Handshoe v. Perret
| Decision Date | 26 October 2018 |
| Docket Number | Civil No. 1:15CV382-HSO-JCG |
| Parties | DOUGLAS HANDSHOE PLAINTIFF v. VAUGHN PERRET, et al. DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THE COURT is pro se Plaintiff/Counter-Defendant Douglas Handshoe's Motion to Dismiss [244] the Counterclaims [233] of pro se Defendant/Counterclaimant Charles Leary. This Motion is fully briefed. After due consideration of the Motion, the record, and relevant legal authority, the Court finds that Handshoe's Motion to Dismiss [244] should be granted in part and denied in part. Charles Leary's Counterclaims [233] against Douglas Handshoe for (1) violation of Slabbed New Media, LLC's bankruptcy stay under 11 U.S.C. § 362; (2) fraud; (3) abuse of process; (4) misrepresentation under 17 U.S.C. § 512(f), related to the July 14, 2014, counter-notification sent to YouTube; and (5) tortious interference with contractual relations and business relations, will be dismissed. Leary's Counterclaims [233] for (1) malicious prosecution; (2) misrepresentation under 17 U.S.C. § 512(f), related to the "late January, 2016," counter-notification sent to Amazon Web Services; and (3) copyright infringement, will proceed.
Plaintiff/Counter-Defendant Douglas Handshoe ("Handshoe") initiated this lawsuit by filing a Complaint [1] against Defendant/Counterclaimant Charles Leary ("Leary") and other Defendants, including Defendant Trout Point Lodge, Ltd. ("Trout Point Lodge"), on November 16, 2015. See Compl. [1] at 1. According to the Third Amended Complaint, which is now the operative pleading, Handshoe, who is the publisher of a website/blog owned by Slabbed New Media, LLC ("Slabbed New Media"), see 3d Am. Compl. [90] at 3, has been embroiled in litigation for years with certain of the Defendants in this case, including Leary and Trout Point Lodge, in various courts throughout the United States and Canada. Leary is, or at least was, one of the directors or officers of Trout Point Lodge, which is a luxury lodge in Nova Scotia, Canada. See Countercl. [233] at 4, 11.
The Third Amended Complaint [90] advanced eight counts of misrepresentation pursuant to 17 U.S.C. § 512(f) related to purported "takedown notices" under the Digital Millennium Copyright Act, 17 U.S.C. § 512(f), dated from December 2012 to January 2016. 3d Am. Compl. [90] at 33-47. As to each count, Handshoe alleged that Defendants materially misrepresented that he and Slabbed New Media infringed various copyrights purportedly owned by Defendants. Id.
The Third Amended Complaint also sought certain declarations, including that: (1) "to the extent Defendants own any valid copyright interest in the creative works in questions [sic] or have claimed to own any valid copyrights, Defendants have misused such copyrights rendering those Copyrights as unenforceable," id. at49; (2) Plaintiff's "use of the photographs in question as agent for Slabbed New Media, LLC is lawful under the fair use doctrine and does not infringe on any of the Defendants' copyrights," id. at 50; (3) "as a matter of law [Plaintiff] has no liability in his personal capacity over content belonging to a third party in which he acts as agent pursuant to the Mississippi Limited Liability Act," id.; and (4) "as a matter of law each and every component judgment rendered in the case styled, Trout Point Lodge et al. v. Douglas Handshoe, Nova Scotia Supreme Court No. 41135 is REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA and unenforceable in the United States of America," under the Securing the Protection of our Enduring and Established Constitutional Heritage Act, 28 U.S.C. § 4101, et seq. ("SPEECH Act"), id. at 52. At this stage of the proceedings, all of Handshoe's claims against Leary and Trout Point Lodge have been dismissed.1
On October 10, 2017, Leary filed an Answer, Defenses, and Counterclaims [171] against Handshoe in response to the Third Amended Complaint [90]. Leary advanced Counterclaims against Handshoe for (1) malicious prosecution; (2) fraud; (3) abuse of process; (4) misrepresentations under 17 U.S.C. § 512(f); (5) copyright infringement; and (6) tortious interference with contractual relations and business relations. See Countercl. [171] at 15-20.
Handshoe later filed a Motion [191] for Sanctions pursuant to Federal Rule ofCivil Procedure 11, and on April 17, 2018, the Court struck, among other filings, Leary's Answer, Defenses, and Counterclaims [171]. See Order [222] at 9-10. The Court permitted Leary to refile his Answer with Counterclaims, but directed that "no new counterclaims will be permitted." Order [222] at 9-10. Leary re-filed his Counterclaims [233] on May 16, 2018, advancing claims against Handshoe for the following: (1) violation of Slabbed New Media, LLC's bankruptcy stay under 11 U.S.C. § 362; (2) malicious prosecution; (3) fraud; (4) abuse of process; (5) misrepresentations under 17 U.S.C. § 512(f); (6) copyright infringement; and (7) tortious interference with contractual relations and business relations. See Countercl. [233] at 23-31.
With respect to the claim for violation of the automatic stay, Leary asserts that Handshoe commenced a supplementary proceeding in a different civil action to execute on a judgment debt belonging to Slabbed New Media that was part of that entity's bankruptcy estate, which Leary maintains violated the bankruptcy stay. Id. at 23-24. Leary also asserts that Handshoe has maliciously prosecuted the present case and has committed fraud and abuse of process with respect to other legal proceedings in different courts. Id. at 24-28. Leary further alleges that Handshoe made actionable misrepresentations under the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512(f), by sending two "counter-notifications" to Amazon Web Services and Yahoo, and that he infringed Leary's copyrights in four copyrighted photographic works. Id at 28-30. Finally, Leary claims that Handshoe tortiously interfered with contractual relations and business relations byengaging a person to falsely claim an interest in purchasing Trout Point Lodge and by causing a person to check into the Lodge to disrupt normal business operations, threaten violence, and impugn Leary and his goodwill in the eyes of Lodge employees. Id. at 30-31.
Handshoe now seeks dismissal of Leary's Counterclaims [233] pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject-matter jurisdiction over them and that Leary lacks standing to assert them. See Mot. to Dismiss [244] at 1-2. Handshoe alternatively seeks dismissal pursuant to Rules 9(b) and 12(b)(6) for failure to state a claim. See id.
As a threshold matter, Leary's present Counterclaims [233] contain an assertion that Handshoe violated Slabbed New Media, LLC's bankruptcy stay under 11 U.S.C. § 362, a claim which Leary had not raised in his original Counterclaims [171] stricken by the Court. While Leary mentioned the existence of an automatic stay in his original Counterclaims [171], see Countercl. [171] at 12-13, he did not assert a claim for violation of the automatic stay under 11 U.S.C. § 362 in that pleading, see id. Because Leary improperly added this claim in his re-filed Counterclaims [233], in direct contravention of the Court's previous sanction Order [222] prohibiting the addition of new claims, the Court will grant Handshoe's Motion [244] to the extent it seeks to dismiss this claim. Leary's § 362 claim will be dismissed without prejudice.
Crane v. Johnson, 783 F.3d 244, 250 (5th Cir. 2015) (quotation omitted). In this case, in resolving whether it has subject-matter jurisdiction over Leary's Counterclaims, the Court has relied upon the Counterclaims [233] supplemented by undisputed facts evidenced in the record. See id.
"The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332." Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009). The Court must first consider whether it possesses either original federal question jurisdiction under § 1331 or diversity jurisdiction under § 1332.
With respect to diversity of citizenship, the parties do not appear to dispute that Leary is a "stateless" United States citizen who has resided outside of this country since 1998. See, e.g., Ex. "1" [244-1] to Mot. [244] at 6 (); Br. [259] at 9 (). The Court cannot possess original subject-matter jurisdiction over Leary's Counterclaims pursuant to 28 U.S.C. § 1332. See Coury v. Prot, 85 F.3d 244, 249-50 (5th Cir. 1996) ().
Pursuant to 28 U.S.C. § 1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The...
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