Sherman et al v. Ritter
MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIM [DOC. 12]. Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CRAIG SHERMAN and
Case No. 17-10433
HON. AVERN COHN
MEMORANDUM AND ORDER
GRANTING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM
This is a case under the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C.
§ 1125 with a pendent state law claim. Plaintiffs Craig Sherman and Marla Sherman
are suing defendant Austin Ritter. Defendant filed an Answer and Counterclaim alleging
that the lawsuit is frivolous and constitutes an abuse of process.
Before the Court is plaintiffs’ motion to dismiss the counterclaim on the grounds
that it fails to state a plausible claim for relief. For the reasons that follow, the motion
will be granted.
Plaintiffs allege that defendant established fraudulent websites misusing their
names. Specifically, the complaint alleges that defendant established websites at
The Court deems this matter appropriate for decision without oral argument.
See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
www.craigsherman.com and www.mariasilamianos.com and used them to direct visitors
to a twenty-year old press release discussing crimes alleged against members of
plaintiff Craig Sherman’s family. The complaint further alleges that the content on the
websites was designed to appear as though the allegations against members of Craig
Sherman’s family were recent and breaking news but in reality the allegations were
twenty years old. Plaintiffs also allege that defendant has sent harassing and
misleading emails and other communications to plaintiffs’ business contacts.
Defendant filed an answer and counterclaim. The counterclaim alleges the
The defendant has the following claim against the plaintiff ...
Frivolous litigation and abuse of process. The plaintiffs knew their complaint is
manifestly insufficient, and have intentionally filed a frivolous lawsuit based on
false allegations in the wrong venue with the intern to hurt, disrupt and cause
psychological injury to the defendant.
(Doc. 11 at p. 10).
III. Legal Standard
Under Rule 12(b)(6) a complaint must be dismissed if it does not “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The plausibility standard
demands more than a “sheer possibility that a defendant has acted unlawfully.” Id.
Rather, for a claim to be facially plausible, a plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1949. Rule 12(b)(6) motion tests the sufficiency of a
plaintiff’s pleading. Fed. R. Civ. P. 12(b)(6). The Court need not accept as true “legal
conclusions or unwarranted factual inferences.” In Re Packaged Ice Antitrust Litig., 723
F. Supp. 2d 987, 1002 (E.D. Mich. 2010) (quoting Directv, Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007)).
As an initial matter, the Court arguably could grant plaintiffs’ motion because
defendant did not file a response2 on the grounds that defendant has waived opposition
to the motion. See Resnick v. Patton, 2007 WL 4532815, at * 1 n. 1 (6th Cir. 2007)
(non-movant deemed to have waived opposition to motion to dismiss for failure to file a
response). However, the Court declines to grant plaintiffs’ motion simply because
defendant failed to respond to it. Rather, the motion will be considered on the merits.
Accepting all of the allegations of the counterclaim as true and construing the
Counterclaim in a light most favorable to defendant, the counterclaim fails to state a
claim upon which relief can be granted. “Abuse of process is the wrongful use of the
process of a court.” Spear v. Pendill, 164 Mich. 620, 623 (1911). An abuse of process
claim requires a party to plead and prove: (1) “an ulterior purpose”; and (2) “an act in the
use of process which is improper in the regular prosecution of the proceeding.” Id. A
claim asserting nothing more than an improper motive in properly obtaining process
does not successfully plead an abuse of process. Young v. Motor City Apartments Ltd.
Dividend Housing Ass’n No 1 & No 2, 133 Mich. App 671, 681 (1984); Dalley v. Dykema
Gosset, 287 Mich. App 296, 322 679 (2010).
Here, the sole basis of the counterclaim is the allegation that plaintiffs’ lawsuit is
The motion was filed on May 16, 2016. Under the local rules, a response was
due within 21 days of service. At a status conference on June 8, 2017, defendant was
given until June 30 to file a response. That date has passed and no response has been
frivolous. However, filing a lawsuit is not sufficient to support an abuse of process
claim. As the Michigan Court of Appeals explained, “the mere institution of a lawsuit is
not enough to create a cause of action for abuse of process.” Peisner v. Detroit Free
Press, 68 Mich. App. 360, 367 (1976), (citing Spear, supra). As such, defendant’s
counterclaim cannot stand.
For the reasons stated above, plaintiffs’ motion is GRANTED. Defendant’s
counterclaim is DISMISSED.
UNITED STATES DISTRICT JUDGE
Dated: July 14, 2017
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