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Hunt Optics & Imaging, Inc. v. Greene


August 19, 2010


The opinion of the court was delivered by: Magistrate Judge Cathy Bissoon


For the reasons that follow, Defendant's Motion to Dismiss (Doc. 20) will be denied, and Plaintiff's Motion to Strike (Doc. 22) Defendant's Motion to Dismiss will be denied as moot.

Defendant's Motion to Dismiss is denied for his failure to comply with the Court's Practices and Procedures ("Ps & Ps"). The "Motions Practice" section of the undersigned's Ps & Ps states:

Any motion seeking substantive legal ruling(s) -- whether dispositive or nondispositive -- should be accompanied by a supporting brief. The supporting brief must be filed contemporaneously with the motion. A brief may be omitted only if: (i) the motion is nondispositive, and (ii) the motion itself contains sufficient arguments and/or legal citation to permit meaningful judicial review.

Id. ( at § II.B. Defendant has not filed a brief, and his five-sentence Motion provides no meaningful discussions in support of his requests for dismissal. See Def.'s Mot. (stating five potential grounds for dismissal, in one sentence each).

Defendant's duty of compliance with the Ps & Ps is established under this Court's Local Rule 7.A. Id. (all motions "shall comply with the applicable Federal Rules of Civil Procedure, the applicable Local Rules, the orders of the assigned Judge and the [Ps & Ps] of the assigned Judge") (emphasis added). Defendant's failure to comply with the Ps & Ps, alone, warrants a denial of his Motion to Dismiss.

The denial likewise is justified under federal substantive law, which recognizes that it is the parties' duty, not the courts', to present legal authority and arguments in support of a motion. See In re Grand Jury Proceedings Dzikowich, 620 F. Supp. 521, 524 (W.D. Wis. 1985) ("it is the movant's burden to establish the grounds for [his] motion[,] not the court's").*fn1 Defendant's status as a pro se litigant does not modify this conclusion. See, e.g., Stephenson v. Township of Thornton, 2001 WL 1071765, *1 (7th Cir. Sept. 10, 2001) ("[w]e recognize the difficulties in proceeding pro se, but [the litigant's] brief must contain at least some legal argument and supporting authority"; although courts "construe pro se pleadings liberally," they "cannot cure... substantial deficiencies in [a party's] brief by creating legal arguments for him") (citations omitted); see also McDonald v. Emory Healthcare Eye Ctr., 2010 WL 3157748, *1 (11th Cir. Aug. 11, 2010) ("[a]lthough [courts] show leniency to pro se litigants," they should not "serve as de facto counsel") (citation omitted).

Furthermore, Plaintiff has demonstrated that Defendant's Motion to Dismiss must be denied on the merits. As to the amount in controversy (see Def.'s Mot. at ¶ 1), Plaintiff is correct that the Complaint survives a "facial" challenge. Compare Compl. (Doc. 1) at ¶ 3 ("the matter in controversy exceeds the sum of $75,000") and id. at ¶¶ 50-51 (Defendant "has and will continue to suffer grave harm, including, but not limited to," disclosure of confidential and proprietary information and trade secrets, loss of existing and potential clients or customers, lost profits, loss in value of confidential and proprietary information and trade secrets, and harm to customer goodwill) with Ramada Franchise Sys., Inc. v. Patel, 2004 WL 1246566, *2 (3d Cir. Jun. 8, 2004) ("[i]n a facial attack" regarding amount in controversy, "the factual allegations in a complaint are accepted as true") (citation to binding authority omitted). To the extent that Defendant levels a factual challenge, he has presented no arguments, or competent evidence, demonstrating "to a legal certainty that [Defendant's] claim[s are] for less than the jurisdictional amount." Davis-Giovinzazzo Const. Co., Inc. v. Tatko Stone Prods., Inc., 2007 WL 1166054, *3 (E.D. Pa. Apr. 18, 2007) (citation to quoted, binding authority omitted).

As to personal jurisdiction and venue (see Def.'s Mot. at ¶¶ 2-3), Plaintiff has demonstrated that the non-competition agreement executed by Defendant contains a forum selection clause, stating that he "confer[red] jurisdiction" upon this Court and "waive[d]" any objection regarding improper venue. See Pl.'s Opp'n Br. (Doc. 23) at 6 (citing record evidence). Contractual waivers regarding personal jurisdiction and venue are recognized under the law,*fn2 and forum selection clauses "are prima facie valid and should be enforced" unless the resisting party makes a "strong showing," under specified legal standards, that enforcement would be "unreasonable under the circumstances." Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1219 (3d Cir. 1991) (citation to quoted source omitted). Again, Defendant has failed to present arguments or competent evidence demonstrating that the forum selection clause may be avoided, and he has failed to demonstrate his entitlement to dismissal.

Regarding the sufficiency of service of process, the Court agrees with Plaintiff that Defendant's objection is untimely. Under Federal Rule of Civil Procedure 12, the defense of insufficient service "must be raised either before or in a responsive pleading." Weaver v. Bowers, 657 F.2d 1356, 1359-60 (3d Cir. 1981) (emphasis added). Defendant did not assert insufficient service in his Answer, see Doc. 17, but rather has stated it in a subsequently filed Motion to Dismiss. See Def.'s Mot. Defendant, therefore, is untimely under Federal Rule 12.*fn3

Even had Defendant timely objected regarding sufficiency of service, he has failed to demonstrate his entitlement to dismissal. Plaintiff has filed a "Proof of Service" form, signed by a process server under penalty of perjury, indicating that a summons was left with "a person of suitable age and discretion" residing at Defendant's record address. See Summons/Return of Service Returned Executed (Doc. 3). "[A] return of service by a private process server creates a rebuttable presumption that proper service was effectuated," and Defendant has offered no competent evidence, let alone sworn statements accompanied by corroborating evidence, to defeat this presumption. See Closeout GroupA, Inc. v. Venator Elec. Sales & Service, Ltd., 2009 WL 2431448, *3 (E.D. Pa. Aug. 6, 2009) (citation to quoted source omitted).*fn4

Defendant's final request for dismissal, for failure to state a claim upon which relief may be granted, is summarily rejected by the Court. Defendant's Motion gives no substantive basis for the requested dismissal, and the undersigned declines to speculate regarding why Defendant believes that some or all of Plaintiff's claims fail under Federal Rule 12(b)(6).

For all of the reasons stated above, Defendant's Motion to Dismiss (Doc. 20) is DENIED, and Plaintiff's Motion (Doc. 22) to Strike Defendant's Motion to Dismiss is DENIED AS MOOT.


Cathy Bissoon United States Magistrate Judge

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