Osborn v. Emporium Videos

• Decision Date: 11 March 1993
• Docket Number: No. 92-141,92-141
• Citation: 848 P.2d 237
• Parties: Richard B. OSBORN, Appellant (Plaintiff), v. EMPORIUM VIDEOS; Arthur Greer, Owner; and Ron Sullivan, Manager/Agent, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 237

848 P.2d 237

Richard B. OSBORN, Appellant (Plaintiff), v. EMPORIUM VIDEOS; Arthur Greer, Owner; and Ron Sullivan, Manager/Agent, Appellees (Defendants).

No. 92-141.

Supreme Court of Wyoming.

March 11, 1993.

Richard B. Osborn, pro se.

No appearance representing appellees.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT, ^* and GOLDEN, JJ.

URBIGKIT, Justice.

Challenging the propriety of the sua sponte dismissal of a complaint for failure to state a claim upon which relief can be granted, Richard B. Osborn (Osborn) appeals the district court's order. We hold that the procedure used by the district court failed to provide adequate notice and opportunity to respond after the district court determined it would act on its own motion. We reverse and remand.

FACTS

Osborn filed his complaint in the District Court for the Seventh Judicial District, Natrona County, Wyoming alleging fraud and unfair trade practices in the sale of an "adult video." The video was purchased from Emporium Videos, a Casper, Wyoming retailer in "adult materials." The complaint identifies as defendants: Emporium Videos; the store owner, Arthur Greer (Greer), a Colorado resident; and the store manager, Ron Sullivan (Sullivan). ¹

Osborn averred that the description, contained on the video's box, inaccurately characterized the performance of "Busty Belle" (Belle) as the "star" of a video titled "Belle of the Ball." Osborn asserted that during the seventy-five minute length of the video, Belle appeared in scenes lasting only one and one-half minutes at the beginning of the video and seven to eight minutes at the end of the video. Specifically, Osborn contended the disparity between the impression given by the video's labeling and the actual role played by the featured performer constituted deceptive trade practices under Wyo.Stat. § 40-12-105(a) (Cum.Supp.1992). ² Osborn's prayer for relief requested damages for the cost of the video, $29.95; the cost of medication required to treat an asthma attack "brought on by the stress and strain of being 'ripped off,' " $55.79; compensation for suffering, $50,000 Also acting pro se, Sullivan filed an answer on behalf of the "defendants." After service of process at his usual place of business, W.R.C.P. 4(d), Greer did not respond. Osborn, claiming Sullivan's answer was untimely and noting that a pro se defendant could not file an answer for another, filed for entry of default. W.R.C.P. 55. Sullivan, again acting pro se, filed an amended answer on behalf of all "defendants, who were properly served * * *." ⁴ The district court responded by acting on its own motion to order a dismissal for failure to state a claim upon which relief can be granted. ⁵ The order dismissing the complaint reads as follows:

and punitive damages. Osborn acted pro se. ³

THE ABOVE MATTER having come before the Court upon its own Motion

THE COURT FINDS that the Complaint does not state a cause of action.

THEREFORE, IT IS ORDERED that the case be dismissed.

DATED this 29th day of May, 1992.

BY THE COURT:

[Signature]

JUDGE

Osborn filed a timely notice of appeal invoking this court's jurisdiction.

DISCUSSION

In Condict v. Lehman, 837 P.2d 81, 82 (Wyo.1992), this court reiterated the standard of review utilized to consider the appeal of a dismissal under W.R.C.P. 12(b)(6) (hereinafter Rule 12(b)(6)):

The court must accept the facts as alleged in plaintiff's complaint as true, and view them in the light most favorable toward the appellant. Kautza v. City of Cody, 812 P.2d 143, 145 (Wyo.1991); Nulle v. Gillette-Campbell County Joint Powers Fire Board, 797 P.2d 1171, 1171 (Wyo.1990). Appellant's pleadings must be liberally construed, and the court "will sustain a dismissal of a complaint only if it shows on its face that the plaintiff was not entitled to relief under any set of facts." Mostert v. CBL & Associates, 741 P.2d 1090, 1092 (Wyo.1987). See also Johnson v. Aetna Casualty & Surety Co. of Hartford, Conn., 608 P.2d 1299, 1302 (Wyo.1980).

A motion to dismiss will be granted only if the pleadings disclose with certainty the impossibility of proving a claim upon which relief can be granted. Fiscus v. Atlantic Richfield Company, 742 P.2d 198, 202 (Wyo.1987). "Dismissal is a drastic remedy, and is sparingly granted." Mostert, 741 P.2d at 1092. "A motion to dismiss, even though sparingly granted, is the proper method for testing the legal sufficiency of the allegations and will be sustained when the complaint shows on its face that the plaintiff is not entitled to relief." Mummery v. Polk, 770 P.2d 241, 243 (Wyo.1989).

A motion under Rule 12(b)(6) is read in conjunction with W.R.C.P. 8 which establishes the requirements for pleading a claim. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 1356 (1990). W.R.C.P. 8 provides, in pertinent part:

(a) Claims for relief.--A pleading which sets forth a claim for relief, whether * * * * * *

an original claim, counterclaim, cross-claim, or third-party claim, shall contain: (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

(d) Effect of failure to deny.--Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

(e) Pleading to be concise and direct; consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Rule 11.

(f) Construction of pleadings.--All pleadings shall be so construed as to do substantial justice.

"Only when the pleading fails to meet this liberal standard is it subject to dismissal under Rule 12(b)(6)." 5A Wright & Miller, supra, § 1356 at 296. "The role of a Rule 12(b)(6) motion is not to assess the likelihood of recovery; rather, it is merely to determine whether a claim for which relief can be granted has been stated." Coones v. Federal Deposit Ins. Corp., 848 P.2d 783 (Wyo.1993).

When a complaint alleges fraud, W.R.C.P. 9(b) states a particularity requirement:

Fraud; mistake; condition of the mind.--In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

The particularity requirement of W.R.C.P. 9(b) does not render the general principles of W.R.C.P. 8 inapplicable; instead, the two rules are read in conjunction to create a proper balance. 5 Wright & Miller, supra, § 1298. ⁶

The litigant acting pro se is entitled to "a certain leniency" from the more stringent standards accorded formal pleadings drafted by lawyers; however, the administration of justice requires reasonable adherence to procedural rules and requirements of the court. Apodaca v. Ommen, 807 P.2d 939, 943 (Wyo.1991).

While the language of W.R.C.P. 12 does not specifically authorize a sua sponte motion, the practice has been adopted by some federal courts under F.R.C.P. 12. ⁷ In Apodaca, this court suggested its approval A review of federal precedent discloses a reasoned approach to sua sponte dismissals. ⁸ In Ricketts v. Midwest Nat. Bank, 874 F.2d 1177 (7th Cir.1989), the United States Court of Appeals for the Seventh Circuit reviewed, in detail, the general procedure required for a sua sponte dismissal by the federal courts. After a determination of proper jurisdiction under the substantiality doctrine, Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1946), the jurisdiction of federal courts to dismiss sua sponte is limited by procedural rules. Ricketts, 874 F.2d at 1183. F.R.C.P. 4(a) has been consistently interpreted to require that a summons be issued and served before a complaint may be dismissed. Id. (citing Nichols v. Schubert, 499 F.2d 946, 947 (7th Cir.1974); Dear v. Rathje, 485 F.2d 558 (1973), aff'd 532 F.2d 756 (7th Cir.1976); and Vina v. Hub Electric Co., 480 F.2d 1139, 1140 (7th Cir.1973)). Subsequent decisions have required that a plaintiff be given notice and an opportunity to respond before dismissal of the complaint on the court's motion. Ricketts, 874 F.2d at 1183 (citing Bryan v. Johnson, 821 F.2d 455, 457-58 (7th Cir.1987)). See also Jefferson Fourteenth Associates v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 526 (11th Cir.1983); Franklin v. State of Or., State Welfare Division, 662 F.2d 1337, 1341 (1981), aff'd in part and rev'd in part 745 F.2d 1221 (9th Cir.1984); and 5A Wright & Miller, supra, § 1357.

of the concept permitting a sua sponte motion to dismiss a complaint under circumstances where a recognizable claim has not been stated. Apodaca, 807 P.2d at 941 n. 3 (citing Pugh v. Parish of St. Tammany, 875 F.2d 436 (5th Cir.1989) and 5A Wright & Miller, supra, § 1357 at 301 n. 3). However, because the Apodaca court was considering the validity...