Target Media Partners et al v. Specialty Marketing Corporation

Filing 24

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/11/15. (SAC )

FILED
2015 Mar-11 PM 03:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
TARGET MEDIA PARTNERS
and ED LEADER,
Plaintiffs
vs.
SPECIALTY MARKETING
CORPORATION,
Defendant

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Case No. 1:14-cv-00865-HGD

MEMORANDUM OPINION
This matter comes before the court on Defendant Speciality Marketing
Corporation’s “Motion for More Definite Statement or to Dismiss” (doc. 12) and the
magistrate judge’s report and recommendation that the court deny the motion (doc.
22). Plaintiffs Target Media and Ed Leader sue Specialty Marketing for libel per se
and fraudulent misrepresentations for sending allegedly false statements and materials
to Target Media’s advertising agencies.
For the following reasons, the court finds that the motion to dismiss is due to
be DENIED in all respects except as to the motion to dismiss for lack of subject
matter jurisdiction under Fed. R. Civ. P 12(b)(1), which the court will return to the
magistrate judge for additional briefing.

The Report and Recommendation
On January 16, 2015, the magistrate judge entered his report and
recommendation, recommending the following:
(1) that the court deny the motion to dismiss based on lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1), lack of personal jurisdiction under Rule
12(b)(2), and insufficient process under Rule 12(b)(5). The magistrate judge found
that Specialty Marketing had previously filed, and the court had denied, a motion to
quash purportedly under Fed. R. Civ. P. 12(b)(5); failed to raise his Rule 12(b)(1) and
(b)(2) grounds in that previous motion; and, thus, waived those defenses pursuant to
Fed. R. Civ. P. 12(g)(2) and 12(h)(1). (Doc. 22 at 7);
(2) that the court deny the motion to dismiss for failure to state a claim under
Fed. R. Civ. P. 12(b)(6) because Speciality Marketing cites no authority or argument
to support its motion on this ground and the court is under no obligation to consider
an underdeveloped argument (doc. 22 at 8); and
(3) that the court deny the motion for a more definite statement because Target
Media sufficiently pled a claim for fraudulent misrepresentations involving Target
Media’s advertising agencies (doc. 22 at 12).
Specialty Marketing’s Objections to the Report and Recommendation
On January 30, 2015, Specialty Marketing filed objections to the magistrate
judge’s report and recommendation, asserting that its motion to quash “was not, per
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se, a rule 12(b)(6) motion” and that it did not waive any defenses by not including
them in the motion to quash; that the “motion to quash was filed in unique
circumstances as basically a special appearance” because his client had not been
served when he filed the motion to quash; that the motion to quash was a common
procedure under Alabama law before the Federal Rules were adopted, and was, thus,
not a Rule 12 motion; that the motion for a more definite statement is like a motion
to dismiss for failure to state a claim and is not waived under Rule 12(h)(1); and that
the magistrate judge, in essence, “discarded” the specificity requirement for pleading
fraud under Rule 9(b). (Doc. 23). The court OVERRULES all of Specialty
Marketing’s objections.
The court is unpersuaded by Speciality Marketing’s objection that its motion
to quash was not “per se” a Rule 12 motion. In its motion to quash for insufficient
service of process, Specialty Marketing specifically asked the court to “dismiss this
action or in the alternative to quash purported service.” (Doc. 7) (emphasis added).
Such a request to dismiss on the grounds of insufficient service of process would
have been one properly brought under Rule 12(b)(5).

Moreover, Speciality

Marketing’s claim that the motion to quash was “basically a special appearance” does
not change the fact that, in the motion to quash, it requested that the court dismiss the
action for insufficient service of process—a motion properly brought under Fed. R.
Civ. P. 12(b)(5). Further, the court finds no indication on the docket sheet that
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counsel entered any type of “special appearance” for purposes of arguing that service
of process was insufficient and asking the court to dismiss the action, even though
counsel claims that his client had not yet been “served” at the time he filed the motion
to quash service.
Speciality Marketing’s objection regarding the motion to quash being a
“common procedure” under Alabama law prior to the adoption of the Federal Rules
of Civil Procedure also lacks merit. The bottom line is that the Federal Rules apply
in this case—not prior procedures under Alabama Law. As such, the magistrate judge
correctly found that Fed. R. Civ. P. 12(g) and 12(h) apply in this case.
Moreover, the magistrate judge was unpersuaded, as is this court, that a motion
for a more definite statement and a motion to dismiss for failure to state a claim are
essentially the same. A Rule 12(e) motion for a more definite statement and a motion
to dismiss for failure to state a claim are two totally different motions, and the
magistrate judge correctly found that Rule 12(g)(2)’s successive Rule 12 prohibition
applies to a motion for a more definite statement. Even if Rule 12(g)(2) did not
apply, the court finds that the allegations in the Complaint are sufficient to give
Specialty Marketing notice of the allegations against it such that a more definite
statement is not necessary.
Speciality Marketing’s objection that the magistrate judge “discarded” the
specificity requirements for pleading fraud under Fed. R. Civ. P. 9 is plainly wrong.
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The magistrate judge discussed at length the requirements for pleading fraud and
found that Target Media’s Complaint sufficiently pled fraud. Just because the
magistrate judge disagreed with Specialty Marketing does not mean that he discarded
the law.
After a de novo review of the record in this case, the magistrate judge’s report
and recommendation, and Specialty Marketing’s objections, the court ADOPTS the
report of the magistrate judge and ACCEPTS all of his recommendations EXCEPT
as to the motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).
For the reasons as stated by the magistrate judge, the court finds that the motion to
dismiss pursuant to Rule 12(b)(2), 12(b)(5), 12(b)(6), and 12(e) is due to be DENIED.
The court disagrees with the magistrate judge only to the extent that he found
that, pursuant to Fed. R. Civ. P. 12(g)(2) and 12(h)(1), Specialty Marketing waived
its motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) by
filing the previous motion to quash pursuant to Rule 12(b)(5). Rule 12(g)(2)
specifically makes an exception for motions to dismiss for lack of subject matter
jurisdiction, and the waiver provision of Rule 12(h)(1) only applies to defenses listed
under Rule 12(b)(2)-(5). Lack of subject matter jurisdiction is a defense listed under
Rule 12(b)(1). In fact, Rule 12(h)(3) states that the court must dismiss the action if
it determines, at any time, that it lacks subject matter jurisdiction; the parties cannot

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waive subject matter jurisdiction. As such, this court finds that Specialty Marketing
did not waive its defense of lack of subject matter jurisdiction.
However, the court notes that Speciality Marketing did not cite any authority
or fully explain its argument as to why this court lacks subject matter jurisdiction.
Specialty Marketing seems to allude to the fact that this court lacks jurisdiction over
the subject matter because the Calhoun County Court has exclusive jurisdiction based
on the underlying jury verdict and proceedings in the state court case—a possible
Rooker– Feldman argument.
Although Speciality Marketing failed to fully develop this argument and cited
no authority, the court does not have enough information in the record to decide if it
has subject matter jurisdiction. As such, the court RETURNS the motion to dismiss
for lack of subject matter jurisdiction to the magistrate judge for additional briefing
and consideration.
The court will enter an Order in conformity with this Memorandum Opinion.
DONE and ORDERED this 11th day of March, 2015.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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