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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E-FILED on

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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DON BERNARD, an individual,

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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]
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Defendants.

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Defendant Robert Donat ("defendant"), proceeding pro se, moves to dismiss plaintiff Don

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Bernard's ("plaintiff") First Amended Complaint ("FAC") under Fed. R. Civ. P. 12(b)(1), 12(b)(2),

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and 12(b)(6). Plaintiff moves to strike defendant's reply brief in its entirety. The court finds the

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instant motions appropriate for resolution without oral argument, and VACATES the motion hearing

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set for January 6, 2012. For the reasons below, the motion to strike is DENIED. Plaintiff is given

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ten days from the date of this order to respond to the arguments raised in defendant's reply brief.

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After plaintiff has filed a response, the court will determine whether it can properly assert

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jurisdiction over this case.

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ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS
No. 11-cv-03414-RMW
EDM

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I. BACKGROUND
A.

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Factual Allegations
Plaintiff is an independent business consultant in the "energy/power and hunting/fishing

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industries" who resides in the state of Montana. FAC ¶ 2. Defendant is also a Montana resident. Id.

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¶ 3.

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In or about October 2010, defendant published the blog "Donald Ray Bernad, Glacial

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Energy, Gemico Mining" (the "Blog") through the website blogspot.com. FAC ¶ 12. The Blog

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contained statements indicating that plaintiff, who is apparently also an attorney, had been convicted

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of violating certain Texas Rules of Professional Conduct. Id. In early 2011, defendant posted

United States District Court
For the Northern District of California

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comments on two additional websites, complaintsboard.com and pissedconsumer.com, stating that

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plaintiff had been found guilty of fraud in Texas. Id. ¶¶ 13-14. Plaintiff alleges that defendant’s

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statements are false and defamatory, and that he "resigned in lieu of discipline from the State Bar of

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Texas." Id. ¶ 18.

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On June 27, 2011, plaintiff was named in a lawsuit filed in the U.S. District Court for the

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Northern District of Texas alleging RICO violations and other Texas state law claims (the "Texas

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Matter"). Id. ¶ 20. Subsequently, defendant allegedly sent "numerous emails" regarding the Texas

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Matter to business associates of plaintiff "in an attempt to damage plaintiff's business relationships."

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Id. ¶ 21. In addition, defendant uploaded documents related to the Texas Matter to the Internet

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document repository scribd.com under the user name "evildragonslayer9." Id. ¶ 23. According to

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the FAC, defendant's conduct is part of an "Internet campaign to disparage [plaintiff] with false and

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malicious statements and cause damage to his reputation." Id. ¶ 11.

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B.

Procedural Background and Jurisdictional Allegations

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On October 18, 2011, plaintiff filed a FAC in this court asserting claims for False

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Advertising under the Lanham Act, 15, U.S.C. § 1125(a), defamation and intentional interference

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with prospective economic advantage. The FAC alleges that subject matter jurisdiction is proper on

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diversity grounds, and because the Lanham Act claim presents a federal question giving rise to

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supplemental jurisdiction over the pendent state law claims. FAC ¶¶ 5-7. The FAC further alleges

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ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS
No. 11-cv-03414-RMW
EDM
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that this court can assert personal jurisdiction over defendant because he has "conducted business in

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this District" and "committed acts that avail [himself] of California law." Id. ¶ 8-9.

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On November 2, 2011, defendant, who is pro se, filed a motion to dismiss. While the motion

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is primarily dedicated to criticisms of plaintiff's conduct, defendant also challenges the allegations

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regarding personal jurisdiction, arguing that he has never conducted business in California.

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Furthermore, he contends that because both parties are Montana residents, subject matter jurisdiction

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is not proper on diversity grounds. Defendant additionally requests that plaintiff be sanctioned for

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filing this action in the Northern District of California despite knowing that defendant lives in

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Montana.

United States District Court
For the Northern District of California

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In his opposition motion, plaintiff abandons his allegation that defendant has conducted

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business in California and argues instead that defendant consented to personal jurisdiction in this

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district because the terms of service of blogspot.com and scribd.com contain forum-selection clauses

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requiring litigation "arising" from the use of either service to be brought in Santa Clara County,

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California. See Dkt. No. 15 at 3. Plaintiff reasserts the claim that subject matter jurisdiction is

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proper based on the Lanham Act claim, and later notes that his allegations regarding diversity

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jurisdiction are a mistake. See Dkt. No. 21 at 5 n.3.

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On November 30, 2011, defendant filed a reply asserting additional grounds for dismissal,

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including a challenge to the sufficiency of plaintiff’s Lanham Act and defamation claims under Rule

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12(b)(6), and what appears to be an invocation of California's Anti-SLAPP provisions. See Dkt. No.

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20. Defendant also denies consenting to personal jurisdiction in California, arguing that the venue

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"selection clauses contained within the Terms of Use in the website[s] are only for disputes between

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users of the websites and the websites themselves, not third party actions." Id. at 8.

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On December 2, 2011, plaintiff moved to strike defendant's reply in its entirety because: (1)

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it was filed two days late under Civil Local Rule 7-3; (2) it raises new arguments not included in the

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motion to dismiss, and (3) both the motion to dismiss and reply brief are "rife with scandalous

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material." See Dkt. No. 21. In response, defendant indicated that he had believed in good faith that

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his reply was timely filed, that the timing of his filing was complicated because he has not yet been

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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
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the local rules by plaintiff’s lawyer." Dkt. No. 24 at 4. Defendant also argues that he should be

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allowed to raise additional arguments in his reply brief because plaintiff included the allegation that

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defendant consented to personal jurisdiction for the first time in his opposition brief.

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II. DISCUSSION
Pro se pleadings "must be held to less stringent standards than formal pleadings drafted by

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lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Leniency towards pro se litigants is

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particularly warranted in evaluating compliance with the technical rules of civil procedure. Draper

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v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986).

United States District Court
For the Northern District of California

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Here, it appears that defendant intended in good faith to comply with the Civil Local Rules.

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Furthermore, as plaintiff concedes, only pleadings are technically subject to motions to strike. See

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Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Although plaintiff cites a

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District of Nevada case in which an opposition to a motion to dismiss was stricken as untimely, that

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case is distinguishable because the filing party was represented by counsel and offered no excuse for

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the untimely submission. See Metzger v. Hussman, 682 F. Supp. 1109, 1110 (D. Nev. 1988). The

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court therefore DENIES plaintiff’s motion to strike defendant's reply brief.

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However, the court agrees with plaintiff that consideration of arguments raised for the first

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time on reply would prejudice plaintiff if he is not given an opportunity to respond. See Cal.

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Writer's Club v. Sonders, No. C-11-02566, 2011 U.S. Dist. LEXIS 113699 (N.D. Cal. Oct. 3, 2011)

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(considering reply brief filed seven weeks late by pro se defendant after finding that plaintiff would

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not be prejudiced). Therefore, the court will give plaintiff ten days from the date of this order to file

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a sur-reply responding to the arguments raised in defendant's motion. Once plaintiff has had an

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opportunity to respond, the court will consider whether personal and subject matter jurisdiction are

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proper in this case, as well as whether any exhibits attached to the parties' motions can be

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considered on a motion to dismiss.

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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

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ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS
No. 11-cv-03414-RMW
EDM
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erroneous assertion of diversity jurisdiction does not justify an imposition of sanctions at this time,

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particularly where there may be other grounds for federal jurisdiction.

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III. ORDER
For the foregoing reasons, the court DENIES plaintiff's motion to strike defendant's reply

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brief. Plaintiff has ten days from the date of this order to file a sur-reply. The motion hearing set for

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January 6, 2012 is VACATED.

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United States District Court
For the Northern District of California

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DATED:

January 2, 2012
RONALD M. WHYTE
United States District Judge

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ORDER DENYING MOTION TO STRIKE AND REQUESTING ADDITIONAL BRIEFING ON MOTION TO DISMISS
No. 11-cv-03414-RMW
EDM
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