Steinbuch v. Hachette Book Group

Filing 26

RESPONSE in Support re 12 First MOTION to Dismiss (Response to Plaintiff's Second Notice of Additional Authorities) filed by Hachette Book Group. (Stone, Clayborne)

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Steinbuch v. Hachette Book Group Doc. 26 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION ROBERT STEINBUCH v. HACHETTE BOOK GROUP No. 4-08-C V-000456 JLH DEFENDANT PLAINTIFF RESPONSE TO PLAINTIFF'S NOTICE OF ADDITIONAL AUTHORITIES Plaintiff now claims that he "never" relied on Frey v. Herculaneurn, 44 F.3d 667 (8th Cir. 1995), for the "no set of facts" pleading standard overruled in Bell All. Corp. v. Twombly, 550 U.S. 544 (2007), but he is wrong. He sets out in full the same six-line quotation from Frey at least six times in support of that standard in his response to Hachette's motion to dismiss. See Plaintiff's Response to Motion to Dismiss, Doc. No. 17, at pp. 12, 20, 24, 25, 27, 29. In his latest Notice of Additional Authorities, plaintiff cites two unpublished district court cases that cite Frey. Neither of these cases supports plaintiff's position that the "no set of facts" pleading standard survived Twombly. Both, instead, support Hachette's position that the complaint cannot even withstand the minimum pleading standard under Frey, which provides that: "[alt the very least... the complaint must contain facts which state a claim as a matter of law and must not be conclusory." Frey, 44 F.3d at 671. Plaintiff's complaint does not meet the basic pleading standard under Fed. R. Civ. P. 8, and his complaint should be dismissed under Rule 12(b)(6). In his Notice of Additional Authorities, plaintiff for the first time argues that Hachette should have filed a Rule 12(e) motion for a more definite statement rather than a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. A motion to dismiss is not interchangeable with a motion for a more definite statement. See 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PRoCEDuRE 1376 (3d ed. 2004); Humpherys v. Nager, 962 F. Supp. 347, 352-53 (E.D.N.Y. 1997). A motion to dismiss is proper where, as here, the plaintiff has failed to allege a claim as a matter of law. Id. A motion for more definite statement is proper when a pleading that states a claim is so unclear that a response is not possible. Id. Plaintiff's complaint raises only speculative and conclusory allegations, and thus fails to state a claim under Rule 8. For the reasons set forth in Hachette's moving papers, the complaint should be dismissed with prejudice. Respectfully submitted, WILLIAMS & ANDERSON PLC Twenty-Second Floor 111 Center Street Little Rock, AR 72201 501.372.0800 By: /5/ Clayborne S. Stone Philip S. Anderson, Ark. Bar. No. 60001 Clayborne S. Stone, Ark. Bar No. 2003102 Attorneys frr Defendant Hachette Book Group CERTIFICATE OF SERVICE I hereby certify that on this 10th day of February, 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. Is! Clavborne S. Stone

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