1. law, govt and politics

Case: 2:14-cv-00821-TPK Doc #: 23 Filed: 02/20/15 Page: 1 of 6 PAGEID #: 164
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
MALIBU MEDIA, LLC,
Plaintiff,
v.
DAVID RICUPERO,
Defendant.
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Case No.: 2:14-cv-00821-ALM-TPK
MOTION FOR RECONSIDERATION
AND IN THE ALTERNATIVE, FOR CLARIFICATION AND LEAVE TO AMEND
On February 4, 2015, the Court issued an order dismissing Defendant David Ricupero’s
counterclaims for 1) declaratory judgment that he did not infringe the copyrights; and 2) a claim for
abuse of process. Defendant brings this motion for reconsideration and, in the alternative, for
clarification of the Court’s decision to dismiss the counterclaim for declaratory judgment.
I. STANDARD OF REVIEW
Although a motion for reconsideration is not mentioned in the Federal Rules of Civil
Procedure, it is often treated as a motion to alter or amend under Rule 59(e). See Shivers v. Grubbs,
747 F.Supp. 434, 436 (S.D. Ohio 1990); see also Rodriguez v. Tennessee Laborers Health & Welfare
Fund, 89 Fed. App’x 949, 959 (6th Cir. 2004). “Motions for reconsideration should not be used as a
substitute for appeal nor should they be used as a vehicle for mere disagreement with a district
court’s opinion.” Gore v. AT&T Corp., No. 2:09-cv-854, 2010 U.S. Dist. LEXIS 95755, *1 (S.D.
Ohio Sept. 14, 2010); Phelps v. Economus, No. 4:06-cv-0543, 2006 U.S. Dist. LEXIS 39049, *1
(N.D. Ohio June 7, 2006).
A district court will reconsider a prior decision for one of three reasons: “1) [a]n intervening
change in law; 2) [e]vidence that was not previously available has become available; [and] 3) [if]
[n]ecessary to correct a clear error of law or prevent manifest injustice.” Kittle v. Ohio, No. 2:05cv-1165, 2007 U.S. Dist. LEXIS 12019, *1 (S.D. Ohio Feb. 15, 2007); GenCorp., Inc. v. Am. Int’l
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999); J.P. v. Toft, No. C2-04-692, 2006 U.S. Dist. LEXIS
14595, *13 (S.D. Ohio Mar. 15, 2006). “Motions for Reconsideration serve a limited function, and
are generally warranted where there is … a need to correct a clear error or prevent manifest
Case: 2:14-cv-00821-TPK Doc #: 23 Filed: 02/20/15 Page: 2 of 6 PAGEID #: 165
injustice.” Pegg v. Davis, No. 2:09-cv-908, 2009 U.S. Dist. LEXIS 120088, *1 (S.D. Ohio Dec. 22,
2009). A court will not find a clear error of law when the moving party claims that the court
misinterpreted or omitted key facts. See Jones v. Cincinnati, No. 1:04-cv-616, 2011 WL 4888867, *1
(S.D. Ohio Oct. 13, 2011) (concluding that “[t]he proper forum for additional argument is in the
Court of Appeals.”). Furthermore, a court will not find manifest injustice when the moving party
simply reargues the issues that were not previously successful. See Render v. Forest Park Police
Dept., No. 1:07-cv-489, 2009 U.S. Dist. LEXIS 61344 (S.D. Ohio July 26, 2009).
While Rule 59(e) specifically addresses altering or amending a judgment, “[t]he Sixth Circuit
… has held that when there is no final judgment [as here] … a district court is free to reconsider or
reverse its decisions at any time prior to the entry of final judgment.” King Lincoln Bronzeville
Neighborhood Ass’n v. Blackwell, No. 2:06-cv-0745, 2009 U.S. Dist. LEXIS 120011, *6 (S.D. Ohio
2009) (citing Russell v. GTE Government Systems Corp., 141 Fed. App’x 429, 434 (6th Cir. 2005)).
II. ANALYSIS
In its Order, the Court dismissed Defendant’s counterclaim for declaratory judgment of noninfringement. In doing so, the Order:
1) acknowledged the counter-complaint’s numerous theories for declaratory judgement
(Order, p. 2);
2) acknowledged that said theories comport with finding the claim is not redundant pursuant
to Riding Films, Inc. v. White, 2014 WL 3900236, at *3 (S.D. Ohio Aug. 11, 2014)
(Order, p. 3);
3) yet concluded, that because Defendant did not plead all precise theories of the claim
under a specific “label”, he failed to state a claim (Order, p. 3).
In support, the Order cites no case law for this proposition; a proposition which directly
contravenes Rule 8 notice pleading and the law of this Circuit. Neither does the Order specify how
the claim runs afoul of Rule 12; content, instead, to rest on what at best could be described as a
technical error. Indeed, there is no meaningful discussion relating to the dismissal of the declaratory
judgment claim at all.1
Rule 12(b)(6) permits dismissal of a lawsuit for “failure to state a claim upon which relief can
be granted.” A complaint will be dismissed pursuant to Rule 12(b)(6) only if there is no law to
support the claims made, or if the facts alleged are insufficient to state a claim, or if on the face of the
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The Order also does not state whether the dismissal is with or without prejudice, nor does it provide a reason why
the Defendant would not have the opportunity to amend.
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complaint there is an insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d
697, 702 (6th Cir. 1978). Rule 12(b)(6) must be read in conjunction with Rule 8(a) of the Federal
Rules of Civil Procedure, which requires the complaint to 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 Order cites none of
these factors in dismissing the claim for declaratory judgment.
Indeed, a complaint need not set down in detail all the particularities of a plaintiff’s claim
against a defendant. United States v. School District of Ferndale, 577 F.2d 1339, 1345 (6th Cir.
1978). However, a complaint must afford the defendant fair notice of the plaintiff’s claim and the
grounds upon which it rests. Hivner v. Active Elec., Inc., 878 F. Supp. 2d 897, 901 (S.D. Ohio 2012);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2009).
Accordingly, a complaint must also contain sufficient facts from which “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir.
2007). Furthermore, the allegations “must be presented with intelligibility sufficient for a court or
opposing party to understand whether a [] claim is [valid].” Arnold v. Alphatec Spine, Inc., No. 1:13cv-714, 2014 U.S. Dist. LEXIS 87079, *12 (S.D. Ohio June 26, 2014) (citations omitted).
Accordingly, the Court may dismiss a complaint for violation of Rule 8 if it “is so confused,
ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id.
Here, there is no dispute as to the Defendant’s allegations or their clarity. As the Court is able
to discern:
Mr. Ricupero contends that the requested declaratory judgment is an independent
form of relief, and he further argues that he has requested declarations that the
copyrights are invalid, that he had an implied license, and that Malibu has already
recovered the maximum amount of statutory damages.
Order, Doc. 22 at p. 2. See also Plaintiff’s Motion to Dismiss, Doc. 9 (addressing these claims);
Answer, Doc. 7 at ¶¶ 43-63.
Yet a page in, the Order, without explanation states:
[Defendant] has labeled his first counterclaim “Declaratory Judgment of NonInfringement.” It states only that he “is entitled to a declaratory judgment … that he
has not infringed the copyrighted works” … The other matters which … go beyond
the limits of the infringement claim, simply do not exist in his declaratory judgment
counterclaim.
Order, at p. 3.
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A complaint need not set down in detail all the particularities of a claim against a defendant.
A proper pleading is one that gives the court and the parties fair notice of the claims and defenses
asserted. Maty v. Grasselli Chern. Co., 303 U.S. 197, 201 (1938) (“[p]roper pleading is important,
but its importance consists in its effectiveness as a means to accomplish the end of a just judgment”).
Rule 8 is designed to lessen the pleading burdens on claimants and to facilitate the likelihood that
meritorious claims will be heard.
[The] issue [here is] whether it matters that a plaintiff has failed to plead all precise
theories underlying a claim. Under the circumstances of this case, it does not. All of
the claims pled in the amended complaint present claims for relief that fairly
encompass Worthington Cylinders’ multiple theories. … [N]owhere does the count
limit the breach of contract claim to that theory. …
Rather, the pleading presents the broad claim and a sufficient factual allegation to
render that claim plausible. That is all that is required under Federal Rule of Civil
Procedure 8 notice pleading.
Worthington Cylinder Corp. v. Schrader-Bridgeport Int’l, Inc., No. 2:12-cv-554, 2014 U.S. Dist.
LEXIS 44610, *12-13 (S.D. Ohio Apr. 1, 2014) (citations omitted).
In short, the counter-complaint here may be in-artfully drafted in that it did not re-state each
of the counter-complaint’s allegations, facts and theories in support of declaratory judgment under
the particular count for which Defendant seeks relief, but it provides sufficient notice to Plaintiff of
the nature of the claims. See, e.g., Smith v. City of Dayton Pub. Schs, No. 3:10-cv-098, 2010 U.S.
Dist. LEXIS 63318, *6 (S.D. Ohio May 18, 2010) (“The governing law in Ohio is still … Conley v.
Gibson, 355 U.S. 41 (1957).”). See also Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1298 (11th Cir.
2007) (“[T]here is no basis in law or logic for requiring plaintiff to make same allegation two or more
times in complaint [for purposes of complying with Rule 8]. Once is enough.”).
Even if the Court were to adopt Iqbal and Twombly, the federal rules still provide for notice
pleading, not fact pleading, and Iqbal and Twombly did not rewrite the rules. Erickson v. Pardus, 551
U.S. 89, 93 (2007) (citing Twombly, at 555) (“Under Rule 8 ‘[t]he statement need only give the
defendant fair notice of what the … claim is and the grounds upon which it rests.’”). What Iqbal and
Twombly do require is that plaintiffs provide factual allegations from which a court may plausibly
infer a cause of action. Where Conley v. Gibson, 355 U.S. 41 (1957) allowed for a wider no-set-offacts possibility standard, Iqbal and Twombly slightly narrowed the field to complaints that set forth
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plausible, not merely possible, claims. This is a difference in degree not kind, and Defendant’s
counter-complaint satisfies the standard.
A. Dismissal for Technical Defects will Result in a Manifest Injustice.
The Court finds that Plaintiffs’ motion to reconsider should be granted because
refusing to grant Mr. Chandra fees and costs because of what amounts to a filing
oversight would work a manifest injustice.
The Northeast Ohio Coalition for the Homeless v. Husted, No. 2:06-cv-00896-ALM-TPK, Doc. 205,
p. 3 (S.D. Ohio July 30, 2009).
Rule 8(e) requires that federal district courts construe all pleadings “so as to do justice.”
Therefore, a claim should not be dismissed, as it was here, for what are arguably technical defects.
The pleading should be construed as a whole, to determine whether adequate notice of the claim or
defense is presented. Fed.R.Civ.P. 8; Reiter v. Cooper, 507 U.S. 258, 263 (1993) (counterclaims
mistakenly designated as defenses considered because Fed.R.Civ.P. 8(e) requires court to construe,
pleadings as justice requires); Conley v. Gibson, 355 U.S. 41, 48 (1957) (complaint construed to do
substantial justice). Craft v. United States, 65 F.Supp.2d 651, 655 (W.D. Mich. 1999) (citing Reiter);
MedChoice Fin., LLC v. ADS Alliance Data Sys., 857 F.Supp.2d 665, 673-674 (S.D. Ohio 2012);
Mid-Continent Ins. Co. v. Coder, 563 Fed. App’x. 422, 427 (6th Cir. Ohio 2014) (substantial justice
means complaint sufficient if fair notice given of claim and ground upon which it rests).
Here, notice was adequate as both the Plaintiff and the Court addressed the allegations.
Order, at p. 2; Plaintiff’s Motion to Dismiss, Doc. 9
B. Dismissal without Leave to Amend will Result in a Manifest Injustice.
Rule 15(a) provides that leave to amend “shall be freely given when justice so requires.” The
rule is to be liberally construed in favor of allowing amendments, and reinforces the principle that
cases “should be tried on their merits.” See, e.g., Oleson v. United States, 27 Fed. App’x. 566, 569
(6th Cir. 2001); CNH Am. LLC v. UAW, 645 F.3d 785, 795 (6th Cir. 2011) (ordinarily court will
dismiss claim without prejudice to give parties opportunity to fix pleading defects).
As explained by the Supreme Court, “the grant or denial of an opportunity to amend is within
the discretion of the District Court, but outright refusal to grant the leave without any justifying
reason is not an exercise of discretion; it is merely an abuse of discretion and inconsistent with the
spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). The Sixth Circuit’s position
on the matter is that “it is necessary to permit the liberal amendment of complaints in order to adhere
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to ‘the principle that cases should be tried on their merits rather than on the technicalities of
pleading.’” Fisher v. Roberts, 125 F.3d 974, 977-78 (1997).
The court may find denial appropriate ‘where there is “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
the amendment, etc.’” Seals v. Gen. Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008); Morse v.
McWhorter, 290 F.3d 795, 800 (6th Cir. 2002) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
A proposed amendment is futile if, even after amendment, the complaint could not withstand a Rule
12(b)(6) motion to dismiss. Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th
Cir. 2010). The Order cites none of these factors as a basis for dismissal. In the absence of such
factors, leave should be granted absent a reversal of the dismissal. Moore v. Paducah, 790 F.2d 557,
562 (6th Cir. 1986).
III. CONCLUSION
The available facts and relevant law described herein warrant the Court’s reconsideration of
its decision to dismiss Defendant’s counterclaim for declaratory judgment of non-infringement. In the
alternative, Defendant would request a clarification of the basis for the dismissal and the opportunity
to amend.
Dated: February 20, 2015
/s/ Jason E. Sweet
Jason E. Sweet (BBO# 668596)
BOOTH SWEET LLP
32R Essex Street
Cambridge, MA 02139
Tel.: (617) 250-8619
Fax: (617) 250-8883
Email: [email protected]
Pro Hac Vice
Counsel for David Ricupero
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing pleading was electronically filed using
the CM/ECF system, and that counsel of record were served with notice of the same.
/s/ Jason E. Sweet
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