quizinsight.com Partnership v. Tabak

• Court: District Court, District of Columbia
• Decided: February 10, 2025
• Docket: Civil Action No. 2018-1878
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

QUIZINSIGHT.COM PARTNERSHIP, et al.,

Plaintiffs. No. 18-cv-01878 (DLF) v.

ROSS LEE TABAK,

Defendant.

ORDER

This case is about several failed business relationships between plaintiffs Roy Feinson

and multiple partnerships and defendant Ross Lee Tabak. Before the Court is the defendant’s

Motion to Dismiss, Dkt. 146, and the plaintiffs’ Motion for Sanctions, Dkt. 151. For the reasons

that follow, the Court will deny both motions.

The Court will assume the parties’ familiarity with the factual proceedings, procedural

history, and legal standards as outlined in the Courts’ previous orders. See Mem. Op. at 1–4,

Dkt. 16; Order at 2–3, Dkt. 59, Minute Order of September 2, 2022.

A. Motion to Dismiss

Tabak argues that the plaintiffs have not adequately alleged a violation of the Defense of

Trade Secrets Act (Count I); Copyright Infringement (Count IV), Tortious Interference with

Economic Advantage (Count V); and Conversion (Count VI). 1 The Court will address Counts I

1 To the extent any of Tabak’s arguments were available but not raised in his previous motions to dismiss, see Rule 12(g)(2), the Court will exercise its discretion to treat his motion as a motion for judgment on the pleadings under Rule 12(c). See Fed. R. Civ. P. 12(h)(2)(B); He Depu v. Oath Holdings, Inc., 531 F. Supp. 3d 219, 236–37 (D.D.C. 2021). and IV separately and then address Counts V and VI together, as Tabak raises the same argument

regarding the last two.

1. Count I: Defense of Trade Secrets Act

Tabak first argues this count is untimely. The Court disagrees. Under Rule 15(c)(1)(B) of

the Federal Rules of Civil Procedure, an amendment “relates back to the date of the original

pleading” if it “asserts a claim . . . that arose out of the conduct, transaction, or occurrence set

out—or attempted to be set out—in the original pleading.” An amended claim does

not relate back if it “asserts a new ground for relief supported by facts that differ in both time and

type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). And

an amendment that “attempts to introduce a new legal theory based on facts different from those

underlying the timely claims” does not relate back. United States v. Hicks, 283 F.3d 380, 388

(D.C. Cir. 2002). But “an amendment offered for the purpose of adding to or amplifying the facts

already alleged in support of a particular claim may relate back.” Id.

The plaintiffs’ amendment falls into the latter category. Although the Second Amended

Complaint raises a Defense of Trade Secrets Act claim for the first time, the underlying facts

remain the same. The original complaint alleged trade secret violations, see Compl. ¶¶ 99–102,

Dkt. 1, which gave Tabak “fair notice of the claims against [him],” Ciralsky v. CIA, 355 F.3d 661,

668–70 (D.C. Cir. 2004). Accordingly, this count relates back to the original complaint and is

timely.

Next, Tabak claims he co-owned all the trade secrets and, as co-owner, could not have

violated the statute. Mot. to Dismiss ¶ 43. This is incorrect. Tabak misreads the D.C. Uniform

Partnership Act to conclude that, as a member of the partnership, he owned all the trade secrets.

The opposite is true. Property acquired by a partnership is property of the partnership, not of the

2 individuals making up the partnership. D.C. Code § 29—602.03. An individual partner cannot

use partnership property for his own benefit, but “only on behalf of the partnership.” Id. § 29—

604.01(j). The complaint alleges that Tabak used the trade secrets for his “own benefit.” Sec.

Am. Compl. ¶ 194, Dkt. 145. Thus, it plausibly alleges that Tabak misappropriated the

partnerships’ property—not his own. 2

Tabak asserts that even if he did not own the trade secrets, he did not violate the Act

because he never disclosed the databases. 3 Mot. to Dismiss ¶¶ 48, 50. But disclosure is only one

way to violate the Act. Misappropriation also includes improper “use” of a trade secret. 18 U.S.C.

§ 1839(5)(B). The complaint plausibly alleges that Tabak knowingly used the databases without

permission “for Tabak’s own benefit.” Sec. Am. Compl. ¶ 194. As alleged, Tabak’s actions

plausibly constitute misappropriation.

Finally, Tabak argues that dismissal is warranted because he had express or implied

permission to use any trade secrets. Mot. to Dismiss ¶ 51. Tabak’s theory rests on a May 25,

2018, email that Feinson sent to him after the relationship had broken down. In that email, Feinson

urged Tabak to return the websites, stating “You have [to] the end of the month to reverse course.”

Sec. Am. Compl. ¶ 113. According to Tabak, this meant that the plaintiffs had “extended the status

quo” to allow him to use the websites until the end of May. Mot. to Dismiss ¶ 58. The Court

disagrees. The plaintiffs allege that on May 18th, Tabak “locked Feinson out of the Google

AdSense account and diverted incoming funds to his personal Ally bank account.” Sec. Am.

2 The Court need not decide whether Feinson individually owned the copyrighted material or whether it became the partnerships’ property, because both entities are plaintiffs in this case. See Opp’n at 1, Dkt. 152. It will assume without deciding that the property belonged to the partnership. 3 Tabak also points out that the website itself and the plaintiffs’ books are not trade secrets because they are publicly available. The Court does not address this argument because the plaintiffs do not allege that either is a trade secret.

3 Compl. ¶ 107. In other words, Tabak had already begun using the trade secrets and websites for

his own personal benefit at the expense of the partnership. As alleged, Tabak was essentially

holding the partnerships’ property hostage to benefit himself. Drawing reasonable inferences in

favor of the plaintiffs, Feinson’s email therefore did not grant permission, but rather only

responded to a pre-existing situation that put the plaintiffs under duress. After all, if Tabak was

twisting Feinson’s arm and Feinson told him, “You have a minute to stop or I’m calling for help,”

that would not constitute permission to keep twisting for the next 59 seconds. The plaintiffs have

properly stated a claim.

2. Count IV: Copyright Infringement

Tabak once again argues that he could not have violated plaintiffs’ copyright because as a

member of the partnership, he co-owned the copyright. Mot. to Dismiss ¶¶ 62–63. And Tabak

again claims that he had express or implied consent. The Court has already rejected these

arguments. See supra. Finally, Tabak asserts that the plaintiffs cannot bring a copyright claim

for the websites, because the websites’ copyrights were not registered. Mot. to Dismiss ¶ 66.

But the plaintiffs disclaim any copyright claim relying on the websites themselves, and instead

allege only copyright violations for the underlying copyrighted material. Opp’n at 17. Tabak

does not dispute that the underlying books have registered copyrights. See Sec. Am. Compl. ¶¶

54, 222–24. Thus, the plaintiffs state a claim for copyright infringement.

3. Counts V, VI: Tortious Interference & Conversion

Tabak opposes these counts on the grounds that he had express or implied permission to

use the websites. Mot. to Dismiss ¶¶ 70, 77. The Court has already rejected this argument, and

Tabak raises no other argument in support of dismissal. The plaintiffs’ tortious interference with

economic advantage and conversion claims survive.