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Sherman v. Ritter

United States District Court, E.D. Michigan, Southern Division

July 14, 2017

CRAIG SHERMAN and MARLA SHERMAN, Plaintiffs,
v.
AUSTIN RITTER, Defendant.

          MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIM (Doc. 12) [1]

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I. Introduction

         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.

         II. Background

         Plaintiffs allege that defendant established fraudulent websites misusing their names. Specifically, the complaint alleges that defendant established websites at 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 following:

         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)).

         IV. Discussion

         As an initial matter, the Court arguably could grant plaintiffs' motion because defendant did not file a response[2] 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 ...


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