United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion to Dismiss the
Counterclaim of Defendant ABCD Graphics and Design, Inc.,
d/b/a Blushing Books Publishing (Doc. No. 35). Defendant has
not responded to the Motion within the time allowed.
See LCvR 7.1(g).
lawsuit, Plaintiff brings claims of copyright misuse,
misrepresentation of copyright claims under the Digital
Millennium Copyright Act, negligence, tortious interference
with economic advantage, tortious interference with contract
or business relations, defamation, false light, and civil
conspiracy. Am. Compl. (Doc. No. 6) ¶¶ 1, 66-112.
On February 17, 2019, Defendant filed its Answer (Doc. No.
32), in which it asserted as a counterclaim that
Plaintiff's lawsuit was causing it to suffer logistical
hardships and to incur legal fees, costs, and other expenses.
See Answer ¶¶ 76-79. Plaintiff's
uncontested Motion seeks dismissal of this counterclaim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
counterclaim provides, in relevant part,
[I]t is extremely difficult if not impossible for anyone to
gauge how and to what extent Plaintiff filing this lawsuit
has harmed Blushing Books. What is objective, quantifiable,
and verifiable are the losses Defendant has incurred
defending this meritless lawsuit. At this point, Defendant
estimates that figure to be in the area of $11, 500 in legal
fees, loss of wages, filing fees, and various other
extraneous expenses. Further, even having an established
presence, reputation, and relative success in the online
romance world, Blushing Books is a tiny company in southern
Virginia that does not possess an infinite amount of
financial resources. Forcing Blushing Books to defend against
a federal lawsuit, (particularly one involving such vague and
unsubstantiated claims) in a foreign jurisdiction places
undue financial and logistical hardship on this small
The lawsuit is particularly troubling and unacceptable given
the amount of money actually at issue as a result of the
takedown notices being filed. For example, Defendant is fully
aware of sales of other authors['] books, through various
tracking tools only available to Publishers. Across dozens of
titles Defendant tracks correlation of sales ranks to sales
(on Amazon) and also is well-aware that sales on the
secondary vendors remain a surprisingly consistent
percentage of Amazon sales. Based on these metrics, Defendant
can state with confidence that the actual LOSS OF SALES
related damages in this case is likely less than $2000.00 and
may be less than $1000.00.
This is not a matter that ever needed to be brought to court
given factual circumstances giving rise to the claim, in
addition to the minimal amount of lost sales. . . . Defendant
is forced to file this counterclaim in an attempt to mitigate
further financial injury pursuant to [Okla. Stat. tit. 12,
survive Plaintiff's Rule 12(b)(6) motion, the factual
allegations set forth in this counterclaim must suffice
“to raise a right to relief above the speculative level
on the assumption that all the allegations in the
[counterclaim] are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(footnote and citation omitted); see Entek GRB, LLC v.
Stull Ranches, LLC, No. 11-cv-01557-PAB-KLM, 2012 WL
4478808, at *1 (D. Colo. Sept. 28, 2012) (“A Rule
12(b)(6) motion to dismiss a counterclaim is evaluated under
the same standard as a Rule 12(b)(6) motion to dismiss a
claim.” (citing Ashley Creek Phosphate Co. v.
Chevron USA, Inc., 315 F.3d 1245, 1261 (10th Cir.
2003))). Bare legal conclusions are not entitled to the
assumption of truth; “they must be supported by factual
allegations” to state a claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009).
to the local rules of this Court, Defendant's failure to
respond permits the Court, at its discretion, to deem the
Motion confessed. See LCvR 7.1(g). The Tenth Circuit
has instructed, however, that before exercising such
discretion a district court should consider three
factors-“(1) the degree of actual prejudice to the
[nonmovant]; (2) the amount of interference with the judicial
process; and (3) the culpability of the litigant”-and
weigh these factors against “the judicial system's
strong predisposition to resolve cases on their
merits.” Murray v. Archambo, 132 F.3d 609, 611
(10th Cir. 1998) (alteration and internal quotation marks
omitted). Because in this action it is equally efficient to
consider the merits of Plaintiff's Motion, the Court
declines to deem the Motion confessed.
reviewed Defendant's counterclaim, the Court agrees with
Plaintiff that Defendant's allegations of “undue
financial and logistical hardship” caused by this
litigation fail to state a cognizable claim for relief.
Answer ¶ 77. “As a general matter, . . . [it is]
indisputable that a claim for attorney's fees is not part
of the merits of the action to which the fees pertain.”
Budinich v. Becton Dickinson & Co., 486 U.S.
196, 200 (1988). While a prevailing party may seek recovery
of costs and, when applicable, attorney's fees after the
entry of judgment, see Fed. R. Civ. P. 54; LCvR
54.1, 54.2, incurring such expenses while litigating an
action does not give rise to an independent claim for relief.
does not attempt to tie its allegations of hardship to any
cognizable cause of action, and the Court can discern no ripe
claim to which such allegations could plausibly give rise.
See, e.g., Ashley Creek Phosphate Co., 315 F.3d at
1265-68 (finding that a counterclaim for wrongful use of
civil proceedings alleging only that the litigation had
“caus[ed] large expense in fees and costs” was
deficient on its face and noting that such a claim is not
ripe “until the ...