Steinbuch v. Hachette Book Group

Filing 24

REPLY to Response to Motion re 12 First MOTION to Dismiss re Plaintiff's Notice of Additional filed by Hachette Book Group. (Stone, Clayborne)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION ROBERT STEINBUCH v. No. 4-08-C V-000456 JLH DEFENDANT
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PLAINTIFF

HACHETTE BOOK GROUP

RESPONSE TO PLAINTIFF'S NOTICE OF ADDITIONAL AUTHORITY In his "Notice of Additional Authority," plaintiff cites to a single unpublished per curiam decision of the Eighth Circuit Court of Appeals, Chambers v. St. Louis County, 247 Fed. Appx. 846 (8th Cir. 2007). Chambers, however, far from supporting plaintiff's response, only further illustrates why the complaint in this case must be dismissed. Contrary to plaintiff's assertion, Chambers did not resurrect the pleading standard abandoned by the Supreme Court in Twombly. See Bell Ad. Corp. v Twombly, 127 S. Ct. 1955, 1969 (2007) (holding that the "no set of facts" pleading standard has "earned its retirement"). Rather, Chambers cites the earlier case of Frey v. Herculaneum, 44 F.3d 667 (8th Cir. 1995), as authority to affirm the dismissal of a claim that did not meet the long-established minimum pleading standard that a complaint must not contain "speculative" or "conclusory" allegations, and rather "must contain facts stating [a] claim as a matter of law" in order to survive dismissal under Fed. R. Civ. P. 12(b)(6). Chambers, 247 Fed.

Appx. at 848 (citing Frey, 44 F.3d at 671). This is a basic standard that continues to thrive in the Eighth Circuit. Chambers highlights why the complaint in this case must be dismissed even under this minimum pleading standard: as demonstrated in Hachette' s motion papers, it fails to set forth a sufficient factual basis and relies on merely speculative and conclusory allegations.

Respectfully submitted, WILLIAMS & ANDERSON PLC Twenty-Second Floor 111 Center Street Little Rock, AR 72201 501.372.0800 By: Is! Clayborne S. Stone Philip S. Anderson, Ark. Bar. No. 60001 Claybome S. Stone, Ark. Bar No. 2003102 Attorneys for Defendant Hachette Book Group

CERTIFICATE OF SERVICE I hereby certify that on this 30th day of January, 2009, a copy of the foregoing Notice of Entry of Appearance was served on all counsel of record via this Court's CM!ECF system and a copy has been served via U.S. Mail upon: Robert Steinbuch, Esquire 6834 Cantrell Road, #222 Little Rock, AR 72207.

/s! Clayborne S. Stone 2