United States District Court, E.D. Louisiana
EXPRESS LIEN, INC.
NATIONWIDE NOTICE, INC.
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
the Court is a Partial Motion to Dismiss (Rec. Doc.
33) filed by Nationwide Notice, Inc.
(“Defendant”), an opposition thereto (Rec. Doc.
35) filed by Express Lien, Inc., doing business as Zlien
(“Plaintiff”), and a reply (Rec. Doc. 38) filed
by Defendant. Having considered the motion and legal
memoranda, the record, and the applicable law, the Court
finds that the motion should be GRANTED.
AND PROCEDURAL BACKGROUND
case centers around Plaintiff's allegations that
Defendant copied material from Plaintiff's website and
posted the material on its own website. A description of
these allegations was provided in this Court's Order and
Reasons granting in part and denying in part Defendant's
initial partial motion to dismiss (Rec. Doc. 28), and a
recitation is not necessary here.
originally filed this suit on April 8, 2016, and filed a
first amended complaint on September 15, 2016. (Rec. Docs. 1
and 20.) Defendant filed a partial motion to dismiss the
first amended complaint, requesting the Court to dismiss
Plaintiff's trade dress infringement, breach of contract,
fraud, and unfair trade practices claims. (Rec. Doc. 22.) The
Court denied Defendant's motion as to the trade dress
infringement claim and granted the motion to dismiss the
breach of contract, unfair trade practices, and fraud claims.
(Rec. Doc. 28 at 19-20.) The Court also granted Plaintiff
leave to amend its breach of contract and unfair trade
practices claims. Id.
timely filed a second amended complaint. (See Rec.
32.) In addition to re-alleging its unfair trade practices
and fraud claims, Plaintiff added for the first time a
defamation claim against Defendant. Id. at 21. This
newly added claim alleges that Defendant made defamatory
statements about Plaintiff to a third party on or around
December 2016, after the Court ruled on Defendant's
initial partial motion to dismiss. Id. at 21-22.
Plaintiff also alleges that Defendant has made defamatory
statements to third parties for at least one year by stating
that the basis for the instant lawsuit was that Plaintiff had
taken information from Defendant. Id.
brings the instant partial motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”) requesting the Court dismiss Plaintiff's
defamation claim for failure to state a claim upon which
relief can be granted. (Rec. Doc. 33-1 at 1-2.)
the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The complaint must “give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005). The allegations
“must be simple, concise, and direct.”
Rule 12(b)(6), a claim may be dismissed when a plaintiff
fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books
A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(citing McConathy v. Dr. Pepper/Seven Up Corp., 131
F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must plead enough facts to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)). A claim is facially plausible when the
plaintiff pleads facts that allow the court to “draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A court must accept
all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
The court is not, however, bound to accept as true legal
conclusions couched as factual allegations. Iqbal,
556 U.S. at 678.
elements must be established to state a claim for defamation
under Louisiana law: “(1) a false and defamatory
statement concerning another; (2) an unprivileged publication
to a third party; (3) fault (negligence or greater) on the
part of the publisher; and (4) resulting injury.”
Costello v. Hardy, 2003-1146, p. 12 (La. 1/21/04),
864 So.2d 129, 139. “[A] petitioner alleging a cause of
action for defamation must set forth in the petition with
reasonable specificity the defamatory statements allegedly
published by the defendant.” Badeaux v. Southwest
Computer Bureau, Inc., 2005-0612, p. 10 (La. 3/17/06),
929 So.2d 1211, 1218. Plaintiff's defamation claim
provides no such specificity. The second amended complaint
repeatedly uses legal conclusions to allege defamation
without providing factual detail to support the claim.
Noticeably absent from the second amended complaint is any
information about who made the alleged defamatory statements,
how the alleged statements were communicated, the specific
language of the alleged statements, or to whom the alleged
statements were made. Because the defamation claim is not
pled with reasonable specificity, Plaintiff has failed to
state a claim which would entitle it to relief. See
Badeaux, 929 So.2d at 1219; Iqbal, 556 U.S. at
678; see also English v. Wood Grp. PSN, Inc., No.
15-568, 2015 WL 5061164, at *17 (E.D. La. Aug. 25, 2015)
(dismissing defamation claim and noting that “the
allegation certainly does not consist of any particular set
of defamatory words or specific instances of Defendant's
publication of defamatory words”); Haygood v.