Advocare International LP v. Scheckenbach et al

Filing 103

ORDER denying 89 Plaintiff's Motion to Dismiss Counterclaim of Defendants Herbasia, Brown and Bottolfson-Brown, signed by Judge Ronald B. Leighton.(DN)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. RICHARD PAUL SCHECKENBACH, et al., Defendants.

HONORABLE RONALD B. LEIGHTON

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ADVOCARE INTERNATIONAL, L.P., a Texas limited partnership, Plaintiff,

Case No. C008-5332RBL ORDER

THIS MATTER comes before the Court on Plaintiff's Motion to Dismiss Counterclaim of Defendants Herbasia Corporation, Tai Brown and Kelli Bottolfson-Brown [Dkt. #89]. The Court has reviewed the materials filed for and against said motion and oral argument is not necessary to resolve the issue raised in this motion. For the reasons stated below, plaintiff's motion is DENIED. Because responding defendants did not see fit to submit a proposed order denying the motion the Court has crafted its own order denying what turns out to be a rather simple and straight-forward motion. In their Answer to the Complaint, Defendants Herbasia, Brown and Bottolfson-Brown assert a counterclaim alleging that as to them "the complaint is not well-grounded in fact, it is interposed for an improper purpose, and the `Fourth Cause of Action' is not warranted by existing law or otherwise." (Answer,

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Dkt. #62, para. 73). Plaintiff seeks to have the Court dismiss this Counterclaim as failing to state a claim upon which relief can be granted. Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims when the plaintiff can prove no set of facts entitling it to judgment on the claims plead. Accepting the facts pled as time, the Court cannot now say that there is no relief available to counterclaim plaintiffs for vexatious litigation that is pursued for an improper purpose. Such litigation may give rise to liability for abuse of the judicial process and other potential claims. Although the burden to establish such claims is quite high, the Court will not dismiss the counterclaim at this time. Counterclaim plaintiffs (Responding Defendants) have put plaintiff on notice that they will pursue the relief available to them should this litigation prove to be pursued maliciously, without factual support and for an improper purpose. Plaintiff's Motion [Dkt. #89] is DENIED. IT IS SO ORDERED. Dated this 17th day of April, 2009.

A
RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE

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