Big Cat Rescue Corp v. Schreibvogel

Filing 66

ORDER denying 49 Defendant Shirley Schreibvogel's Motion for Leave of Court to File Counterclaim Against Plaintiff and granting 50 Plaintiff's Motion to Dismiss Defendant Greater Wynnewood Development Group, LLC's Counterclaim for Failure to State a Claim, and Motion to Strike Certain Affirmative Defenses Asserted by Defendant Greater Wynnewood Development Group, LLC, and Brief in Support, and granting Greater Wynnewood D.G. leave to file an amended answer on or before October 2, 2017 (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 9/11/2017. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BIG CAT RESCUE CORP.,
a Florida not-for-profit corporation,
Plaintiff,
v.
SHIRLEY M. SCHREIBVOGEL,
an individual, and
GREATER WYNNEWOOD
DEVELOPMENT GROUP, LLC,
Defendants.

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Case No. CIV-16-155-M

ORDER
Before the Court is Defendant Shirley Schreibvogel’s (“Schreibvogel”) Motion for Leave
of Court to File Counterclaim Against Plaintiff, filed October 27, 2016. On November 17, 2016,
Big Cat Rescue responded, and on November 28, 2016, Schreibvogel replied. Also before the
Court is Plaintiff’s Motion to Dismiss Defendant Greater Wynnewood Development Group,
LLC’s Counterclaim for Failure to State a Claim, and Motion to Strike Certain Affirmative
Defenses Asserted by Defendant Greater Wynnewood Development Group, LLC, and Brief in
Support, filed October 31, 2016. On November 21, 2016, defendant, Greater Wynnewood
Development Group, LLC (“Greater Wynnewood D.G.”), responded, and on November 30, 2016,
plaintiff Big Cat Rescue (“Big Cat Rescue”) replied. Based on the parties’ submissions, the Court
makes its determination.
I.

Introduction
On August 22, 2016, Big Cat Rescue filed its First Amended Complaint against

Schreibvogel and Greater Wynnewood D.G. alleging: (1) fraudulent transfers/conveyances –
actual fraud (Schreibvogel only); (2) fraudulent transfers/conveyances – constructive fraud

(Schreibvogel only); (3) constructive trust; and (4) equitable lien. On September 14, 2016,
Schreibvogel filed her Answer; and on October 10, 2016, Greater Wynnewood D.G. filed its
Answer and Counter Claim alleging abuse of process against Big Cat Rescue. Schreibvogel now
seeks leave from the Court to file a counter claim against Big Cat Rescue for abuse of process. Big
Cat Rescue objects to Schreibvogel filing a counter claim for abuse of process and, further, seeks
to dismiss Greater Wynnewood D.G.’s counter claim for abuse of process, pursuant to Federal
Rule of Civil Procedure 12(b)(6), and moves to strike certain affirmative defenses asserted by
Greater Wynnewood D.G., pursuant to Rule 12(f).
II.

Discussion
A.

Motion to Dismiss Counter-Claim

Regarding the standard for determining whether to dismiss a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6), the United States Supreme Court has held:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. 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. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief.”
Id. at 679 (internal quotations and citations omitted). Additionally, “[a] pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does
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a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. at
678 (internal quotations and citations omitted). “While the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action
help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines,
671 F.3d 1188, 1192 (10th Cir. 2012). Finally, “[a] court reviewing the sufficiency of a complaint
presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable
to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
“The quintessence of abuse of process is not the wrongfulness of the prosecution, but some
extortionate perversion of lawfully initiated process to illegitimate ends.” Greenberg v. Wolfberg,
890 P.2d 895, 905 (Okla. 1994) (internal citation omitted). In order to allege an abuse of process
claim, Greater Wynnewood D.G. must allege that Big Cat Rescue improperly used the Court’s
process primarily for an ulterior or improper purpose which resulted in damage to Greater
Wynnewood D.G. See id. “To establish the element of improper use of the process, it is clear that
the plaintiff must show some definite act or threat by the defendant not authorized by the process.”
Meyers v. Ideal Basic Indus., Inc., 940 F.2d 1379, 1382 (10th Cir. 1991) (citing Gore v. Taylor,
792 P.2d 432, 435 (Okla.Ct.App.1990)).
Big Cat Rescue contends that Greater Wynnewood D.G.’s counter claim should be
dismissed because the only willful act in the use of process that Greater Wynnewood D.G.
attributes to Big Cat Rescue is the fact it filed this lawsuit. Big Cat Rescue contends that Greater
Wynnewood D.G. has failed to identify some definite act or threat involving the Court’s process.
In its counter claim, Greater Wynnewood D.G. alleges that:
[Big Cat Rescue] has filed this lawsuit against Greater Wynnewood
[D.G.] in an effort to coerce Greater Wynnewood [D.G.] to
surrender property and/or pay the debts of Joe Schreibvogel, G.W.

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Exotic Animal Memorial Foundation and The Garold Wayne
Interactive Zoological Foundation.
Greater Wynnewood [D.G.] is not liable for the debts of Joe
Schreibvogel, G.W. Exotic Animal Memorial Foundation and the
Garold Wayne Interactive Zoological Foundation, and Greater
Wynnewood [D.G.] is a good faith transferee of the Zoo Land.
[Big Cat Rescue’s] improper use of the court’s process for an
ulterior purpose has resulted in damage to Greater Wynnewood
[D.G.], . . . .
Greater Wynnewood D.G. Answer and Counter Claim [docket no. 45] at 13 ¶¶ 5-7.
Having carefully reviewed Greater Wynnewood D.G.’s counter claim, and presuming all
of Greater Wynnewood D.G.’s factual allegations are true and construing them in the light most
favorable to Greater Wynnewood D.G., the Court finds that Greater Wynnewood D.G. has failed
to set forth sufficient facts to establish an abuse of process claim against Big Cat Rescue.
Specifically, in its First Amended Complaint, Big Cat Rescue alleges that Schreibvogel
fraudulently transferred zoo lands to Greater Wynnewood D.G. The parties in this matter have a
clear dispute as to whether Greater Wynnewood D.G. is in lawful possession of the zoo land.
Although Greater Wynnewood D.G. may believe that by Big Cat Rescue filing this lawsuit it is
coercing Greater Wynnewood D.G. to give up the zoo land, the Court finds that is the essence of
the dispute in this matter which will ultimately be resolved through the course of this litigation.
Therefore, the Court finds that Greater Wynnewood D.G.’s counter claim for abuse of process
against Big Cat Rescue should be dismissed. Further, the Court finds that since Greater
Wynnewood D.G. is unable to show any other definitive act or threat by Big Cat Rescue not
authorized by this litigation, any amendment to its counter claim would be futile.
B.

Motion to Amend

In her motion, Schreibvogel moves this Court to amend her answer to add a counter claim
nearly identical to the Greater Wynnewood D.G.’s abuse of process claim. As the Court previously
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stated, based on the allegation that Big Cat Rescue improperly filed this action against defendants
in an effort to coerce them out of money, property or to pay debts of Joe Maldonado
(Schreibvogel), G.W. Exotic Animal Memorial Foundation and the Garold Wayne Interactive
Zoological Foundation, the Court has already determined that the abuse of process claim is not
viable. Therefore, the Court finds that Schreibvogel’s motion to amend should be denied.
C.

Motion to Strike

Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Because
striking a portion of a pleading is a drastic remedy and because a motion to strike may often be
made as a dilatory tactic, motions to strike under Rule 12(f) generally are disfavored. See Colo.
Milling & Elevator Co. v. Howbert, 57 F.2d 769 (10th Cir. 1932) (observing that courts should
proceed with extreme caution in striking a pleading). While motions to strike are generally
disfavored, the decision to grant a motion to strike is within the discretion of the court. See Scherer
v. United States Dep’t of Educ., 78 Fed. App’x 687, 689 (10th Cir. 2003). Further, while the Tenth
Circuit has not ruled on whether Twombly and Iqbal apply to pleading affirmative defenses, this
Court has ruled that they do apply. See Burget v. Capital W. Secs., Inc., Case No. CIV-09-1015M, 2009 WL 4807619 (W.D. Okla. Dec. 8, 2009). The Court, therefore, finds that the affirmative
defenses at issue in this case must satisfy the pleading standards set forth in Twombly and Iqbal.
Big Cat Rescue asserts that 1-9 of Greater Wynnewood D.G.’s affirmative defenses are
conclusory and/or insufficient as a matter of law and should be stricken, and that Great
Wynnewood D.G.’s affirmative defenses 10-14 are actual denials not defenses and should also be
stricken as affirmative defenses. Specifically, Big Cat Rescue contends that Greater Wynnewood
D.G.’s affirmative defenses are pled as part of a single-word, boiler-plate laundry list of alleged

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affirmative defenses. Greater Wynnewood D.G. contends that its affirmative defenses provide fair
notice and are plausible on their face. Having reviewed the parties’ submissions, the Court finds
that Greater Wynnewood D.G. has set forth absolutely no factual basis for its affirmative defenses.
Greater Wynnewood D.G. simply lists its affirmative defenses and contends that the record proves
that Big Cat Rescue knows exactly what its list of affirmative defenses means. It may be the case
that Big Cat Rescue is familiar with Greater Wynnewood D.G.’s affirmative defenses, based on
the history of this case, but the Court finds that Big Cat Rescue’s familiarity with Greater
Wynnewood D.G.’s affirmative defenses does not excuse Greater Wynnewood D.G. from
satisfying the pleading standards for asserting its affirmative defenses. Therefore, while the
affirmative defenses listed in Greater Wynnewood D.G.’s answer should be struck, in the interest
of justice, the Court finds that Greater Wynnewood D.G. should be given leave to amend its answer
to adequately assert its affirmative defenses.
III.

Conclusion
Accordingly, for the reasons set forth above, the Court DENIES Defendant Shirley

Schreibvogel’s Motion for Leave of Court to File Counterclaim Against Plaintiff [docket no. 49]
and GRANTS Plaintiff’s Motion to Dismiss Defendant Greater Wynnewood Development Group,
LLC’s Counterclaim for Failure to State a Claim, and Motion to Strike Certain Affirmative
Defenses Asserted by Defendant Greater Wynnewood Development Group, LLC, and Brief in
Support [docket no. 50]. Further, the Court GRANTS Greater Wynnewood D.G. leave to file an
amended answer on or before October 2, 2017.
IT IS SO ORDERED this 11th day of September, 2017.

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