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Defendant's Attorney: Not Available

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Los Angeles, California breach of contract lawyer represented the Plaintiff.

Plaintiff moved to dismiss the counterclaim.

Federal district courts are courts of limited jurisdiction that ‘may not grant relief absent a constitutional or valid statutory grant of jurisdiction' and are ‘presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.'” Cooper v. Tokyo Elec. Power Co., 990 F.Supp.2d 1035, 1038 (S.D. Cal. 2013) (quoting A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003)). Accordingly, “federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).

The party asserting jurisdiction-here, Defendant-bears the burden of establishing that subject matter jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over an action.” Wilkerson v. Butler, 229 F.R.D. 166, 169 (E.D. Cal. 2005).

B. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted.” A court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citation omitted).

To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the facts pleaded “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with' a defendant's liability” do not demonstrate a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557).

Review under Rule 8(a) requires a context-specific analysis involving a court's “judicial experience and common sense.” Id. at 679. A court must “accept[] all factual allegations in the complaint as true and constru[e] them in the light most favorable to the nonmoving party.” Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). That said, the Court need not accept as true “legal conclusions” contained in the complaint. Iqbal, 556 U.S. at 678.

If a complaint does not state a plausible claim for relief, a court should grant leave to amend unless it determines that no modified contention “consistent with the challenged pleading could . . . cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “The Ninth Circuit has instructed that the policy favoring amendments ‘is to be applied with extreme liberality.'” Abels v. JBC Legal Grp., P.C., 229 F.R.D. 152, 155 (N.D. Cal. 2005) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)).

Finally, though litigants proceeding pro se are ordinarily entitled to liberal construction of their pleadings and arguments, said liberal construction does not extend to practicing attorneys. Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th Cir. 2023). And, to the extent such solicitude extends to plaintiffs who have attended law school and have past litigation experience, said solicitude is reduced. See id. at 1020-21; Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[T]he degree of solicitude may be lessened where the [litigant proceeding pro se] is experienced in litigation and familiar with the procedural setting presented.”). As the Court has previously held, Plaintiff is entitled to only reduced deference at the motion-to-dismiss stage. ECF No. 34 at 6.
Ewing v. Freedom Forever, LLC, 23-CV-1240 JLS (AHG) (S.D. Cal. Aug 21, 2024)

Outcome: For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Dismiss Defendant's Counterclaims (ECF No. 38). Specifically, the Court DISMISSES Defendant's counterclaims for breach of contract (Claims One & Two)[9] based on Defendant's failure to plausibly allege (1) its own performance and (2) that Plaintiff made derogatory statements. This dismissal, however, is WITH LEAVE TO AMEND, and Defendant MAY FILE amended counterclaims within fourteen (14) days of the date of this Order. Plaintiff's Motion to Dismiss is otherwise DENIED. The Court also DENIES Defendant's Motion to Strike (ECF No. 59) and Plaintiff's Motion for Rule 11 Sanctions.

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