Dunstan et al v. comScore, Inc.

Filing 47

REPLY by Jeff Dunstan, Mike Harris to response in opposition to motion 45 , MOTION by Plaintiffs Jeff Dunstan, Mike Harris to strike MOTION by Defendant comScore, Inc. to dismiss Under Rule 12(B)(1) and 12(B)(6) 39 43 (Scharg, Ari)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
situated individuals,
Plaintiffs,
v.
COMSCORE, INC., a Delaware corporation,
Defendant.
_________________________________________

)
)
)
)
)
)
)
)
)
)
)

Case No. 1:11-5807
Hon. James F. Holderman

PLAINTIFFS MIKE HARRIS’S AND JEFF DUNSTAN’S
REPLY IN SUPPORT OF THEIR MOTION TO STRIKE DEFENDANT
COMSCORE, INC.’S MOTION TO DISMISS UNDER RULES 12(b)(1) AND 12(b)(6)
Plaintiffs Mike Harris and Jeff Dunstan, through their counsel, Edelson McGuire LLC,
respectfully submit the following reply in support of their move to strike Defendant comScore,
Inc.’s Motion to Dismiss under Rule 12(b)(1) and 12(b)(6). In support of their reply, Plaintiffs
state as follows:
1.

Defendant comScore, Inc. (“comScore”) responds to Plaintiffs’ motion to strike

its second motion to dismiss by pretending that Plaintiffs’ counsel gave it permission to file
successive Rule 12(b) motions rather than answering the Complaint. comScore’s argument is
apparently derived from a two-sentence e-mail sent between counsel wherein Plaintiffs’ attorney,
Jay Edelson, agreed—as a courtesy—to allow comScore to “respond” to the Complaint by
November 4, 2011. (Dkt. No. 46-1, p. 2.) This e-mail was sent on October 7, 2011—the day that
comScore’s first motion to dismiss under Rule 12(b)(3) was denied.
2.

Although comScore failed to clarify the meaning of the term “respond” with

Plaintiffs’ counsel at that time, it now argues that use of the term gave it carte blanche to file a

1

second motion to dismiss under Rule 12(b)(6)—even though such a filing would violate Rule
12(g)(2)’s prohibition against successive pre-answer Rule 12 filings. According to comScore,
any other interpretation of the term “respond” would be superfluous because it could not have
filed anything else besides a motion to dismiss or an answer to the Complaint. comScore is flat
wrong that it could not have “respond[ed]” to the Complaint in any other way.
3.

There are a number of ways that comScore could have “respond[ed]” to the

Complaint that did not involve a motion to dismiss under Rule 12(b)(6). For example, comScore
could have filed an answer, a counterclaim, affirmative defenses, a true motion to dismiss for
lack of standing under Rule 12(b)(1), or a motion for summary judgment. See Fed. R. Civ. P.
56(b) (“a party may file a motion for summary judgment at any time….”). In this way, comScore
could have responded to the Complaint in several procedurally proper ways—none of which
included a second motion to dismiss under Rule 12(b). For these reasons, comScore’s “response”
argument is nothing more than an after-the-fact attempt to delay answering the Complaint and
should be rejected.
4.

comScore’s second argument—that it may challenge standing under Rule

12(b)(1) at any time—misses the mark. As explained in Plaintiffs’ motion to strike, comScore’s
so-called “Rule 12(b)(1)” motion attacks the sufficiency of Plaintiffs’ allegations—an issue
analyzed under Rule 12(b)(6). Thus, comScore’s “Rule 12(b)(1)” argument should be rejected,
and its second motion to dismiss should be stricken.
WHEREFORE, Plaintiffs respectfully request this Court to enter an Order: (i) striking
comScore’s motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6) (Dkt. No. 42-1); (ii)
compelling comScore to answer the Complaint immediately; and (iii) granting such other and
further relief that the Court deems equitable and just.

2

Dated: November 14, 2011

Respectfully submitted,

By: /s/ Ari J. Scharg
Jay Edelson
Steven W. Teppler
William C. Gray
Ari J. Scharg
Edelson McGuire LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

3

CERTIFICATE OF SERVICE
I, Ari J. Scharg, an attorney, certify that on November 14, 2011, I caused the above and
foregoing Plaintiffs Mike Harris’ and Jeff Dunstan’s Reply in Support of their Motion to
Strike Defendant comScore, Inc.’s Motion to Dismiss Under Rule 12(b)(1) and Rule 12(b)(6)
by causing true and accurate copies of such paper to be transmitted to all counsel of record via
the Court’s CM/ECF electronic filing system, on this the 14th day of November, 2011.

/s/ Ari J. Scharg

4