, Circuit Judge



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Appellant CollegeSource (CS), a California corporation, and Appellee

AcademyOne (A1), a Pennsylvania corporation, are competitors in the market for college

credit-transfer information. CS alleges that A1 misappropriated the contents of CS’s

database in an effort to stock its own fledgling database. The District Court granted

summary judgment on all claims in favor of A1. CS now challenges several of the

District Court’s rulings, including (1) the denial of its motion to transfer this case to

California; (2) the exclusion of certain evidence; (3) the dismissal of its claims under the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c), without leave

to amend; and (4) the grant of summary judgment in favor of A1. We will affirm.

                                               I.

       CS touts itself as “the pioneer of the digital college course catalog and college

transfer credit industry.” Appellant’s Br. at 11. CS’s main product is the “CollegeSource

Online” database, which allows paying subscribers and trial users to search and inspect

over 50,000 digital course catalogs and related documents culled by CS from the

offerings of colleges across the country. CS has long undertaken efforts to prevent, or

enable the detection of, duplication or use of its materials by potential competitors. For

instance, throughout the period at issue here, CS embedded in its catalog files an

unavoidable “splash page” alerting the user that the catalog originated from CS, (see, e.g.,

App. 2607), and a full-page “Copyright and Disclaimer,” which states that

“CollegeSource digital catalogs are derivative works owned and copyrighted by

CollegeSource, Inc. . . . . Catalog content is owned and copyrighted by the appropriate

                                               2
school,” (see, e.g., App. 2608). The notice also declares that distribution and non-

commercial use are prohibited. (Id.)

       Users of CollegeSource Online must check a box that states, “By signing in above,

I agree to be bound by the terms of the . . . Subscription Agreement.” (See, e.g., App.

2535.) The hyperlinked Subscription Agreement states: “This Subscriber Agreement and

Terms of Use govern your use of CollegeSource Online, TES, and, unless other terms

and conditions expressly govern, any other electronic services from CollegeSource, Inc.

that may be made available from time to time . . . .” (App. 2773.) The agreement also

states that commercial use of the data is prohibited. (Id.)

       Along with CollegeSource Online, CS offers a service known as “CataLink,”

which allows colleges to store their catalog information on CS’s servers and link to that

information from their websites, rather than hosting the information themselves. Since

CataLink’s inception, 110 schools have paid to use that service. (App. 2602–06.) Course

catalogs accessed via CataLink, like those accessed via CollegeSource Online, contain

the aforementioned Copyright and Disclaimer.

       A1 was founded by Appellee David Moldoff in 2005 as a free online alternative to

CS. In 2006, Moldoff approached CS to inquire whether A1 could purchase or license

the contents of CS’s database, but he was rebuffed. A1 then hired Beijing Zhongtian-

Noah Sports Science Co., Ltd. (Noah), an independent Chinese subcontractor, to obtain

course catalogs by downloading them directly from individual schools’ websites. A1

also pursued an in-house effort to obtain course catalogs in the same way. By the time its

                                              3
database launched in early 2007, A1 had amassed course catalogs from roughly 4,000

schools, most of which originated from Noah’s collection efforts.

       A week after the debut of A1’s database, CS sent a cease-and-desist letter to A1

alleging over 700 instances of copyright infringement and directing A1 to remove the

infringing materials from its website. (App. 1370–74.) After a brief review, A1

discovered that CS’s allegations were largely correct. In an email to CS’s president,

Moldoff explained that A1 had “removed ALL course catalog PDF files as of this

afternoon and are working to determine actually how many catalogs are in question have

[sic] your copyright statement.” (App. 3004.) Moldoff also wrote that A1 would “honor

[CS’s] request and remove the content.” (Id.) A1 immediately disabled public access to

the database and made efforts to remove materials that had originated with CS. This task

proved technically challenging, and the record reflects that as late as 2010, A1 discovered

additional documents on its servers that contained CS’s Copyright and Disclaimer.

       In late 2008, A1 was the winning bidder for a contract with the State of South

Carolina that had also been sought by CS. Shortly thereafter, CS filed a complaint

against A1 in the United States District Court for the Southern District of California in

which it alleged seven federal causes of action: (1) violations of the Computer Fraud and

Abuse Act (CFAA), 18 U.S.C. § 1030(g); (2) breach of contract; (3) unjust enrichment;

(4) trademark infringement under the Lanham Act, 15 U.S.C. § 1114; (5) unfair

competition under the Lanham Act, 15 U.S.C. § 1125(a); (6) false advertising under the

Lanham Act, 15 U.S.C. § 1125(a); and (7) a declaration of trademark invalidity under 15

                                             4
U.S.C. § 1064. The complaint also alleged three causes of action under California law,

including (1) a violation of the California Computer Crimes Act, Cal. Penal Code § 502;

(2) misappropriation; and (3) unfair competition under Cal. Bus. & Prof. Code § 17200.

Soon thereafter, A1 sent out several hundred letters to colleges stating that CS had filed

“copyright claims . . . whereby [CS] is claiming ownership and control of your

institution’s digital catalog and the course descriptions contained within . . . .” (App.

565.)

        A1 moved to dismiss the California action for lack of personal jurisdiction. The

District Court permitted limited discovery on that issue. Moldoff filed affidavits stating

that A1 transacted no business in California and had no knowledge that CS was based in

California. The District Court ultimately dismissed for lack of personal jurisdiction and

CS appealed. In July 2010, while the appeal was pending, CS sued A1 in federal district

court in Pennsylvania, where jurisdiction was indisputably proper. That complaint

contained the same federal claims raised in the California action, as well as a claim under

the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c).

But it omitted the California state-law claims and added claims for breach of contract and

unjust enrichment under Pennsylvania law.

        In the following months, the Pennsylvania District Court dismissed the RICO

claims, denied a preliminary injunction after a hearing, set a discovery schedule, and

ruled on several discovery motions. In August 2011, however, the Ninth Circuit, while

finding that general personal jurisdiction over A1 was lacking, concluded that A1 was

                                              5
subject to specific personal jurisdiction in California and reinstated the original action.

CS then moved in Pennsylvania to dismiss the second-filed action or transfer it back to

California for consolidation with the original filing. The Pennsylvania District Court

denied the motion, noting the progress made in the Pennsylvania case and citing an

earlier representation by CS’s counsel that it intended to continue litigating in

Pennsylvania no matter what happened in the then-pending appeal before the Ninth

Circuit. The California District Court then stayed the California action pending

resolution of the case in Pennsylvania.

       In February 2012, A1 moved for summary judgment. The District Court heard

oral argument on June 13, 2012. Several months later, in September 2012, CS moved to

supplement the record with newly discovered evidence and to reopen discovery to further

explore that source of evidence. The District Court denied the motion, noting that the

evidence, which for the most part was found on CS’s own servers, was in CS’s control

throughout the lawsuit and could have been found at any point during discovery.

On October 25, 2012, the District Court granted A1’s motion for summary judgment and

entered judgment in favor of A1 on all claims. CS filed a timely notice of appeal.

                                              II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have

appellate jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s order

granting summary judgment is plenary. Trinity Indus., Inc. v. Chi. Bridge & Iron Co.,

735 F.3d 131, 134 (3d Cir. 2013). We view the evidence “‘in the light most favorable to

                                              6
the nonmoving party.’” Id. at 134–35 (quoting Kurns v. A.W. Chesterton Inc., 620 F.3d

392, 395 (3d Cir. 2010)). Summary judgment is appropriate where the movant

establishes “that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Insofar as the District

Court dismissed the RICO claims as a matter of law, our review is de novo.

       We review the District Court’s denial of leave to amend the complaint for abuse of

discretion. Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000) (citations omitted). The

same is true for our review of the District Court’s refusal to dismiss or transfer the action,

EEOC v. Univ. of Pa., 850 F.2d 969, 972 (3d Cir. 1988), as well as for our review of the

District Court’s decision to exclude evidence proffered after the expiration of a discovery

deadline under Federal Rule of Civil Procedure 16(b), Eichorn v. AT&T Corp., 484 F.3d

644, 650 (3d Cir. 2007).

                                               III.

                                               A.

       CS’s first argument is that in the aftermath of the Ninth Circuit’s reversal on

personal jurisdiction, the District Court should have granted its motion to dismiss this

matter or transfer it to California under 28 U.S.C. § 1404(a).1 CS relies predominantly on

the “first-filed” rule, which ordinarily counsels that in the event of duplicative federal


       1
         That statute provides: “For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought or to any district or division to which all
parties have consented.” 28 U.S.C. § 1404(a).

                                                7
litigation, “the court which first has possession of the subject must decide it.” EEOC,

850 F.2d at 971 (quotation marks and citations omitted). The rationale is to “encourage[]

sound judicial administration and promote[] comity among federal courts of equal rank.”

Id. Yet we have consistently recognized exceptions to this equitable rule, including when

a district court faces “rare or extraordinary circumstances, inequitable conduct, bad faith,

or forum shopping.” Id. at 972. The principles of comity and judicial efficiency

underlying the rule have considerably less persuasive value where, as here, developments

in the second-filed action have outpaced the initial suit. Id. at 976 (citations omitted).

Finally, application of the first-filed rule at the insistence of the party filing essentially

identical actions in multiple jurisdictions, like CS did here, may foster forum or judge

shopping.

       We conclude here that the District Court did not abuse its discretion when it

declined to dismiss or transfer the instant lawsuit. Two factors stand out.

       First, on August 15, 2011, when CS filed its motion to dismiss or transfer, the

California district court had supervised only a brief period of jurisdictional discovery.

The District Court here, by contrast, had actively managed the case for over a year,

during which time it conducted a preliminary-injunction hearing, heard argument, denied

the injunction, ruled on a motion to dismiss on substantive grounds, held two scheduling

conferences, and permitted over two months of merits discovery. Granting the motion to

dismiss or transfer at that stage would thus have resulted in the transfer of this complex



                                                8
matter from a court already familiar with the facts and legal issues to one significantly

less so.

       Second, and perhaps more importantly, the District Court here undertook these

efforts only “with the understanding that the parties would definitely proceed in this

district,” based on the fact that during a conference prior to scheduling the preliminary-

injunction hearing, counsel for CS “declared its intention to go forward with litigating

this case regardless of the outcome of the Ninth Circuit appeal in California.” (App.

112–13, 119.) CS faults the District Court for “binding [CS] to an on-the-spot, informal,

in-chambers, untranscribed response to a court question by one of [CS’s] counsel

(without consultation with [CS] and before any Ninth Circuit opinion had issued).”

Appellant’s Br. at 39. We have recognized, however, that such conferences are

conducted in large part “‘to define and simplify the issues, [and] to lessen surprise at trial

and the risk of judicial error . . . .’” Price v. Inland Oil Co., 646 F.2d 90, 96 (3d Cir.

1981) (quoting 3 Moore’s Federal Practice 16.03). Here, the District Court was justified

in holding CS to a representation made by its counsel on the fundamental issue of case

management.2


       2
          Additionally, the record reflects that the pre-hearing conference in this case was
held on January 18, 2011. To the extent that counsel’s comment was indeed an off-the-
cuff and unintentional misrepresentation of CS’s true position, we see no reason why it
should not have been corrected over the seven months of active litigation prior to the
Ninth Circuit’s ruling in August 2011. Furthermore, to the extent that the Eastern District
of Pennsylvania action was truly only a protective matter to guard against the running of
the statute of limitations, CS could have asked the Pennsylvania federal court to stay that
litigation pending the outcome of its appeal on the issue of personal jurisdiction. Instead,
                                                9
       In sum, we will affirm the District Court’s order of October 28, 2011 insofar as it

denied CS’s motion to dismiss or transfer.

                                              B.

       CS also contests two of the District Court’s rulings on matters related to

scheduling and discovery. First, CS challenges the District Court’s exclusion of a

declaration by CS’s Director of Operations, Stan Novak, dated April 5, 2012, and

accompanied by over 1000 pages of documents described by the District Court as

“voluminous spreadsheets” with “very little explanation.” (App. 28.) CS disclosed those

items for the first time as exhibits to its opposition to A1’s motion for summary

judgment, and it contends that they are merely summaries admissible under Federal Rule

of Evidence 1006.3 The District Court concluded that the declaration and accompanying




it appears that CS sought to litigate this matter aggressively in Pennsylvania and then
moved to return the case to California to avoid rulings adverse to it.
       3
           Rule 1006 states:

                The proponent may use a summary, chart, or calculation to
                prove the content of voluminous writings, recordings, or
                photographs that cannot be conveniently examined in court.
                The proponent must make the originals or duplicates
                available for examination or copying, or both, by other parties
                at a reasonable time and place. And the court may order the
                proponent to produce them in court.

                                              10
documents, which it regarded as “to a large extent incomprehensible,” constituted

untimely expert testimony and excluded them on that basis.4

       CS now reiterates its position that the “documents summarized in the Summary

were absolutely admissible, just presented in summary form.” Appellant’s Br. at 59. But

where a proffered summary includes “assumptions” and “inferences” that “represent [the

author’s] opinion, rather than the underlying information,” the evidence “is . . . subject to

the rules governing opinion testimony.” Eichorn, 484 F.3d at 650. Here, like the District

Court, we are struck by the complexity of the proffered materials, the apparent discretion

exercised by Novak in compiling the many charts included as exhibits, and the

conclusory nature of what the purported “summaries” reveal. We conclude that the

District Court did not abuse its discretion by categorizing these documents as belated

expert submissions and excluding them on that basis.




       4
         The District Court’s original memorandum and order of September 25, 2012,
granting summary judgment in favor of A1, did not address A1’s then-pending motion to
exclude Novak’s April declaration. On November 7, 2012, after the filing of CS’s notice
of appeal, the District Court issued an order explaining that the Court had “inadvertently
omitted” a footnote addressing the Novak declaration and amended its October 25, 2012
Memorandum and Order to include the omitted text. (App. 28.) CS argues that the
District Court lacked jurisdiction at that point to amend its order. Federal Rule of Civil
Procedure 60(a), however, expressly permits a district court to “correct a mistake arising
from oversight or omission” at any time before an appeal “has been docketed in the
appeal court.” Here, the appeal was not docketed until November 15, 2012. Moreover,
our Local Appellate Rules permit “a written amplification of a prior written . . . opinion”
within 30 days of the docketing of a notice of appeal. L.A.R. 3.1. Because the District
Court’s timely amendment here was due to an oversight, and merely explains rather than
revises its ruling on summary judgment, we see no error.

                                             11
       The second discovery ruling contested by CS pertains to the denial of its

September 21, 2012 motion to supplement its filings and reopen discovery to introduce

late-discovered evidence. The evidence is described in a second declaration by Novak,

dated September 21, 2012, in which he details the discovery of records that, in CS’s

view, demonstrate that: (1) A1 and Noah “hacked into [CS’s] server logging in, without

authorization, via [CS’s] paying subscribers’ usernames/passwords”; (2) A1 “accessed

[CS’s] Website Terms of Use multiple times”; and (3) A1 “deleted over 88,000 electronic

files from its server prior to its production in discovery to [CS] including files with very

provocative names.” Appellant’s Br. at 51.

       CS’s motion to reopen discovery is governed by Federal Rule of Civil Procedure

16(b), which permits the court to modify a scheduling order “only for good cause.” Fed.

R.Civ. P. 16(b)(4).5

       The evidence at issue here comes from two sources: CS’s own servers, which of

course it has had since the genesis of this litigation, and digital copies of A1’s servers,

which were produced in discovery in July 2011. The materials were thus in CS’s

possession for months and in some cases, years, before the discovery deadline. CS



       5
         CS argues that the District Court should have analyzed its motion under Rule
6(b)(1)(B), which permits a court to extend a deadline for “an act [that] may or must be
done within a specified time,” where the moving party “failed to act because of excusable
neglect.” But the primary relief sought was the reopening of the discovery period, which
would have allowed CS to serve the newly discovered evidence and explore it further.
That demand places the motion squarely within the ambit of Rule 16(b). See, e.g.,
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 235 (3d Cir. 2007).

                                              12
attributes its failure to discover the evidence to misleading disclosures or “obstruction of

justice” by A1. Appellant’s Br. at 57. But Novak concedes that he was able to discover

the evidence, on his own, during a “spot check[]” of the data on August 2, 2012, while

employing a search technique that was technologically feasible throughout A1’s

possession of the data. (App. 4827.) Novak then uncovered the remainder of the

evidence over the following three weeks, again using search tools and methods that were

available earlier. And crucially, despite having no apparent training or expertise in

computer forensics, Novak states that he made the dubious decision not to enlist the help

of CS’s “computer expert,” Michael Bandemer, in the company’s review of these

materials, which included roughly 1.6 billion server log entries and hundreds of gigabytes

of data. (App. 4825.)

       For these reasons, we conclude that CS is unable to show good cause for its failure

to discover the materials at issue during the scheduled discovery window. Accordingly,

the District Court did not abuse its discretion when it excluded the proffered evidence and

declined to reopen discovery.

                                             C.

       CS next challenges the District Court’s dismissal of Counts One and Two of the

Amended Complaint, which assert civil violations of RICO. Those claims require a

showing that a defendant conducted, or conspired to conduct, an enterprise through a

pattern of racketeering activity, and that this activity was the proximate cause of an injury

to the plaintiff’s “business or property.” 18 U.S.C §§ 1962(c) and 1964(c). A “pattern of

                                             13
racketeering” consists of at least two acts of racketeering activity that are related and

amount to, or pose a threat of, continued criminal activity. Id. § 1961(5); H.J. Inc. v. Nw.

Bell Tel. Co., 492 U.S. 229, 239 (1989). In a memorandum and order dated May 18,

2011, the District Court dismissed the RICO claims after concluding that CS had failed to

allege two legally sufficient predicate acts.

       CS asserts that three types of predicate acts were alleged, and we will address each

in turn. First, the Amended Complaint asserts that A1 violated the National Stolen

Property Act (NSPA), 18 U.S.C. § 2314, which makes it a crime to “transport[ ],

transmit[ ], or transfer[ ] in interstate or foreign commerce any goods, wares,

merchandise, securities or money, of the value of $5,000 or more, knowing the same to

have been stolen, converted or taken by fraud[.]” Specifically, CS claims that A1

violated the NSPA when it received digital materials containing CS’s marks from Noah,

its Chinese subcontractor.

       Federal courts have unanimously concluded, however, that the theft of intellectual

property does not violate the NSPA. See United States v. Aleynikov, 676 F.3d 71, 73 (2d

Cir. 2012); United States v. Martin, 228 F.3d 1, 14–15 (1st Cir. 2000); United States v.

Stafford, 136 F.3d 1109, 1115 (7th Cir. 1998); United States v. Brown, 925 F.2d 1301,

1308 (10th Cir. 1991); United States v. Zhang, 995 F. Supp. 2d 340, 345–46 (E.D. Pa.

2014). All of these decisions rely on the Supreme Court’s holding in Dowling v. United

States¸ 473 U.S. 207 (1985), where the Court rejected the Government’s attempt to

prosecute the interstate transport of bootlegged records under the NSPA. As the Court

                                                14
recognized, § 2314, on its face, “seems clearly to contemplate a physical identity between

the items unlawfully obtained and those eventually transported, and hence some prior

physical taking of the subject goods.” Id. at 216. And further, the “premise” of the

statute—“the need to fill with federal action an enforcement chasm created by limited

state jurisdiction”—has no obvious application with respect to the theft of copyrighted,

patented, or other protected intangible materials, all of which could be prohibited by

Congress without regard to whether the stolen items crossed state lines. Id. at 221. For

these widely accepted reasons, we agree that the NSPA does not apply under these

circumstances, and thus CS cannot offer its purported violation as a predicate act for

purposes of the RICO claims.

       Second, the Amended Complaint alleges obstruction of justice as a predicate act.

The federal obstruction statute requires proof that the defendant “corruptly, or by threats

or force, or by any threatening letter or communication, endeavor[ed] to influence,

intimidate, or impede any . . . officer in or of any court of the United States . . . in the

discharge of his duty . . . .” 18 U.S.C. § 1503(a). Under our case law, “only acts directly

affecting parties, witnesses or jurors—and not other acts that may merely influence the

proceedings—are cognizable” as predicate acts under RICO. Malley-Duff & Assocs., Inc.

v. Crown Life Ins. Co., 792 F.2d 341, 355 (3d Cir. 1986). Consequently, we have never

recognized obstruction of justice as a viable RICO predicate except in cases involving

witness intimidation. See id. (affirming District Court’s dismissal of RICO allegations

including destruction of evidence and subornation of perjury). Here, CS alleges only that

                                               15
Moldoff obstructed justice by submitting false affidavits on the personal jurisdiction issue

to the California District Court and by destroying electronic evidence related to this case.

These allegations, even if true, are facially insufficient to establish a civil RICO violation.

       The final predicate act alleged by CS is wire fraud, which requires “(1) a scheme

or artifice to defraud for the purpose of obtaining money or property, (2) participation by

the defendant with specific intent to defraud, and (3) use of the mails or wire

transmissions in furtherance of the scheme.” Nat’l Sec. Sys. v. Iola, 700 F.3d 65, 105 (3d

Cir. 2012). The allegedly fraudulent communication here is the email from Moldoff to

CS stating that A1 had “removed ALL course catalog PDF files” and would “honor

[CS’s] request and remove the content.” (App. 3004.) CS argues that these statements

were fraudulent because A1, despite removing the files from its website, preserved copies

of the files on its servers and failed to weed out all CS documents during its initial

review. But like the District Court, we conclude that these allegations “boil[] down to a

disagreement about the meaning of” the statements, and “[t]his disagreement does not

rise to the level of fraud[.]” Lum v. Bank of Am., 361 F.3d 217, 226 (3d Cir. 2004).

       In sum, we conclude that the Amended Complaint fails to allege any legally

sufficient predicate acts for purposes of the RICO claims. Accordingly, we will affirm

the District Court’s order of May 18, 2011 dismissing Counts One and Two of the

Amended Complaint.6


       6
        CS also argues that the District Court erred by dismissing the RICO claims with
prejudice, rather than allowing CS to file a second amended complaint. We have held
                                              16
                                             D.

       Finally, CS challenges the District Court’s grant of summary judgment on the

merits as to six claims.7 We will address the District Court’s conclusions on a count-by-

count basis.

           1.   Breach of Contract

       Count Four of the Amended Complaint alleges that CS is entitled to damages for

breach of contract by A1. Under Pennsylvania law, the main question “is whether both

parties have manifested an intention to be bound by [the contract’s] terms and whether

the terms are sufficiently definite to be specifically enforced.” EBC, Inc. v. Clark Bldg.

Sys., Inc., 618 F.3d 253, 263 (3d Cir. 2010) (citations omitted). CS presents three

arguments in support of its claim that A1 breached a contract here.

       First, CS argues that A1 entered into a contract with CS when it created trial

accounts for CollegeSource Online. A1 concedes that to create those accounts, it



that “if a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a
curative amendment unless such an amendment would be inequitable or futile.” Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 245–46 (3d Cir. 2008). At the same time, leave to
amend may be denied in non-civil-rights cases where the moving party fails to submit a
draft amended complaint. See Fletcher-Harlee Corp. v. Pote Concrete Constrs., Inc.,
482 F.3d 247, 252–53 (3d Cir. 2007). Although the District Court improperly failed to
explain the reasoning behind its denial of leave to amend here, see Foman v. Davis, 371
U.S. 178, 182 (1962), CS likewise failed to submit a draft amended complaint.
Accordingly, we decline to grant relief on this basis.
       7
         Because CS’s briefing makes no specific reference to the District Court’s grant
of summary judgment on Count Eight, in which CS sought a declaration of trademark
invalidity, we will affirm it summarily.

                                             17
consented to the Subscription Agreement, which prohibits the commercial use of

documents acquired as a result of the trial subscription. Accordingly, CS has established

that a contractual relationship (albeit a limited one) existed between the parties. But as

noted by the District Court, CS presents no evidence that A1 downloaded any of CS’s

course catalogs pursuant to those trial subscriptions, and consequently is unable to prove

that A1 breached the Subscription Agreement.

       Second, CS seizes on A1’s admission that some of the documents included by A1

in its initial database were obtained from the websites of schools that subscribed to

CataLink. According to CS, those documents, too, are covered by the Subscription

Agreement—the same Agreement that A1 consented to when its employees created the

aforementioned trial accounts. The Agreement, by its own terms, “govern[s] [the] use of

CollegeSource Online, TES, and, unless other terms and conditions expressly govern, any

other electronic services from CollegeSource, Inc. that may be available from time to

time[.]” (App. 2773.)

       We agree with the District Court that a user of CollegeSource Online could not

have reasonably interpreted the Agreement to cover the attenuated scenario in which that

same user obtains a course catalog from a link embedded in the website of a third-party

college that happened to be a CataLink subscriber. And the Subscription Agreement

itself uses the term “service” in ways inconsistent with Catalink’s characteristics—for

instance, by referring to the “Help section” of a service, which CataLink does not have,

and by noting that individuals access “services” with a user name and password, neither

                                             18
of which CataLink requires. (Id.) Accordingly, the record contains no basis on which to

conclude that A1 breached the Subscription Agreement when it accessed course catalogs

through CataLink.

       Third, CS argues that A1, regardless of how it obtained the digital files bearing

CS’s marks, was bound by the Copyright and Disclaimer, which CS refers to as the

“Catalog Terms of Use.” In CS’s view, the mere viewing of that document bound A1 to

its terms—most importantly, the requirement that A1 not use the appended materials for a

commercial purpose. The Copyright and Disclaimer, however, explicitly identifies itself

not as a contract, but as a declaration of copyright, and purports to describe the parties’

respective entitlements—i.e., what the viewer “may” and “may NOT” do. Accordingly,

the fact that A1 accessed documents containing CS’s data and read the Copyright and

Disclaimer therein would not allow a jury to find the formation of a contract between the

parties.

       Thus, because CS has failed to produce evidence that A1 breached any contract

with CS, we will affirm the District Court’s grant of summary judgment in favor of A1

on Count Four.

           2.   Unjust Enrichment

       Count Five of the Amended Complaint charges that A1 was unjustly enriched by

reproducing and redistributing course descriptions belonging to CS. The District Court

concluded that this state-law claim was preempted by the existence of a federal remedy

under the Copyright Act, which grants a copyright owner the exclusive right to

                                             19
reproduce, prepare derivative works based upon, distribute, perform, and display the

copyrighted material at issue. See 17 U.S.C. § 106. Section 301 of the Copyright Act, id.

§ 301(a), provides that state law is expressly preempted where the elements of the claim

at issue are the same as those required for an infringement claim under § 106. See Dun &

Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 217 (3d Cir.

2002)). By contrast, “if a state cause of action requires an extra element, beyond mere

copying, preparation of derivative works, performance, distribution or display, then . . .

federal law will not preempt the state action.” Id.

       Under Pennsylvania law, a plaintiff bringing a claim for unjust enrichment “must

show that the party against whom recovery is sought either wrongfully secured or

passively received a benefit that it would be unconscionable for her to retain.” Torchia v.

Torchia, 499 A.2d 581, 582 (Pa. Super. Ct. 1985) (quotation marks and citation omitted).

“In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if

recovery for the enrichment is denied.” Id. (quotation marks and citations omitted). The

burden is on the plaintiff to prove damages “to a reasonable degree of certainty.” Temple

Univ. Hosp., Inc. v. Healthcare Mgm’t Alts., Inc., 832 A.2d 501, 310 (Pa. Super. Ct.

2003) (citing Spang & Co. v. U.S. Steel Corp., 545 A.2d 861 (Pa. 1988)).

       Federal courts have routinely held that claims of unjust enrichment are pre-empted

under § 106 where the claim rests on an allegation that the defendant has secured a

benefit due to the plaintiff under the Copyright Act. See, e.g., R.W. Beck, Inc. v. E3

Consulting, LLC, 577 F.3d 1133, 1149 (10th Cir. 2009). The situation presented here,

                                             20
however, is that CS disavows any claim of copyright over the materials at issue, and

concedes that it would not have a remedy against A1 under the Copyright Act. See

Appellant’s Reply Br. at 30–31. Consequently, according to CS, its claim of unjust

enrichment is not duplicative of a claim under § 106, and thus is not preempted under §

301(a).

       Assuming this to be correct, we will nonetheless affirm the District Court’s ruling

because we conclude that A1 is entitled to summary judgment on the merits of the claim.

CS has established that A1’s nascent database contained materials that required a

significant financial investment for CS to compile. But the record also reflects that A1,

upon being notified of the transgression, undertook extensive efforts to purge the

materials from its database. CS provides no evidence that A1 profited directly or

indirectly from the use of those materials. These facts preclude a finding that an injustice

would result if recovery is denied. And further, CS has failed to provide any evidence

upon which to make a finding of damages for purposes of this claim, let alone to a

reasonable degree of certainty.

       Accordingly, we will affirm the District Court’s grant of summary judgment in

favor of A1 on Count Five of the Amended Complaint.

          3.   Computer Fraud and Abuse Act

       Count Three of the Amended Complaint alleges that A1 is liable under the CFAA,

which generally addresses criminal behavior but also provides that victims may be

entitled to compensatory damages in a civil suit. 18 U.S.C. § 1030(g). Specifically, CS

                                            21
makes four claims: that A1 (1) “intentionally accesse[d] a computer without authorization

or exceed[ed] authorized access,” and thereby obtained information, id. § 1030(a)(2)(C);

(2) “knowingly and with intent to defraud, accesse[d] a protected computer without

authorization, or exceed[ed] authorized access, and by means of such conduct further[ed]

the intended fraud and obtain[ed] anything of value,” id. § 1030(a)(4); (3) “intentionally

accesse[d] a protected computer without authorization, and as a result of such conduct,

recklessly cause[d] damage,” id. § 1030(a)(5)(B); and (4) “intentionally accesse[d] a

protected computer without authorization, and as a result of such conduct, cause[d]

damage and loss,” id. § 1030(a)(5)(C). The parties agree that CS’s servers are “protected

computers” within the meaning of the statute.

       Common to all of CS’s claims under the CFAA is the requirement of proof that

the defendant accessed information “without authorization” or “exceed[ed] authorized

access.” A person “exceeds authorized access” when he “access[es] a computer with

authorization and . . . use[s] such access to obtain or alter information in the computer

that the accesser is not entitled so to obtain or alter.” Id. § 1030(e)(6). The root term,

however—“authorization”— is not defined by the statute, and has been the subject of

robust debate. One point of agreement is that “without authorization” should be given its

“common usage, without any technical or ambiguous meaning.” United States v. Morris,

928 F.2d 504, 511 (2d Cir. 1991); see also LVRC Holdings LLC v. Brekka, 581 F.3d

1127, 1132–33 (9th Cir. 2009). Here, the record contains only limited evidence that A1



                                             22
accessed CS’s servers, and such access was not “without authorization” under any

common meaning of that term.

       First, A1 acknowledges that at least two of its employees created trial accounts for

CollegeSource Online, using a process available to the general public. There is no

evidence, however, that those employees downloaded catalogs for commercial use in

violation of the Subscription Agreement, hacked into technologically sequestered

portions of the database, or even so much as viewed any particular document. The record

would therefore not support a jury finding that A1 violated the CFAA in this respect.

       Second, A1 concedes that some course catalogs in its initial offering were

obtained from links embedded on the web pages of schools that subscribe to CataLink.

These materials were available without precondition to any member of the general public

who clicked the link on the subscribing school’s website and was thereby directed to

CS’s servers.8 Thus again, A1 obtained the materials in question without breaching any

technological barrier or contractual term of use.9 CS provides no other evidence that

A1’s use of CataLink was “without authorization.” Accordingly, we will affirm the



       8
        As noted above, we have already concluded that the mere presence of the
Copyright and Disclaimer in the documents at issue did not create a contract between CS
and the viewer, and did not give rise to any unilateral imposition of terms on the
documents’ use.
       9
        CS further argues that the District Court failed to draw certain inferences in CS’s
favor based on the contents of Novak’s April declaration and the attached exhibits. See
Appellant’s Br. at 63. Because we have affirmed the District Court’s exclusion of that
evidence, CS’s arguments are unavailing insofar as they rely upon it.

                                            23
District Court’s order insofar as it granted summary judgment in favor of A1 on Count

Three.

           4.   Trademark Infringement and Unfair Competition under the Lanham

                Act

         Counts Six and Seven of the Amended Complaint state claims under the Lanham

Act, 15 U.S.C. §§ 1114 and 1125. These claims center on A1’s purchase of targeted

online advertising offered by search-engine companies, commonly known as

“AdWords.” Under that method of advertising, when a user enters any of a set of

specified search terms, the user receives not only their search results but also an ad from

the purchaser. In this instance, A1 paid Google to display ads for

“www.collegetransfer.net,” an A1 offering, when the user searched for terms including

“college source,” and “collegesource.” (App. 2427–28.)

         To succeed on a claim for trademark infringement or unfair competition under the

Lanham Act, CS must prove that: (1) it owns the mark at issue; (2) the mark is valid and

legally protectable; and (3) A1’s use of the mark is likely to create confusion.

Checkpoint Sys., Inc. v. Check Point Software Tech., Inc., 269 F.3d 270, 279 (3d Cir.

2001). The first two elements here are not in dispute. The District Court thus properly

focused on the “likelihood of confusion” element by applying the test we adopted in

Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir. 1983), drawing additional

guidance from the Ninth Circuit’s recent holding in Network Automation, Inc. v.

Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1148–54 (9th Cir. 2011).

                                             24
       The District Court’s careful analysis on this point concluded that the strength of

CS’s mark was outweighed by: (1) the lack of evidence of actual confusion; (2) the

expected savviness of internet users seeking out college-transfer information; and (3) the

distinct labeling of Google’s advertisements. On that basis, the Court found no

likelihood of consumer confusion that would support a claim for trademark infringement.

We agree with the District Court’s factual findings and legal conclusions on this point,

and see no need to reiterate the same analysis in further detail. Accordingly, we will

affirm the District Court’s grant of summary judgment on Counts Six and Seven.

         5.   False Advertising under the Lanham Act

       Count Nine of the Amended Complaint asserts that A1 engaged in false

advertising under the Lanham Act, 15 U.S.C. § 1125, first when it represented the

contents of its catalog database as current, reliable, and accurate, (App. 1706–10), and

second when Moldoff, A1’s president, emailed colleges in July 2010 with the statement

that CS regarded itself as the owner of the course catalogs in its database and was

aggressively pursuing lawsuits containing “copyright claims” against competitors, (App.

565). The elements of a false advertising claim include:

              1) that the defendant has made false or misleading statements
              as to his own product [or another’s]; 2) that there is actual
              deception or at least a tendency to deceive a substantial
              portion of the intended audience; 3) that the deception is
              material in that it is likely to influence purchasing decisions;
              4) that the advertised goods traveled in interstate commerce;
              and 5) that there is a likelihood of injury to the plaintiff in
              terms of declining sales, loss of good will, etc.


                                            25
Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 248 (3d Cir. 2011)

(quoting Warner-Lambert v. Breathasure, 204 F.3d 87, 91–92 (3d Cir. 2000)). The

District Court granted summary judgment on each of these claims after concluding that

CS had failed to introduce evidence upon which a jury could conclude that the statements

were literally false or that they had a tendency to deceive.

        CS challenges the District Court’s ruling first as to the currentness of A1’s

database by citing Novak’s April 2012 declaration, in which he ostensibly demonstrates

that a large portion of A1’s course catalogs pertain to past academic sessions and may not

reflect current offerings. But for the reasons expressed above, we affirmed the District

Court’s exclusion of that declaration and the accompanying documents. Accordingly, we

will affirm the District Court’s ruling that CS has failed to raise a genuine dispute of

material fact on this point.

        CS also presses its claim that A1 made false representations in the email of July

30, 2010, which Moldoff sent to various colleges across the country. Specifically, CS

takes issue with Moldoff’s statements that CS was “claiming ownership” of the course

catalogs at issue by filing “copyright claims” in the Eastern District of Pennsylvania.

(App. 565.) CS contends that this mischaracterizes its legal challenges because CS is not

bringing copyright claims and does not claim ownership of the underlying course-catalog

data.

        Like the District Court, we conclude that Moldoff’s letter, viewed in light of CS’s

aggressive prosecution of its alleged statutory and contractual rights, was at worst

                                              26
ambiguous regarding its description of the instant legal action. At the time of the letter,

CS had sued or threatened to sue A1 under the Copyright Act, the Lanham Act, RICO,

the CFAA, the California Computer Crimes Act, the California Business and Professions

Code, and the contract law of both Pennsylvania and California. Many of these claims

are predicated at least in part on CS’s position that users of its services are bound by the

Copyright and Disclaimer included in each of its documents, which asserts entitlements

under the Copyright Act and claims ownership of the “digital catalogs” at issue. Thus,

because a jury could not reasonably conclude that Moldoff’s letter was false or

misleading, we will affirm the entry of summary judgment on Count Nine.

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s orders of May 18,

2011, October 28, 2011, and October 25, 2012.




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