United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION
TO DISMISS COUNTERCLAIM (Doc. 12) 
COHN UNITED STATES DISTRICT JUDGE
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.
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.
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.
filed an answer and counterclaim. The counterclaim alleges
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).
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)).
initial matter, the Court arguably could grant
plaintiffs' motion because defendant did not file a
response 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