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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS __________________________________________ ) DMITRIY SHIROKOV, on behalf of himself ) and all others similarly situated ) ) Plaintiff, ) v. ) Case: 1:10-cv-12043-GAO ) DUNLAP, GRUBB & WEAVER, PLLC; US ) COPYRIGHT GROUP; THOMAS DUNLAP; ) NICHOLAS KURTZ; GUARDALEY, LIMITED; ) and ACHTE/NEUNTE Boll Kino ) Beteiligungs Gmbh & Co KG, ) ) Defendants. ) __________________________________________) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS DUNLAP, GRUBB & WEAVER, PLLC’S, THOMAS DUNLAP’S, AND NICHOLAS KURTZ’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)

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TABLE OF CONTENTS I. A. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF FACTUAL ALLEGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. 2. 3. 4. Alleged Conduct of the Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Named Plaintiff, Dmitriy Shirokov . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Putative Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Claims Asserted Against Dunlap, Grubb & Weaver, PLLC, Thomas Dunlap, and Nicholas Kurtz. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. III. A.

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 THE PLAINTIFF LACKS STANDING TO SUE BECAUSE HE HAS SUFFERED NO INJURY IN FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CLAIMS WHICH ARE BASED ON CONDUCT IMMUNIZED BY THE LITIGATION PRIVILEGE (COUNTS 1, 2, 4, 5, 6, 8, 13, 16, 18, 20, AND 25) MUST BE DISMISSED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 CLAIMS FOR WHICH THERE IS NO PRIVATE RIGHT OF ACTION FAIL TO STATE A CLAIM AND MUST BE DISMISSED. . . . . . . . . . . . . . . . . . . . . . . . 12 1. There is no private right of action for alleged federal criminal violations or conspiracy to commit such violations (Counts 1, 6, 7, 8, 9, 10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 There is no private right of action for alleged state law criminal violations or conspiracy to commit such violations (Counts 2 and 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B.

C.

2.

D.

THE PLAINTIFF HAS FAILED TO STATE A CLAIM FOR RELIEF UNDER THE COMPUTER FRAUD AND ABUSE ACT (COUNT 11) . . . . . . . . . . . . . . . . . 14 CLAIMS FOR CONSPIRACY (COUNTS 3, 7, 9, 10, AND 15) OR AIDING AND ABETTING (COUNT 12) MUST BE DISMISSED WHERE THE UNDERLYING TORT CLAIM IS DISMISSED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

E.

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F.

THE PLAINTIFF HAS NO STANDING TO BRING CLAIMS PURSUANT TO RICO (COUNTS 13, 14, AND 15) BECAUSE HE HAS NOT ALLEGED AN INJURY CAUSED BY RACKETEERING ACTIVITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 PLAINTIFF’S CLAIM FOR NEGLIGENT REPRESENTATIONS AND OMISSIONS (COUNT 16) FAILS TO STATE A CLAIM BECAUSE THE DEFENDANT ATTORNEYS OWED HIM NO DUTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CLAIMS FOR WHICH THERE IS NO RECOGNIZED CAUSE OF ACTION (COUNTS 17, 19, AND 20) MUST BE DISMISSED. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1. 2. Fraud on the Court is not a Cause of Action . . . . . . . . . . . . . . . . . . . . . . 21 Neither Fraud on the Copyright Office (Count 19) nor Misuse of a Copyright (Count 19) Constitute Causes of Action . . . . . . . . . . . . . . . . 22

G.

H.

I.

THE PLAINTIFF HAS NOT PLED FACTS WHICH WOULD ESTABLISH AN ABUSE OF PROCESS CLAIM (COUNT 18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CLAIMS, AN ELEMENT OF WHICH IS THAT THE DEFENDANT OBTAIN MONEY OR PROPERTY FROM THE PLAINTIFF (COUNTS 21, 22, 23, AND 24), MUST BE DISMISSED BECAUSE THE DEFENDANT ATTORNEYS RECEIVED NO MONEY OR PROPERTY FROM THE PLAINTIFF. . . . . . . . . . . . . . . . . . . . . . . . . . 25 THE PLAINTIFF’S CONSUMER PROTECTION COUNT (COUNT 25) FAILS TO STATE A CLAIM UNDER THE LAW OF ANY JURISDICTION CITED. . . . . . 26 1. The Plaintiff has Failed to State a Claim Under Massachusetts’ Consumer Protection Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 The Plaintiff has Failed to State a Claim Under the District of Columbia’s Consumer Protection Statute. . . . . . . . . . . . . . . . . . . . . . . . 28 The Plaintiff has Failed to State a Claim Under Virginia’s Consumer Protection Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

J.

K.

2.

3.

L.

IF THE CLAIMS OF THE NAMED PLAINTIFF ARE DISMISSED, THE CLASS CLAIMS MUST BE DISMISSED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

IV.

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TABLE OF AUTHORITIES CASES Ahmed v. Rosenblatt, 118 F.3d 886 (1st Cir.1997)....................................................................... 17 Alphas Co., Inc. v. Kilduff, 72 Mass. App. Ct. 104 (2008) ........................................................... 24 Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005) ................................................ 23 Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 257 (1975) ........................... 7 Arista Records, Inc. v. Flea World, Inc., 356 F. Supp. 2d 411 (D.N.J. 2005).............................. 23 Arthur D. Little, Inc. v. East Cambridge Sav. Bank, 35 Mass. App. Ct. 734 (1994).................... 27 Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) ............................................................................... 5 Ashton-Tate Corp. v. Ross, 728 F.Supp. 597 (N.D. Cal. 1989) .................................................... 22 Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221 (1999) ...................................................... 19 Baldassari v. Public Finance Trust, 369 Mass. 33 (1975) ........................................................... 26 Barnhart v. Federated Dep't Stores, Inc., 2005 U.S. Dist. LEXIS 3631 (S.D.N.Y. Mar. 8, 2005) ................................................................................................................................................... 22 Barrett v. City of Allentown, 152 F.R.D. 50 (E.D.Pa. 1993) ........................................................ 12 Beatty v. Guggenheim Exploration Co. 225 N.Y. 380 (N.Y. App. 1919) .................................... 26 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007)............................................................... 4, 5 Bergman v. District of Columbia, 986 A.2d 1208 (D.C. 2010).................................................... 28 Blanchette v. Cataldo, 734 F.2d 869 (1st Cir. 1984) ...................................................................... 8 Blue Cross of Massachusetts, Inc. v. Traveline, 398 Mass. 582 (1986) ....................................... 25 Broomfield v. Kosow, 349 Mass. 749 (1965)................................................................................ 26 Brown v. Am. Honda (In re New Motor Vehicles Canadian Exp. Antitrust Litig.), 522 F.3d 6 (1st Cir. 2008) .................................................................................................................................. 30 Bunker Hill Distributing Inc. v. District Attorney for the Suffolk District, 376 Mass. 142 (1978) ................................................................................................................................................... 13 Cady v. Marcella, 49 Mass. App. Ct. 334 (2000)......................................................................... 27 Camelio v. Am. Fed’n, 137 F.3d 666 (1st Cir. 1998).................................................................... 18 Chartrand v. Riley, 354 Mass. 242 (1968)...................................................................................... 7 Chervin v. Travelers Ins. Co., 448 Mass. 95 (2006)..................................................................... 27 Chivalry Film Prods. v. NBC Universal, Inc., 2006 U.S. Dist. LEXIS 1177 (S.D.N.Y. Jan. 11, 2006) ......................................................................................................................................... 22 Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229 (2d Cir. 1999)......................... 17 Cooper v. GGGR Invs., LLC, 334 B.R. 179 (E.D. Va. 2005)....................................................... 30 Cordeco Dev. Corp. v. Santiago Vasquez, 539 F.2d 256 (1st Cir. 1976) ....................................... 7 Correlas v. Viveiros, 410 Mass. 314 (1991) ................................................................................... 8 DaRoza v. Arter, 416 Mass. 377 (1993) ................................................................................. 19, 20 Davidson v. Cao, 211 F.Supp.2d 264 (D.Mass. 2002) ................................................................. 21 De Vaux v. American Home Assur. Co., 387 Mass. 814 (1983)................................................... 20 Dermesropian v. Dental Experts, LLC, 718 F. Supp. 2d 143 (D. Mass. 2010) ............................ 18 DesLauries v. Shea, 300 Mass. 30 (1938) .................................................................................... 16 Dinsky v. Framingham, 386 Mass. 801 (1982)............................................................................. 19 Doe v. Nutter, McClennen & Fish, 41 Mass. App. Ct. 137 (1996) .......................................... 8, 11 Donald Frederick Evans & Assoc. v. Cont’l Homes, Inc., 785 F.2d 897 (11th Cir. 1986) .......... 22 Efron v. Embassy Suites (Puerto Rico), Inc., 223 F.3d 12 (1st Cir. 2000) ................................... 18 Entrialgo v. Twin City Dodge, 368 Mass. 812 (1975) .................................................................. 26 iv
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Fine v. Sovereign Bank, 2010 U.S. Dist. LEXIS 76449 (D.Mass. July 28, 2010) ....................... 28 First Enterprises, Ltd. v. Cooper, 425 Mass. 344 (1997) ............................................................. 27 Fisher v. Lint, 69 Mass. App. Ct. 360 (2007) ................................................................................. 8 Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967) ................................... 7 Framingham Auto Sales, Inc. v. Workers’ Credit Union, 41 Mass. App. Ct. 416 (1996)............ 27 Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992)............................................................................ 11 Gabriel v. Borowy, 324 Mass. 231 (1949).................................................................................... 24 Gibbs v. SLM Corp., 336 F. Supp. 2d 1 (D.Mass. 2004) .............................................................. 12 Golden v. Zwickler, 394 U.S. 103 (1969) ..................................................................................... 30 Harris v. Pepe, 2000 Mass. Super. LEXIS 547 (Mass. Super. Ct. Dec. 19, 2000) ...................... 13 Hazel-Atlas Glass Company v. Hartford-Empire Company, 322 U.S. 238 (1944) ...................... 21 Heinrich ex rel. Heinrich v. Sweet, 49 F. Supp. 2d 27 (D. Mass. 1999)......................................... 5 Hershenow v. Enter. Rent-A-Car Co. of Boston, 445 Mass. 790 (2006) ...................................... 28 In re Brauer, 452 Mass. 56 (2008) ............................................................................................... 25 In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 613 F. Supp. 2d 108 (D.Me. 2009) ................................................................................................................................................... 30 In re Lane, 937 F.2d 694 (1st Cir. 1991) ........................................................................................ 5 Int'l Floor Crafts, Inc. v. Adams, 477 F. Supp. 2d 336 (D.Mass. 2007)..................................... 5, 8 Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387 (1975)........................................................... 24 Keller v. O'Brien, 425 Mass. 774 (1997) ...................................................................................... 25 Leardi v. Brown, 394 Mass. 151 (1985) ....................................................................................... 28 Leventhal v. Dockser, 361 Mass. 894 (1972)................................................................................ 13 Libertad v. Welch, 53 F.3d 428 (1st Cir. 1995) ...................................................................... 18, 19 Loomis v. Tulip, Inc., 9 F.Supp. 2d 22 (D. Mass. 1998) ................................................................. 8 Lucas v. Newton-Wellesley Hospital, 2001 Mass. Super. LEXIS 329 (Mass. Super. Ct. July 20, 2001) ........................................................................................................................................... 9 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................. 6, 7 Mass. Laborers' Health & Welfare Fund, by and Through its Trustees v. Philip Morris, Inc., 62 F. Supp. 2d 236 (D.Mass. 1999) ......................................................................................... 16, 17 Massachusetts Laborers' Health & Welfare Fund, by and Through its Trustees v. Philip Morris, Inc., 62 F. Supp. 2d 236 (D. Mass. 1999) ............................................................................. 5, 28 Mathon v. Feldstein, 303 F.Supp.2d 317 (E.D.N.Y. 2004) .......................................................... 12 Memorial Drive Consultants, Inc. v. ONY, Inc., 1997 U.S. Dist. LEXIS 14413 (W.D.N.Y. Sept. 3, 1997) ..................................................................................................................................... 10 Miller v. Mooney, 431 Mass. 57 (2000).................................................................................. 20, 27 Morrison v. Toys “R” Us, Inc., 441 Mass. 451 (2004)................................................................. 27 National Eng’g Serv. v. Galello, No. CA9205303, 1995 WL 859241 (Mass. Super. Ct. May 9, 1995) ......................................................................................................................................... 21 Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D.Cal. 2004)............................ 23 O'Shea v. Littleton, 414 U.S. 488 (1974)...................................................................................... 30 Papasan v. Allain, 478 U.S. 265 (1986) ......................................................................................... 5 People to End Homelessness, Inc. v. Develco Singles Apartments Assocs., 339 F.3d 1 (1st Cir. 2003) ........................................................................................................................................... 6 Polk v. Crown Auto, Inc., 228 F.3d 541 (4th Cir. 2000)............................................................... 30 Powell v. Stevens, 69 Mass. App. Ct. 87 (Mass. App. Ct. 2007).................................................. 11 Quaranto v. Silverman, 345 Mass. 423 (1963)............................................................................. 24 v
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Randolph v. ING Life Ins. & Annuity Co., 973 A.2d 702 (D.C. 2009)......................................... 30 Ricciardi v. Serv. Credit Union, 2006 U.S. Dist. LEXIS 28468 (D.N.H. May 11, 2006)............ 12 Rivera v. Rhode Island, 402 F.3d 27 (1st Cir. 2005) ...................................................................... 4 Robert L. Sullivan, D.D.S., P.C. v. Birmingham, 11 Mass. App. Ct. 359 (1981)................. 5, 8, 10 Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515 (1989) ............................................... 19 Rodi v. Southern New Eng. Sch. of Law, 532 F.3d 11 (1st Cir. 2008).......................................... 28 Rule v. Fort Dodge Animal Health, Inc., 607 F.3d 250 (1st Cir. 2010) ....................................... 27 Ryan v. Ohio Edison Co., 611 F.2d 1170 (6th Cir. 1979)............................................................. 13 Santiago v. Sherwin Williams Co., 3 F.3d 546 (1st Cir. 1993)..................................................... 16 Schwartz v. Adler, 1985 WL 2188 (S.D.N.Y. July 29, 1985)....................................................... 12 Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985) ............................................................ 17 Seelig v. Harvard Coop. Soc., 355 Mass. 532 (1969)..................................................................... 8 Shaw v. Digital Equip. Corp., 82 F.3d 1194 (1st Cir. 1996) .......................................................... 5 Sierra-Pascual v. Pina Records, Inc., 660 F. Supp. 2d 196 (D.P.R. 2009).................................. 22 Spilios v. Cohen, 38 Mass. App. Ct. 338 (1995)........................................................................... 26 Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274 (1985) ....................................................... 26 Sriberg v. Raymond, 370 Mass. 105 (1976).......................................................................... 8, 9, 10 Swartz v. Schering-Plough Corp., 53 F.Supp. 2d 95 (D.Mass. 1999) .......................................... 13 Theran v. Rokoff, 370 Mass. 590 (1992)......................................................................................... 8 Thompson v. Thompson, 484 U.S. 174 (1988).............................................................................. 12 Ticketmaster, L.L.C. v. RMG Technologies, 536 F. Supp. 2d 1191 (C.D. Cal. 2008).................. 23 Trifiro v. New York Life Ins. Co., 845 F.2d 30 (1st Cir. 1988) ..................................................... 28 United States v. AVX Corp., 962 F.2d 108 (1st Cir. 1992) ......................................................... 6, 7 United States v. Rockland Trust, 860 F.Supp. 895 (D.Mass. 1994) ............................................... 9 Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464 (1982)................................................................................................................................... 6 Warth v. Seldin, 422 U.S. 490, 500 (1975) ..................................................................................... 6 Wisdom v. First Midwest Bank, 167 F.3d 402 (8th Cir. 1999) ..................................................... 12 Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624 (1989) ............................................... 19 York v. Sullivan, 369 Mass. 157 (1975) ........................................................................................ 26 STATUTES 17 U.S.C. § 506............................................................................................................................. 22 18 U.S.C. § 1030..................................................................................................................... 14, 15 18 U.S.C. § 1341........................................................................................................................... 13 18 U.S.C. § 1343........................................................................................................................... 13 18 U.S.C. § 1951........................................................................................................................... 13 18 U.S.C. § 1961........................................................................................................................... 17 18 U.S.C. § 1962..................................................................................................................... 17, 18 18 U.S.C. § 1964..................................................................................................................... 17, 18 D.C. Code § 28-3901 .................................................................................................................... 28 D.C. Code § 28-3903 .................................................................................................................... 28 M.G.L. c. 265, § 25....................................................................................................................... 13 M.G.L. c. 93A, § 9 ........................................................................................................................ 26 Va. Code § 59.1-200 ..................................................................................................................... 29

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OTHER AUTHORITIES 1 G. Palmer, RESTITUTION § 1.7 (1978) ....................................................................................... 25 RULES Fed. R.Civ. P. 12(b)(6)............................................................................................................ 1, 4, 8 Fed. R.Civ. P. 60........................................................................................................................... 21

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Defendants Dunlap, Grubb & Weaver, PLLC, Thomas Dunlap, and Nicholas Kurtz (collectively, “the defendant attorneys”) respectfully submit this memorandum of law in support of their motion to dismiss pursuant to Fed. R.Civ. P. 12(b)(6). The plaintiff, Dmitriy Shirokov (“the plaintiff”) asserts that the defendant attorneys “have sought to coerce settlements from the proposed Class members through Letters and other communications on the basis of [claims that are] expressly barred.” See Class Action Complaint and Jury Demand (“Complaint”) at ¶ 17. However, the plaintiff concedes that he has not paid any funds to the defendant attorneys, or for that matter, the defendant attorneys’ client, which is named as a co-defendant in this lawsuit. Id. at ¶ 225. Each of the twenty five counts of the Complaint fails to state a claim upon which relief can be granted and must be dismissed against the defendant attorneys. As the plaintiff has not stated a claim on which he can seek relief, the putative class claims must be dismissed as well. I. A. INTRODUCTION

SUMMARY OF FACTUAL ALLEGATIONS 1. Alleged Conduct of the Defendants

Defendant Dunlap Grubb & Weaver, PLLC (“DGW”) is a law firm. See Class Action Complaint and Jury Demand (“Complaint”) at ¶ 2. Defendants Thomas Dunlap (“Dunlap”) and Nicholas Kurtz (“Kurtz”) are attorneys employed by DGW. Id. DGW and its attorneys represent Defendant Achte/Neunte Boll Kino Beteiligungs Gmbh & Co KG (“Achte”). Achte retained DGW to represent it in filing a copyright infringement action against numerous individuals who had illegally downloaded and/or shared a copyrighted film called “Far Cry.” Id. Defendant Gauardaley, Limited (“Guardaley), using a proprietary software, observed the allegedly infringing activity and provided DGW with data relating to the internet protocol (“IP”) addresses assigned to individuals engaging in apparent infringing activity. Id. ¶ 84-85. DGW

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then filed a lawsuit on behalf of Achte against 4,577 “Doe” defendants in the United States District Court for the District of Columbia (the “Achte lawsuit”). Id.¶¶ 88, 150. With leave of court and on behalf of Achte, the defendant attorneys then served subpoenas on internet service providers (“ISPs”) that provided the IP addresses identified by Guardaley in order to identify the names and addresses of the individuals associated with the IP addresses of the alleged infringers. Id. ¶¶ 141-142. The defendants then served settlement demand letters on the individuals identified as having allegedly infringed Achte’s copyrighted work, offering to release Achte’s claims in exchange for a monetary settlement. Id. at ¶¶ 143, 167-168; Exhibit N (Docket Entry # 1-15). The plaintiffs allege that the defendant attorneys, acting as attorneys for Achte, prepared and filed a false copyright registration application that misrepresented or omitted the relevant dates of publication of Far Cry. Id. ¶ 13. As a result, the plaintiffs allege, the copyright registration is invalid. Id. ¶ 16. Furthermore, the plaintiffs claim that the date of publication set forth on the copyright registration application was chosen in order to maximize the damage awards that Achte could pursue. Id. at ¶ 14. The plaintiffs claim that the settlement demands sent by the defendant attorneys on behalf Achte, which describe some of the statutory protections and remedies available to copyright holders under federal law and indicate that if the alleged infringers do not settle the claims against them, they could be named as defendants in the Achte lawsuit, were fraudulent. Id. at ¶ 16-17. The plaintiff does not claim that he paid any money to any defendant to settle the claims asserted against him in the Achte lawsuit. Id. at 225. 2. The Named Plaintiff, Dmitriy Shirokov

The named plaintiff, Dmitry Shirokov, alleges that the defendant attorneys sent him a settlement demand letter on or about May 19, 2010, claiming that he had infringed the copyright

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of Far Cry. Complaint ¶ 167. He has not denied engaging in infringing activities. Nor has the plaintiff alleged that he suffered any actual injury as a result of the defendants’ alleged conduct aside from hiring counsel to defend the claim. See Id. ¶ 225. 3. The Putative Class

The Complaint identifies two subclasses of plaintiffs, first, individuals that allegedly infringed Achte’s copyright prior to November 24, 2009, the date listed in Achte’s copyright registration application as the first date of publication of Far Cry. Id. at ¶ 10. The second putative subclass is made up of individuals who allegedly infringed Achte’s copyright before January 19, 2010, the effective date of the registration of the copyright of Far Cry. Id. at ¶ 11. 4. Claims Asserted Against Dunlap, Grubb & Weaver, PLLC, Thomas Dunlap, and Nicholas Kurtz

Rather than defending the Achte lawsuit on its merits through counterclaims and the assertion of affirmative defenses, the plaintiff and his legal counsel opted to file the twenty-five count Complaint with this Honorable Court. The Complaint names Achte, Guardaley, and the defendant attorneys. as defendants, and asserts that that the defendant attorneys engaged in misconduct in the institution and prosecution of the Achte lawsuit. In so doing, the plaintiff is also seeking to have a putative class action certified, comprised largely of his fellow copyright infringers. Summarized briefly, the plaintiff claims that the defendant attorneys submitted a false copyright application to the United States Copyright Office, resulting in an invalid copyright registration for the film Far Cry, which the defendant attorneys then used to establish Achte’s right to seek actual and statutory damages, as well as attorneys’ fees, in connection with the plaintiff’s alleged infringement. The plaintiff, who is not and has never been, the defendant attorneys’ client, and in fact is in an adversarial posture to the defendant attorneys’ client, claims to have relied on and been 3
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misled by false representations as to the merits of Achte’s claims, and the potential liability he faced for infringing the copyright of Far Cry. The plaintiff, who claims no actual damages, seeks to hold the defendant attorneys liable for actions that they took, and statements and settlement negotiations that they made, in their capacity as attorneys for Achte in the Achte lawsuit. The plaintiff takes issue with what he characterizes as the defendant attorneys’ “cookie-cutter litigation tactics,” that “encourage[e] settlement and discourag[e] litigation.” Complaint ¶¶ 91, 95. The plaintiff complains that the claims brought by the defendants in the Achte lawsuit are not good faith attempts to enforce their client’s federal copyrights, but constitute “settlement fraud,” as demonstrated by the fact that DGW, a thirteen attorney firm “is not built to handle, as individual claims, anywhere near the volume of copyright litigation it has threatened this year”, and instead seeks to “achieve economies of scale through a cookie-cutter litigation model,” using “form texts for complaints, motion papers, third-party subpoenas, and threatening letters.” Id. ¶¶ 93-94. The plaintiff, however, has identified no legally cognizable theory of liability against the defendant attorneys. II. STANDARD OF REVIEW

The standard of review of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R.Civ. P. 12(b)(6), requires that the Court take the plaintiffs’ allegations as true and make all reasonable inferences in favor of the plaintiffs. Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir. 2005). However, the Court must grant a motion to dismiss for failure to state a claim on which relief can be granted where the factual allegations are insufficient to “raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (U.S. 2007).

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A plaintiff must set forth the grounds for his entitlement to relief with “more than labels and conclusions, and a formulaic recitation of the elements.” Id. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In reviewing the sufficiency of a complaint, courts should not accept legal conclusions couched as factual allegations as true. Bell Atl. Corp., 550 U.S. at 555; see also Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1216 (1st Cir. 1996) (“a court must take all well-pleaded facts as true, but it need not credit a complaint's 'bald assertions' or legal conclusions”). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (U.S. 2009). Likewise, “[c]onclusions that are not supported by the facts that are alleged in the complaint ‘deserve no deference.’” Massachusetts Laborers' Health & Welfare Fund, by and Through its Trustees v. Philip Morris, Inc., 62 F. Supp. 2d 236, 240-241 (D. Mass. 1999) (citations omitted). “[S]ummary legal conclusions that are contradicted or ‘belied by the facts alleged’ may be disregarded.” Id. (quoting In re Lane, 937 F.2d 694, 698 n.7 (1st Cir. 1991)). Where a complaint pleads a count that is not a recognized cause of action, the count fails to state a claim and must be dismissed. See, e.g., Heinrich ex rel. Heinrich v. Sweet, 49 F. Supp. 2d 27, 43 (D. Mass. 1999) (dismissing claim for civil liability for crimes against humanity). Likewise, if a count is based on allegations of conduct that is immunized from civil liability, it fails to state a claim on which relief can be granted and must be dismissed. See, e.g., Int'l Floor Crafts, Inc. v. Adams, 477 F. Supp. 2d 336 (D.Mass. 2007) (dismissing count of tortious interference dismissed on basis of litigation privilege for failure to state a claim).

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III. A.

ARGUMENT

THE PLAINTIFF LACKS STANDING TO SUE BECAUSE HE HAS SUFFERED NO INJURY IN FACT. A plaintiff’s lack of standing deprives an Article III court of its jurisdiction to decide the

merits of the underlying case. United States v. AVX Corp., 962 F.2d 108, 113 (1st Cir. 1992). Thus, standing is a threshold issue, determinative of whether the court has the power to hear the case. Id. The inquiry into a plaintiff’s standing “involves a blend of constitutional requirements and prudential considerations.” Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464, 471 (1982). There are elements of constitutional standing: the plaintiff must have suffered an injury in fact; that is “fairly traceable” to the defendant’s conduct; and which is redressable by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); People to End Homelessness, Inc. v. Develco Singles Apartments Assocs., 339 F.3d 1, 8 (1st Cir. 2003). The party invoking federal jurisdiction bears the burden of showing that the elements of Article III standing are present. Lujan, 504 U.S. at 561. Here, the plaintiff has not alleged that he has suffered any compensable damages. The plaintiff could not have been defrauded or extorted by any of the defendants because he did not pay the defendant attorneys—or for that matter, the client on whose behalf they initiated settlement negotiations—anything.1 See Complaint ¶ 225 (“the plaintiff has not acceded to Defendants’ demands and has not paid to settle the claims.”). For the same reason, the plaintiff has no grounds to seek restitution or replevin under the equitable theories he advances. Furthermore, to the extent that the plaintiff claims that the defendant attorneys, acting as Achte’s legal counsel, committed a fraud on the Copyright Office, or the court, or otherwise acted

1

While the defendant attorneys dispute many of the allegations in the Complaint and deny that their conduct was improper or illegal, it bears noting that “standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500 (1975).

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improperly with regard to the registration of the Far Cry copyright, the plaintiff has not alleged any facts that demonstrate that he has suffered an injury in fact as a result. See Lujan, 504 U.S. at 561. Although the plaintiff claims to have incurred the cost of retaining counsel, attorneys’ fees incurred in defending a claim are not recoverable as an element of damages under the American Rule.2 See Chartrand v. Riley, 354 Mass. 242, 243-44 (1968); Bukuras v. Mueller Group, LLC, 592 F.3d 255, 266 (1st Cir. 2010) (“under the American Rule, which is followed in Massachusetts, attorneys fees and costs are generally not recoverable by a prevailing litigant in the absence of an explicit contractual provision or other applicable rule or statute”); Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210, 212 (1st Cir. 2006) (“each party bears its own attorney's fees in litigation, win or lose,” citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 257 (1975); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967)). See also Cordeco Dev. Corp. v. Santiago Vasquez, 539 F.2d 256, 262 (1st Cir. 1976) ([A]ttorney’s fees are not compensable damages.”). The plaintiff has not pled facts that demonstrate that he has standing to sue. His claims must therefore be dismissed for failure to state a claims upon which relief can be granted.3 B. CLAIMS WHICH ARE BASED ON CONDUCT IMMUNIZED BY THE LITIGATION PRIVILEGE (COUNTS 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 16, 18, 20, AND 25) MUST BE DISMISSED. The absolute litigation privilege bars claims against attorneys and their clients that are predicated upon statements made in connection with the initiation and prosecution of a lawsuit.
2

The one count for which attorneys’ fees might arguably constitute “actual damages” is Count 18 for abuse of process. However, as the plaintiff’s claim for abuse of process must fail because it is based upon the issuance of a subpoena, which, as discussed below, does not constitute “process” for the purpose of this tort, this claim fails as a matter of law as well. 3 The plaintiff’s failure to allege an injury in fact, and thus to demonstrate standing, not only provides grounds for the defendant attorneys’ present motion, but also provides grounds for dismissing the entire action for lack of subject matter jurisdiction. Standing is a constitutional precondition to the jurisdiction of a federal court See AVX Corp., 962 F.2d at 113 (dismissing appeal due to appellants’ lack of standing, which deprived the court of jurisdiction).

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See Blanchette v. Cataldo, 734 F.2d 869 (1st Cir. 1984). The absolute privilege protects the maker from any civil liability based thereon. Id. at 877. A defense of absolute privilege is properly raised by a motion to dismiss under Fed. R.Civ. P. 12(b)(6). See, e.g., Int'l Floor Crafts, Inc., 477 F. Supp. 2d at 339; Loomis v. Tulip, Inc., 9 F.Supp. 2d 22, 26 (D. Mass. 1998) (same); Robert L. Sullivan, D.D.S., P.C. v. Birmingham, 11 Mass. App. Ct. 359, n. 4 (1981). “Under Massachusetts law, an attorney’s communications are absolutely privileged ‘where such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in conferences and other communications preliminary to litigation.’” Loomis, 9 F.Supp. 2d at 24 (quoting Sriberg v. Raymond, 370 Mass. 105 (1976)). The litigation privilege is absolute. Theran v. Rokoff, 370 Mass. 590, 591-92 (1992). “An absolute privilege provides a complete defense even if the offensive statements are uttered maliciously or in bad faith.” Doe v. Nutter, McClennen & Fish, 41 Mass. App. Ct. 137, 141 (1996); see also Fisher v. Lint, 69 Mass. App. Ct. 360, 366 (2007) (citing Seelig v. Harvard Coop. Soc., 355 Mass. 532, 538 (1969)). The litigation privilege is a complete defense not only to claims of defamation, but to “any civil liability,” because “to rule otherwise would make the privilege valueless if an individual would then be subject to liability under a different theory.” Doe, 41 Mass. App. Ct. at 141 (citing Correlas v. Viveiros, 410 Mass. 314, 324 (1991)). As the Massachusetts Court of Appeals has held, the litigation privilege exists, not because the malicious conduct of such persons ought not be actionable, but because if their conduct were actionable, actions would be brought against them in cases in which they had not spoken falsely and maliciously. . . . This policy would be severely undercut if the absolute privilege were to be regarded as less than a bar to all actions arising out of the ‘conduct of the parties and/or witnesses in connection with a judicial proceeding.’ Robert L. Sullivan, D.D.S., P.C., 11 Mass. App. Ct. at 367-68. ( 8
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Thus, although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable. For example, defamatory statements in a letter threatening a lawsuit are privileged, Sriberg, 370 Mass. at 105, as is a “blatant and direct falsehood,” forming the basis of a motion for summary judgment granted by the court, United States v. Rockland Trust, 860 F.Supp. 895, 902 (D.Mass. 1994) (applying Massachusetts law), as well as a fraudulent failure to disclose the existence of an excess insurance policy and a knowing failure to amend a false interrogatory answer, Lucas v. Newton-Wellesley Hospital, 2001 Mass. Super. LEXIS 329 (Mass. Super. Ct. July 20, 2001). Counts 1 (extortion under the Hobbs Act), 2 (extortion), 4 (fraudulent

omissions/nondisclosure), 5 (fraudulent misrepresentation), 6 (mail fraud), 8 (wire fraud), 13 (RICO violations), 16 (negligent misrepresentations and omissions), 18 (abuse of process), 20, and 25 (consumer protection violations) and the related conspiracy counts (Counts 3, 7, 9, 10, and 12) of the Complaint arise out of the defendant attorneys’ conduct in the course of litigation, statements made in a settlement demand letters “threatening to bring suit,” or in discovery served and motions and pleadings filed in the Achte lawsuit. As such, those counts are appropriately dismissed because the statement and actions upon which they are predicated are absolutely privileged. See Rockland Trust Co., 860 F. Supp. at 902 (citing Sriberg, 370 Mass. at 108). The Massachusetts Supreme Judicial Court applies this bright line rule as a matter of policy because “[i]t is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech, in conducting the causes, and advocating and sustaining the rights, of their constituents; and this freedom of discussion ought not to be

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impaired by numerous and refined distinctions.” Rockland Trust Co., 860 F.Supp. at 902 (quoting Sriberg, 370 Mass. at 108-109). In the Rockland Trust case, for example, the United States had brought a claim against the Rockland Trust to recover funds that Rockland had held on behalf of an individual who had outstanding tax liabilities. Rockland had foreclosed on the debtor’s property and realized a surplus, which it made the subject of an interpleader. In the interpleader action, the debtor, through its attorney, falsely represented to the court in a summary judgment motion that all of the other creditors who had been named as defendants in the interpleader had been satisfied in full, and falsely represented that the unopposed motion had been properly served on all parties. The motion was allowed and the funds were released to the debtor. When Rockland did not satisfy the United States’ levy, the government filed suit against Rockland, which, in turn, sued the debtor and his attorney for fraud and negligence. Even though the district court acknowledged that the attorney had “knowingly misrepresented the status of the lienholders so as to mislead the court into disbursing the funds to [his client],” it was constrained to dismiss the negligence and fraud claims because the statements, though false, were absolutely privileged. Rockland Trust Co., 860 F. Supp. at 899; see also Memorial Drive Consultants, Inc. v. ONY, Inc., 1997 U.S. Dist. LEXIS 14413 (W.D.N.Y. Sept. 3, 1997) (applying Massachusetts law and dismissing claims based on false statements made in a letter that was pertinent to litigation on privilege grounds). Regardless of what label the plaintiff assigns to his cause of action, to the extent that any cause of action alleged in the Complaint is based upon conduct or statements made in the Achte lawsuit, then that cause of action is barred by the litigation privilege.. See, e.g., Robert L. Sullivan, D.D.S., P.C., 11 Mass. App. Ct. at 368-69 (holding that claims for abuse of process,

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libel, violations of chapter 93A, breaches of the Canons of Ethics and Disciplinary Rules, and intentional infliction of emotional distress could not go forward where they were based on conduct that took place during the course of litigation); Frazier v. Bailey, 957 F.2d 920, 932 (1st Cir. 1992) (holding that claims for negligence, defamation, intentional infliction of emotional distress, and violation of Massachusetts Civil Rights Act based on communications preliminary to litigation and during pendency of litigation were entitled to absolute immunity from civil liability under Massachusetts law). As long as the statements and conduct were pertinent to the Achte lawsuit—which they undoubtedly were—even though characterized as false, fraudulent, or extortionate, they are absolutely privileged. Likewise, the serving of a subpoena, a legal document, to a non-party witnesses in order to conduct authorized discovery, is the type of conduct that is protected under the litigation privilege. See, e.g., Powell v. Stevens, 69 Mass. App. Ct. 87, 90 (Mass. App. Ct. 2007) (affirming summary judgment on basis of absolute privilege, noting that lis pendens memorandum “is a functional equivalent of and analogous to traditional litigation instruments, such as injunctions and attachments”), further app. rev. denied, 449 Mass. 1109. While the defendants dispute many of the allegations contained in the plaintiff’s complaint, even if, taken as true, the allegations made by the plaintiff “are not grounds for civil liability to a non-client third party because of the absolute litigation privilege.” Lucas 2001 Mass. Super. LEXIS 329 at * 13 (citing Sullivan, 11 Mass. App. Ct. at 368-69; Doe, 41 Mass. App. Ct. at 141). Indeed, dismissal is appropriate as a matter of sound public policy because to allow the plaintiff’s claims to proceed would effectively expose all attorneys to potentially limitless civil liability to third parties and/or non-clients for simply doing their job.

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C.

CLAIMS FOR WHICH THERE IS NO PRIVATE RIGHT OF ACTION FAIL TO STATE A CLAIM AND MUST BE DISMISSED. 1. There is no private right of action for alleged federal criminal violations or conspiracy to commit such violations (Counts 1, 6, 7, 8, 9, 10).

“A criminal statute may provide an implied private right of action if Congress so intended in enacting the criminal statute.” Wisdom v. First Midwest Bank, 167 F.3d 402, 407 (8th Cir. 1999) (citing Thompson v. Thompson, 484 U.S. 174, 179 (1988) (holding that a private remedy will not be implied unless legislative intent can be inferred from statutory language or elsewhere)). The majority of circuit courts of appeals have held that Congress did not intend to create a private right of action based on the federal mail fraud, wire fraud, or extortion statutes. See Wisdom, 167 F.3d at 407, cited with approval in Ricciardi v. Serv. Credit Union, 2006 U.S. Dist. LEXIS 28468 (D.N.H. May 11, 2006) (holding that there is no private right of action for violation of federal mail fraud statute); Gibbs v. SLM Corp., 336 F. Supp. 2d 1, 17 (D.Mass. 2004) (“there is no private cause of action under the mail fraud statute”); No implied private cause of action exists under 18 USCS § 1951. Creech v. Federal Land Bank, 647 F.Supp. 1097 (D.Colo. 1986) (holding that there is no private right of action for violation of Hobbs Act); Barrett v. City of Allentown, 152 F.R.D. 50, 55-56 (E.D.Pa. 1993) (holding that there is no private right of action for recovery of civil damages under 18 USCS §§ 1341, 1951, 1952, 1956, 1957 and 15 USCS § 77q); see also Mathon v. Feldstein, 303 F.Supp.2d 317, 325 (E.D.N.Y. 2004) (citing Schwartz v. Adler, 1985 WL 2188 (S.D.N.Y. July 29, 1985)) (“there is no federal statute creating a private civil cause of action for extortion”); “It is well established that there is no private cause of action under the mail fraud statute which is ‘a bare criminal statute with no indication of any intent to create a private cause of action, in either the section in question or any other section.’” Gibbs v. SLM Corp., 336 F. Supp. 2d 1, 17 (D.Mass. 2004) (quoting Ryan v.

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Ohio Edison Co., 611 F.2d 1170, 1178-79 (6th Cir. 1979)); see also Swartz v. Schering-Plough Corp., 53 F.Supp. 2d 95, 105 (D.Mass. 1999) (holding that there is private right of action for mail fraud). To the extent the plaintiff seeks to impose liability against the defendant attorneys under the Hobbs Act, 18 U.S.C. § 1951, the mail fraud statute, 18 U.S.C. § 1341, or the wire fraud statute, 18 U.S.C. § 1343, or for conspiracy to violate those statutes, he wholly fails to state a cause of action upon which relief can be granted. 2. There is no private right of action for alleged state law criminal violations or conspiracy to commit such violations (Counts 2 and 3).

The plaintiff’s claims for extortion (Count 2) and conspiracy to commit extortion (Count 3) do not state a cause of action under state law. While extortion is codified as a crime at M.G.L. c. 265, § 25, there is no authority to support the proposition that the conduct prohibited by this statute is actionable via a civil cause of action in Massachusetts. It is well settled under

Massachusetts law that a private individual lacks standing to enforce a criminal complaint against another individual. Bunker Hill Distributing Inc. v. District Attorney for the Suffolk District, 376 Mass. 142, 147 (1978) (“the application of criminal statutes in the first instance generally lies with the public prosecutor"”). Accordingly, as Counts 2 and 3 fail to state claims and must be dismissed. See, e.g. Harris v. Pepe, 2000 Mass. Super. LEXIS 547 (Mass. Super. Ct. Dec. 19, 2000) (allowing defendants’ motion to dismiss because the plaintiff “couched his civil complaint in criminal terms,” and therefore “could not prevail on any set of facts pleaded”). See also Leventhal v. Dockser, 361 Mass. 894, 894 (1972) (“The counts described as being for ‘extortion’ and for ‘coercion and duress’ do not state facts supporting any recognized civil cause of action in this Commonwealth.”)

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D.

THE PLAINTIFF HAS FAILED TO STATE FRAUD AND ABUSE ACT (COUNT 11).

A

CLAIM FOR RELIEF UNDER

THE

COMPUTER

In his eleventh count, the plaintiff alleges that the defendant attorneys violated the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”). Reciting the statutory language of the cited sections, the plaintiff alleges that: the defendants accessed the putative class members’ computers without or in excess of authority, thereby obtaining information, in violation of 18 U.S.C. § 1030(a)(2)(C); the defendants, with intent to defraud, accessed the putative class members’ computers and obtained information with a value exceeding $5,000 in violation of 18 U.S.C. § 1030(a)(4); the defendants intentionally caused damage and loss to the putative class members’ computers in violation of 18 U.S.C. § 1030(a)(5)(A)-(C). The allegations stated in support of Count 11 are nothing more than “labels and conclusions, and a formulaic recitation of the elements.” See Bell Atl. Corp, 550 U.S. at 556. They merely describe acts which are prohibited by the statute, without providing any factual allegations against the defendant attorneys that raise the allegations above a speculative level. The only particular factual allegations in the Complaint that could be read to support the plaintiff’s CFAA claim are set forth at paragraphs 79-84 and 138, in which the plaintiff alleges that defendant Achte hired defendant Guardaley to monitor file sharing of its copyright protected work, logging the IP addresses of alleged infringers, as well as the ISP of each, and the date, time and content of the illegal file sharing. Complaint ¶¶ 79-84, 138. These allegations relate to conduct by defendant Guardaley only—not the defendant attorneys. There is no allegation that defendant attorneys actually participated in accessing, monitoring, obtaining information from, or in any way damaging, the plaintiff. Furthermore, civil liability under the CFAA is limited to very particular situations, none of which apply to the facts of the present case. Pursuant to 18 U.S.C. § 1030(g), a person “who 14
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suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief” but “only if the conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i), namely: (I) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $ 5,000 in value; (II) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals; (III) physical injury to any person; (IV) a threat to public health or safety; (V) damage affecting a computer used by or for an entity of the United States Government in furtherance of the administration of justice, national defense, or national security; See 18 U.S.C. § 1030(c)(4)(A)(i). The plaintiff has alleged none of these harms. Although he claims to have suffered some unspecified damages relating to responding to the settlement demand letters (presumably in the form of attorneys’ fees), such damages are not causally related to Guardaley’s monitoring of his alleged illegal file sharing.4 Furthermore, under the CFAA, “damage” is defined as “impairment to the integrity or availability of data, a program, a system, or information,” and “loss” is defined as “reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or the information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.” See 18 U.S.C. §§ 1030(e)(8) and 1030(e)(11). The plaintiff has alleged no damage to his computer or

4

Even if they were causally related, such expenses are not compensable damages under the act. Wilson v. Moreau, 440 F. Supp. 2d 81, 109-110 (D.R.I. 2006) (rejecting plaintiffs’ argument that their loss met the $ 5,000 statutory threshold for economic damages, where the loss they claimed consisted of “[d]amages to Plaintiffs are in the form of costs and expenses of litigation and loss of income intertwined with damages sustained from other acts of Defendants” because “[p]laintiffs' litigation expenses are not directly attributable to Defendants' computer browsing, and are not economic damages in excess of $ 5,000 as required by the statute”)

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information or programs contained thereon, no loss of use of his computer, or other impairment, cost, or lost revenue that fits within these statutory definitions of damage and loss. Therefore, count 11 fails to state a claim upon which relief can be granted. E. CLAIMS FOR CONSPIRACY (COUNTS 3, 7, 9, 10, AND 15) OR AIDING AND ABETTING (COUNT 12) MUST BE DISMISSED WHERE THE UNDERLYING TORT CLAIM IS DISMISSED. In Massachusetts, two theories of civil conspiracy are recognized. The first is a “true conspiracy” theory, which requires proof that defendants “by mere force of numbers acting in unison” had a “peculiar power of coercion that allowed them to achieve different results than any one of them could have, acting alone.” Mass. Laborers' Health & Welfare Fund, by and Through its Trustees v. Philip Morris, Inc., 62 F. Supp. 2d 236, 244 (D.Mass. 1999) (citations omitted). The second theory is one of joint liability for tortious conduct, requiring proof that the defendants assisted or encouraged others to commit torts. Under this theory, there can be no liability for conspiracy to commit a tort unless liability for the underlying tort is established. Id. (citing Santiago v. Sherwin Williams Co., 3 F.3d 546, 552 (1st Cir. 1993)). “While the term ‘civil conspiracy’ apparently has been used loosely to apply to both versions, only the ‘true conspiracy’ version defines an independent cause of action; the ‘concerted action’ version simply defines who may be liable for other torts. See DesLauries v. Shea, 300 Mass. 30 (1938). Each of the plaintiff’s counts for conspiracy (Counts 3, 7, 9, 10, and 15) alleges that the defendants agreed to participate in a scheme involving alleged tortious conduct towards the plaintiff; the plaintiff’s count for aiding and abetting fraud (Count 12) is substantially similar, in that it alleges that each defendant participated in a scheme to defraud the plaintiff by providing assistance and encouragement. These claims do not describe a cause of action for “true conspiracy” because the plaintiff does not claim that simply by the force of numbers the

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defendants had some “peculiar power of coercion.” Cf. Mass. Laborers’ Health & Welfare Fund, 62 F. Supp. 2d at 244. Instead, the plaintiff’s claim for civil conspiracy asserts a theory of joint liability for tortious conduct in which the defendants allegedly participated in concert. Such a theory of liability requires that the plaintiff establish liability for the predicate tort before liability can be apportioned out to multiple defendants. Id. Because the plaintiff’s counts for the underlying torts fail to state a claim for which relief can be granted, the plaintiff’s claims for conspiracy with regard to that same alleged conduct must also be dismissed. Id. at 245 (holding that where and amended complaint failed to state a claim under any of the asserted tort theories, “the ‘concerted action’ theory of conspiracy necessarily fails as well”). F. THE PLAINTIFF HAS NO STANDING TO BRING CLAIMS PURSUANT TO RICO (COUNTS 13, 14, AND 15) BECAUSE HE HAS NOT ALLEGED AN INJURY CAUSED BY RACKETEERING ACTIVITY. Under the civil Racketeer Influenced and Corrupt Organizations Act (“RICO”) statute, 18 U.S.C. §§ 1961-1968, it is unlawful to participate in the conduct of an enterprise’s affairs through a pattern of racketeering or to conspire to violate any of the substantive provisions of Section 1962. See 18 U.S.C. § 1962(c) & (d). 18 U.S.C. § 1964 creates a private right of action for individuals to enforce the RICO statute. Under this section, a plaintiff must prove an injury resulting from “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 491 (1985); see also Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 242 (2d Cir. 1999). Predicate acts in support of a civil RICO claim must be plead with particularity. Ahmed v. Rosenblatt, 118 F.3d 886, 889 (1st Cir.1997). Here, the plaintiff has not alleged that he suffered any injury—he concedes that he did not pay any money to any of the defendants. Complaint at ¶ 225.

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As a fundamental matter, a plaintiff must demonstrate that he has standing to bring his RICO-based causes of action. See Sedima, 473 U.S. at 496. To have standing to bring a civil RICO claim, a plaintiff must plead, and ultimately prove, that he/she suffered an injury to business or property as a result of the defendants’ alleged racketeering activities. See 18 U.S.C. § 1962(c); Sedima, 473 U.S. at 495-97; Camelio, 137 F.3d at 669-70; Libertad v. Welch, 53 F.3d 428, 436 (1st Cir. 1995); see also 18 U.S.C. § 1964(c) (stating that a plaintiff must allege that he has been “injured in his business or property by reason of” the claimed RICO violation). “[I]f the pleadings do not state a substantive RICO claim upon which relief may be granted, then the conspiracy claim also fails.” Efron v. Embassy Suites (Puerto Rico), Inc., 223 F.3d 12, 21 (1st Cir. 2000). Here, the plaintiff has not claimed that he suffered any injury whatsoever. In order to prove the elements of a civil RICO claim, the plaintiff must not only show that the racketeering activity occurred, but the plaintiff must also show that he/she “suffered a direct injury as a result of [it].” George Lussier Enters., 393 F.3d at 51 (finding that the plaintiffs, in order to succeed on their RICO claim based on the alleged Hobbs Act violations, had to have actually suffered direct injury). Applying that principle here, it is clear that the plaintiff’s civil RICO claims, based on alleged extortionate conduct—that he admits did not harm him—must be dismissed. See Camelio v. Am. Fed’n, 137 F.3d 666, 670-71 (1st Cir. 1998) (discussing the statutory definition of “extortion” and concluding that, because the defendants’ alleged attempted extortion was not successful and thus did not cause the plaintiff’s injuries, his RICO claim must be dismissed). At most, the plaintiff might have alleged “attempted extortion”; however, attempted extortion is not a basis for a civil RICO claim. See Dermesropian v. Dental Experts, LLC, 718 F. Supp. 2d 143, 154 (D. Mass. 2010) (holding that plaintiff had no standing under to bring claim

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under RICO for attempted extortion); see also Libertad, 53 F.3d at 437 (“Although we acknowledge that both women reasonably felt intimidated and harassed, neither woman suffered any injury to business or property, as is required for standing to sue under RICO.”) G. PLAINTIFF’S CLAIM FOR NEGLIGENT REPRESENTATIONS AND OMISSIONS (COUNT 16) FAILS TO STATE A CLAIM BECAUSE THE DEFENDANT ATTORNEYS OWED HIM NO DUTY. In order for the plaintiff to state a cause of action against the defendant attorneys for negligence, he must allege facts that support (1) the existence of an attorney-client relationship between the plaintiffs and the defendant attorneys; (2) that the attorneys breached a duty to exercise reasonable care and skill; (3) that the plaintiffs suffered actual loss5; and (4) that the attorneys’ negligence proximately caused such loss. See Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 226 (1999). In the present case, the plaintiff’s negligence claim against the defendant attorneys is fundamentally flawed because the defendant attorneys did not owe the plaintiff a legal duty.. See DaRoza v. Arter, 416 Mass. 377, 381 (1993) (“In order to succeed on his claim of legal malpractice, the plaintiff must show that the defendant attorneys owed him a duty of care. . . . Whether such a duty exists is a question of law”) (citing Dinsky v. Framingham, 386 Mass. 801, 804-805 (1982); Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989)). In that regard, a court will not impose on an attorney a duty of care to a non-client under circumstances where such a duty “‘would potentially conflict with the duty an attorney owes to his or her client.’” See Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 524 (1989). Indeed, the Massachusetts Supreme Judicial Court has reasoned that “if a duty was owed to the adversary of

5

As discussed above, the plaintiff’s claim must fail because he has alleged no actual loss.

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an attorney’s client, an unacceptable conflict of interest would be created.” Lamare, 418 Mass at 276. In the present case, it is undisputed that the defendant attorneys are Achte’s legal counsel in the Achte lawsuit. It is further undisputed that the plaintiff is a named defendant in the Achte lawsuit, and thus is Achte’s adversary. Under these circumstances, a legal duty of care did not and does not flow from the defendant attorneys to plaintiff, and plaintiff’s negligence claim fails to state a claim upon which relief can be granted. Even if the Court concludes that, as a matter of law, a legal duty can exist between an attorney and his client’s adversary, such a duty does not exist under the present circumstances. A duty of care between an attorney and client may arise from either an express attorney-client relationship or an implied attorney-client relationship. Miller, supra, 431 Mass. at 61; Spinner, supra, 417 Mass at 552. There is clearly no express attorney-client relationship, and none has been alleged. Moreover, an attorney-client relationship between the defendant attorneys and the plaintiff cannot be implied on the facts alleged in the Complaint. In order to establish an implied attorney-client relationship, a plaintiff must show that (1) the plaintiff sought “advice or assistance from an attorney, (2) the advice or assistance sought pertained to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agreed to give or actually gave the desired advice or assistance.” Miller, supra, 431 Mass. at 61 (quoting De Vaux v. American Home Assur. Co., 387 Mass. 814, 817 (1983)). “All three requirements of this test must be met to establish the relationship.” DaRoza, supra, 416 Mass. at 381. Nowhere in the Complaint does the plaintiff allege that he sought legal advice from the defendant attorneys or that the defendant attorneys “expressly or impliedly agreed to give or actually gave the desired advice or assistance.” Indeed, the demand letter attached to the

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plaintiff’s Complaint as Exhibit N expressly identifies Achte as the defendant attorneys’ client and advises the recipient: “We strongly encourage you to consult with an attorney to review your rights and risk exposure in connection with this matter.” Complaint Exhibit N at 2 (emphasis in original). H. CLAIMS FOR WHICH THERE IS NO RECOGNIZED CAUSE OF ACTION (COUNTS 17, 19, AND 20) MUST BE DISMISSED. 1. Fraud on the Court is not a Cause of Action.

Count 17 of the plaintiff’s Complaint asserts a cause of action for “fraud upon the court.” However, this is not a cognizable civil cause of action. “[F]raud on the court is not recognized as an independent cause of action in Massachusetts.” Davidson v. Cao, 211 F.Supp.2d 264, 276 (D.Mass. 2002) (citing National Eng’g Serv. v. Galello, No. CA9205303, 1995 WL 859241 at * 2 (Mass. Super. Ct. May 9, 1995)). Under federal law, alleged fraud on the court may form the basis for a motion to dismiss, or a basis for seeking relief from a judgment. See Davidson, 211 F.Supp. 2d at 277. Here, however, the plaintiff does not seek to have the Achte lawsuit, which they allege is premised on a fraud on the District Court for the District of Columbia, dismissed; nor can he. Neither is there a judgment against the plaintiff in the Achte lawsuit that could form the basis for an independent action seeking relief under Fed.R.Civ. P. 60. Cf. Davidson, 211 F.Supp. 2d at 277(discussing Hazel-Atlas Glass Company v. Hartford-Empire Company, 322 U.S. 238, 245 (1944)). By raising the claim in the present action, the plaintiff pursues neither the dismissal of the Achte suit, or relief from a judgment obtained through fraud. As such, the claim fails to state a cause of action and must be dismissed.

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2.

Neither Fraud on the Copyright Office (Count 19) nor Misuse of a Copyright (Count 19) Constitute Causes of Action.

Count 19 of the plaintiff’s Complaint asserts a cause of action for fraud on the Copyright Office. However, this is not a cognizable civil cause of action either. It is not clear whether this count is based upon 17 U.S.C. § 506(c), a federal statute imposing criminal penalties for certain copyright-related crimes. To the extent that it is, Count 19 fails to state a claim because a private right of action does not exist under the statute. See Donald Frederick Evans & Assoc. v. Cont’l Homes, Inc., 785 F.2d 897, 913 (11th Cir. 1986); Ashton-Tate Corp. v. Ross, 728 F.Supp. 597, 602 (N.D. Cal. 1989), aff’d, 916 F.2d 516 (9th Cir. 1990). To the extent the plaintiff asserts fraud on the copyright office as an independent action, the plaintiff fails to state a claim, as this theory may only be used as an affirmative defense to a claim of infringement, in order to invalidate the registration of the copyright he allegedly infringed. See, e.g., Sierra-Pascual v. Pina Records, Inc., 660 F. Supp. 2d 196, 204 (D.P.R. 2009). While fraud on the copyright office may constitute grounds for a court to invalidate a copyright, this is an affirmative defense that may be proven only against the copyright holder. Here, the plaintiff seeks damages against the copyright holder’s attorney for allegedly providing false information to the Copyright office. This is not a recognized cause of action. The plaintiff has no standing to challenge the validity of the copyright as against the attorney who registered it on behalf of the holder. See, e.g., Chivalry Film Prods. v. NBC Universal, Inc., 2006 U.S. Dist. LEXIS 1177 (S.D.N.Y. Jan. 11, 2006) (dismissing claim for fraud on the Copyright Office and the general public by “presenting the challenged films as their original works” because “plaintiff has no standing to object to any such fraud,”) (citing Barnhart v. Federated Dep't Stores, Inc., 2005 U.S. Dist. LEXIS 3631 (S.D.N.Y. Mar. 8, 2005) (finding that plaintiff had not alleged any reliance and dismissing claim that defendants falsely filed a claim with the Copyright office). 22
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Even if the plaintiff were able to establish, in a proper proceeding (i.e., in the Achte lawsuit) that the copyright registration had been obtained by fraud, he would still have no cause of action against Achte’s attorneys for allegedly obtaining it by fraud, because they owed no duty of care to the plaintiff. Count 20 of the Complaint fails to state a claim for substantially the same reasons. There is no independent cause of action for copyright misuse, as it too may only be asserted as an affirmative defense in a copyright infringement action. See Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1090 (9th Cir. 2005) (copyright misuse not an independent claim when there has been no allegation of copyright infringement); Ticketmaster, L.L.C. v. RMG Technologies, 536 F. Supp. 2d 1191, 1198-99 (C.D. Cal. 2008) (holding that copyright misuse is only an affirmative defense to a claim for copyright infringement, and does not support an independent claim for damages); Arista Records, Inc. v. Flea World, Inc., 356 F. Supp. 2d 411, 428 (D.N.J. 2005) (“copyright misuse is not a claim but a defense”); Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1198 n.4 (N.D.Cal. 2004) (“the plaintiffs cite no legal authority, and the Court is aware of none, that allows an affirmative claim for damages for copyright misuse.”); see also Metro-Goldwyn-Mayer Studios, Inc., 269 F.Supp.2d at 1226 (noting that misuse is not even properly alleged as a declaratory judgment claim: “[s]eparately litigating [the copyright misuse defense] in a declaratory posture would not serve the purposes of declaratory relief, such as clarifying and settling the legal relations of the parties, or affording a declaratory plaintiff relief from the ‘uncertainty, insecurity, and controversy giving rise to the proceeding.’”) I. THE PLAINTIFF HAS NOT PLED FACTS WHICH WOULD ESTABLISH AN ABUSE OF PROCESS CLAIM (COUNT 18) The plaintiff’s claim for abuse of process, asserted at Count 18, alleges that issuance of the subpoenas to the various internet ISPs in the Achte lawsuit was an abuse of process. To 23
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sustain an abuse of process claim, a plaintiff must establish that process was used “to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.” Quaranto v. Silverman, 345 Mass. 423, 426 (1963) (quoting Gabriel v. Borowy, 324 Mass. 231, 236 (1949)). The plaintiff’s claim, however, is without merit because the issuance of a subpoena is not a “process” for purposes of this cause of action. Rather, “‘process’ refers to the papers issued by a court to bring a party or property within its jurisdiction.” Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389-390 (1975) (internal citations omitted) (declining to extend abuse of process claim to alleged misuse of injunction). Thus, “cases on abuse of process have been limited to three types of process: writs of attachment; the process used to institute a civil action; and the process related to the bringing of criminal charges. Id.; see also Alphas Co., Inc. v. Kilduff, 72 Mass. App. Ct. 104, 115 (2008) (“We also note that, traditionally, discovery activities have not provided grounds for abuse of process actions in Massachusetts”); Chemawa Country Golf, Inc. v. Wnuk, 9 Mass. App. Ct. 506 (Mass. App. Ct. 1980) (“process” refers to the papers issued by a court to bring a party or property within its jurisdiction," e.g., a writ of attachment, the process used to initiate a civil action, and the process related to the bringing of criminal charges.”) Here, the plaintiff’s abuse of process claim is based solely on the subpoenas issued to the ISPs in the underlying action. Complaint ¶ 400 (“Defendants willfully misused and/or misapplied the subpoena process for an end other than that which it was designed to accomplish”). Further, the plaintiffs have identified no misuse of the subpoenas. As such, Count 18 must be dismissed.

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J.

CLAIMS, AN ELEMENT OF WHICH IS THAT THE DEFENDANT OBTAIN MONEY OR PROPERTY FROM THE PLAINTIFF (COUNTS 21, 22, 23, AND 24), MUST BE DISMISSED BECAUSE THE DEFENDANT ATTORNEYS RECEIVED NO MONEY OR PROPERTY FROM THE PLAINTIFF. The plaintiff’s claims for unjust enrichment (Count 21), money had and received (Count

22), conversion (Count 23), and constructive trust (Count 24)) must be dismissed because there is no allegation that the defendant attorneys received any money or property from the plaintiff. See Complaint ¶ 225. Each of these counts requires as an element that the defendant has wrongfully taken or kept money or property that rightfully belongs to the plaintiff. “One essential element of relief for unjust enrichment is of course the enrichment of the defendant.” Keller v. O'Brien, 425 Mass. 774, 778 (1997) (quoting 1 G. Palmer, RESTITUTION § 1.7, at 41 (1978)). Because the plaintiff has not alleged that the defendant attorneys were unjustly enriched at his expense, Count 21 must be dismissed. “[A]n action for money had and received will lie where the defendant has received money or its equivalent which in equity and good conscience belongs to the plaintiff.” Blue Cross of Massachusetts, Inc. v. Traveline, 398 Mass. 582, 588 (1986). Here, there is no such allegation that the defendant attorneys received any money from the plaintiff; thus count 22 is also appropriately dismissed. “The elements of conversion require that a defendant be proved to have ‘intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal property to which he has no right of possession at the time.’” In re Brauer, 452 Mass. 56, 67 (2008) (citations omitted). Again, the plaintiff has not alleged that the defendants exercised acts of ownership, control or dominion over any of his property. Accordingly, Count 23 must be dismissed. An action for constructive trust may lie “[w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience obtain the beneficial 25
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interest,” in which case, “equity converts him into a trustee.” Broomfield v. Kosow, 349 Mass. 749, 758 (1965) (quoting Beatty v. Guggenheim Exploration Co. 225 N.Y. 380, 386 (N.Y. App. 1919)). Here again, there is no allegation that the defendants acquired any property to which it did not hold the beneficial interest, wherefore, Count 24 must be dismissed. K. THE PLAINTIFF’S CONSUMER PROTECTION COUNT (COUNT 25) FAILS TO STATE A CLAIM UNDER THE LAW OF ANY JURISDICTION CITED. 1. The Plaintiff has Failed to State a Claim Under Massachusetts’ Consumer Protection Statute.

The plaintiff’s claim for consumer protection violations, to the extent it is based on Massachusetts law, lacks several essential elements. First, a plaintiff wishing to file a consumer claim pursuant to the M.G.L. c. 93A must make a written demand for relief at least thirty days prior to filing suit. M.G.L. c. 93A, § 9(3). The plaintiff must allege and prove that he has complied with this requirement. See Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 287 (1985); York v. Sullivan, 369 Mass. 157 (1975); Baldassari v. Public Finance Trust, 369 Mass. 33 (1975). A demand letter is a jurisdictional requirement; its absence is a bar to suit. See Entrialgo v. Twin City Dodge, 368 Mass. 812, 813 (1975); see also Spilios v. Cohen, 38 Mass. App. Ct. 338, 342 (1995). Here, the plaintiff has neither pled nor proven that he served a chapter 93A compliant settlement demand letter on the defendants at any time. Accordingly, the claim must be dismissed. As a second ground for dismissing the plaintiff’s chapter 93A claim, the conduct of which the plaintiff complains consists of the defendant attorneys’ actions on behalf of their clients in connection with litigation, not conduct in the course of trade or commerce. “Although whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact, the boundaries of what may qualify for consideration as a G.L. c. 93A violation is a question of

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law.” Chervin v. Travelers Ins. Co., 448 Mass. 95, 112 (2006) (holding that insurance company filing subrogation claim against doctor did not constitute “business transaction” which could serve as a predicate for liability under chapter 93A). It is well established that chapter 93A “has never been read to broadly as to establish an independent remedy for unfair or deceptive dealing in the context of litigation.” Morrison v. Toys “R” Us, Inc., 441 Mass. 451, 457 (2004) (citing Framingham Auto Sales, Inc. v. Workers’ Credit Union, 41 Mass. App. Ct. 416, 418 (1996); Gath v. M/A-Com, Inc., 440 Mass. 482, 497-98 (2003); Cady v. Marcella, 49 Mass. App. Ct. 334, 343 (2000); Arthur D. Little, Inc. v. East Cambridge Sav. Bank, 35 Mass. App. Ct. 734, 743 (1994)). A lawyer may not be held liable to a non-client under M.G.L. chapter 93A for acts performed on behalf of his client. Miller, 431 Mass. at 64-65; First Enterprises, Ltd. v. Cooper, 425 Mass. 344, 347 (1997). In First Enterprises, the SJC specifically held that chapter 93A does not apply to actions taken by an attorney vis-à-vis a non-client in connection with the commencement and conduct of litigation. Id. This is because the prosecution of a lawsuit, including the taking of discovery, the conduct alleged here, simply does not of itself constitute “trade or commerce.” See also Arthur D. Little, Inc., 35 Mass. App. Ct. at 743 (concluding that a chapter 93A claim did not lie where there was no commercial relationship between the parties and ‘their only contact occurred in the context of this litigation.’”) As a third ground for dismissing the chapter 93A claim, the plaintiff cannot bring a claim under the Massachusetts consumer protection law because he claims no actual damages. See Rule v. Fort Dodge Animal Health, Inc., 607 F.3d 250 (1st Cir. 2010) (holding that chapter 93A claim requires claim of actual damages). In order to establish liability under chapter 93A, a plaintiff must prove that a defendant’s conduct was unfair or deceptive, and that it caused the plaintiff an

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actual loss. Hershenow v. Enter. Rent-A-Car Co. of Boston, 445 Mass. 790, 797 (2006). In cases involving an alleged deception, “the plaintiff must prove reliance as ‘an essential link in the proof of causation.’” Massachusetts Laborers' Health & Welfare Fund, 62 F. Supp. 2d at 242 (O’Toole, J.) (citing Trifiro v. New York Life Ins. Co., 845 F.2d 30, n.1 (1st Cir. 1988)); accord Rodi v. Southern New Eng. Sch. of Law, 532 F.3d 11, 16, 18-19 (1st Cir. 2008). Here, the plaintiff has not claimed, and cannot prove, that his receipt of and/or reliance on any statements by the defendant attorneys caused him any legally cognizable injury because he admittedly did not settle out of the Achte suit. Essentially, he claims that by making false or misleading representations, the defendant attorneys caused him a per se injury. Allowing such a claim to go forward would permit “a purely vicarious suit by self-appointed attorneys general, which [chapter 93A] does not allow.” Fine v. Sovereign Bank, 2010 U.S. Dist. LEXIS 76449 (D.Mass. July 28, 2010) (citing Leardi v. Brown, 394 Mass. 151 (1985)). 2. The Plaintiff has Failed to State a Claim Under the District of Columbia’s Consumer Protection Statute.

The plaintiff cites the District of Columbia Consumer Protection Procedures Act (“CPPA”) as an alternative ground to impose liability for alleged consumer protection violations. However, even if statute were to apply, rather than the Massachusetts statute, the plaintiff still has not stated a claim. Pursuant to D.C. Code § 28-3903(c)(2)(C), attorneys are exempt from regulation under the D.C. consumer protection statute cited by the plaintiff, D.C. Code § 283901, et seq. See Bergman v. District of Columbia, 986 A.2d 1208, 1227 (D.C. 2010) (noting that attorneys are expressly exempted from regulation under the CPPA, and citing D.C. Code § 283903(c)(2)(C)). Additionally, the conduct complained of by the plaintiff in this action, consisting of alleged “settlement fraud” does not constitute a “trade practice” as defined at D.C. Code 2828
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3901(a)(6): “‘trade practice’ means any act which does or would create, alter, repair, furnish, make available, provide information about, or, directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of consumer goods or services.” The defendant attorneys’ actions in this case constituted legal representation of their client, Achte—which was adverse to the plaintiff—and were not related to the provision of consumer goods or services or otherwise constitute “trade practices.” 3. The Plaintiff has Failed to State a Claim Under Virginia’s Consumer Protection Statute.

The plaintiff similarly fails to state a claim under the third alternative statute cited, the Virginia Consumer Protection Act, Va. Code § 59.1-200, et seq. The Virginia statute applies to “consumer transactions,” which are defined as: 1. The advertisement, sale, lease, license or offering for sale, lease or license, of goods or services to be used primarily for personal, family or household purposes; 2. Transactions involving the advertisement, offer or sale to an individual of a business opportunity that requires both his expenditure of money or property and his personal services on a continuing basis and in which he has not been previously engaged; 3. Transactions involving the advertisement, offer or sale to an individual of goods or services relating to the individual's finding or obtaining employment; 4. A layaway agreement, whereby part or all of the price of goods is payable in one or more payments subsequent to the making of the layaway agreement and the supplier retains possession of the goods and bears the risk of their loss or damage until the goods are paid in full according to the layaway agreement; and 5. Transactions involving the advertisement, sale, lease, or license, or the offering for sale, lease or license, of goods or services to a church or other religious body. The defendant attorneys’ alleged conduct in this case, all of which took place in the context of its representation of its client, Achte, did not involve the advertisement of goods, services, a business opportunity, or employment, a layaway agreement, or goods or services of a religious organization. As such, the statute cited by the plaintiff is completely inapposite.

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Moreover, the Virginia statute requires that the plaintiff plead and prove that the prohibited practice caused an actual loss. See, e.g. Polk v. Crown Auto, Inc., 228 F.3d 541 (4th Cir. 2000) (holding that a plaintiff could not recover on a claim that a loan agreement provided for excessive for late payments where it was undisputed that he never made a late payment and therefore never paid the excessive ten percent late fee that he argued constituted the violation of the act); Cooper v. GGGR Invs., LLC, 334 B.R. 179 (E.D. Va. 2005) (holding that a plaintiff asserting a consumer protection claim must show that he relied on the alleged conduct that constituted the prohibited practice, and that he suffered a loss as a result); L. IF THE CLAIMS OF THE NAMED PLAINTIFF ARE DISMISSED, THE CLASS CLAIMS MUST BE DISMISSED. If the plaintiff’s individual claims against the defendants are dismissed, the claims of the putative classes must also be dismissed. “[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.” O'Shea v. Littleton, 414 U.S. 488, 494 (1974); see also Brown v. Am. Honda (In re New Motor Vehicles Canadian Exp. Antitrust Litig.), 522 F.3d 6, 14 (1st Cir. 2008) (“If a named plaintiff fails to establish such a continuing controversy, she normally may not invoke the power of the federal courts to seek relief on her own behalf or that of other members of a putative class”) (citing Golden v. Zwickler, 394 U.S. 103, 108 (1969); O’Shea, 414 U.S. at 494); In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 613 F. Supp. 2d 108, 136 (D.Me. 2009) (dismissing putative class claims where named plaintiffs’ claims were dismissed); Randolph v. ING Life Ins. & Annuity Co., 973 A.2d 702, 708 (D.C. 2009) (“before one may sue for damages on behalf of others—whether the ‘others’ are members of an organization or a class of consumers—he must show injury to himself.”) 30
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IV.

CONCLUSION

Wherefore, the defendant attorneys respectfully request that the Court dismiss the plaintiff’s claims in their entirety against Defendants Dunlap Grubb & Weaver, PLLC, Thomas Dunlap and Nicholas Kurtz, with prejudice, and award attorneys’ fees and expenses, and such other further relief that the Court deems just and proper.

The Defendants, Dunlap, Grubb & Weaver, PLLC, Thomas Dunlap, and Nicholas Kurtz By their counsel, /s/ Kara Thorvaldsen George C. Rockas BBO# 544009 Kara Thorvaldsen BBO# 660723 WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 260 Franklin Street Boston, MA 02110 (617) 422-5300

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Certificate Of Service I, Kara Thorvaldsen, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF). I am not aware of any party who is a not a registered participant, and therefore electronic filing is the sole means of service of this document.

/s/ Kara Thorvaldsen

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