Accessninja, Inc v. Passninja, Inc et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-cv-24745-ALTMAN/Lett
ACCESSNINJA, INC. d/b/a
ACCESSGRID,
Plaintiff,
v.
PASSNINJA, INC. and RICHARD
GRUNDY,
Defendants.
_____________________________/
ORDER REVERSING MAGISTRATE JUDGE REPORT & RECCOMENDATION
On December 10, 2024, our Plaintiff, AccessNinja, filed a Motion for Preliminary Injunction
(“PI Motion”) [ECF No. 6], seeking to preclude PassNinja, Inc. and Richard Grundy (the
“Defendants”) from infringing on AccessNinja’s “copyrighted software code identified by U.S.
Copyright Office Registration Number TXu 2-453-833.” PI Motion at 1. We referred the PI Motion
to U.S. Magistrate Judge Enjoliqué A. Lett, see Order of Referral [ECF No. 14], who recommended
that we grant the motion, see Report & Recommendation (“R&R”) [ECF No. 106]. Magistrate Judge
Lett cautioned the parties as follows:
Within 	fourteen 	days 	after 	being 	served 	with 	a 	copy 	of 	this 	Report 	and
Recommendation, any party may serve and file written objections to any of the above
findings and recommendations. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The
parties are hereby notified that a failure to timely object waives the right to challenge
on appeal the District Court’s order based on unobjected-to factual and legal
conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1.
Id. at 23–24. The Defendants timely filed their objections to the R&R, see Defendants’ Objections to
the R&R (“Def. Objs.”) [ECF No. 113], and AccessNinja responded, see Plaintiff’s Response to
Defendants’ Objections (“Pla. Resp.”) [ECF No. 115]. We held a status conference to discuss the
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Defendants’ Objections on February 6, 2026. See Paperless Minute Entry for Status Conference Dated
February 6, 2026 [ECF No. 134].
After careful review, we now SUSTAIN the Defendants’ Objections and REVERSE the
Magistrate Judge’s R&R. AccessNinja’s PI Motion is DENIED.
T HE L AW
I. 	Review of a Magistrate Judge’s R&R
District courts must review de novo any part of a magistrate judge’s disposition that has been
properly objected to. See FED . R. C IV . P. 72(b)(3). Although Rule 72 itself is silent on the standard of
review, the Supreme Court has acknowledged that Congress’s intent was to require a de novo review
only where objections have been properly filed—and not when neither party objects. See Thomas v.
Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”). “If no objection or only [a] partial objection is made to the
magistrate judge’s report, the district judge reviews those unobjected portions for clear error.” Macort
v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006) (quoting Johnson v. Zema Sys. Corp., 170 F.3d 734,
739 (7th Cir. 1999) (cleaned up)).
When a party timely objects to a magistrate judge’s report and recommendation, the district
judge must make a de novo determination “of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Leonard v.
Polk Cnty. Sheriff’s Dep’t, 2019 WL 11641375, at *1 (M.D. Fla. Apr. 16, 2019) (Jung, J.). “Parties filing
objections to a magistrate’s report and recommendation must specifically identify those findings
objected to. Frivolous, conclusive, or general objections need not be considered by the district court.”
United States v. Tardon, 493 F. Supp. 3d 1188, 1209 (S.D. Fla. 2020) (Lenard, J.) (quoting Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). The “[f]ailure to object to the magistrate [judge]’s factual
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findings after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th
Cir. 1988) (citation omitted).
II. 	Granting a Preliminary Injunction
“A district court may grant a preliminary injunction only if the moving party establishes that:
(1) it has a substantial likelihood of success on the merits; (2) it will suffer irreparable injury unless the
injunction is granted; (3) the harm from the threatened injury outweighs the harm the injunction would
cause the opposing party; and (4) the injunction would not be adverse to the public interest.” Gonzalez
v. Gov. of Ga., 978 F.3d 1266, 1270–71 (11th Cir. 2020) (footnote omitted). A district court cannot
grant a preliminary injunction unless the moving party satisfies all four of these requirements. See
Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016) (“Because [the moving party]
must meet all four prerequisites to obtain a preliminary injunction, failure to meet even one dooms
[his request].”). The Plaintiff bears the burden of establishing its need for a preliminary injunction. See
ibid. (“Because a preliminary injunction is an extraordinary and drastic remedy, its grant is the
exception rather than the rule, and plaintiff must clearly carry the burden of persuasion.” (cleaned
up)).
A NALYSIS
A party seeking a preliminary injunction must establish that “it has a substantial likelihood of
success on the merits.” Gonzalez, 978 F.3d at 1270. To succeed on a copyright-infringement claim, a
plaintiff must prove: “(1) ownership of a valid copyright, and (2) copying of constituent elements of
the work that are original.” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir. 1996) (cleaned up).
“A copyright registration certificate proves prima facie proof of the existence of a valid copyright.”
C.B. Fleet Co. v. Unico Holdings, Inc., 510 F. Supp. 2d 1078, 1081 (S.D. Fla. 2007) (Ryskamp, J.) (cleaned
up)); see also 17 U.S.C. § 410(c) (“In any judicial proceedings the certificate of a registration made
before or within five years after first publication of the work shall constitute prima facie evidence of
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the validity of the copyright and of the facts stated in the certificate.”). “Once the plaintiff produces a
certificate of copyright, the burden shifts to the defendant to demonstrate why the claim of copyright
is invalid.” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir. 1996).
The second element of an infringement claim—copying—“comprises two subparts, factual and
legal copying, both of which [ ] the plaintiff has the burden to prove.” Compulife Software Inc. v. Newman,
959 F.3d 1288, 1301 (11th Cir. 2020) (“Compulife I”) (cleaned up and emphases added). Factual copying
“may be shown either by direct evidence of the copying or, in the absence of such evidence, [ ] ‘inferred
from proof of access to the copyrighted work and probative similarity.’” Bateman, 79 F.3d at 1541
(quoting Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir. 1994)).
“‘Legal’—or ‘actionable’—copying occurs when ‘those elements of the copyrighted work that
have been copied are protected expression and of such importance to the copied work that the
appropriation is actionable.’” Compulife I, 959 F.3d 1288 at 1302 (quoting Peter Letterese & Assocs. v.
World Inst. of Scientology Enters., 533 F.3d 1287, 1300 (11th Cir. 2008). The Eleventh Circuit has adopted
a three-part test for legal copying—the abstraction-filtration-comparison test: “First, a court should
abstract—break down the allegedly infringed program into its constituent structural parts. Second, a
court should filter—sift out all non-protectable material. Finally, the court should compare the
protected material with the copycat. When considering the literal elements of a program, like source
code and object code, the plaintiff need establish only a substantial similarity between the two works.”
Compulife Software, Inc. v. Newman, 111 F.4th 1147, 1156–57 (11th Cir. 2024), cert. denied sub nom. Rutstein
v. Compulife Software, Inc., 145 S. Ct. 1172, 221 L. Ed. 2d 253 (2025) (“Compulife II”) (cleaned up).
“Substantial similarity must be assessed with respect to both the quantitative and the
qualitative significance of the amount copied to the copyrighted work as a whole. Quantitatively
insubstantial copying may still be actionable if it is qualitatively substantial. For instance, because a
small portion of the structure or code of a computer program may nonetheless give it distinctive
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features or may make the program especially creative or desirable, copying of that portion is
actionable.” Compulife I, 959 F.3d 1288 at 1302–1303 (cleaned up).
Magistrate Judge Lett found that AccessNinja was likely to succeed on the merits of its
copyright-infringement claim because “AccessNinja has established that it has ownership of a valid
copyright and that copying of constituent elements of the work by PassNinja has occurred.” R&R at
6. Specifically, Magistrate Judge Lett found that copying had occurred based on two pieces of evidence:
(1) “messages between Bunsen and Grundy where Grundy asks if he could retain access to the
codebase”; and (2) the Defendants’ testimony that “when Bunsen removed the Copyrighted Work
from the PassNinja website and servers, it ‘broke some of the plumbing of the application’ and Grundy
had to work extensively to rebuild the PassNinja.’” R&R at 6. We disagree with this finding and now
reverse.
As we discussed at our February 6, 2026 status conference, neither AccessNinja’s PI Motion
nor Magistrate Judge Lett’s R&R engage with the abstract-filtration-comparison test outlined in
Compulife I and Compulife II. See generally PI Motion; R&R; see also Def. Objs. at 3 (“The PassNinja Parties
object to the finding of the Magistrate that Plaintiff has established ‘copying of constituent elements
of the work that are original’ as the Magistrate does not assess the substantial similarity of the
AccessNinja’s Alleged Work against Defendants’ code.” (citing R&R at 6)). We can’t ignore this
deficiency. The abstract-filtration-comparison test is the test—the one that would allow us to
determine which portions of a plaintiff’s source code are protectable and whether a defendant’s
allegedly infringing code bears a substantial similarity to the copyrighted works. See Compulife I, 959
F.3d 1288 at 1303. (“Before comparing two works to determine if they display the required substantial
similarity, a court must ‘eliminate from comparison the unprotectable elements of’ the copyrighted
work. This process—known as ‘filtration’—is necessary because even substantial similarity between a
copyrighted work’s unprotectable elements and a purportedly infringing work isn’t actionable,
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regardless of how many unprotectable elements are copied or how important they may be.” (cleaned
up)). Without this critical information, we cannot grant the “extraordinary and drastic remedy” of a
preliminary injunction. Wreal, 840 F.3d at 1248.1
Still resisting, AccessNinja advances several arguments—all unavailing. First, AccessNinja
insists that the “Defendants admitted infringement during the hearing before Magistrate Judge Lett
on January 29, 2025.” Pla. Resp. at 5. The record doesn’t support that contention. Grundy simply
testified that, when Bunsen removed several sections of code from the Defendants’ servers, he “broke
some of the plumbing of the [PassNinja] application.” PI Motion Hearing Transcript (“PI Hrg. Tr.”)
[ECF No. 79] at 119:15–25. But the mere fact that Bunsen’s removal of code from a server reduced
PassNinja’s functionality doesn’t prove that the Defendants were infringing on the Copyrighted
Works. As the Defendants observe, “[n]o evidence was presented to the Magistrate that the code
Bunsen admittedly removed from PassNinja’s servers was part of the AccessNinja’s Alleged Work.
Merely removing a portion of code does not equate to that code being within the scope of [ ]
AccessNinja’s Alleged Work. There was no evidence that the PassNinja Parties copied any of Bunsen’s
undisclosed code. Rather, PassNinja hired new engineers to fix the plumbing.” Def. Objs. at 7; see also
id. at 18 (“Grundy’s actual testimony simply states that that PassNinja had to get its server back up
after Bunsen deleted content on September 8, 2024. There is no evidence in the record that what
Bunsen deleted from PassNinja’s server or what PassNinja created to repair its server due to Bunsen’s
deletions read upon the unknown code of AccessNinja’s Alleged Work.” (cleaned up)). In short,
1 Granting a preliminary injunction without comparing the two codebases would be particularly
problematic here because, as the Defendants note, “[i]f the Court enters a preliminary injunction
against the PassNinja Parties, they would not know what code they would [be] enjoined from using[,]
and the Court would not have any baseline (i.e., Plaintiff’s code) to assess if the injunction was
violated.” Pla. Resp. at 6. This is exactly right. Even if we believed AccessNinja’s argument that the
Defendants “admitted” to copyright infringement (we don’t), we couldn’t issue a workable injunction
because we have no idea which portions of the Defendants’ codebase infringe AccessNinja’s source
code.
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Grundy’s testimony that Bunsen’s code removal broke the “plumbing” of the Defendants’ application
isn’t an admission that the Defendants infringed AccessNinja’s code.
Second, AccessNinja claims that “decisions from other courts in this Circuit demonstrate that
a line-by-line codebase comparison is not required to find a likelihood of success on the merits.” Pla.
Resp. at 6 (citing Tinubu Square Americas Inc. v. Iguarantee, LLC, 2020 WL 6270848, at *2 (M.D. Fla.
Aug. 13, 2020) (Davis, J.)). According to AccessNinja, “the district court [in Tinubu] found sufficient
evidence of infringement to support a preliminary injunction without conducting a line-by-line
comparison of the respective codebases.” Ibid. But Tinubu was an order granting an ex parte temporary
restraining order—not a preliminary injunction. And, indeed, when Tinubu sought a preliminary
injunction in that same case, the court found that “Tinubu failed to establish that it is substantially likely
to succeed on the merits of its claim that Defendants misappropriated [the plaintiff’s program’s]
source code” because “Tinubu fails to reference expert testimony or any testimony whatsoever that
compares the coding in [the defendant’s program] with [the plaintiff’s program].” Tinubu Square
Americas Inc. v. Iguarantee, LLC, 2020 WL 7421382, at *5–6 (M.D. Fla. Nov. 25, 2020) (Davis, J.). Tinubu
thus strongly supports our conclusion here—that AccessNinja cannot establish a substantial likelihood
of success on its copyright-infringement claim without a comparison of the two codebases.
Third, AccessNinja argues that “PassNinja waived the argument that Magistrate Judge Lett was
required to compare its codebase to AccessGrid’s Copyrighted Work because Defendants did not
even offer to present PassNinja’s codebase for comparison during the two-day evidentiary hearing
Magistrate Judge Lett conducted in January.” Pla. Resp. at 7. While we agree that the Defendants
should’ve raised this issue much more clearly before the Magistrate Judge, we can’t say that they
forfeited their argument on this point. During the PI Motion hearing, after all, counsel for the
Defendants explained that “[i]t’s [ ] disputed whether or not the defendants are using the code. There
has been no presentation to the Defendants or this Court other than the first—the allegedly first and
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ten last pages of the source code that we are accused of copying.” PI Hrg. Tr. at 12-22–13-1. The
Defendants also expressed concern over the fact that the “Defendants repeatedly requested copies of
the allegedly Copyrighted Work from the Plaintiff and even provided a proposed protective order, but
they still have not received a copy.” PI Motion Response [ECF No. 12] at 21 n.2. Moreover, the
Defendants had no burden to “offer to present” their code at the PI hearing. Pla. Resp. at 7. Again, it
was AccessNinja’s burden to establish a substantial likelihood of success on its claim by presenting a
comparison of the codebases to the Magistrate Judge. Since it didn’t do that, it failed to meet its
burden—whether the Defendants advanced a Compulife argument or not.
* * *
For all these reasons, we ORDER and ADJUDGE as follows:
1. 	The Magistrate Judge’s Report & Recommendation [ECF No. 106] is REVERSED.
2. 	The Defendants’ Objections to the Report & Recommendation [ECF No. 113] are
SUSTAINED.
3. 	The Plaintiff’s Motion for a Preliminary Injunction [ECF No. 6] is DENIED.
DONE AND ORDERED in the Southern District of Florida on February 20, 2026.
__________________________________
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
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