PLAINTIFF’S SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF PLAINITIFF’S 1

SECOND MOTION FOR SUMMARY JUDGMENT

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Carlos A. Leyva, FL Bar No. 51017

Linda S. McAleer, CA Bar No. 249233

Digital Business Law Group, P.A.

3958 Talah Dr.

Palm Harbor, FL 34684

Tel: (800) 516-7903

email: cleyva@digitalbusinesslawgroup.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

SellPoolSuppliesOnline.com, LLC,

Plaintiff

v.

Ugly Pools Arizona, Inc.; Brian 

Morris, an individual

Defendant

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CASE NO.: CV-15-01856-PHX-PGR

PLAINTIFF’S SEPARATE 

STATEMENT OF FACTS IN 

SUPPORT OF PLAINTIFF’S 

SECOND MOTION FOR 

SUMMARY JUDGMENT

1. Plaintiff, SellPoolSuppliesOnline.com (“SPSO”) facilitates the online presence 

and online store of numerous swimming pool contractors and parts suppliers 

throughout and around Arizona by licensing its website platform (“Platform”), located 

on the Internet at www.sellpoolsuppliesonline.com. See Exhibit1, Declaration of 

Aaron Hagen (“Hagen Decl.”) ¶3.

2. The Platform consists of, inter alia, a compilation of programs, representations, 

originally authored works, writings, hundreds of photos taken by the principals of 

SPSO, and computer architecture and design, which provide SPSO licensees the 

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PLAINTIFF’S SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF PLAINITIFF’S 2

SECOND MOTION FOR SUMMARY JUDGMENT

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infrastructure to configure, implement, and maintain fully functional and attractive 

websites based on the Platform that are personalized to each customer's business, 

incorporate and effectively use search engine optimization (“SEO”), and provide 

“drop-ship” delivery that dispenses with the need to maintain inventory. See Exhibit 1, 

Hagen Decl. ¶4.

3. SPSO spent three (3) years and hundreds of thousands of dollars to develop the 

Platform. See Exhibit 1, Hagen Decl. ¶5.

4. SPSO first published the Platform on or about July 3, 2014. The SPSO Platform 

is password protected and available only to licensees who register and pay for use and 

access. See Exhibit 1, Hagen Decl. ¶6.

5. In or about mid-July 2014 Plaintiffs employed Mark Kesler (“Kesler”) as a 

salesperson. See Exhibit 2, Deposition of Mark Kesler (“Kesler Depo.”) 20:19-22, 

21:13-15.

6. It was Kesler’s job to sell licenses to use the Platform. These licenses sold for 

on average $15,000. See Exhibit 2, Kesler Depo. 20:19-22, 53:14-16; See also Exhibit 

1, Hagen Decl. ¶6.

7. Plaintiffs additionally charged monthly maintenance fees and required licensees 

to host their sites on SPSO servers. See Exhibit 6, AllPoolAndSpaParts.com Website 

Platform Subscription Agreement signed by Mark Kesler (admitted as exhibits to both 

Kesler and Morris depositions).

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PLAINTIFF’S SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF PLAINITIFF’S 3

SECOND MOTION FOR SUMMARY JUDGMENT

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8. Kesler was paid a commission for each license he sold and ultimately purchased 

a license for use on his own site, “www.allpoolandspaparts.com” (“Kesler’s site”). See 

Exhibit 2, Kesler Depo. 32:7-9, 53:17-18.

9. The license was exclusively for “www.allpoolandspaparts.com” and pursuant to 

its terms, was subject to the SPSO Terms of Service. See Exhibit 6, page 2, 

AllPoolAndSpaParts.com Website Platform Subscription Agreement.

10.The Terms of Service, provided in relevant part, “Subscribers are provided use, 

NOT ownership, of a pre-constructed website hosted by SPSO, and accessed through a 

domain name provided by SPSO.” See Exhibit 6 page 6, Terms of Service ¶ 1. 

11.The Terms of Service further provided “You shall not modify, alter, copy, 

distribute, transmit, display, reproduce, publish, license, broadcast, create derivative 

works from, transfer, or sell, SPSO Content. Systematic retrieval of data or other 

SPSO Content from the Platform or www.sellpoolsuppliesonline.com to prepare any 

collection, compilation, database, or directory is strictly prohibited.” See Exhibit 6

page 8, Terms of Service ¶10(C).

12.Under the Terms of Service, subscribers did not have the right to “assign, by 

contract, operation of law or otherwise, the license or any of the rights, interests, or 

obligations” thereunder. See Exhibit 6 page 12, Terms of Service ¶17(B).

13.At some point in mid-2014, Kesler introduced his friend, Brian Morris, owner 

of Ugly Pools Arizona, Inc. and the trade name “We Fix Ugly Pools” (hereinafter 

“Defendants” or “WFUP”) to SPSO as a potential licensee. See Exhibit 2, Kesler 

Depo. 59:12-17.

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PLAINTIFF’S SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF PLAINITIFF’S 4

SECOND MOTION FOR SUMMARY JUDGMENT

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14.Defendants are in the business of building and remodeling swimming pools, as 

well as selling pool supplies and accessories in and around greater Maricopa County. 

See Exhibit 3, Deposition of Brian Morris (“Morris Depo.”) 8:18-19, Exhibit 2, Kesler 

Depo 20:7-8.

15.Defendants represented themselves to SPSO as prospective customers/licensees 

who were honestly considering the license of SPSO’s Platform in order to create a 

website for their business based on same. See Exhibit 1, Hagen Decl. ¶7, see also 

Exhibit 2, Kesler Depo 54:17-22, 59:14-15.

16.Defendants were provided access to Kesler’s copy of the server for the limited 

purpose of familiarizing themselves with the Platform and to assist Defendants in 

making a purchasing decision. Defendants were aware they would have to purchase a 

license to be authorized to have further access to the Platform, to use it commercially, 

and that the SPSO license governed the nature of their use of the Platform. See Exhibit 

5, Deposition of Aaron Hagen (“Hagen Depo.”) 67:7-68-7.

17.Defendants were in close contact with Kessler and SPSO management and 

pressed for very detailed, confidential information about SPSO’s Platform and its 

underlying functionality under the pretense of purchasing a license and entering into a 

long term commercial relationship for maintenance and support with SPSO. See 

Exhibit 5, Hagen Depo. 67:7-68:7, see also Complaint Exhibit A.

18.Unbeknownst to Plaintiff, Defendants and Kesler were working together and 

had formed a partnership in order for Defendant Morris to manage and redesign 

Kesler’s Site. See Exhibit 2, Kesler Depo. 37:4-7.

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PLAINTIFF’S SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF PLAINITIFF’S 5

SECOND MOTION FOR SUMMARY JUDGMENT

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19.Defendants have admitted to accessing SPSO’s Platform by logging into 

SPSO’s server and downloading a complete copy of SPSO’s Platform, on or about 

September 14, 2014. See Exhibit 3, Morris Depo. 88:3-12; see also Complaint Exhibit 

B.

20.After a complete copy of SPSO’s platform was downloaded, Defendants 

immediately ceased all communications with SPSO. See Exhibit 1, Hagen Decl. ¶ 8.

21.Nearly a year later, Plaintiffs discovered Defendants had published a website 

located at www.allpoolsupplies.com, (“APS”) which was nearly identical to the 

Platform. See Exhibit 7, email from Aaron Hagen to Brian Morris regarding his 

discovery of APS; see also Complaint exhibits C, D, E, F showing identical images 

and arrangement.

22.Defendants have admitted to copying the Platform and creating a derivative site, 

APS. See Exhibit 4, Defendants’ response to Plaintiff’s Request for Admissions, No.7-

8; see also Exhibit 3, Morris Depo. 49:6-17.

23.Defendants have also admitted to going live with APS ostensibly as a “test 

site.” See Exhibit 3, Morris Depo. 19:17-20:1 71:1-16.

24.However, the “test site” was launched live on the internet as a fully functioning 

site through which customers could, and did place orders. See Exhibit 3, Morris Depo. 

19:13-16.

25.This site was live concurrent with Kesler’s site, was independently hosted by 

Defendants (i.e. not on Plaintiff’s server), and had a separate license through 

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PLAINTIFF’S SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF PLAINITIFF’S 6

SECOND MOTION FOR SUMMARY JUDGMENT

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BigCommerce for back end services. See Exhibit 3, Morris Depo. 19:13-16, 16:25-

17:10.

26.In other words, it was not just a second URL that redirected customers to 

Kesler’s site, a permissible use under Kesler’s license, but rather, it was a completely 

independent, wholly unrelated, unlicensed site. See Exhibit 2, Kesler Depo. 52:9-15, 

56:2-4.

27.Neither Defendants nor Kesler ever informed Plaintiff of their partnership, nor 

of their derivative use of the site. See Exhibit 2, Kesler Depo. 86:7-9; see also Exhibit

3, Morris Depo. 36:10-12.

28.While creating the derivative site (“Derivative Site”), Defendants wholly 

incorporated the original photos as published on July 3, 2014 and registered with the 

U.S. Copyright Office (“USCO”) under registration number TX 8-268-803 into the 

Derivative Site and incorporated other content from the Platform into same. See

Exhibit 3, Morris Depo. 44:1-10, 71; see also Complaint Exhibits E and F.

29.Registration number TX 8-268-803 remained a valid USCO registration post 

the USCO’s response dated September 5, 2017. See Doc. 72.

30.Kesler’s license was granted specifically for use on his site located at 

allpoolandspaparts.com. The license strictly limited use of the Platform. See generally 

Exhibit 6.

31.Defendants admit to never having seen, let alone reviewed Kesler’s license 

which purportedly permitted them to replicate and publish, and “do whatever it took” 

to improve Kesler’s site. See Exhibit 3 Morris Depo. 64:21-65:1.

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PLAINTIFF’S SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF PLAINITIFF’S 7

SECOND MOTION FOR SUMMARY JUDGMENT

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32.Had Defendants bothered to read the license, they would have discovered that 

any copying, derivative works, republishing of the Platform was prohibited. See 

Exhibit 6 page 8, Terms of Service ¶10(C).

33.While Defendants assert that they copied, altered, and published APS with the 

consent of Kesler, Kesler has denied granting consent to make a live copy of his site. 

See Exhibit 3, Morris Depo. 31:6-32:4; see also, Exhibit 2, Kesler Depo. 29:4-13.

34.Kesler did not have the right to copy the site or to publish a derivative site, 

therefore he could not have given such authorization to Defendants. Any such use 

exceeded the scope of Kesler’s license. See Exhibit 6 page 8, Terms of Service ¶10(C).

35.SPSO discovered Defendants’ infringing website on or about July 15, 2015 and 

promptly notified Defendants of infringement on that same day. See Exhibit 7, email 

from Aaron Hagan to Brian Morris dated July 15, 2015.

36.Defendants did not respond to SPSO’s notification or otherwise communicate 

with SPSO regarding the theft of SPSO’s property. See Exhibit 3, Morris Depo. 91:24-

92:2.

37.SPSO never entered into any agreement, express or implied, with Kesler or 

Defendants that would permit Defendants to adapt or otherwise use the Platform. See

Exhibit 5, Hagan Depo. 65:3-7; 66:19-21.

38.Neither Kesler nor Defendants ever discussed the legality of their actions with 

an attorney. See Exhibit 3, Morris Depo. 53:25-54:3.

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PLAINTIFF’S SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF PLAINITIFF’S 8

SECOND MOTION FOR SUMMARY JUDGMENT

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39. Plaintiff’s U.S. Copyright Office (“USCO”) registration numbered TX 8-268-

803 only registered “text and photographs.” See Exhibit 8, USCO certificate of 

registration.

40.The Internet Archive (“IA”) contains Plaintiff’s photographs that were 

published on July 3, 2014; a representative sample of these same IA photographs were 

found to exist in the deposit Plaintiff provided the USCO as part of registration number 

TX 8-268-803, and likewise exist in Defendants’ copy of Plaintiff’s website taken 

prior to the commencement of this action. See Exhibit 9, Affidavit of Martin F. 

Gwynn; see also Exhibit 10 Parts 1-3, comparison of photographs across the respective 

mediums.

Dated: September 27, 2017 DIGITAL BUSINESS LAW GROUP, P.A.

 /s/Linda S. McAleer

Linda S. McAleer, CA SBN 239233

3958 Talah Dr.

Palm Harbor, FL 34684

(800) 516-7903 Phone 

(800) 257-9128 fax

Linda@lindamcaleer.com

ATTORNEY FOR PLAINTIFF 

SELLPOOLSUPPLIESONLINE.COM, LLC

Case 2:15-cv-01856-BSB Document 78-1 Filed 09/27/17 Page 8 of 8