Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM BOYD, Plaintiff, v. TEMPAY, Defendant. : : : : : : : : : : : CIVIL ACTION NO. 07-377 JJF

DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM

McCARTER & ENGLISH, LLP Katharine L. Mayer (DE Bar ID #3758) Renaissance Centre 405 N. King Street, 8th Floor Wilmington, DE 19801 (302) 984-6300 (302) 984-6399 (fax) Attorneys for Defendant, TemPay, Inc.

Dated: June 9, 2007

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TABLE OF CONTENTS

I.

PLAINTIFF'S AMENDED COMPLAINT, EVEN AS "CORRECTED", FAILS TO STATE A CLAIM FOR RELIEF................................................................... 1 FURTHER AMENDMENT WOULD BE FUTILE ......................................................... 3

II.

III. DISMISSAL OF PLAINTIFF'S CLAIMS WITH PREJUDICE IS WARRANTED ... 3 IV. CONCLUSION .................................................................................................................... 5

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TABLE OF AUTHORITIES

FEDERAL CASES Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) .................................................3, 4 Eagle Associates v. Bank of Montreal, 926 F.2d 1305 (2d Cir. 1991) ................................2 James v. Daley and Lewis et.al., 406 F. Supp. 645 (D.Del. 1976) ......................................2 United States v. Cocivera, 104 F.3d 566 (3d Cir. 1996)......................................................2 FEDERAL STATUTES AND RULES 15 U.S.C. §1, et. seq.............................................................................................................1 28 U.S.C. §1654...................................................................................................................2 Fed. R. Civ Pro. No. 15 (a)(2)..............................................................................................2 Local Rule 7.1.3 (b) .............................................................................................................4

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Defendant TemPay, Inc. ("TemPay") submits this brief Reply to the Response of Plaintiff William Boyd ("Boyd") (Docket No. 19) to Defendant's Motion to Dismiss (No. 17 & 18) the Amended Complaint (No.16). I. PLAINTIFF'S AMENDED COMPLAINT, EVEN AS "CORRECTED", FAILS TO STATE A CLAIM FOR RELIEF For the reasons set forth in Defendant's moving brief, Plaintiff's Amended Complaint falls far short of the pleading standards required by the Federal Rules of Civil Procedure, the substantive requirements of the Sherman Act, 15 U.S.C. §1, et. seq., and recent decisions of the United States Supreme Court addressing both the substantive and pleading requirements of a Sherman Act claim. Plaintiff's response does nothing to counter these arguments, and he cannot do so because his claims, while full of sound and fury, are devoid of substance and totally lacking in any factual basis. By way of example, in TemPay's original motion to dismiss, TemPay raised, among other issues, the fact that the thrust of the claims asserted were on behalf of corporate entities that are not parties to the case. See Defendant's Reply Brief In Support of Defendant's Motion to Dismiss for Failure to State a Claim (Docket No. 11), a copy of which is attached as Exhibit "A", at pages 2-3. The Court dismissed the complaint, but granted Plaintiff leave to retain counsel and file an amended complaint. Plaintiff thereafter filed a pro se amended complaint that failed to address the issue of his standing to assert claims on behalf of the corporate entities involved. TemPay moved again to dismiss asserting lack of standing (among other grounds) and once again Plaintiff says "let me amend", this time under the guise of an "Amended Complaint

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Correction1" that purports to add four new party plaintiffs. Even a pro se Plaintiff should not be given unlimited bites at the apple. Plaintiff's purported amendment to add new corporate parties must fail for the additional reason that a corporation or other business entity may not be represented, pro se, by a corporate officer or individual who is not an attorney. It is well settled law in the federal courts generally and in this Circuit and this District that a Corporation can only appear through counsel. See, e.g. United States v. Cocivera, 104 F.3d 566, 572 (3d Cir. 1996)( "it has been the law for the better part of two centuries. . . that a corporation may appear in the federal courts only through licensed counsel"); James v. Daley and Lewis et.al., 406 F.Supp. 645 (D.Del. 1976). Accord, Eagle Associates v. Bank of Montreal, 926 F.2d 1305 (2d Cir. 1991)(holding that individual may not represent partnership entity, interpreting 28 U.S.C. §1654 to permit parties to conduce only their own cases, pro se, and not as a representative of an organization). Moreover, even if the new corporate parties were properly before the Court as plaintiffs in this action, the "Corrected Amended Complaint" still fails to come even close to meeting the threshold pleading standards to state a claim for relief that complies with the Federal Rules of Civil Procedure. The Amended Complaint even with the "Amended Complaint Correction" fails to set forth specific facts detailing the involvement of each of the plaintiffs now sought to be added and the nature and extent of the conduct purporting to support claims against TemPay by each of the Plaintiffs. Apparently, Plaintiff's notion of factual specificity is to state (as he now does, for the first time in his responsive papers filed in opposition to the latest motion to dismiss

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Plaintiff's consistent disregard for the rules of this Court is demonstrated once again by this filing. He requested neither leave of Court nor consent of Defendant as required by Fed. R. Civ Pro. No. 15 (a)(2) before filing his "Amended Complaint Correction". To the extent the Court construes Plaintiff's Responsive papers as a Motion for Leave to file the "Amended Complaint Correction", TemPay opposes that motion for the reasons stated herein.

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after yet another conclusory assertion of a host of alleged criminal offenses), that "These actions2 have been going on predominately (but not limited to) from 2006 through 2003". Plaintiff's response, page 2. Despite being given ample opportunity to engage counsel, plaintiff did not do so. Despite being given an opportunity to file an amended complaint properly stating his claims, plaintiff filed an Amended Complaint that fails woefully to address the deficiencies pointed out in the Court's Opinion and Order dismissing his original complaint. Plaintiff's Amended Complaint should be dismissed for failure to state a claim. II. FURTHER AMENDMENT WOULD BE FUTILE Like he did in response to the original motion to dismiss, Plaintiff's response seeks to restate claims, this time under the guise of a proposed "Amended Complaint Correction". This proposed amendment further reinforces the point made in Defendant's moving brief, namely that further amendment of the Complaint would be futile. Even if the Amended Complaint were construed to be further amended by the "Amended Complaint Correction", it is clear that resulting pleading does not and cannot be brought into conformity with the pleading requirements necessary to state a claim for relief under the Sherman Act. III. DISMISSAL OF PLAINTIFF'S CLAIMS WITH PREJUDICE IS WARRANTED In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the United States Supreme Court observed, in discussing the need for specificity in pleading in claims of this type: [S]omething beyond the mere possibility of loss causation must be alleged, lest a plaintiff with "'a largely groundless claim'" be allowed to "'take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.'" . . .
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As with most of the allegations in plaintiff's papers, Defendants and the Court are left to speculate as to what the specific actions are that are referred to in this statement, how they are claimed to have injured each of the Plaintiffs and how they fit into Plaintiff's claims of a violations of the Sherman Act.

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[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, `this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court. 127 S.Ct. at 1966. The record in this case and the docket entries with respect to other cases filed by Plaintiff reflect that Plaintiff is a serial filer who will continue, so long as the Court permits him to do so, to file vexatious and frivolous positions without regard to the Court rules3, the substantive law, the facts or the rulings of this Court. Dismissal with prejudice is both warranted and necessary in order to avoid undue expense to a blameless defendant and undue allocation of further judicial resources to a patently baseless claim.

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Local Rule 7.1.3 (b) provides that after the filing of a Reply Brief: Except for citation of subsequent authorities, no additional papers shall be filed absent Court approval.

Plaintiff ignored this Rule in connection with the Motion to Dismiss the original Complaint by filing a "Supplemental Response" after TemPay's Reply in an effort to unilaterally give himself the last word. TemPay respectfully requests that, unless it is filed for purposes of bringing a subsequent authority to the Court's attention, that any further filing by Plaintiff on this motion be disregarded as not authorized by Local Rule 7.1.3 (b).

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IV.

CONCLUSION For the reasons set forth herein and in Defendant's initial moving papers, it is respectfully

requested that an Order be entered dismissing Plaintiff's Complaint, as amended, with prejudice.

Respectfully submitted, McCARTER & ENGLISH, LLP Dated: June 9, 2008 By: /s/ Katharine L. Mayer Katharine L. Mayer Renaissance Centre 405 N. King Street, 8th Floor Wilmington, DE 19801 (302) 984-6300 (302) 984-6399 (fax) Attorneys for Defendant, TemPay, Inc.

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CERTIFICATE OF SERVICE

I, Katharine L. Mayer, one of the attorneys of record for Defendant, TemPay, Inc., hereby certify that on this 9th day of June, 2008, I caused a true copy of the within Reply Brief in Support of Defendant's Motion to Dismiss For Failure to State a Claim to be placed in the United States First Class Mail, postage prepaid, addressed as follows: Mr. William Boyd 602 Tamara Circle Newark, Delaware 19711

/s/ Katharine L. Mayer Katharine L. Mayer (DE Bar ID #3758)

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EXHIBIT A

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