Express Lien Inc v. Nationwide Notice Inc

Filing 42

ORDER AND REASONS. It is ORDERED that Defendant's Partial Motion to Dismiss (Rec. Doc. 33 ) is GRANTED. It is FURTHER ORDERED that Plaintiff's defamation claim is DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to file a third amended complaint to cure the defect in the defamation claim within twenty-one days of this Order. Signed by Judge Carl Barbier on 3/20/2017. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EXPRESS LIEN, INC.

CIVIL ACTION

VERSUS

NO: 16-2926

NATIONWIDE NOTICE, INC.

SECTION: “J” (4)
ORDER AND REASONS

Before the Court is a Partial Motion to Dismiss (Rec. Doc.
33) filed by Nationwide Notice, Inc. (“Defendant”), an opposition
thereto (Rec. Doc. 35) filed by Express Lien, Inc., doing business
as Zlien (“Plaintiff”), and a reply (Rec. Doc. 38) filed by
Defendant.

Having considered the motion and legal memoranda, the

record, and the applicable law, the Court finds that the motion
should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This

case

centers

around

Plaintiff’s

allegations

that

Defendant copied material from Plaintiff’s website and posted the
material on its own website.

A description of these allegations

was provided in this Court’s Order and Reasons granting in part
and denying in part Defendant’s initial partial motion to dismiss
(Rec. Doc. 28), and a recitation is not necessary here.
Plaintiff originally filed this suit on April 8, 2016, and
filed a first amended complaint on September 15, 2016. (Rec. Docs.
1 and 20.)

Defendant filed a partial motion to dismiss the first

1

amended complaint, requesting the Court to dismiss Plaintiff’s
trade dress infringement, breach of contract, fraud, and unfair
trade

practices

claims.

(Rec.

Doc.

22.)

The

Court

denied

Defendant’s motion as to the trade dress infringement claim and
granted the motion to dismiss the breach of contract, unfair trade
practices, and fraud claims.

(Rec. Doc. 28 at 19-20.)

The Court

also granted Plaintiff leave to amend its breach of contract and
unfair trade practices claims.

Id.

Plaintiff timely filed a second amended complaint.
32.)

(See Rec.

In addition to re-alleging its unfair trade practices and

fraud claims, Plaintiff added for the first time a defamation claim
against Defendant.

Id. at 21.

This newly added claim alleges

that Defendant made defamatory statements about Plaintiff to a
third party on or around December 2016, after the Court ruled on
Defendant’s initial partial motion to dismiss.
Plaintiff

also

alleges

that

Defendant

has

Id. at 21-22.
made

defamatory

statements to third parties for at least one year by stating that
the basis for the instant lawsuit was that Plaintiff had taken
information from Defendant.
Defendant
pursuant

to

brings

Federal

the
Rule

Id.
instant
of

Civil

partial

motion

Procedure

to

12(b)(6)

dismiss
(“Rule

12(b)(6)”) requesting the Court dismiss Plaintiff’s defamation
claim for failure to state a claim upon which relief can be
granted.

(Rec. Doc. 33-1 at 1-2.)
2

LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005). The allegations “must be simple,
concise, and direct.” Fed. R. Civ. P. 8(d)(1).
“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his claim
which would entitle him to relief.”

Taylor v. Books A Million,

Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)).

To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
enough facts to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)).

A claim is

facially plausible when the plaintiff pleads facts that allow the
court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Id.

A court must accept all

well-pleaded facts as true and must draw all reasonable inferences
in favor of the plaintiff.

Lormand v. U.S. Unwired, Inc., 565

F.3d 228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190,
196 (5th Cir. 1996).

The court is not, however, bound to accept
3

as true legal conclusions couched as factual allegations.

Iqbal,

556 U.S. at 678.
DISCUSSION
Four
defamation

elements
under

must

be

Louisiana

established
law:

“(1)

to
a

state

false

a

and

claim

for

defamatory

statement concerning another; (2) an unprivileged publication to
a third party; (3) fault (negligence or greater) on the part of
the publisher; and (4) resulting injury.” Costello v. Hardy, 20031146, p. 12 (La. 1/21/04), 864 So. 2d 129, 139.

“[A] petitioner

alleging a cause of action for defamation must set forth in the
petition with reasonable specificity the defamatory statements
allegedly published by the defendant.”

Badeaux v. Southwest

Computer Bureau, Inc., 2005-0612, p. 10 (La. 3/17/06), 929 So. 2d
1211,

1218.

specificity.

Plaintiff’s

defamation

claim

provides

no

such

The second amended complaint repeatedly uses legal

conclusions to allege defamation without providing factual detail
to support the claim.

Noticeably absent from the second amended

complaint is any information about who made the alleged defamatory
statements, how the alleged statements were communicated, the
specific language of the alleged statements, or to whom the alleged
statements were made.

Because the defamation claim is not pled

with reasonable specificity, Plaintiff has failed to state a claim
which would entitle it to relief.

See Badeaux, 929 So. 2d at 1219;

Iqbal, 556 U.S. at 678; see also English v. Wood Grp. PSN, Inc.,
4

No. 15-568, 2015 WL 5061164, at *17 (E.D. La. Aug. 25, 2015)
(dismissing

defamation

claim

and

noting

that

“the

allegation

certainly does not consist of any particular set of defamatory
words

or

specific

instances

of

Defendant’s

publication

of

defamatory words”); Haygood v. Begue, No. 13-0335, 2016 WL 1072073,
at *7 (W.D. La. March 16, 2016) (same result when the complaint
contained “no allegations or statements of fact as to what the
defamatory words were and/or how the unknown statements were
false”); Maurer v. Town of Independence, Louisiana, 45 F. Supp. 3d
535,

552

(E.D.

La.

2014)

(same

result

when

the

plaintiff’s

defamation allegation was overly general and conclusory).
CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Partial Motion to Dismiss (Rec.
Doc. 33) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s defamation claim is
DISMISSED WITHOUT PREJUDICE.

Plaintiff is granted leave to file

a third amended complaint to cure the defect in the defamation
claim within twenty-one days of this Order.
New Orleans, Louisiana this 20th Day of March, 2017.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
5