Landry-Bell v. Various Inc et al

Filing 32

REPORT AND RECOMMENDATIONS re 26 MOTION to Strike 24 Answer to Complaint filed by Shelly Landry-Bell. IT IS RECOMMENDED that the Motion to Strike Answers and defenses be denied. Objections to R&R due by 5/11/2006. Signed by Judge Mark L Hornsby on 4/24/06. (crt,Brown, A)

Download PDF
Landry-Bell v. Various Inc et al Doc. 32 Case 5:05-cv-01526-TS-MLH Document 32 Filed 04/24/2006 Page 1 of 7 U N I T E D STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION ___________________________ S H E L L Y LANDRY-BELLE versus V A R I O U S , INC. ET AL. C I V I L ACTION NO. 05-1526 J U D G E STAGG M A G I S T R A T E JUDGE HORNSBY ___________________________________________ R E P O RT AND RECOMMENDATION I n t r o d u c t io n P l a i n ti f f alleges that her ex-boyfriend, Zach Wilhelm, posted false, defamatory and sexu ally obscene information about Plaintiff on websites operated by Various, Inc. Various f i l ed a motion to dismiss based on immunity from liability pursuant to the Communications D e c e n c y Act, 47 U.S.C. § 230, which protects providers of interactive computer services f r o m liability for content posted by third parties. Judge Stagg denied the motion, reasoning t h a t although Plaintiff's complaint was scant in details that could result in liability for V a r i o u s , the complaint was sufficient under the notice pleading rules to survive and allow Pla intif f to conduct discovery in an effort to develop the facts. Plaintiff has now filed a Motion to Strike Answer and Defenses (Doc.26) that asks the court to strike 20 of Various's affirmative defenses and its prayer for fees and costs. For the r e a s o n s that follow, the motion should be denied. Just as Plaintiff was permitted the Page 1 of 7 Dockets.Justia.com Case 5:05-cv-01526-TS-MLH Document 32 Filed 04/24/2006 Page 2 of 7 opp ortun ity to develop the facts underlying her barely pleaded claims, Various should be per mitte d the opportunity to establish a basis for its defenses. Motions to Strike Defenses M o t i o n s to strike a defense "are generally disfavored," although a Rule 12(f) motion to dismiss a defense may be granted when the defense is "insufficient as a matter of law." K a i s e r Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.1982). "What constitutes an insufficient defense depends upon the nature of the claim for relief and the defense in question." EEOC v. First National Bank of Jackson, 614 F . 2 d 1004, 1008 (5th Cir.1980). "Courts should be cautious in granting motions to strike a f f i r m a ti v e defenses, particularly when a defendant may not have had ample opportunity to p r o v e his allegations that the defense might succeed on the merits." Owens v. UNUM Life I ns . Co., 285 F.Supp.2d 778 (E.D. Tex. 2003). F a i l u r e to Confer V a r i o us asks that the motion to strike be denied because Plaintiff's counsel failed, desp ite requests, to confer with counsel for Various about a means of resolving some or all o f the issues presented in the motion. Counsel for Various represents that he received a draft o f the motion along with a letter stating counsel for Plaintiff's intention to file the motion the n e x t day unless Various withdrew its answer and cured the defects asserted by Plaintiff. C o u n s e l for Various promptly responded and asked that a telephone conference be scheduled to confer about the issues and "help narrow the issues for the Court on any such motion to Page 2 of 7 Case 5:05-cv-01526-TS-MLH Document 32 Filed 04/24/2006 Page 3 of 7 strik e." Counsel for Plaintiff responded but did not address the request for a meeting. Rather, he said that he was going to file his motion and Various could amend its answer if it wished to do so. Plaintiff's counsel did file the motion to strike the next day. Plaintiff could perhaps have avoided some of the issues raised in her motion to strike if she had been willing to take another day or two to confer with counsel for Various. At the s am e time, Various could have perhaps avoided a lot of the issues by not asserting every conc eivab le affirmative defense. Motions to compel must include a certification that the m o v a n t has in good faith conferred or attempted to confer with the opposing party in an effort to resolve the issue without court action. Fed. R. Civ. P. 37(a)(2)(A); Local Rule 37.1(W ). There is no similar requirement for a motion to strike, so Plaintiff's refusal to c o n f e r is not a legal basis to deny the motion. P e r s o n a l Jurisdiction; Venue T h e first and second defenses raised in the answer are lack of personal jurisdiction and i m p r o p e r venue. Plaintiff argues that Various waived the defenses by failing to also file a m o t i o n to dismiss on those grounds. Federal Rule of Civil Procedure 12(h)(1) provides, in part, that a defendant waives defenses including lack of personal jurisdiction and improper v e n u e if the defense "is neither made by motion under this rule nor included in a responsive p l e a d in g or an amendment thereof permitted by Rule 15(a) to be made as a matter of course." V a r i o u s complied with Rule 12(h)(1) by including its objections to personal j u r is d i c ti o n and venue in its answer. If Various were to fail to pursue the defenses by motion Page 3 of 7 Case 5:05-cv-01526-TS-MLH Document 32 Filed 04/24/2006 Page 4 of 7 it could, at some point, be held to have waived the defenses. That point has not been reached in this case. See Brokerwood International (U.S.), Inc. v. Cuisine Crotone, Inc., 104 Fed. A p p x . 376, 379-81 (5th Cir. 2004) (reversing district judge's holding of waiver of personal j u r is d i c ti o n defense even though defendant participated in a scheduling conference, motion p r a c t ic e and discovery over a seven month period before filing motion to dismiss). There is n o bright-line rule for when waiver occurs, but it has not happened yet. The defenses should n o t be stricken. T h e Other Defenses T h e other defenses attacked in the motion to strike range from waiver to unclean h a n d s to the dormant Commerce Clause. Plaintiff attacks most of the defenses by making a brief representation that there is "no basis" for the defense. Various responds, with respect to many of the defenses, that it takes the position that the defense is supported by its Terms o f Use agreement signed by registered users of Various's websites. Various represents: "It appears that in this case either plaintiff is a registered user of Various' websites who posted t h e content at issue in this case herself but later had second thoughts about it, or else an i m p o s t e r registered as her on Various' websites and posted the allegedly offending conduct, a s she claims." Various represents that it is impossible to determine which of the scenarios is true until discovery has been conducted. Plaintiff responds that she is not subject to the Terms o f Use because she never agreed to it. Whether Plaintiff agreed to the Terms of Use is one Page 4 of 7 Case 5:05-cv-01526-TS-MLH Document 32 Filed 04/24/2006 Page 5 of 7 o f the several unresolved factual issues that counsel against striking any of the defenses at this time. Some of the defenses appear unlikely to succeed or of questionable applicability a t this preliminary stage of the litigation, but it is too early to state with certainty that the d e f e n s e s are insufficient as a matter of law. There may be a few of the 20 defenses attacked t h a t could legitimately be stricken if sufficient research were conducted to ascertain that their a p p l i ca t i o n is foreclosed as a matter of law, but doing so would not significantly narrow the s c o p e of the litigation and discovery, so the better exercise of the court's discretion is to deny t h e motion to strike and let the parties develop the relevant facts. The parties can later test t h e defenses on the merits in light of the actual facts. Attorn ey Fees and Costs P l a i n ti f f attacks Various's claim for attorney fees and costs on the grounds that there is "no basis whatsoever" for those claims. Attorney fees are not allowed under Louisiana law e x c e p t where authorized by statute or contract. Rivet v. State DOTD, 680 So.2d 1154, 1160 ( L a . 1996). In response, Various does not cite a statutory or contractual provision that would perm it the recovery of those items if it were to prevail. Rather, Various states that its claim for fees and costs merely parallels Plaintiff's identical claim. Plaintiff's complaint does pray for recovery of attorney fees, as well as punitive d a m a g e s which also require an express statutory or contractual basis 1 , yet Plaintiff also fails Devillier v. Fidelity & Deposit Co. of Maryland, 709 So.2d 277, 282 (La. App. 3rd Cir. 1998). Page 5 of 7 1 Case 5:05-cv-01526-TS-MLH Document 32 Filed 04/24/2006 Page 6 of 7 to cite a legal basis for her recovery of such special damages. Rather than strike the demands o f either party or quibble over what relief may be available if a party eventually prevails, the b e t t er course is to wait until one of the parties has actually prevailed. That party can then file a motion for fees and state with specificity the legal grounds for the request.2 A cc or di ng ly; I T IS RECOMMENDED that the Motion to Strike Answer and Defenses (Doc.26) b e denied. O b j e c t io n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c om m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are F.R.C.P. 54(c) provides that the judgment shall grant the relief to which the party is e n t i tl e d , even if the party has not demanded such relief in her pleadings. This rule imposes u p o n the court a duty to "grant the relief to which the prevailing party is entitled, whether it h a s been demanded or not." Wright, Miller & Kane, Federal Practice and Procedure: Civil 3 d , § 2664., p. 174 (1998). "The only exception to this rule is if plaintiff's failure to demand t h e appropriate relief has prejudiced his adversary. Consequently, the prayer for relief does n o t determine what relief ultimately will be awarded." Id. at pp. 174-79. See also, Alb ema rle Paper Co. v. Moody, 95 S.Ct. 2362, 2375 (1975) (Title VII plaintiff who initially d i s c la i m e d any interest in back pay was nonetheless entitled under Rule 54(c) to recover the s am e even after trial unless defendant had been "improperly and substantially prejudiced" b y plaintiff's actions.); and Goldstein v. North Jersey Trust Co., 39 F.R.D. 363 (S.D. N.Y. 1 9 6 6 ) ( " [ T ] h e striking of a portion of the demand for relief would be but an empty gesture" because of Rule 54(c).). Page 6 of 7 2 Case 5:05-cv-01526-TS-MLH Document 32 Filed 04/24/2006 Page 7 of 7 d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED at Shreveport, Louisiana, this 24th day of April, 2006. Page 7 of 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?