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Weik v. Goldberg

United States District Court, D. Montana, Missoula Division

September 12, 2014

DAVID L. WEIK, Plaintiff,
v.
THRESA A. GOLDBERG, et al., individually; FRANK BROAD, et al., individually; SARA VILHUBER, et al., individually; DOES I-X; JANE DOES I-X; CORPORATIONS I-X, and XYZ PARTNERSHIPS I-X, Defendants.

ORDER, and FINDINGS AND RECOMMENDATION

JEREMIAH C. LYNCH, Magistrate Judge.

Before the Court is Defendants Thresa Goldberg, Frank Broad, and Sara Vilhuber's Fed.R.Civ.P. 12(b)(6) motion to dismiss Plaintiff David Weik's complaint for failure to state a claim upon which relief can be granted. Also before the Court is Weik's motion requesting leave of Court to file an amended complaint pursuant to Fed.R.Civ.P. 15. For the reasons discussed the Court directs the Clerk of Court to file Weik's proposed amended pleading. And the Court recommends that Defendants' motion to dismiss, as applied to Weik's amended pleading, be granted, and this action be dismissed.

I. Procedural Background

As a preliminary matter, the Court will sort out the procedural context of the two referenced motions now before the Court. On July 1, 2014, Defendants filed their Rule 12(b)(6) motion to dismiss. In response, on July 14, 2014, Weik filed his motion requesting leave of Court to file his amended pleading under Rule 15.

Rule 15, however, permits a plaintiff to file an amended pleading "once as a matter of course within [...] 21 days after service of a motion under Rule 12(b)[.]" Fed.R.Civ.P. 15(a)(1)(B). Based on the timing of Weik's motion, Weik is entitled to file his amended complaint as a matter of course, without leave of Court.

Therefore, IT IS ORDERED that Weik's motion for leave to file his amended pleading is DENIED as unnecessary. The Clerk of Court is directed to file Weik's First Amended Original Complaint (Doc. 7-1) (hereinafter "Amended Complaint") as of July 14, 2014, and it shall serve as the operative pleading.

Weik advises, and the Court finds, that his Amended Complaint "does not change anything in Plaintiff's Original Complaint." (Doc. 7 at 1.) But the Amended Complaint adds a new claim under the Clayton Act at 15 U.S.C. § 15, and new claims under Montana law for civil conspiracy and for tortious interference with business contracts. The allegations of Weik's original complaint are otherwise fully set forth in his Amended Complaint.

In response to Weik's motion to amend, Defendants expressly incorporated their arguments from their motion to dismiss into their brief in opposition to the motion to amend. (Doc. 10 at 2.) They argued the Amended Complaint failed to state any claim for relief for all the same reasons the Original Complaint failed to state a claim.

Weik filed a reply brief in support of his motion to amend. Weik asserted, consistent with his response to Defendants' motion to dismiss, that his allegations in his Amended Complaint sufficiently stated claims for relief. He expressly incorporated all of is arguments from his response to the motion to dismiss into his reply brief filed with respect to his motion to amend. (Doc. 11 at 2.)

Based on the foregoing, the Court will address all arguments relative to Defendants' motion to dismiss as they apply to the allegations in Weik's Amended Complaint.

II. Factual Background

This action arises from Defendants' alleged individual and conspiratorial conduct purportedly aimed at depriving Weik of his property and economic livelihood. Beginning in 2011 and continuing through 2013, Weik and Goldberg worked together to form and commence two business ventures under the names Misty Blu Trail Rides and H.E.A.R.T. (Healing Equine Assisted Rehabilitation Therapy). Weik and Goldberg each agreed to engage in various business startup tasks, such as website development and non-profit entity formation. According to Weik, Goldberg did not actively follow through on, or promptly complete, the business startup tasks she agreed to perform.

During the business formation time period Weik, Goldberg and Broad also resided together at various times. Weik contends the personal relationships between the three of them interfered with Weik and Goldberg's efforts to make progress towards getting the businesses up and running.

In January and February 2014, Goldberg allegedly began engaging in conduct adverse to Weik's interests in the businesses. For example, she purportedly closed bank accounts for both business entities without proper authority, removed Weik's phone number from a business website, redirected financial donations for one of the businesses to her personal account, and attempted to gain exclusive control over each business's accounts.

After several confrontational meetings regarding the businesses, Goldberg informed Weik in April of 2014 that she intended to obtain a protective restraining order against Weik. On May 16, 2014, Weik received Goldberg's temporary restraining order that Goldberg had apparently obtained from a state court. Goldberg also filed a civil action against Weik in the Missoula County Justice Court apparently stemming from their business and personal relationships and activities.

Subsequently, in June 2014, Goldberg obtained a permanent order for restraint against Weik. The scope of the restraining order encompasses Vilhuber's residence, and extends to cover both (1) real property that Weik intended to purchase, and (2) a horseback riding trail access point that Weik intended to use for the businesses. Weik asserts Goldberg, Broad and Vilhuber (Goldberg's sister) presented false testimony to the court to support and obtain the permanent restraining order.

Weik asserts Goldberg engaged in conduct which harmed his business opportunities. He asserts she made false statements about him on social media web sites, and caused a potential business customer to post a negative comment about one of the businesses on the business's web site.

Weik invokes federal jurisdiction under 28 U.S.C. § 1331, advancing claims against all Defendants under 42 U.S.C. § 1983, the Sherman Act, 15 U.S.C. § 1, et seq., and the Clayton Act at 15 U.S.C. § 15. He also invokes the Court's supplemental jurisdiction under 28 U.S.C. § 1367 over numerous state law claims. Specifically, he asserts Goldberg is liable for breach of their operating agreement entered in forming Misty Blu Trail Ride, LLC, and that all Defendants are liable for tortious interference, defamation, harassment, false light invasion of privacy, libel, slander per se, malicious prosecution, abuse of process, civil conspiracy, and negligent infliction of emotional distress.

III. Applicable Law - Motion to Dismiss

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal for failure to state a claim under Rule 12(b)(6) is proper if there is a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss, a plaintiff's complaint must have sufficient facts "to state a facially plausible claim to relief." Shroyer v. New Cingular Wireless Services, Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). The court accepts all factual allegations in the complaint as true and construes the pleadings in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Conclusory allegations and unwarranted inferences, however, are insufficient to defeat a motion to dismiss. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1010 (9th Cir. 2011).

IV. Discussion

Because Weik is proceeding pro se the Court must construe his pleading liberally, and the pleading, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). See also Neitzke v. Williams, 490 U.S. ...


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