Bernard v. Does 1-5

Filing 28

ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS re 13 , 21 . Signed by Judge Ronald M. Whyte on January 2, 2012. (rmwlc2, COURT STAFF) (Filed on 1/2/2012)

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1 2 3 4 E-FILED on 5 6 7 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 12 DON BERNARD, an individual, 13 14 15 No. 11-cv-03414-RMW Plaintiff, ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS v. ROBERT DONAT, DOES 1-5, individuals, [Re Docket Nos. 13, 21] 16 Defendants. 17 18 Defendant Robert Donat ("defendant"), proceeding pro se, moves to dismiss plaintiff Don 19 Bernard's ("plaintiff") First Amended Complaint ("FAC") under Fed. R. Civ. P. 12(b)(1), 12(b)(2), 20 and 12(b)(6). Plaintiff moves to strike defendant's reply brief in its entirety. The court finds the 21 instant motions appropriate for resolution without oral argument, and VACATES the motion hearing 22 set for January 6, 2012. For the reasons below, the motion to strike is DENIED. Plaintiff is given 23 ten days from the date of this order to respond to the arguments raised in defendant's reply brief. 24 After plaintiff has filed a response, the court will determine whether it can properly assert 25 jurisdiction over this case. 26 27 28 ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS No. 11-cv-03414-RMW EDM 1 2 I. BACKGROUND A. 3 Factual Allegations Plaintiff is an independent business consultant in the "energy/power and hunting/fishing 4 industries" who resides in the state of Montana. FAC ¶ 2. Defendant is also a Montana resident. Id. 5 ¶ 3. 6 In or about October 2010, defendant published the blog "Donald Ray Bernad, Glacial 7 Energy, Gemico Mining" (the "Blog") through the website blogspot.com. FAC ¶ 12. The Blog 8 contained statements indicating that plaintiff, who is apparently also an attorney, had been convicted 9 of violating certain Texas Rules of Professional Conduct. Id. In early 2011, defendant posted United States District Court For the Northern District of California 10 comments on two additional websites, complaintsboard.com and pissedconsumer.com, stating that 11 plaintiff had been found guilty of fraud in Texas. Id. ¶¶ 13-14. Plaintiff alleges that defendant’s 12 statements are false and defamatory, and that he "resigned in lieu of discipline from the State Bar of 13 Texas." Id. ¶ 18. 14 On June 27, 2011, plaintiff was named in a lawsuit filed in the U.S. District Court for the 15 Northern District of Texas alleging RICO violations and other Texas state law claims (the "Texas 16 Matter"). Id. ¶ 20. Subsequently, defendant allegedly sent "numerous emails" regarding the Texas 17 Matter to business associates of plaintiff "in an attempt to damage plaintiff's business relationships." 18 Id. ¶ 21. In addition, defendant uploaded documents related to the Texas Matter to the Internet 19 document repository scribd.com under the user name "evildragonslayer9." Id. ¶ 23. According to 20 the FAC, defendant's conduct is part of an "Internet campaign to disparage [plaintiff] with false and 21 malicious statements and cause damage to his reputation." Id. ¶ 11. 22 B. Procedural Background and Jurisdictional Allegations 23 On October 18, 2011, plaintiff filed a FAC in this court asserting claims for False 24 Advertising under the Lanham Act, 15, U.S.C. § 1125(a), defamation and intentional interference 25 with prospective economic advantage. The FAC alleges that subject matter jurisdiction is proper on 26 diversity grounds, and because the Lanham Act claim presents a federal question giving rise to 27 supplemental jurisdiction over the pendent state law claims. FAC ¶¶ 5-7. The FAC further alleges 28 ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS No. 11-cv-03414-RMW EDM 2 1 that this court can assert personal jurisdiction over defendant because he has "conducted business in 2 this District" and "committed acts that avail [himself] of California law." Id. ¶ 8-9. 3 On November 2, 2011, defendant, who is pro se, filed a motion to dismiss. While the motion 4 is primarily dedicated to criticisms of plaintiff's conduct, defendant also challenges the allegations 5 regarding personal jurisdiction, arguing that he has never conducted business in California. 6 Furthermore, he contends that because both parties are Montana residents, subject matter jurisdiction 7 is not proper on diversity grounds. Defendant additionally requests that plaintiff be sanctioned for 8 filing this action in the Northern District of California despite knowing that defendant lives in 9 Montana. United States District Court For the Northern District of California 10 In his opposition motion, plaintiff abandons his allegation that defendant has conducted 11 business in California and argues instead that defendant consented to personal jurisdiction in this 12 district because the terms of service of blogspot.com and scribd.com contain forum-selection clauses 13 requiring litigation "arising" from the use of either service to be brought in Santa Clara County, 14 California. See Dkt. No. 15 at 3. Plaintiff reasserts the claim that subject matter jurisdiction is 15 proper based on the Lanham Act claim, and later notes that his allegations regarding diversity 16 jurisdiction are a mistake. See Dkt. No. 21 at 5 n.3. 17 On November 30, 2011, defendant filed a reply asserting additional grounds for dismissal, 18 including a challenge to the sufficiency of plaintiff’s Lanham Act and defamation claims under Rule 19 12(b)(6), and what appears to be an invocation of California's Anti-SLAPP provisions. See Dkt. No. 20 20. Defendant also denies consenting to personal jurisdiction in California, arguing that the venue 21 "selection clauses contained within the Terms of Use in the website[s] are only for disputes between 22 users of the websites and the websites themselves, not third party actions." Id. at 8. 23 On December 2, 2011, plaintiff moved to strike defendant's reply in its entirety because: (1) 24 it was filed two days late under Civil Local Rule 7-3; (2) it raises new arguments not included in the 25 motion to dismiss, and (3) both the motion to dismiss and reply brief are "rife with scandalous 26 material." See Dkt. No. 21. In response, defendant indicated that he had believed in good faith that 27 his reply was timely filed, that the timing of his filing was complicated because he has not yet been 28 granted permission to use PACER, and that he filed his brief "within two hours of being notified of ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS No. 11-cv-03414-RMW EDM 3 1 the local rules by plaintiff’s lawyer." Dkt. No. 24 at 4. Defendant also argues that he should be 2 allowed to raise additional arguments in his reply brief because plaintiff included the allegation that 3 defendant consented to personal jurisdiction for the first time in his opposition brief. 4 5 6 II. DISCUSSION Pro se pleadings "must be held to less stringent standards than formal pleadings drafted by 7 lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Leniency towards pro se litigants is 8 particularly warranted in evaluating compliance with the technical rules of civil procedure. Draper 9 v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). United States District Court For the Northern District of California 10 Here, it appears that defendant intended in good faith to comply with the Civil Local Rules. 11 Furthermore, as plaintiff concedes, only pleadings are technically subject to motions to strike. See 12 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Although plaintiff cites a 13 District of Nevada case in which an opposition to a motion to dismiss was stricken as untimely, that 14 case is distinguishable because the filing party was represented by counsel and offered no excuse for 15 the untimely submission. See Metzger v. Hussman, 682 F. Supp. 1109, 1110 (D. Nev. 1988). The 16 court therefore DENIES plaintiff’s motion to strike defendant's reply brief. 17 However, the court agrees with plaintiff that consideration of arguments raised for the first 18 time on reply would prejudice plaintiff if he is not given an opportunity to respond. See Cal. 19 Writer's Club v. Sonders, No. C-11-02566, 2011 U.S. Dist. LEXIS 113699 (N.D. Cal. Oct. 3, 2011) 20 (considering reply brief filed seven weeks late by pro se defendant after finding that plaintiff would 21 not be prejudiced). Therefore, the court will give plaintiff ten days from the date of this order to file 22 a sur-reply responding to the arguments raised in defendant's motion. Once plaintiff has had an 23 opportunity to respond, the court will consider whether personal and subject matter jurisdiction are 24 proper in this case, as well as whether any exhibits attached to the parties' motions can be 25 considered on a motion to dismiss. 26 27 Finally, the court DENIES defendant's request for sanctions. In addition to the fact that defendant did not comply with the requirements of Fed. R. Civ. P. 11, plaintiff's admittedly 28 ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS No. 11-cv-03414-RMW EDM 4 1 erroneous assertion of diversity jurisdiction does not justify an imposition of sanctions at this time, 2 particularly where there may be other grounds for federal jurisdiction. 3 4 5 III. ORDER For the foregoing reasons, the court DENIES plaintiff's motion to strike defendant's reply 6 brief. Plaintiff has ten days from the date of this order to file a sur-reply. The motion hearing set for 7 January 6, 2012 is VACATED. 8 9 United States District Court For the Northern District of California 10 11 DATED: January 2, 2012 RONALD M. WHYTE United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS No. 11-cv-03414-RMW EDM 5