UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 CONSULNET COMPUTING, INC., d/b/a

SUCCESS WEBSITE,

Plaintiff

v.

MEGEL DAVID MOORE, et al., 

Defendants

CIVIL ACTION

No. 04-3485

OPINION

Pollak, J. July 29, 2008

This case concerns two companies in the business of creating websites for real

estate agents. In brief, plaintiff ConsulNet Computing, Inc. (“ConsulNet”), a Canadian

company based in Toronto, alleged that defendant Megel David Moore posed as a real

estate agent and signed a contract for a ConsulNet website; that Moore and his

Pennsylvania-based company, defendant Dynamic Investment Group, Inc. (“DIG”),

started DIG’s competing business by copying plaintiff’s websites; and that defendants

successfully marketed their websites to plaintiff’s clients (and others) as cheaper versions

of plaintiff’s websites. These actions, plaintiff claimed, amounted to a breach of Moore’s

contract with plaintiff (which provided that Moore could use his ConsulNet website only

for his own personal real estate business); intentional interference with plaintiff’s

contractual relationships with its clients; and copyright infringement. After hearing two

Case 2:04-cv-03485-CDJ Document 217 Filed 07/30/08 Page 1 of 12
 Because it emerged during trial that defendants had failed to disclose financial 1

information necessary to the determination of damages, the trial was bifurcated into

liability and damage phases. The parties are presently undertaking further discovery

related to damages, which will be addressed in a subsequent proceeding. 

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weeks of evidence, a jury found that Moore was liable for breach of contract; that both

defendants were liable for intentional interference with contractual relations; that

defendants’ conduct with respect to the intentional interference was “outrageous”; and

that both defendants were liable for some, but not all, of the alleged instances of

copyright infringement. 

1

Before the court is defendants’ motion for judgment notwithstanding the verdict,

or, in the alternative, for a new trial, along with plaintiff’s response, and defendants’

reply. See Docket Nos. 196, 211, 213. For the reasons given below, the court will deny

defendants’ motion. 

I.

Defendants seek a judgment notwithstanding the jury’s verdict. A motion to alter

or amend a judgment brought under Federal Rule of Civil Procedure 59(e) “must rely on

one of three major grounds: (1) an intervening change in controlling law; (2) the

availability of new evidence not available previously; or (3) the need to correct clear error

of law or prevent manifest injustice.’” N. River Ins. Co. v. CIGNA Reinsurance Co., 52

F.3d 1194, 1218 (3d Cir. 1995) (internal quotation marks and brackets omitted). 

Defendants rely on the third ground, the need to correct manifest injustice. 

“When deciding a motion for judgment notwithstanding the verdict, the trial judge

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must determine whether the evidence and justifiable inferences most favorable to the

prevailing party afford any rational basis for the verdict.” Bhaya v. Westinghouse Elec.

Corp., 832 F.2d 258, 259 (3d Cir. 1987). Where a party moves for a judgment

notwithstanding a jury’s verdict on the ground that the jury’s general verdict is

inconsistent, the court has a “‘duty to attempt to read the verdict in a manner that will

resolve inconsistencies.’” Mosley v. Wilson, 102 F.3d 85, 90 (3d Cir. 1996) (quoting Los

Angeles v. Heller, 475 U.S. 796, 806 (1986) (Stevens, J., dissenting)); accord Citizens

Fin. Group, Inc. v. Citizens Nat’l Bank, 383 F.3d 110, 123-24 (3d Cir. 2004); see, e.g.,

Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 107 (3d Cir. 1993). The Third

Circuit has repeatedly held that “‘a verdict must be molded consistently with a jury’s

answers to special interrogatories when there is any view of the case which reconciles the

various answers.’” Citizens Fin., 383 F.3d at 123 (quoting McAdam v. Dean Witter

Reynolds, Inc., 896 F.2d 750, 763 (3d Cir. 1990) (emphasis in original)).

In the alternative, defendants move for a new trial. Under Federal Rule of Civil

Procedure Rule 59(a), a court may grant a new trial “for any of the reasons which new

trials have heretofore been granted.” Fed. R. Civ. P. 59(a). Among other such reasons, a

court may grant a new trial to prevent injustice or to correct a verdict that was against the

weight of the evidence. See Corrigan v. Methodist Hosp., 234 F. Supp. 2d 494, 498 (E.D.

Pa. 2002). The decision whether to grant a new trial is within the sound discretion of the

trial court. Allied Chem. Corp. v. Daiflon, Inc ., 449 U.S. 33, 36 (1980). However, “[a]

new trial is appropriate only when the verdict is contrary to the great weight of the

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evidence or errors at trial produce a result inconsistent with substantial justice.” Roebuck

v. Drexel Univ., 852 F.2d 715, 735-36 (3d Cir. 1988). 

II.

Defendants have moved for a judgment notwithstanding the verdict, or, in the

alternative, for a new trial, on two grounds: first, that the jury rendered an inconsistent

verdict with respect to copyright infringement, and second, that there was insufficient

evidence of “outrageousness.”

A.

The jury rendered the following verdict in response to the verdict form’s questions

related to copyright infringement (the numbers correspond to the verdict form):

2. Do you find that the defendants or either of them infringed the copyright for the

webpage (Don’t Pay Another Cent in Rent to Your Landlord), copyright

registration number 5-875-725?

i. Dynamic Investment Group

________ No ____X__ Yes 

ii. Megel David Moore

____X___ No ________ Yes 

3. Do you find that the defendants or either of them infringed the copyright for the

webpage (Marketing Your Home For All Its Worth), copyright registration

number 5-875-728? 

i. Dynamic Investment Group

____X___ No ________ Yes 

ii. Megel David Moore

____X___ No ________ Yes 

4. Do you find that the defendants or either of them infringed the copyright for the

ConsulNet Success website, copyright registration number 5-875-729?

i. Dynamic Investment Group

________ No ____X___ Yes 

ii. Megel David Moore

________ No ____X___ Yes 

Case 2:04-cv-03485-CDJ Document 217 Filed 07/30/08 Page 4 of 12
 Defendants cite only contributory infringement as the likely theory the jury 2

accepted; plaintiff cites both vicarious and contributory infringement as possible theories

accepted by the jury. The jury was instructed on both theories. See Docket No. 184, Tr.

5/1/08, at 21-22. 

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5. Do you find that the defendants or either of them infringed one or more Canadian

copyrights for the ConsulNet website?

i. Dynamic Investment Group

________ No ____X___ Yes 

ii. Megel David Moore

________ No ____X___ Yes 

Defendants and plaintiff agree that the jury’s answer to question two — finding DIG but

not Moore liable for infringement of the “Don’t Pay Another Cent in Rent to Your

Landlord” webpage — most likely reflects a jury determination that DIG was secondarily

liable (via contributory or vicarious infringement) with respect to that page. See Def.

Mot. 10; Pl. Resp. 9-10 & n.6. Plaintiff put on evidence — through the cross- 2

examination of a DIG client, Tracy Wall — that DIG’s client had added this material (and

other ConsulNet materials) to her DIG website.

Defendants contend that the jury’s determinations are inconsistent in two respects. 

First, the jury found that the ConsulNet homepage — “Marketing Your Home For All Its

Worth” — was not infringed, but did find that the website as a whole was infringed. This

is inconsistent, defendants contend, because “the Consulnet registered homepage is

essentially the same page used in each of the Consulnet copyrighted websites” and is “the

‘most important web page in an entire site.’” Def. Mot. 8 (quoting the testimony of

ConsulNet’s real estate website expert). Defendants note that, of the fifty-three separate

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webpages included in the registered compilation of the whole ConsulNet website, the jury

was only presented with “several comparisons between the homepage, and two or three

linked (second) pages, in comparison to the homepage and second pages of certain DIG

websites.” Def. Mot. 10. Accordingly, defendants imply, given the jury’s finding of no

infringement with respect to the homepage, the jury’s finding of infringement with

respect to the entire website must have related to the two or three linked second pages —

which defendants contend were not the main focus of plaintiff’s evidence at trial, see Def.

Reply 3; see also Def. Reply 5 (asserting that “[f]or a finding of infringement to be

supported” with regard to the copyright for the entire website, made up of fifty-three

webpages, there would have to be “substantial similarity between a DIG website and the

53 separate items making up” the entire website (emphasis in original)).

Undertaking its “duty to attempt to read the verdict in a manner that will resolve

inconsistencies,” Mosley, 102 F.3d at 90, the court finds that this purported inconsistency 

in the jury’s verdict is easily resolved because plaintiff introduced sufficient evidence at

trial from which a jury could conclude that defendants copied portions of the ConsulNet

website other than the homepage (which the jury found was not infringed). As plaintiff

notes, this evidence includes sixteen ConsulNet webpages — other than the ConsulNet

homepage — that were found on various DIG websites. See Pl. Resp. 8-9 (citing exhibit

numbers). Furthermore, defendants could be liable for infringing the entire ConsulNet

website without having infringed each and every one of the 53 pages; as the court

instructed the jury, even a small amount of copying qualifies as infringement if the

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portion copied is important to these websites and their operation, commercial appeal, or

usefulness. See Docket No. 184, Tr. 5/1/08, at 20-21 (jury instruction). Moreover, there

was also evidence to support a jury determination that, while the ConsulNet homepage

itself was not infringed, the overall look and feel of the ConsulNet website as a whole

was copied by defendants, based on overall similarities in their structure, flow, images,

design, and language. See Pl. Resp. 8 & n.5; Docket No. 184, Tr. 5/1/08, at 20 (jury

instruction on “total concept and overall feel”).

Second, and relatedly, defendants contend that the jury’s answers to questions four

and five (holding both defendants liable for infringement with respect to the entire

ConsulNet website) are inconsistent with the jury’s verdict on question two and three

(holding only DIG liable for infringing “Don’t Pay Another Cent,” and neither defendant

liable for infringing the homepage), because the jury indicated through questions two and

three that the only copyright infringement that occurred was done by DIG’s clients (for

which DIG, but not Moore, was liable). Def. Mot. 10. 

The court agrees with plaintiff that this second purported inconsistency is also

easily resolved. As defendants themselves suggest, the finding of liability solely for DIG

with respect to the “Don’t Pay Another Cent” webpage likely reflects a finding of

secondary infringement with respect to that webpage, based on DIG client Wall’s

admission that she posted the infringing content on her DIG website herself. Def. Mot.

10. And, as discussed above, plaintiff put on evidence of infringement of numerous other

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ConsulNet webpages by defendants — aside from the home page and “Don’t Pay Another

Cent” — continuing to the month before trial. Defendant Moore testified that he was

primarily responsible for the content of the DIG pages (other than content uploaded by

clients, such as “Don’t Pay Another Cent”). There was therefore sufficient evidence on

the basis of which the jury could have found Moore, as well as DIG, either directly liable

for infringing content that the jury found was added by DIG and Moore, or secondarily

liable based on the numerous and ongoing instances of DIG’s clients’ posting infringing

content.

The court will therefore deny defendants’ motion for judgment notwithstanding the

verdict or a new trial with respect to the copyright claim.

B. 

The second ground on which defendants move for judgment notwithstanding the

verdict, or, in the alternative, for a new trial, is that the evidence presented at trial does

not support the jury’s finding that defendants’ conduct with respect to its intentional

interference with plaintiff’s contractual relations with its clients was “outrageous.”

 Under Pennsylvania law, a court may award punitive damages only if an actor’s

conduct is “outrageous”: “malicious, wanton, willful, or oppressive, or shows reckless

indifference to the interests of others.” Pa. SSJI (Civ.) § 14.00; accord Johnson v.

Hyundai Motor America, 698 A.2d 631, 639 (Pa. Super. 1997). “Conversely, ‘[p]unitive

damages may not be awarded for misconduct which constitutes ordinary negligence such

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as inadvertence, mistake and errors of judgment.’” Hall v. Jackson, 788 A.2d 390, 403

(Pa. Super. 2001) (quoting McDaniel v. Merck. Sharp & Dolune, 533 A.2d 436, 447 (Pa.

Super. 1987)). 

Citing Intermilo, Inc. v. I.P. Enterprises, Inc., 19 F.3d 890 (3d Cir. 1994),

defendants contend that an award of punitive damages in this case is manifestly unjust

because the evidence adduced at trial showed that “any contacts [to plaintiff’s clients]

were for [defendants’] own competitive business interests” and occurred over only a brief

time period, and that only 15% of DIG clients had been ConsulNet clients. DIG Mot. 12;

see Intermilo, 19 F.3d at 894 (finding, under New Jersey law, that defendant was not

liable for punitive damages because the defendant’s conduct was not “wantonly reckless”

or based on an “evil motive” but was rather “motivated primarily by [his] own business

interests, rather than by some desire to harm” the plaintiff). 

Plaintiff asserts in response that the record contains sufficient evidence from

which a jury could conclude that “the sordid story of Moore and DIG shows a

maliciousness, a willfulness and a recklessness so overwhelming as to give rise to a

finding of truly ‘outrageous’ conduct.” Pl. Resp. 15. Plaintiff’s support for this

contention is a three-page account of the evidence presented at trial. Plaintiff does not

identify which evidence, if any, demonstrates maliciousness. Plaintiff’s only reference to

reckless conduct is plaintiff’s assertion that “[d]ozens of exact or substantially similar

copies of the Proctor/ConsulNet special reports and campaigns have appeared on

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defendants’ websites in the 2005 to 2008 timeframe, evidencing defendants’ reckless

disregard for ConsulNet’s copyrights.” Pl. Resp. 14. 

Mindful of defendants’ burden in seeking a judgment notwithstanding the verdict

or a new trial, the court cannot find that the jury’s verdict with respect to

“outrageousness” works manifest injustice, or that it is against the great weight of the

evidence. “[T]he purpose of punitive damages is to punish outrageous and egregious

conduct done in a reckless disregard of another’s rights; it serves a deterrence as well as a

punishment function.” Johnson, 698 A.2d at 639. There was considerable evidence

presented at trial from which a reasonable jury could conclude that defendants’ conduct

manifested reckless indifference to plaintiff’s interests and was therefore deserving of

punishment — even if defendants’ conduct was partially or primarily motivated by their

own business interests, which they were apparently willing to follow above all other

considerations, including the lawfulness of their conduct. Viewing the evidence in the

light most favorable to plaintiff, defendants poached plaintiff’s clients in the following

manner: Defendant Moore obtained a 60-day free trial of a ConsulNet website through

the misrepresentation that he was a real estate agent. He then broke the contract he

signed with ConsulNet by using the information he gleaned from reviewing his trial

ConsulNet website to start his own competing real estate website company, DIG. 

Defendants Moore and DIG then copied ConsulNet’s websites in form and content, in the

process infringing ConsulNet’s copyrights. They marketed their infringing websites to

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ConsulNet’s clients and others with the pitch that defendants’ websites were nearly

identical to — yet cheaper than — ConsulNet’s websites. Defendants’ marketing efforts

targeted ConsulNet clients in particular; for instance, they telephoned ConsulNet clients

to convince them to switch to DIG, and created form cancellation notices for ConsulNet

clients to send to ConsulNet. (Although there was testimony at trial concerning other

companies in the business of selling real estate websites, defendants created such a form

only for ConsulNet clients.) The result of this course of conduct was that, in defendants’

first year in business, 80% of their clients were former ConsulNet clients. The court

cannot find that the jury’s verdict — finding that this conduct evinced a reckless disregard

for ConsulNet’s interests — works manifest injustice or is against the great weight of the

evidence.

An appropriate order follows.

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 CONSULNET COMPUTING, INC., d/b/a

SUCCESS WEBSITE,

Plaintiff

v.

MEGEL DAVID MOORE, et al., 

Defendants

CIVIL ACTION

No. 04-3485

ORDER

AND NOW, this 29th day of July, 2008, for the reasons stated in the

accompanying memorandum, IT IS ORDERED that defendants’ motion to alter or

amend the judgment, or, in the alternative, for a new trial, see Docket No. 196, is

DENIED.

/s/ Louis H. Pollak

_______________

Pollak, J.

Case 2:04-cv-03485-CDJ Document 217 Filed 07/30/08 Page 12 of 12