Flava Works, Inc. v. Gunter et al

Filing 234

MEMORANDUM OPINION Signed by the Honorable John F. Grady on September 3, 2013. Mailed notice(cdh, )

10-6517.131-JCD

September 3, 2013

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FLAVA WORKS, INC.,
Plaintiff,
v.
MARQUES RONDALE GUNTER d/b/a
myVidster.com; SALSAINDY, LLC
d/b/a myVidster.com;
JOHN DOES 1-26; and
LEASEWEB B.V. d/b/a LeaseWeb.com,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

No. 10 C 6517

MEMORANDUM OPINION
Before the court is the motion of plaintiff/counter-defendant
Flava Works, Inc. to dismiss the counterclaim pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the reasons explained below,
the motion is granted in part and denied in part.
BACKGROUND
On February 7, 2013, defendants/counter-plaintiffs Marques
Gunter

(doing

business

as

myVidster.com)

and

SalsaIndy,

LLC

(collectively, “myVidster”) filed an amended answer to the Sixth
Amended Complaint as well as affirmative defenses and a two-count
counterclaim.

Plaintiff/counter-defendant,

Flava

Works,

Inc.

(“Flava”), had moved to dismiss the original counterclaim, to which
the amended counterclaim is largely identical. The parties have
treated

Flava’s

motion

as

being

directed

to

the

amended

- 2 -

counterclaim, and we will do the same.

Count I of the counterclaim

is a state-law claim for tortious interference with contract.
Count

II,

myVidster

asserts

that

Flava

violated

the

In

Digital

Millennium Copyright Act (the “DMCA”), 17 U.S.C. § 512(f), by
knowingly and materially misrepresenting that certain content that
allegedly

infringed

copyrights

was

available

on

myVidster’s

website.
DISCUSSION
Under federal notice-pleading standards, a complaint need not
contain “detailed factual allegations,” but it must have more than
mere “labels and conclusions.”
U.S. 544, 555 (2007).

Bell Atl. Corp. v. Twombly, 550

The complaint must contain sufficient facts

to raise a plaintiff’s right to relief above a “speculative” level,
id. at 555, and the claim must be “plausible on its face,” id. at
570.

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A.

Count I - Tortious Interference with Contract
Count I of the counterclaim alleges that Flava tortiously

interfered with myVidster’s contractual relationships with three
companies--Server Beach, Voxel Dot Net, Inc., and FDC Servers-whose servers had hosted myVidster’s web site.
on

two

types

of

conduct.

MyVidster

The claim is based

alleges

that

Flava

(1)

- 3 -

“improperly filed this lawsuit” and (2) in notices sent pursuant to
the DMCA, misrepresented to the three companies the extent of
infringing material that appeared on myVidster’s site, in order to
“intentionally

and

injustifiably

induce”

the

companies’

terminations of their contracts with myVidster. (Countercl. ¶ 35.)
It is alleged that Flava’s conduct caused the three companies to
terminate the contracts and that myVidster “suffered monetary
damages as a result of its outlay of resources during its search
for a new server company on three separate occasions.” (Countercl.
¶¶ 36-39.)
In its opening brief, Flava contends that myVidster fails to
state a claim for tortious interference based on the filing of this
lawsuit because Illinois has a broad absolute litigation privilege
that protects statements made in a judicial proceeding.

MyVidster

correctly counters that Illinois law limits the scope of this
privilege to defamation or false light actions.

See Conditioned

Ocular Enhancement, Inc. v. Bonaventura, 458 F. Supp. 2d 704, 708
(N.D. Ill. 2006) (citing Zdeb v. Baxter Int’l, Inc., 697 N.E.2d
425, 430 (Ill. App. Ct. 1998)).
Flava presents a different argument in its reply, pointing out
that under Illinois law, the only cause of action recognized for
the wrongful filing of a lawsuit is one for malicious prosecution
or abuse of process.

See Havoco of Am., Ltd. v. Hollobow, 702 F.2d

643, 647 (7th Cir. 1983) (citing Lyddon v. Shaw, 372 N.E.2d 685,

- 4 -

690 (Ill. App. Ct. 1978)) (“Illinois law prohibits [plaintiff] from
basing a cause of action for tortious interference with business
opportunity on the wrongful filing of a lawsuit.”); Shield Techs.
Corp. v. Paradigm Positioning, LLC, No. 11 C 6183, 2012 WL 4120440,
at *4 (Grady, J.) (“[I]t is clear that the principle discussed in
Havoco

applies

existing

whether

contract

or

the

a

alleged

prospective

interference
business

involves

an

relationship.”).

Ordinarily, we disregard arguments raised for the first time in a
reply brief, but there are two reasons why it would be unjust to do
so here.

First, although Flava’s opening brief discussed only the

absolute litigation privilege, the issue impliedly and more broadly
raised by

its

motion

is

whether

Illinois

allows

a

tortious-

interference claim that is based on the wrongful filing of a
lawsuit.

Second, the court is familiar with, and cannot simply

ignore, the clear-cut principle that Illinois does not recognize
such

a

claim.

Therefore,

myVidster’s

claim

for

tortious

interference will be dismissed to the extent that it is based on
the alleged wrongful filing of this suit.
Flava also contends that with regard to the alleged sending of
DMCA notices that contained misrepresentations, myVidster “cannot
plead” that Flava engaged in intentional and unjustified inducement
of a breach of contract and has only conclusorily alleged harm.
(Flava’s Mot. at 5.)

For the most part, Flava’s argument goes to

the merits, which we do not consider on a motion to dismiss.

- 5 -

MyVidster has sufficiently pleaded that Flava intentionally and
unjustifiably
companies’

sent

the

termination

notices
of

in

their

order

to

induce

contracts

with

the

three

myVidster.

Moreover, it has pleaded that it suffered harm “as a result of its
outlay of resources” when on three occasions, it had to search for
a new company to host its web site.

To the extent that Count I is

based on the alleged misrepresentation of intellectual-property
infringement, it will not be dismissed.
B.

Count II - Misrepresentation of
Intellectual Property Infringement Under the DMCA
In Count II of the counterclaim, myVidster alleges that Flava

violated the DMCA, 15 U.S.C. § 512(f), by knowingly and materially
misrepresenting that allegedly infringing content was available on
myVidster, despite myVidster’s previous expeditious removal of that
content and despite Flava having received correspondence from
myVidster

confirming

that

the

content

had

been

removed.

(Countercl. ¶¶ 42-43.)
Flava argues that myVidster fails to state a § 512(f) claim
because it pleads knowledge in only a conclusory manner.
disagree.

We

MyVidster alleges that Flava knowingly misrepresented

that certain infringing content was available on myVidster’s web
site despite having received notification from myVidster that the
content had been removed and that Flava did so purposefully, in an
effort to “improperly exaggerate the actual amount of infringing
content available on the myVidster.com website.”

(Countercl. ¶¶

- 6 -

43-44.)

These allegations allow us to draw a reasonable inference

of liability and are sufficient to present a story that holds
together, which is all that is required under federal pleading
standards. See, e.g., Swanson v. Citibank, N.A., 614 F.3d 400, 404
(7th Cir. 2010).

Flava’s motion will be denied as to Count II of

the counterclaim.
CONCLUSION
For the foregoing reasons, the motion of plaintiff/counterdefendant Flava Works, Inc. to dismiss the counterclaim [190] is
granted in part as to Count I, which is dismissed with prejudice,
but only to the extent that the claim is based on the alleged
wrongful filing of this lawsuit.
I

to

the

extent

that

the

The motion is denied as to Count

claim

is

based

on

the

alleged

misrepresentation of intellectual-property infringement, and as to
Count II.

DATE:

September 3, 2013

ENTER:

_______________________________________________
John F. Grady, United States District Judge