1-800 CONTACTS, INC. v. LENS.COM, INC. (D.Utah 12-14-2010)

ragraph Having concluded that the malicious prosecution claim failed because probable cause existed for the plaintiff's arrest, the trial court further concluded that the plaintiff's intentional and negligent infliction of emotional distress claims also must fail. Specifically, the court concluded that, although "being arrested and subject to prosecution may have been traumatic to the plaintiff, enforcement of the law can hardly be called conduct beyond the acceptable bounds of decent society. Subjecting a government official or employee to litigation for [the intentional] infliction of emotional distress arising from a valid arrest would be contrary to public policy and inhibit the enforcement of the law.

* * *

"The same public policy implications . . . come into play [with respect to the plaintiff's negligent infliction of emotional distress claim]: an official enforcing the law should not be held liable for improper acts supposedly committed in the course of obtaining an otherwise valid arrest."

Turning next to the plaintiff's § 1983 claims, the trial court observed that those claims were predicated on the equal protection clause and alleged both protected class and "`class of one'" theories of recovery. Before addressing the merits of the § 1983 claims, however, the court explained that it first was required to determine whether Sweeney and Huleatt were entitled to qualified immunity, because, if they were, the court lacked subject matter jurisdiction over those claims. The court further explained that, under federal law, the doctrine of qualified immunity shields government officials from civil actions arising out of their discretionary acts if such acts did not violate clearly established law, or it was objectively reasonable for the officials to believe that their actions did not violate clearly established law. Applying this standard to the undisputed facts, the trial court concluded that Sweeney and Huleatt were entitled to qualified immunity because it was objectively reasonable for Sweeney to believe that his enforcement of the health code of the town of Bloomfield did not violate clearly established equal protection law. Specifically, the court concluded: "The undisputed facts show that the plaintiff's septic system had been leaking since approximately 1987. In 2003, Sweeney responded to a complaint from a neighbor that the plaintiff's system was leaking. Sweeney, pursuant to his duty to enforce the health code, worked with the plaintiff, giving her time to get the system fixed. The plaintiff stated that she would not or could not comply with the orders of the [h]ealth [d]istrict. Sweeney prepared an affidavit in support of [an application for] an arrest warrant, a judge signed the warrant, and the plaintiff was arrested for failure to comply with an order of the [h]ealth [d]istrict. The plaintiff states that Matthews' property had the same problem as hers, that she observed the problem at Matthews' property around the same time as these events and that she asked Sweeney why he was not enforcing the [health] code against Matthews. The evidence does not show that Sweeney knew Matthews was Caucasian; nor does it appear that any formal complaint was lodged against Matthews or that Matthews had refused to comply with an order of the [h]ealth [d]istrict.

"Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class . . . the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials. . . . The [United States] Supreme Court [has] affirmed the validity of such class of one claims [when] the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." (Internal quotation marks omitted.) C H Associates Ltd. Partnership v. Stratford, 122 Conn. App. 198, 204, 998 A.2d 833 (2010).

"On the basis of these facts, it was objectively reasonable for a [government official] in Sweeney's position to believe that his enforcement of the health code in this situation did not violate the plaintiff's right to equal protection of the laws. Therefore, the court finds that qualified immunity applies to Sweeney's conduct." The court also concluded that Huleatt was entitled to qualified immunity because he had no more information about the enforcement issues involving Matthews and the plaintiff than Sweeney did.

Finally, with respect to the plaintiff's negligent supervision claim, the court concluded that the plaintiffs allegations of negligence involved the performance of discretionary acts and that, under well established precedent, Huleatt was entitled to governmental immunity from liability for those acts unless the plaintiff could establish that an exception to that immunity applied. The court then rejected the plaintiff's contention that the "`identifiable person-imminent harm'" exception to governmental immunity applied to Huleatt's conduct. Specifically, the court found that Huleatt's failure to stop Sweeney from preparing the affidavit in support of an application for the arrest warrant "could hardly be said to create an imminent risk of arrest. Prosecutors, and then judges, do not review warrant applications on a set schedule. Police officers do not always attempt to serve arrest warrants as soon as they know about them. In this case, the plaintiff was not arrested until [thirty-two] days after Sweeney submitted the [affidavit in support of an application for the] arrest warrant. The court finds, as a matter of law, that any `harm' [that the] plaintiff could conceivably have been subjected to, as a result of Sweeney's or Huleatt's conduct, was not `imminent.'" In light of its determination that Sweeney and Huleatt were entitled to judgment as a matter of law as to all claims, the trial court concluded that the towns also were entitled to judgment as a matter of law because the plaintiff's claims against them were derivative of her claims against Sweeney and Huleatt. This appeal followed. Additional facts and procedural history will be set forth as necessary.

"Under Connecticut law, an employer may be held liable for the negligent supervision of employees. See Gutierrez v. Thorne, 13 Conn. App. 493, 500, 537 A.2d 527 (1988) (recognizing independent claim of direct negligence against employer who failed to exercise reasonable care in supervising employee); [see also] Roberts v. Circuit-Wise, Inc., 142 F. Sup. 2d 211, 214 (D. Conn. 2001) (in negligent supervision action, plaintiff must plead and prove that she suffered an injury due to the defendant's failure to supervise an employee whom the defendant had [a] duty to supervise); [cf.] Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982) (liability in any situation [in which] a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment)." (Internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn. App. 186, 191, 844 A.2d 224 (2004).

"[W]hen the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable [or foreseeable] person to imminent harm, the public officer is not entitled to qualified immunity." (Internal quotation marks omitted.) Fleming v. Bridgeport, 284 Conn. 502, 532, 935 A.2d 126 (2007).

On appeal, the plaintiff claims that the trial court incorrectly concluded that no genuine issues of material fact exist as to whether probable cause existed for the plaintiff's arrest and, therefore, improperly granted Sweeney's motion for summary judgment on the malicious prosecution and intentional and negligent infliction of emotional distress claims. The plaintiff also claims that the trial court incorrectly concluded that (1) Sweeney and Huleatt are entitled to qualified immunity from liability for the plaintiff's § 1983 claims, (2) the identifiable person-imminent harm exception to governmental immunity did not apply to the plaintiff's negligent supervision claim against Huleatt, and (3) there is no basis for liability against the towns. We conclude that the plaintiff's arrest was supported by probable cause and, therefore, that Sweeney is entitled to judgment as a matter of law on the malicious prosecution and intentional and negligent infliction of emotional distress claims. We further conclude that both Sweeney and Huleatt are entitled to qualified immunity from liability for the plaintiff's § 1983 claims. In light of those conclusions, we also conclude that Huleatt is entitled to judgment as a matter of law on the negligent supervision claim and that the towns are entitled to judgment as a matter of law on the liability claims because they are derivative of the claims against Sweeney and Huleatt.

I

We first address the plaintiff's claim that the trial court improperly granted Sweeney's motion for summary judgment on the malicious prosecution and intentional and negligent infliction of emotional distress claims on the ground that Sweeney's affidavit was supported by probable cause. The plaintiff contends that, in reaching its determination, the trial court improperly resolved a disputed factual issue regarding whether Sweeney, at the time he prepared his affidavit, believed that the plaintiff would not comply with the order. We are not persuaded.

We note that the plaintiff does not challenge the trial court's determination that the existence of probable cause defeats her claims of malicious prosecution and intentional and negligent infliction of emotional distress. We therefore limit our analysis to whether the trial court properly determined that probable cause existed for the plaintiffs arrest.

The following legal principles guide our analysis of the plaintiffs claim. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court's decision to grant [a party's] motion for summary judgment is plenary." (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).

"An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice. . . . The law governing malicious prosecution seeks to accommodate two competing and ultimately irreconcilable interests. It acknowledges that a person wrongly charged with criminal conduct has an important stake in his bodily freedom and his reputation . . . but that the community as a whole has an even more important stake in encouraging private citizens to assist public officers in the enforcement of the criminal law." (Citation omitted; internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 404-405, 948 A.2d 1009 (2008).

"Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he has reasonable grounds for prosecuting an action. . . . Mere conjecture or suspicion is insufficient. . . . Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable. . . . Although want of probable cause is negative in character, the burden is [on] the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding. . . . The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law." (Citation omitted; internal quotation marks omitted.) Id., 410-11.

Applying these principles to the present case, and viewing the evidence in the light most favorable to the plaintiff, we conclude that it is abundantly clear that the plaintiff has failed to meet her burden of establishing that Sweeney lacked probable cause to seek her arrest in July, 2004. Criminal proceedings against the plaintiff were instituted pursuant to § 19a-220, which provides: "When any person refuses to obey a legal order given by a director of health, health committee or board of health, or endeavors to prevent it from being carried into effect, a judge of the Superior Court may issue his warrant to a proper officer or to an indifferent person, therein stating such order and requiring him to carry it into effect, and such officer or indifferent person shall execute the same." General Statutes § 19a-220; see also General Statutes § 19a-36 (a) (7) ("[a]ny person who violates any provision of the Public Health Code shall be fined not more than one hundred dollars or imprisoned not more than three months, or both"); General Statutes § 19a-230 ("[a]ny person who violates any provision of . . . chapter [368e of the General Statutes] or any legal order of a director of health or board of health, for which no other penalty is provided, shall be fined not more than one hundred dollars or imprisoned not more than three months or both").

This court has observed that "[t]he abatement of nuisances and the enforcement of the public health code by municipal health officials . . . [is] authorized by [what is now § 19a-220]. . . . The promulgation of public health . . . and the regulation and abatement of uses of property and nuisances [that] threaten the health and safety of the general public constitute legitimate subjects for the exercise of the state's police power. This power comprehends a system of internal regulation . . . to enable people to live together in close association, preserving to each his individual rights and privileges but so controlling them that their enjoyment is reasonably consistent with the enjoyment of like rights and privileges by others." (Internal quotation marks omitted.) DeMello v. Plainville, 170 Conn. 675, 678-79, 368 A.2d 71 (1976).

In the present case, the undisputed evidence establishes that, on July 30, 2003, the plaintiff was ordered to complete repairs to her septic system by October 1, 2003, which she failed to do. As of July, 2004, the plaintiff still had not complied with the July 30, 2003 order, even though she had been given a number of extensions of time in which to do so. In light of the foregoing, it is abundantly clear that Sweeney had probable cause to believe, when he prepared his affidavit in support of an application for the arrest warrant, that the plaintiff either would not or could not comply with the order. Indeed, according to the plaintiff's own deposition testimony, she told Sweeney, in early June, 2004, that she could not comply with the order.

The plaintiff nevertheless contends that there is a disputed factual issue with regard to whether she refused to comply with the order and, therefore, with regard to whether Sweeney had probable cause to seek her arrest under § 19a-220. Specifically, the plaintiff contends that, notwithstanding her statements to Sweeney in early June, 2004, by the time Sweeney prepared the affidavit supporting her arrest on July 16, 2004, he was aware that she was exploring ways to finance the repairs, and that her engineer was actively engaged in drawing up a new plan for completing the repairs. We reject the plaintiff's claim. Whatever the plaintiff's intentions might have been in July, 2004, the fact remains that, on the day that Sweeney prepared the affidavit, it was objectively reasonable for him to believe that the plaintiff had refused to obey an outstanding order of the health district — whether for financial or other reasons — and that, on the basis of his experiences with the plaintiff over the preceding two years, she would continue to do so until more aggressive enforcement measures were taken.

The plaintiff also contends, in reliance on State v. Cooney, 24 Conn. Sup. 242, 189 A.2d 511 (1962), that there was no probable cause for her arrest for refusing to obey an order of the health district because the order was invalid under General Statutes § 19a-206 (a), which provides in relevant part: "Town, city and borough directors of health or their authorized agents shall, within their respective jurisdictions, examine all nuisances and sources of filth injurious to the public health, cause such nuisances to be abated or remediated and cause to be removed all filth which in their judgment may endanger the health of the inhabitants. . . ." Specifically, the plaintiff contends that the court in Cooney interpreted General Statutes (1958 Rev.) § 19-79, the predecessor to § 19a-206 (a), as authorizing health inspectors to order the abatement of a nuisance — in Cooney, the alleged nuisance was a pile of horse manure — only if the nuisance is first determined to constitute a danger to public health. Cooney, however, bears no relevance to the present case in light of the statutory and regulatory scheme that now governs our analysis of the plaintiff's claims. General Statutes § 19a-207 provides in relevant part that "[t]he local director of health or his authorized agent or the board of health shall enforce or assist in the enforcement of the Public Health Code and such regulations as may be adopted by the Commissioner of Public Health. . . ." Section 19-13-B1 (d) of the Regulations of Connecticut State Agencies, which is part of the state public health code, provides that "[t]he discharge or exposure of sewage . . . or any other organic filth into or on any public place in such a way that transmission of infective material may result" constitutes a public nuisance. Section 19-13-B2 (a) of the state public health code, in turn, authorizes "[a]ny local director of health, upon information of the existence of [such] nuisance . . . [to] order in writing for the abatement of the same." Finally, § 19-13-B103c (f) of the state public health code, which was promulgated approximately twenty years after Cooney, provides: "No sewage shall be allowed to discharge or flow into any storm drain, gutter, street, roadway or public place, nor shall such material discharge onto any private property so as to create a nuisance or condition detrimental to health. Whenever it is brought to the attention of the local director of health that such a condition exists on any property, he shall investigate and cause the abatement of this condition." Thus, there is no question that the order of the health district was authorized under §§ 19-13-B1 (d), 19-13-B2 (a) and 19-13-B103c (f) of the state public health code.

II

We next address the plaintiff's claim that the trial court incorrectly concluded that Sweeney and Huleatt are entitled to qualified immunity from liability for her § 1983 claims on the ground that it was objectively reasonable for Sweeney to believe that his conduct in enforcing state regulations and local ordinances did not violate the plaintiff's clearly established rights under the equal protection clause of the fourteenth amendment to the United States constitution. In particular, the plaintiff contends that the trial court incorrectly determined that Sweeney's conduct was objectively reasonable for equal protection purposes because the plaintiff and Matthews were not similarly situated, and, consequently, there was no reason for Sweeney to believe that his conduct toward Matthews had any bearing on the propriety of his conduct toward the plaintiff. The plaintiff claims that the trial court, in reaching this determination, ignored several important facts that, when considered in the light most favorable to her, give rise to genuine issues of disputed fact as to whether she and Matthews were, indeed, similarly situated. Contrary to the plaintiffs contention, she has failed to meet her burden of demonstrating the existence of any genuine issue of material fact with respect to whether she and Matthews were similarly situated. Consequently, the trial court correctly determined that Sweeney and Huleatt are entitled to qualified immunity.

Specifically, the plaintiff claims that the trial court ignored the following facts: (1) her septic system had been in the same disrepair for at least thirteen years; (2) the town of Bloomfield informed her in 1992 that her septic system was not a health risk; (3) prior to 2003, she never was ordered to repair her septic system; (4) she was the first person that either Sweeney or Huleatt ever had sought to have arrested; (5) the town did not have a "housing code board of appeals" when the complaint against her was lodged in 2002; (6) the appeals committee of the health district determined that the septic system presented no immediate danger to the public health; (7) she never stopped working with the health district to fix her system, and had engaged, with the district's approval, contractors to design a compliant system; (8) the failure to repair the system in June, 2004, was not her fault but the fault of overlooked circumstances related to the property; (9) Sweeney did not need to pursue the plaintiff's arrest, and he acknowledged that, even if he had been aware of other enforcement options, he still would have sought her arrest; and (10) Matthews, a male, Caucasian neighbor, had experienced similar problems with his septic system, but Sweeney, also a Caucasian male, took no action against him.

The plaintiff also claims that Sweeney and Huleatt violated her due process right not to be arrested but upon probable cause. Because we previously have concluded that probable cause existed for the plaintiffs arrest, we reject this claim.

The following well established legal principles guide our analysis. "[A] claim for qualified immunity from liability for damages under § 1983 raises a question of federal law . . . and not state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials." (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, 230 Conn. 735, 742-43, 646 A.2d 152 (1994).

"Under federal law, the doctrine of qualified immunity shields officials from civil damages liability for their discretionary actions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). Qualified immunity is an immunity from suit rather than a mere defense to liability and, therefore, protects officials from the burdens of litigation for the choices that they make in the course of their duties. . . . Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Thus, the United States Supreme Court has recognized qualified immunity for government officials [when] it [is] necessary to preserve their ability to serve the public good or to ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service. Wyatt v. Cole, 504 U.S. 158, 167, 112 S. Ct. 1827, 118 L. Ed. 2d 504 (1992). Whether an official is entitled to qualified immunity presents a question of law that must be resolved de novo on appeal. Elder v. Holloway, 510 U.S. 510, 516, 114 S. Ct. 1019, 127 L. Ed. 2d 344 (1994).

"A court required to rule [on] the qualified immunity issue must consider . . . this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable. Id. . . .

"Under the Saucier test, a court first is required to articulate the elements of a constitutional violation and, taking the facts in the light most favorable to the plaintiff, determine whether there would be a violation of the plaintiff's constitutional rights under those facts. [Id.] The principles set forth with regard to the right alleged to have been violated set the groundwork for and inform the second inquiry. Id. Under the second inquiry, the court must determine not merely whether the state official conducted, for example, a reasonable search or seizure because qualified immunity has a further dimension. Id., 205. Rather, a court must also determine for purposes of qualified immunity whether the officer made a reasonable mistake as to the legal constraints on his behavior under those circumstances. Id. As the Supreme Court stated in Saucier, the essence of the second inquiry is that the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . Id., 202.

"The Second Circuit has further refined the second inquiry under Saucier. . . . A [governmental] defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law. Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir. 2007). In determining whether a right was clearly established, the court must assess whether the contours of the right [were] sufficiently clear in the context of the alleged violation such that a reasonable official would understand that what he [was] doing violate[d] that right. . . . To that end, the court should consider what a reasonable officer in the defendant's position would have known about the lawfulness of his conduct, not what a lawyer would learn or intuit from researching case law. . . . Furthermore, the court need not identify legal precedent addressing an identical factual scenario to conclude that the right is clearly established. . . . Id." (Citation omitted; internal quotation marks omitted.) Fleming v. Bridgeport, 284 Conn. 502, 517-19, 935 A.2d 126 (2007).

As we previously indicated, the plaintiff's § 1983 claims are predicated on class of one and protected class theories of recovery. "The [e]qual [p]rotection [c]lause of the [f]ourteenth [a]mendment to the United States [c]onstitution is essentially a direction that all persons similarly situated should be treated alike. . . . A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 362, 977 A.2d 636 (2009).

"Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class . . . the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials. . . . The [United States] Supreme Court [has] affirmed the validity of such class of one claims [when] the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. . . . [See Willowbrook] v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000); Kelo v. New London, 268 Conn. 1, 107, 843 A.2d 500 (2004), affd, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005)." (Citation omitted; internal quotation marks omitted.) C H Associates Ltd. Partnership v. Stratford, 122 Conn. App. 198, 204, 998 A.2d 833 (2010).

"[T]he analytical predicate [of an equal protection claim] is a determination of who are the persons . . . similarly situated." (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 158, 957 A.2d 407 (2008). "[T]he requirement imposed [on] [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances [in which] persons situated similarly in all relevant aspects were treated differently. . . ." (Emphasis in original; internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 672, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).

Class of one plaintiffs, however, "must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves. . . . This is because the existence of persons in similar circumstances who received more favorable treatment than the plaintiff in a class-of-one case is offered to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose — whether personal or otherwise — is all but certain. . . . Accordingly, to succeed on a class-of-one claim, a plaintiff must establish that

"(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake." (Citations omitted; internal quotation marks omitted.) Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006).

Applying these principles to the present case, we conclude that the plaintiff has failed to meet her burden of establishing that she and Matthews were similarly situated, either under a class of one theory or under a protected class theory. Although the plaintiff cites to numerous facts in the record that she maintains support her claim, only the fact that Matthews is a male Caucasian who previously had experienced problems with his septic system that were similar to the problems that the plaintiff experienced at the time of her arrest, arguably supports her claim. As the trial court observed, however, although there is evidence that Matthews experienced problems with his septic system in 1992, the record is devoid of evidence that he experienced problems after that time, that he ever was cited for a health code violation or that he ever failed to comply with an order of the health district. Moreover, there is no evidence that any of his neighbors ever filed a complaint against him with the health district, as the plaintiff's neighbor had done in the plaintiff's case. Indeed, Sweeney testified at the hearing before the appeals committee that no other homeowners in the vicinity of the plaintiff's property were experiencing septic problems at the time of the hearing in 2003. If this statement had been untrue, or if a complaint actually had been lodged against Matthews, we would expect the plaintiff to have adduced such evidence in the trial court. See, e.g., Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578-79, 573 A.2d 699 (1990) ("[The party opposing a motion for summary judgment] must present evidence that demonstrates the existence of some disputed factual issue. . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist." [Citations omitted; internal quotation marks omitted.]). In the absence of such evidence establishing that she and Mathews were similarly situated — in other words, in the absence of a showing that the circumstances pertaining to the septic system problems that the plaintiff and Matthews encountered were substantially similar in all material respects — the plaintiff has failed to establish an essential predicate of her equal protection claim, and, consequently, Sweeney and Huleatt both are entitled to qualified immunity from liability for her § 1983 claims.

III

Lastly, we address the plaintiff's contention that the trial court improperly determined that Huleatt is shielded by governmental immunity from liability for the plaintiff's negligent supervision claim. That claim, according to the plaintiff, is based on Huleatt's "failure to prevent Sweeney from seeking [the] plaintiffs arrest." As we previously noted, the trial court rejected the plaintiff's contention that the identifiable person-imminent harm exception to the doctrine of governmental immunity applied to Huleatt's conduct. On appeal, the plaintiff challenges that determination. We conclude, however, that it is unnecessary to decide that issue because, even if it is assumed that the identifiable person-imminent harm exception applies to Huleatt's conduct, the plaintiff's claim of negligent supervision still must fail as a matter of law because Huleatt's conduct was not negligent. Simply put, because the plaintiff's arrest was supported by probable cause and did not amount to selective enforcement of the law in violation of the equal protection clause, Huleatt owed no duty to the plaintiff to prevent her lawful arrest. See Henshaw v. Doherty, 881 A.2d 909, 919 (R.I. 2005) (rejecting negligent supervision claim because, in light of court's prior conclusion that arrest was supported by probable cause "the state cannot be liable for negligent supervision").

The plaintiff does not challenge the trial court's finding that Huleatt's actions in hiring, training and supervising Sweeney were discretionary. Thus, the plaintiff can prevail on this claim only if she can demonstrate that the identifiable person-imminent harm exception to qualified immunity applies. See, e.g., Fleming v. Bridgeport, supra, 284 Conn. 531-33 ("[A] municipal official is otherwise generally immune from liability for discretionary — as opposed to ministerial — acts, unless the plaintiff can show that the circumstances fit under one of three exceptions . . . [one of which involves] circumstances [that] make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm. . . . Under our case law, when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable [or foreseeable] person to imminent harm, the public officer is not entitled to qualified immunity. . . . Foreseeability is the touchstone of our analysis in determining whether a public officer can be liable for his discretionary acts under this exception. . . . Thus, we will permit official liability for discretionary acts only if the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force. . . . The issue of governmental immunity is a question of law, over which we exercise de novo review." [Citations omitted; internal quotation marks omitted.]).

As we previously indicated, the plaintiff's direct liability and indemnification claims against the towns are derivative of her claims against Sweeney and Huleatt. In light of our conclusion that Sweeney and Huleatt are entitled to judgment as a matter of law on all claims, the towns also are entitled to judgment as a matter of law on the claims asserted against them.

The judgment is affirmed.

In this opinion the other justices concurred.

e a color for its label other than red and white, a consumer still may be confused as to source because "Coca-cola" signifies a distinct source. In contrast, if a competitor used its own name, such as "Shasta" on a color scheme other than red and white, it is unlikely a consumer would be confused as to source. The "strength of the mark" factor is therefore only indicative of confusion when a competitor encroaches by using the same or similar mark on its goods or services.

1-2 Gilson on Trademarks § 5.10.

Here, Defendant's name bears no resemblance to Plaintiff's. Nor did its advertisements include Plaintiff's mark or a similar variation of it. Due to the strength of Plaintiff's mark, there is little possibility that a consumer would confuse Defendant with Plaintiff. In contrast, a Lens.com affiliate did use a similar variation of Plaintiff's mark in his advertisements. Based on the strength of Plaintiff's mark, a consumer likely would be confused about source with respect to the affiliate's advertisements.

Again, the court looks to the advertisement rather than the keyword because the keyword is invisible to the consumer and cannot be the source of confusion.

In sum, for Lens.com advertisements that do not use Plaintiff's mark, there is (1) overwhelming dissimilarity between Plaintiff's mark and the advertisements; (2) a neutral intent; (3) no evidence of actual confusion; (4) similarity in the products and some similarity in the manner of marketing; (5) a low degree of care exercised by consumers when purchasing contacts; and (6) little likelihood of confusion due to an inverse relationship between the strength of Plaintiff's mark and the lack of encroachment by Defendant's advertisements. Although the fourth and fifth factors weigh in favor of Plaintiff, these factors do not have the same degree of weight as the other factors. The first factor is the "heart" of a confusion case, and it weighs strongly in defendant's favor. Moreover, the absence of confusion and lack of encroachment by Defendant's advertisements also weigh in its favor. Taken together, these factors show there is insufficient evidence for a jury to conclude that Defendant infringed on Plaintiff's mark for all advertisements that did not use Plaintiff's mark in them. The court therefore grants summary judgment in Defendant's favor on this issue.

For the Lens.com advertisements that did use Plaintiff's mark, namely the 65,000 impressions generated by a Lens.com affiliate, the court concludes there is a strong likelihood of confusion when the factors are considered in totality. This does not end the analysis, however, because Plaintiff did not name the affiliate as a party. Instead, it seeks to impose liability on Defendant for the actions of its affiliate. Thus, the court must address whether the affiliate's action may be imputed to Defendant.

IV. SECONDARY INFRINGEMENT

A. Inducement of Infringement and Vicarious/Joint Infringement

In its Amended Complaint, Plaintiff asserts a claim for secondary infringement against Defendant that lumps all theories of secondary liability under one cause of action. In its briefing for summary judgment, Plaintiff also takes little care to sort out the different theories of secondary infringement, despite the fact that they have different elements. In connection with other theories, Plaintiff asserts a claim for vicarious/joint infringement, but does not specifically develop it. Merely asserting that a partnership exists or that one jointly infringed does not make it so, and Plaintiff has presented insufficient evidence to prove partnership or joint infringement. In another instance, Plaintiff asserts in a footnote that Defendant is also liable under "inducement of infringement based, in part, on Lens.com's notice of the infringement and failure to communicate either that notice or instructions to its affiliates." That is the sum total of its argument. The court will not consider theories of liability that a plaintiff spends so little effort in developing. It is the party's role to present evidence and develop theories, not the court's to cull through the evidence to see if a theory may be supported. The court therefore grants summary judgment in Defendant's favor on the theories of "inducement of infringement" and "vicarious/joint liability."

Plaintiff's Mem. in Supp. of Mot. for Sum. Jdgmt., at 15 n. 9.

The court notes that this decision was greatly complicated by the imprecise pleadings of Plaintiff. Throughout its briefing, it failed to sort out the actions of Defendant from its affiliates, true trademarks from marks it merely asserts are trademarks, and so forth. Such pleading forces the court to do the work that should have been done by the party and does little to advance one's case.

B. Vicarious/Agency Infringement

Another theory of secondary liability that Plaintiff asserts is vicarious liability arising from an agency relationship. Notably, in Mini Maid Services Co., the Eleventh Circuit expressly recognized that even though a licensor has a duty to supervise how a licensee utilizes the licensor's mark, it has no corresponding duty to "diligently prevent the independent acts of trademark infringement that may be committed by the [licensee]." Rather, it is the licensee who typically is "held accountable by the owner of the infringed mark." Consequently, the Lanham Act "does not automatically saddle the licensor with the responsibilities under state law of a principal for his agent." Even if an agency relationship can arise under the Lanham Act, the facts of this case do not support such a relationship.

Mini Maid Servs. Co. v. Maid Brigade Sys., Inc., 967 F.2d 1516, 1519-21 (11th Cir. 1992).

Id. at 1519.

Id. at 1520.

"Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Under such a relationship, an agent is charged to "act primarily for the benefit of the principal." At times a principal can be liable for the actions of an independent contractor. Specifically,

when a principal authorizes its contractor agent to conduct and conclude a transaction with third parties on the principal's own behalf, and the principal benefits from the contracts, the principal will be liable in an action brought pursuant to section 43(a) of the Lanham Act based on the agents' foreseeable infringing actions. . . .

Geman v. SEC, 334 F.3d 1183, 1189 (10th Cir. 2003) (quoting Restatement (Second) of Agency, § 1(1) (1958)).

Fare Deals, LTD v. World Choice Travel.com, Inc., 180 F. Supp. 2d 678, 685 (D. Md. 2001) (citation omitted).

Plaintiff focuses its argument on the degree of control that Defendant had over its affiliates to prevent them from bidding on certain keywords. Defendant also had control over "its website, its website link, and participation in its affiliate program." The evidence supports these assertions, but the assertions miss the mark because purchase of the keywords did not constitute an infringing act. Rather, it was the language of the 65,000 impressions, which referred to Plaintiff, that created a likelihood of confusion. Only as to those impressions may Defendant be vicariously liable if an agency relationship exists.

Plaintiff's Mem. in Supp. of Mot. for Sum. Jdgmt., at 17.

Under the Commission Junction agreements, Defendant can set forth terms and conditions for its program that an affiliate must abide by. If an affiliate does not abide by Defendant's program detail, Defendant has the authority to terminate that affiliate from its program. Defendant also can communicate additional requirements through newsletters and other similar resources. Nonetheless, Defendant has little direct contact with affiliates, and often has no contact information for an affiliate. When Defendant learned about an affiliate using a close variation of Plaintiff's mark in an advertisement, it had no way to directly communicate with the affiliate to direct him to stop. Instead, Defendant had to ask Commission Junction to identify the affiliate and communicate to him that his actions were improper.

Defendant has no authority "to monitor or supervise affiliate operations except to police their use of [Lens.com's] own service mark." Nor does Defendant exercise any degree of control over an affiliate's website. Instead, its affiliates remain solely responsible for the content of their websites. Although Lens.com affiliates do expend effort to promote Defendant's service mark, they nevertheless act "primarily for their own benefit." Indeed, Lens.com affiliates can promote other contact lens providers at the same time they are promoting Defendant by having links to different competitors on their websites. Lens.com affiliates therefore do not act in a fiduciary capacity that is typical when an agency relationship exists. Moreover, the evidence shows that affiliates typically choose the language of their advertisements. In particular, McCoy acted autonomously in choosing the language of the 65,000 Infringing Impressions.

Fare Deals, LTD., 180 F. Supp. 2d at 685.

Id. at 686.

Additionally, Plaintiff has failed to show that McCoy was vested with authority to conduct and conclude transactions on behalf of Defendant. McCoy's employee purchased keywords that generated impressions. Those impressions then linked to Defendant where a customer could make a purchase. McCoy had "no power to alter the legal relations of [Lens.com]," nor could he "bind [Lens.com] to any contract." Instead, Defendant "retain[ed] exclusive authority to accept or reject the orders of customers" who accessed its website through a McCoy advertisement. Considering these facts in totality, the court concludes that no jury could reasonably find that an agency relationship existed between Defendant and McCoy. Hence, Defendant cannot be held vicariously liable for McCoy's actions.

Id.

Id.

C. Contributory Infringement

Finally, Plaintiff asserts a claim for contributory infringement. "Contributory trademark infringement is a judicially created doctrine that derives from the common law of torts." In Inwood Laboratories Inc. v. Ives Laboratories, Inc., the Supreme Court explained contributory infringement claims as follows:

Tiffany Inc. v. eBay, Inc., 600 F.3d 93, 103 (2d Cir. 2010) (citations omitted).

Liability for trademark infringement can extend beyond those who actually mislabel goods with the mark of another. Even if a manufacturer does not directly control others in the chain of distribution, it can be held responsible for their infringing activities under certain circumstances. Thus, [1] if a manufacturer or distributor intentionally induces another to infringe a trademark, or [2] if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorally responsible for any harm done as a result of the deceit.

Although "the Inwood case involved a manufacturer-distributor," the Court did not limit its decision only to those situations. The Tenth Circuit has expressly extended contributory infringement to "licensors, franchisers, or to similarly situated third parties." "For contributory trademark infringement liability to lie" with a service provider, however, it "must have more than a general knowledge or reason to know that its service is being used to [infringe]. Some contemporary knowledge of which particular [acts] are infringing or will infringe in the future is necessary." Importantly, "the doctrine of contributory trademark infringement should not be used to require defendants to refuse to provide a product or service to those who merely might infringe the trademark."

Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264-65 (9th Cir. 1996).

Proctor Gamble Co., 317 F.3d at 1128 (citation omitted).

Tiffany, 600 F.3d at 107.

Tiffany Inc. v. eBay, Inc., 576 F. Supp. 2d 463, 509-510 (S.D.N.Y. 2008) (citing Inwood Labs., Inc., 456 U.S. at 861 (White, J., concurring)).

Here, Defendant authorized its affiliates to use its name in their advertisements; consequently, it may be subject to the law of contributory infringement. Plaintiff, however, has not presented any evidence that Defendant intentionally induced the affiliates to infringe on Plaintiff's mark. At most, Plaintiff has presented evidence that Defendant did not institute negative keywords and that it knew of some of the keywords that a few affiliates were using in their advertising efforts. As discussed above, however, trademark liability cannot attach from the mere use of a trademark as a keyword. Thus, none of the evidence presented by Plaintiff demonstrates that Defendant intentionally induced its affiliates to infringe on Plaintiff's mark. Defendant therefore cannot be liable under the first Inwood determinant.

Turning to the second Inwood determinant, Plaintiff must prove both knowledge and that Defendant continued to supply its "service" despite knowing its affiliates were engaged in trademark infringement. Under this prong, courts look at whether "the contributing party intended to participate in the infringement or actually knew about the infringing activities." One cannot be "willfully blind," however, and escape liability. To be willfully blind, "a person must suspect wrongdoing and deliberately fail to investigate."

Mini Maid Servs. Co., 967 F.2d at 1522 (citing Inwood Labs., Inc., 456 U.S. at 853-55) (other citations omitted).

Hard Rock Café v. Concession Servs., Inc., 955 F.2d 1143, 1149 (7th Cir. 1992).

Id. (citation omitted); see also Microsoft Corp. v. Ram Distrib., LLC, 625 F. Supp. 2d 674, 684 (E.D. Wis. 2008).

The relevant inquiry here has been narrowed to the 65,000 Infringing Impressions generated by one Lens.com affiliate. Because the court has concluded that all other advertisements and keyword uses were not likely to cause confusion, they cannot form the basis for contributory infringement. With respect to the 65,000 Infringing Impressions, Plaintiff has failed to show that Defendant knew about the infringement and failed to take action or was willfully blind to it.

In April 2007, Plaintiff notified Defendant that Lens.com advertisements were appearing when search terms related to Plaintiff were entered on Google and other search engines. Attached to that notification were a number of screen shots depicting Lens.com advertisements and advertisements from other contact lens companies. No privacy reports were submitted with those screen shots based on the evidence that was provided to the court. Other evidence shows, however, that some of the advertisements were Goggan's and McCoy's and were triggered because they purchased Plaintiff's mark as a keyword. Significantly, however, none of the attached screen shots contained the "infringing" McCoy advertisements. Instead, they were of the other, non-infringing

See Declaration of Bryan Pratt Screen Shots (Dkt. No. 200, Ex. 37, Attach. L).

See id. In another exhibit, Plaintiff attached screen shots from 2005 that have certain advertisements highlighted. See Reply Mem. in Supp. Mot. for Sum. Jdgmt., at 4 Ex. 53 thereto (Dkt. No. 232 Ex. 53). The highlighted advertisements refer to "1800contacts" and have a link to "www.lenses-store.com." According to Plaintiff's own exhibit, however, "www.lenses-store.com" is an affiliate of another company besides Defendant. See Screen Shots, at PL016024 (item no. 4) (Dkt. No. 232, Ex. 53). It is therefore unclear why the advertisement was highlighted. What is clear, however, is that none of the 2005 Lens.com advertisements referred to "1800contacts," nor has Plaintiff alleged that they did.

infringing advertisements that Goggan and McCoy generated. Thus, in April 2007, Plaintiff did nothing more than provide general information to Defendant that a non-infringing advertisement was appearing upon entry of certain search terms. Defendant therefore cannot be charged with knowledge or willful blindness based on that information. Nor did the information impose a burden on Defendant to go search out all of its affiliates' actions to make sure none of them were using Plaintiff's mark.

Since 2005, Plaintiff has been sending screen shots to Defendant, which have shown permissible forms of advertising. Consequently, the screen shots alone were insufficient to create a suspicion of wrongdoing by an affiliate. Moreover, McCoy was the first and last Lens.com affiliate to use the "infringing" advertisements. Thus, there was no pattern of behavior to alert Defendant of possible wrongdoing and a need to investigate.

In August 2007, Plaintiff filed suit against Defendant. Within the body of the complaint, Plaintiff included a screen shot showing the following advertisement:

1-800 Contacts

Simple online ordering of lenses.

Compare our prices and Save!

www.JustLenses.com

This is one of McCoy's Infringing Impressions, and it gave notice to Defendant that an affiliate may be engaging in trademark infringement. Plaintiff did not include, however, any other information about the screen shot in its Complaint. Lens.com cannot determine from a mere screen shot alone which affiliate generated an impression. Thus, while Plaintiff may have notified Defendant about the issue in August 2007, it did not provide Defendant with sufficient information for it to determine immediately who the affiliate was. Defendant has 10,000 affiliate relationships. Because contributory trademark infringement does not require a defendant "to refuse to provide a product or service to those who merely might infringe the trademark," Lens.com had no obligation to cease licensing its name to all of its affiliates while it took steps to identify the one who generated this particular impression.

See Declaration of Bryce Craven, ¶¶ 14-15 (Dkt. No. 182, Ex. 12) (discussing that one way to determine who generated an advertisement is through a privacy report). Bryce Craven is the search marketing manager for Plaintiff, who monitors usage of Plaintiff's service mark. His declaration demonstrates that one cannot tell from a mere screen shot alone who generated an advertisement.

Once a lawsuit is filed, it takes time to address issues raised in a complaint. E-mails with Commission Junction show, however, that Defendant was communicating with Commission Junction about the lawsuit and trying to resolve the problem. In an e-mail dated November 12, 2007, the program manager for Defendant's accounts stated that Lens.com had met with an affiliate on October 12, 2007 to inform him to implement negative keywords. The same e-mail stated that Defendant had asked Commission Junction to research trademark violators in a previous e-mail, but how that would occur was still being worked out.

Defendant also was communicating with others to resolve the issue. See E-mail re Lens.com — 1-800 CONTACTS Marks (Nov. 16, 2007) (Dkt. No. 200, Ex. 34).

E-mail from Joseph McGinnis to Leslie Siggins (Nov. 12, 2007) (Dkt. No. 209, Ex. 46). Leslie Siggins was a paralegal at Commission Junction.

See also Deposition of Joseph R. McGinnis, 149:14-151:19 (Aug. 8, 2008) (Dkt. No. 229, Ex. 69) (discussing difficulties in identifying who was bidding on certain keywords).

In another e-mail, dated November 14, 2007, the program manager stated that Lens.com had "been having me contact publisher[s] for different terms such as 1800contacts and Vision Direct and asking the publishers to please stop bidding on those specific terms. Publishers so far have been removing the keywords." In a third e-mail, dated November 16, 2007, Defendant sent another e-mail to Commission Junction that stated "[p]lease find attached a file with a few affiliates that need to be addressed ASAP."

E-mail from Joseph McGinnis to Leslie Siggins (Nov. 14, 2007) (Dkt. No. 209, Ex. 51). A "publisher" is another name for an affiliate.

E-mail Chain (Nov. 16, 2007) (Dkt. No. 209, Ex. 53).

Attached to the e-mail was a spreadsheet that listed addresses for search-results pages and link destinations. Commission Junction used that information to identify and contact the specific affiliates at issue. Commission Junction informed Lens.com, however, that "[a] number of the links are not associated with a Commission Junction publisher from what I can see." Thus, even with specific Internet addresses for the search-results pages and link destinations, the evidence shows that Defendant itself could not identify affiliates. Only Commission Junction had that information for its affiliate network. While it is true that once Commission Junction had the addresses, it was able to contact the affiliates and have them stop their actions within one day, that fact does not account for the effort and time it took to locate the addresses for search-results pages and link destinations. It is apparent from the e-mails, that it was not a one day process or even a one month process.

Id.

Even viewing the evidence in the light most favorable to Plaintiff, there is insufficient evidence to show that Defendant failed to take appropriate action to stop McCoy from publishing the advertisements. There is no indication that Defendant intended to benefit from the Infringing Impressions, nor is there evidence of how many Infringing Impressions and clicks occurred during the relevant time period. Accordingly, the court concludes that Defendant cannot be held liable for contributory infringement.

One could reasonably conclude, however, that it is less than the 352 clicks reported because the relevant time period commenced in August 2007, not April 2007.

V. BREACH OF CONTRACT

Plaintiff asserts that Defendant breached the parties' oral agreement that Defendant would not purchase Plaintiff's mark or variations thereof as a keyword. "Most contracts bind only those who bargain for them, and the burden of proof for showing the parties' mutual assent as to all material terms and conditions is on the party claiming that there is a contract." When "determining whether the parties created an enforceable contract, a court should consider all preliminary negotiations, offers, and counteroffers and interpret the various expressions of the parties for the purpose of deciding whether the parties reached agreement on complete and definite terms." If material terms are missing or indefinite, an agreement cannot be enforced.

Bybee v. Abdulla, 2008 UT 35, ¶ 8, 189 P.3d 40 (quotation marks and citations omitted).

Nunley v. Westates Casing Servs., Inc., 1999 UT 100, ¶ 22, 989 P.2d 1077 (citation omitted).

See Firkins v. Ruegner, 2009 UT App 167, ¶ 2, 213 P.3d 895 (citations omitted).

Plaintiff contends the e-mails exchanged between the parties' attorneys "verify the material terms of the oral agreement." This is a remarkable statement given the scope of what Plaintiff claims the agreement embodies. According to Plaintiff's attorney who sent the e-mails,

[t]he main thrust of the agreement was that neither parties' advertisements should be appearing on Internet searches for the tradename of the other, if informed of such occurrence. More specifically, upon notice of any such advertisement, Lens.com would ensure that no advertisements for Lens.com would appear in response to searches for 1-800 Contacts' trademarks on Internet search engines.

Plaintiff's Mem. in Opp'n to Mot. for Sum. Jdgmt., at 32.

Moreover, Plaintiff contends the agreement precludes Defendant and its affiliates from purchasing "1800Contacts," or any variant, as keywords. It also "explicitly" provides that Defendant would look into any future advertisement brought to its attention and would take steps to implement negative keywords or inform affiliates to alter its keyword purchases. In contrast, 1-800 Contracts merely agreed not to purchase Lens.com as a keyword and to investigate any advertisement derived from the term. Finally, according to Plaintiff, these terms were so simple that neither party contemplated reducing them to writing.

See id. ¶ 8.

Were this actually an agreement entered into by the parties, the court questions whether it would survive an antitrust challenge. Plaintiff does not seek merely to preclude usage of its trademark. Instead, it wants to obliterate any other competitor advertisement from appearing on a search-results page when a consumer types in "1800Contacts" as a search term or some variation of it. This is disturbing given that broad matching of the generic term "contacts" could trigger an advertisement if a consumer enters the search term "1800Contacts." A trademark right does not grant its owner the right to stamp out every competitor advertisement.

"Section 1 of the Sherman Act provides that `every contract . . . in restraint of trade or commerce among the several States . . . is declared to be illegal.'" Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 724 (1988) (quoting 15 U.S.C. § 1).

Furthermore, the e-mails at issue do not contain the purported contractual terms, nor does the evidence show a meeting of the minds. When questioned during deposition about "the agreement," Defendant's owner stated, "I don't know what was agreed there. I think it was between the attorneys." He understood that if Plaintiff raised an issue, he would look into it and try to address it and Plaintiff would do the same. This understanding does not rise to the level of an agreement to remove all advertisements from a search page anytime a consumer searches for "1800Contacts" or one of the ever expanding variations that Plaintiff seeks to garner for itself.

Deposition of Cary Samourkachian, 50:4-5 (Aug. 21, 2008) (Dkt. No. 200, Ex 40).

Id. at 50:7-12; 51:14-16.

In its briefing for summary judgment, Plaintiff claimed "1-800 contact lenses; 1800 contact lenses; and 800 contact lenses" also were its trademarks." Plaintiff's Mem. in Supp. of Mot. for Sum. Jdgmt., ¶ 23.

Although one e-mail does address instituting negative keywords, the e-mail also states that Plaintiff appreciated Defendant being willing to work towards an amicable solution. Such phrasing indicates the parties were still working out a resolution and had not reached a meeting of the minds. Furthermore, the e-mail fails to discuss what negative keywords Plaintiff would institute (although Plaintiff asserts it agreed to implement "Lens.com" as a negative keyword), dates of implementation, what parties were agreeing to the terms, how those terms would be applied to affiliates, and so forth.

Moreover, the language and tone of the e-mails do not indicate an oral contract had been formed. Rather, the e-mails repeatedly say, "[w]e hope for a continued amicable relationship in resolving these situations," and then they ask for details about what actions would be taken to remedy the situation. If there were a contract, one would think the e-mails would point out the contractual obligations and not merely hope for an amicable relationship. Further, Plaintiff would not have to ask what actions would be taken if there were a contract that explicitly set forth certain requirements. Instead of confirming the existence of a contract, the e-mails merely confirm an amicable resolution of a disagreement among competitors. Accordingly, the court concludes as a matter of law that no enforceable agreement was entered into between the parties.

VI. OTHER CAUSES OF ACTION

A. Unfair Practices Act

Plaintiff also asserts a claim for "Common Law Unfair Competition, Misappropriation, and Trademark Infringement" and "Unfair Practices Act — Utah Code Ann. § 13-5-1 et seq." all under one cause of action. It asserts under one sentence that "Lens.com continues to misappropriate the valuable goodwill of the 1-800 CONTACTS Marks, to infringe 1-800 CONTACTS' rights therein, and to unfairly compete with 1-800 CONTACTS under the common law and the laws of Utah." It then asserts under the next sentence that "Lens.com's use of the 1-800 CONTACTS Marks to promote, market or sell products and devices constitutes an unfair practice under Utah Code Ann. § 13-5-1 et seq." Thus, Plaintiff appears to be asserting two different claims under one cause of action.

Amended Complaint, Count IV (Dkt. No. 54, Ex. 1).

Id. ¶ 66.

Id.

Defendant moves for summary judgment on the Unfair Practices Act claim on the basis that Plaintiff has failed to come forward with evidence to support such a cause of action. In its opposition memorandum, Plaintiff did not provide any argument against summary judgment on this claim. The court therefore grants summary judgment in Defendant's favor and dismisses this claim.

B. Common Law Unfair Competition, Misappropriation, and Trademark Infringement

Plaintiff asserts the test for unfair competition under Utah law is the same as the test under the Lanham Act. It also summarily asserts that summary judgment is inappropriate on the misappropriation claim because the evidence supports that Defendant misappropriated Plaintiff's mark and caused likelihood of confusion. Little other argument was presented by Plaintiff.

The court applies the same reasoning to these common law claims that it did for the Lanham Act claims, which is, use alone of another's mark as a keyword is insufficient to support a claim of infringement, unfair competition, or misappropriation of good will. Moreover, the mere appearance of a Lens.com link in response to the search term "1800Contacts" is unlikely to cause confuse due to the great dissimilarity between Defendant's name and advertisements and Plaintiff's mark. The court therefore grants summary judgment in Defendant's favor on these claims as well.

C. Unjust Enrichment

Finally, Plaintiff has asserted a claim for unjust enrichment. To support a claim for unjust enrichment, Plaintiff must prove (1) it conferred a benefit on Defendant; (2) Defendant appreciated the benefit or had knowledge of it; and (3) it would be inequitable for Defendant to accept or "retain the benefit without payment of its value." With trademark infringement, "[t]he unjust enrichment theory is based on the idea that trademarks are protected property rights," and that "misappropriation of that right" constitutes unjust enrichment.

Rawlings v. Rawlings 2010 UT 52, ¶ 29, 240 P.3d 754.

Western Diversified Servs. v. Hyundai Motor Am., Inc., 427 F.3d 1269, 1272 (10th Cir. 2005).

Here, Plaintiff has not shown that use of its service mark as a keyword constitutes infringement. Yet, it wants payment for that use. As discussed above, however, not all uses of a trademark are actionable. Stated differently, while the law protects one's property right in a trademark, the scope of that protection is not without its limits. Use outside of the scope of that property protection is not a use that is unjust to retain without payment. Indeed, if Plaintiff were able to obtain payment under unjust enrichment, common law would effectively expand the scope of Plaintiff's statutory protection. Because one generally cannot extend legal rights beyond one's property rights, the court grants summary judgment in Defendant's favor on this claim.

VII. OTHER MOTIONS

A. Plaintiff's Motion to Strike Certain "Evidence"

Plaintiff has moved to strike the following evidence that Defendant relied on in its summary judgment briefing.

1. Google, Inc's Brief (Defendant's Exhibit 19)

Defendant submitted a brief filed by Google, Inc. in another case. Plaintiff moves to strike the brief as inadmissible hearsay. Because the brief was not necessary to resolve the motions for summary judgment, the court did not reference or rely on it.

2. Expert Report of Richard S. Hoffman (Defendant's Exhibit 30)

Defendant submitted an expert report from Richard S. Hoffman to address the issue of damages. Plaintiff moves to strike the brief as inadmissible hearsay. The court did not need to reach the issue of damages because it ruled in Defendant's favor. Accordingly, the court did not reference or rely on Hoffman's expert report.

3. Declaration of Anthony DeGidio (Defendant's Exhibit 31)

Plaintiff moves to strike Anthony DeGidio's declaration on the grounds that he was not properly identified as a witness and he refused to be deposed. In this decision, the court did not cite to or rely upon DeGidio's declaration. Rather, it cited to the e-mails that were attached to the declaration. The same e-mails also were attached by Plaintiff to Pratt's declaration. Consequently, even if the court struck the e-mails attached to DeGidio's declaration, the same e-mails would be in evidence based on Pratt's declaration. Because the court did not reference or rely on DeGidio declaration and the attached e-mails are in evidence through Plaintiff, the issue is moot.

4. Screen Shot (Defendant's Exhibit 35)

Defendant submitted a screen shot to show Plaintiff's advertisement appeared in response to the search term "lens.com." Plaintiff moves to strike the screen shot on the grounds that it is unauthenticated and purportedly false. Because the screen shot was not necessary to resolve the motions for summary judgment, the court did not reference or rely on it.

Because the court did not reference or rely upon these four exhibits, Plaintiff's motion to strike this evidence is denied as moot.

B. Plaintiff's Motion to Strike Affirmative Defenses Five Through Eight

Plaintiff also has moved to strike Defendant's affirmative defenses five, six, seven, and eight. Based on the court's ruling in Defendant's favor, the affirmative defenses are now moot. The court therefore denies the motion.

CONCLUSION

For the reasons stated above, the court hereby:

1. Grants in part and denies in part Plaintiff's motion for partial summary judgment. Plaintiff moved for summary judgment on Lens.com's defense that the purchase of keywords did not constitute a "use" in commerce. The court grants Plaintiff's motion on this issue. The court denies Plaintiff's motion on all other grounds;

Dkt. No. 171.

2. Grants Defendant's Motion for Summary Judgment, and dismisses all claims and causes of action against it;

Dkt. No. 174.

3. Grants in part and denies in part Defendant's Motion to Strike Benjamin Edelman's Declaration;

Dkt. No. 195.

4. Denies as moot Plaintiff's motion to strike certain evidence; and

Dkt. No. 202.

5. Denies as moot Plaintiff's motion to strike affirmative defenses 5-8.

Dkt. No. 135.

DATED this 14th day of December, 2010.