Springboards to Education Inc v. Demco Inc

Brief/Memorandum in Support

N.D. Tex.December 9, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SPRINGBOARDS TO EDUCATION, INC., Plaintiff, v. DEMCO, INC., W.W. GRAINGER, INC., and COLLABORATIVE SUMMER LIBRARY PROGRAM, Defendants. Civil Action No. 3:16-cv-02398-D DEFENDANT COLLABORATIVE SUMMER LIBRARY PROGRAM’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT R. DOUGLAS REES Texas Bar No. 16700600 Doug.rees@cooperscully.com BENTON WILLIAMS II Texas Bar No. 24070854 Benton.williams@cooperscully.com COOPER & SCULLY, P.C. 900 Jackson Street, Suite 100 Dallas, Texas 75202 Telephone: (214) 712-9500 Facsimile: (214) 712-9540 Attorneys for Defendant Collaborative Summer Library Program Case 3:16-cv-02398-D Document 24 Filed 12/09/16 Page 1 of 5 PageID 186 DEFENDANT COLLABORATIVE SUMMER LIBRARY PROGRAM’S PAGE 2 OF 5 BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT I. INTRODUCTION Defendant Collaborative Summer Library Program (“CSLP”) submits this its Brief in Support of its Motion to Dismiss the Complaint [Dkt. 5] of Plaintiff Springboards to Education Inc. (“Springboards”) pursuant to FED. R. CIV. P. 8, 9(b), and 12(b)(6) for failure to state a claim upon which relief may be granted. Defendant CSLP would respectfully show this Honorable Court the following. II. ADOPTION & INCORPORATION In its brief [Dkt. 21], Co-defendant Demco, Inc. (“Demco”) sets forth arguments and supporting authorities as to why dismissal of Plaintiff’s Amended Complaint [Dkt. 5] should be dismissed. Defendant CSLP hereby adopts each argument set forth in Demco’s brief [Dkt. 21] and incorporates the brief in its entirety as if set forth verbatim herein. However, to the extent the Plaintiff’s Amended Complaint (or any part thereof) survives the arguments set forth in Demco’s brief [Dkt. 21] and incorporated herein, the Plaintiff’s lawsuit should still be dismissed completely as to Defendant CSLP. As Demco asserts in its brief, if there exists any plausibly alleged dispute, it is a narrow one between Springboards and Demco- not CSLP. [Dkt. 21 at Pgs. 6-9]. Other than initially identifying CSLP for jurisdictional reasons, Springboards fails to allege any facts about CSLP, CSLP’s actions, or how CSLP has anything to do with this Springboards’ claims. This requires dismissal. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Case 3:16-cv-02398-D Document 24 Filed 12/09/16 Page 2 of 5 PageID 187 DEFENDANT COLLABORATIVE SUMMER LIBRARY PROGRAM’S PAGE 3 OF 5 BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT III. ARGUMENT a. THE AMENDED COMPLAINT SHOULD BE DISMISSED FOR ALL THE REASONS STATED IN DEMCO’S BRIEF. Springboards’ Amended Complaint should be dismissed for all the reasons stated in Demco’s brief. [Dkt. 21]. Defendant CSLP hereby adopts Demco’s arguments, and requests the same relief. b. THE AMENDED COMPLAINT SHOULD BE DISMISSED FOR LACK OF FACTUAL ALLEGATIONS AS TO CSLP. Other than identifying CSLP, the Amended Complaint alleges absolutely no non- conclusory facts as to CSLP’s actions. Indeed, the body of the Amended Complaint contains only two non-conclusory, party-specific allegations, and they relate exclusively to Demco, not CSLP. [Dkt. 5 at 8 (¶13), 10 (¶18)]. Similarly, the attached exhibits-supposedly showing infringing activity-exclusively contain references to Demco search results and Demco webpages. [Dkt. 5-3, 5-4]. At most, Springboards makes allegations as to Demco’s conduct, yet it tries to tack CSLP onto the litigation without any basis for doing so. The complete lack of factual allegations is inadequate. Iqbal, 556 U.S. at 678 (dismissal warranted when there is no “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). The Amended Complaint should be dismissed outright for CSLP without leave for amending or re-filing. Case 3:16-cv-02398-D Document 24 Filed 12/09/16 Page 3 of 5 PageID 188 DEFENDANT COLLABORATIVE SUMMER LIBRARY PROGRAM’S PAGE 4 OF 5 BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT IV. CONCLUSION Defendant Collaborative Summer Library Program respectfully requests that this Honorable Court GRANT its motion to dismiss Plaintiff Springboards’ Amended Complaint [Dkt. 5] pursuant to FED. R. CIV. P. 8, 9(b), and 12(b)(6). Respectfully submitted, By: /s/ R. Douglas Rees R. DOUGLAS REES Texas Bar No. 16700600 Doug.rees@cooperscully.com BENTON WILLIAMS II Texas Bar No. 24070854 Benton.williams@cooperscully.com COOPER & SCULLY, P.C. 900 Jackson Street, Suite 100 Dallas, Texas 75202 Telephone: (214) 712-9500 Facsimile: (214) 712-9540 Attorneys for Defendant Collaborative Summer Library Program Case 3:16-cv-02398-D Document 24 Filed 12/09/16 Page 4 of 5 PageID 189 DEFENDANT COLLABORATIVE SUMMER LIBRARY PROGRAM’S PAGE 5 OF 5 BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT CERTIFICATE OF SERVICE I hereby certify that on this the 9th day of December, 2016, I electronically submitted the foregoing pleading with the Clerk of Court for the U.S. District Court, Northern District of Texas, Dallas Division, using the electronic case filing system of the court. The electronic case files system sends a “Notice of Electronic Filing” to all counsel who have consented in writing to accept this Notice as service of this document by electronic means. /s/ Benton Williams II BENTON WILLIAMS II D/957482v1 Case 3:16-cv-02398-D Document 24 Filed 12/09/16 Page 5 of 5 PageID 190