Richardson v. Russell
| Decision Date | 20 April 2016 |
| Docket Number | No. 3:15-cv-869,3:15-cv-869 |
| Parties | JAMES A. RICHARDSON, JR., Plaintiff, v. ED RUSSELL, et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
Pending before the Court is Richardson's motion to dismiss Russell's counterclaims.1 (Docket Entry 31). For the following reasons, the Magistrate Judge RECOMMENDS that Richardson's motion to dismiss be GRANTED in part and DENIED in part.
Specifically, the Magistrate Judge RECOMMENDS that Richardson's motion to dismiss be GRANTED as to Russell's counterclaims for intentional infliction of emotional distress, libel, and civil conspiracy and that Richardson's motion to dismiss be DENIED as to Russell's counterclaim for malicious prosecution.
These claims arise from a contentious dispute regarding the authorship and ownership of a song titled "Butterfly Feeling." In this suit, Richardson maintains that he wrote the song in 2009 and that Russell, among others, acted in concert to steal the song. (Docket Entry 1 ¶¶ 8, 13, 21). Richardson brought a lawsuit for copyright infringement against Russell and others in the District Court of Massachusetts in January 2014. (Docket Entry 1 ¶ 26). The case was dismissedin July 2014 for lack of personal jurisdiction. (Docket Entry 1 ¶ 28). Russell next filed a copyright infringement case against Richardson in this Court, Case Number 3:14-cv-1555. (Docket Entry 1 ¶ 32). Throughout this protracted dispute, several unflattering and allegedly defamatory online posts were made. (Docket Entry 1 ¶¶ 23, 27, 29).
On August 10, 2015, Richardson filed a complaint in which he alleged claims of libel, malicious prosecution, intentional infliction of emotional distress, and civil conspiracy against Russell and others. (Docket Entry 1). Richardson claims that Russell's actions have cost him business and employment opportunities and have caused physical and mental harm. (Docket Entry 1 ¶¶ 34-35). At the time the lawsuit was filed, Richardson was domiciled in Massachusetts, and Russell was domiciled in Tennessee. (Docket Entry 1 ¶¶ 1-2).
The case was referred to the Magistrate Judge for a report and recommendation on dispositive motions. (Docket Entry 8). On October 14, 2015, Russell d/b/a Alley Roads Music BMI and Castle Records, proceeding pro se, filed a counter complaint in which he asserted claims of libel, malicious prosecution, intentional infliction of emotional distress, and civil conspiracy against Richardson. (Docket Entry 19). According to Russell, "Butterfly Feeling" was written by Johnny Edward Spears ("Mr. Spears") in 1996 and was published and demoed by Alley Roads Music BMI around 2004. (Docket Entry 19 ¶¶ 6-7). Russell argues that Richardson called Russell and others "thieves" online on January 29, 20142 and July 24, 2014. (Docket Entry 19 ¶¶ 20-21, 41). According to Russell, Richardson has intentionally tried to destroy Russell's reputation in the music industry and has cost him monetarily, physically, and mentally. (Docket Entry 19 ¶¶ 24-27).
On November 30, 2015, Richardson moved to dismiss Russell's counterclaims for failure to state a claim and for lack of subject matter jurisdiction. (Docket Entry 31). Russell responded to this motion on December 11, 2015, though he did not address the merits of Richardson's motion to dismiss. (Docket Entry 39). The matter is properly before the Court.
When a party moves for dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court's jurisdiction is being challenged either facially or factually. Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015) (citing Am. Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007)). A facial attack on the court's subject matter jurisdiction is treated akin to a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Id. (citing McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012)). When presented with a factual attack, the court does not assume the plaintiff's factual allegations are true. Id. (citing Russell v. Lundergan-Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015)). Instead, the court can weigh the evidence to determine if the facts support a finding that the court has subject matter jurisdiction over the case. Id. (quoting Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012)).
"To survive a motion to dismiss under Rule 12(b)(6), a complaint need only contain 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Carrier Corp., 673 F.3d at 444 (quoting Fed. R. Civ. P. 8(a)(2)). For purposes of a Rule 12(b)(6) motion to dismiss, the court accepts the plaintiff's factual allegations as true and construes the complaint in the light most favorable to the plaintiff. McCormick, 693 F.3d at 658 (citations omitted);Memphis, Tennessee Area Local, Am. Postal Workers Union, AFL-CIO v. City of Memphis, 361 F.3d 898, 902 (6th Cir. 2004) (citation omitted).
Generally, matters outside the pleadings are not considered when ruling on a Rule 12(b)(6) motion to dismiss. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011) (citation omitted). Without turning a motion to dismiss into a motion for summary judgment, the court can consider "exhibits attached [to the complaint], public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein." Id. at 680-81 (citing Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008)) (internal quotations removed). Though the statute of limitations is an affirmative defense, it may be assessed under Rule 12(b)(6) motion to dismiss where the allegations in the complaint show that the claim is time-barred. Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
As Richardson is domiciled in Massachusetts and as the lawsuit on which Russell's malicious prosecution claim is based was filed in Massachusetts, the choice of law is an important place to begin this Report and Recommendation. Since this lawsuit is in federal court under diversity jurisdiction, the Court will apply the law of the forum state, Tennessee, which includes Tennessee's choice-of-law rules. See Montgomery v. Wyeth, 580 F.3d 455, 459 (6th Cir. 2009) (citing Uhl v. Komatsu Forklift Co., 512 F.3d 294, 302 (6th Cir. 2008)).
Richardson moved to dismiss Russell's claims of malicious prosecution, libel, and intentional infliction of emotion distress as time-barred. (Docket Entry 31-1, p. 2).3 Tennessee generally employs a one-year statute of limitations for "[a]ctions for libel, injuries to the person, false imprisonment, malicious prosecution, or breach of marriage promise." Tenn. Code Ann. § 28-3-104(a)(1)(A). Massachusetts, on the other hand, recognizes a three-year statute of limitations for "actions of tort, actions of contract to recover for personal injuries, and actions of replevin" and a three-year statute of limitations for claims of libel. Mass. Gen. Laws Ann. ch. 260, §§ 2A and 4.
Federal courts in diversity jurisdiction apply the forum state's laws to determine the statute of limitations. Swanson v. Wilson, 423 F. App'x 587, 592 (6th Cir. 2011) (citing Atl. Richfield Co. v. Monarch Leasing Co., 84 F.3d 204, 205 (6th Cir. 1996)) (unpublished opinion). In Tennessee, the statute of limitations of the forum is applied "unless the action (1) is one encompassed by the state borrowing statute, Tenn. Code Ann. § 28-1-112, or (2) is one in which the foreign state's limitation is not merely upon the remedy but upon the underlying substantive right." Mackey v. Judy's Foods, Inc., 654 F. Supp. 1465, 1469 (M.D. Tenn. 1987) (citing Whitfield v. City of Knoxville, 756 F.2d 455 (6th Cir. 1985); McDaniel v. Mulvihill, 263 S.W.2d 759 (Tenn. 1953); Bournias v. Atl. Mar. Co., 220 F.2d 152 (2d Cir. 1955). Neither exception applies in this matter.
First, Tennessee's borrowing statute, Tenn. Code Ann. § 28-1-112,4 only adopts another jurisdiction's statute of limitations if it bars the party's claims in the Tennessee court. McNew v.People's Bank of Ewing, 999 F.2d 540, 1993 WL 243772, at *3-5 (6th Cir. 1993) () (unpublished opinion). Massachusetts' three-year statute of limitations for tort actions is greater than Tennessee's one-year statute of limitations. Compare Mass. Gen. Laws Ann. ch. 260, § 2A, with Tenn. Code Ann. § 28-3-104(a)(1)(A). As the events complained of occurred within the past three years, they would not be time-barred in Massachusetts, and therefore do not fall within the ambit of Tennessee's borrowing statute.
Second, Tennessee courts will adopt a foreign jurisdiction's statute of limitations if the foreign jurisdiction "by statute creates a new legal right unknown at common law and in the same statute limits the time period during which that right may be enforced." Whitfield, 756 F.2d at 461-62 (citing Davis v. Mills, 194 U.S. 451, 454 (1904) (); see also Mackey, 654 F. Supp. at 1469 (...
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