InProcessOut, LLC v. World Tech Toys, Inc.

Western District of Texas, txwd-5:2018-cv-00869

REPLY to Response to Motion, filed by InProcessOut, LLC, re [46] MOTION to Dismiss filed by InProcessOut, LLC

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United States District Court Western District of Texas San Antonio Division InProcessOut, LLC Plaintiff/Counter Defendant v. Civil Action No. 5:18-cv-00869-FB-HJB World Tech Toys, Inc. Jury Trial Defendant/Counter Plaintiff Plaintiff/Counter Defendant's Reply in Support of Motion to Dismiss and Strike Plaintiff/Counter Defendant InProcessOut, LLC files this Reply in its Motion to Dismiss certain Defendant's counterclaims for failure to properly plead under Fed. R. Civ. P. 8(c)(1), 9(b) and 12(b)(6) and to Strike certain Defendant's affirmative defenses under Fed. R. Civ. P. 12(f). 1. Defendant/Counter Plaintiff's 1st Affirmative Defense is not properly pled under Fed. R. Civ. P. 8(c)(1), and Defendant/Counter Plaintiff's opposition [Dkt. 52] to the motion [46] fails to remedy. A motion under Rule 12(b)(6), not an answer, should have been the proper pleading if Defendant were to properly raise any issue of "fails to state a cause of action for which relief can be granted." The Court should strike the 1st Affirmative Defense. 2. Defendant/Counter Plaintiff's 8th Affirmative Defense alleges fraud but fails to plead with particularity as required by Fed. R. Civ. P. 9(b). Defendant/Counter Plaintiff's opposition [Dkt. 52] to the motion [46] fails to remedy the failure to plead with particularity. The Court should strike the 8th Affirmative Defense. 1 3. Defendant/Counter Plaintiff's Counterclaim I attempts to allege fraud; however, Defendant/Counter Plaintiff fails to plead with particularity as required by Fed. R. Civ. P. 9(b). No facts were plead with particularity. Additionally, that Counterclaim I fails to state a claim upon which relief can be granted. The Court, therefore, should dismiss the Counterclaim I under Fed. R. Civ. P. 9(b) and/or 12(b)(6). Even further, the Counterclaim I is redundant and should be stricken under Fed. R. Civ. P. 12(f). The Court should dismiss the Counterclaim I and, alternatively or in addition, the Court should strike the Counterclaim I. 4. Defendant/Counter Plaintiff's Counterclaims II, III, and IV each fail to state a claim upon which relief can be granted. These Counterclaims II, III and IV should be dismissed by the Court under Fed. R. Civ. P. 12(b)(6). Further, these Counterclaims II, III, and IV are redundant and should be stricken by the Court under Fed. R. Civ. P. 12(f). 2 Date: August 28, 2019 Respectfully submitted, /s/ Matthew J. Booth Matthew J. Booth Dale Langley The Law Firm of H. Dale Langley Jr., P.C. Texas Bar No. 11918100 1803 West Avenue Austin TX 78701 Tel: +1 (512) 477-3830 Fax: +1 (512) 597-4775 dlangley@iptechlaw.com Matthew J. Booth Matthew J. Booth PC Texas Bar No. 02648300 5501A Balcones Drive, Suite 301 Austin Texas 78731 Tel: +1 (512) 474-8488 Fax: +1 (512) 596-2875 matthew.booth@boothlaw.com Legal Counsel for Plaintiff InProcessOut, LLC 3 Certificate of Service I certify that I filed this filing on August 28, 2019 electronically using the CM/ECF system that will send notification of this filing to all counsel of record. /s/ Matthew J. Booth Matthew J. Booth 4