United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER ON MOTIONS TO DISMISS
(Dkt Nos. 45 & 50)
E. Bush Chief U.S. Magistrate Judge
are Plaintiff's Renewed Motion to Dismiss Defendant's
Counterclaim (Dkt. 50) and Defendants' Motion to Dismiss
Second Amended Complaint (Dkt. 45). Having carefully
considered the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order:
Aljex Software, Inc. (“Aljex”) alleges that it is
a New Jersey corporation in the business of providing
cloud-based logistics software. Defs.' Answer to Second
Am. Compl., Affirmative Defenses, and Countercl. of Aljex
Software, Inc. ¶¶ 2, 8 (“Countercl.”)
(Dkt. 46). Aljex's CEO is Defendant Tom Heine
(“Heine”), a Colorado resident. Id.
¶ 3. In early 2015, Aljex placed an advertisement on a
Denver, Colorado “Craigslist” online forum
seeking a programmer to develop a new website. Id.
¶¶ 9, 10. On February 25, 2015, Jonathon Clarke
(“Clarke”) responded and quoted a $1500 flat rate
to build the website. Id. ¶ 11. Heine
communicated further with Clarke and ultimately hired him to
develop the website. Id. ¶ 12. On February 26,
2015, Clarke requested $750 via an online payment service,
which Aljex paid. Id. ¶ 13. Clarke signed a
contract to develop the website the same date. Id.
¶ 14. The contract required Clarke to complete the
website “no later than 30 days after [Aljex] has
submitted all the necessary materials.” Id.
¶ 16. Aljex began providing the necessary materials that
day. Id. ¶ 17.
to Aljex, beginning on March 2, 2015, Heine and Aljex's
Vice President of Sales, Robyn Freeman, began to contact
Clarke inquiring on the status of the website. Id.
¶¶ 18-20. Clarke was either unresponsive or stated
he would have something “later in the week.”
Id. A conference call was set up for March 19, 2015,
but Clarke failed to participate in the conference call or to
answer telephone calls to his personal phone. Id.
March 20, 2015, Clarke emailed Heine a link to review the
website but requested an additional $600 payment before the
site would be uploaded for review. Id. ¶¶
24-26. Heine responded that he would not make the payment
until he saw the website. Id. ¶ 28. Clarke
demanded advance payment before he would permit Aljex to
review any work he had performed. Id. ¶¶
33-34. Aljex brings counterclaims of breach of contract,
breach of the implied covenant of good faith and fair
dealing, and fraud. Id. ¶¶ 40-65.
brings suit against both Aljex and Heine under the federal
Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”), and under state law for invasion of
privacy by intrusion upon seclusion. Pl.'s Second Am.
Compl. ¶ 1 (“SAC”) (Dkt. 44). Clarke alleges
that Defendants Aljex and Heine repeatedly sent fax data to
Clarke's telephone using an “automatic telephone
dialing system” as that term is defined by the TCPA.
Id. ¶¶ 6-8. Specifically, Clarke alleges
that between late March and early April of 2015, Defendants
placed over 1000 calls from Aljex's number to Plaintiffs
cell phone. Id. ¶ 8. The calls were fax calls
which Clarke alleges that Defendants knew would result in
repeated, auto-dialed, calls that could not be answered.
Id. ¶ 12. Heine also sent Clarke an email from
his work email saying that Heine had prepared a website
titled “jonathanclarkesucks.com” that would be
forthcoming. Id. ¶ 10. Heine sent
“thousands of emails” to Clarke, making it
difficult for Clarke to use his email. Id. ¶
13. These actions, Clarke alleges, created a pattern of
intentional harassment. Id.
party has filed a motion to dismiss. Defs.' Mot. to
Dismiss Second Am. Compl. (Dkt. 45); Pl.'s Renewed Mot.
to Dismiss Defs Countercl. (Dkt. 50). Clarke contends a lack
of subject matter jurisdiction, with no basis for either
supplemental jurisdiction or original diversity jurisdiction.
Mem. in Supp. of Pl.'s Mot. to Dismiss (Dkt.
34-1). Heine and Aljex contend that Clarke's
second amended complaint fails to state a claim under
Fed.R.Civ.P. 12(b)(6). Defs.' Motion to Dismiss Second
Am. Compl. (Dkt. 45); Mem. in Supp. of Defs.' Mot. to
Dismiss Second Am. Compl. (Dkt. 45-1).
ANALYSIS AND RULINGS
On this Record, the Court has Jurisdiction to Consider the
Claims made Against Clarke.
argues that this Court has no subject matter jurisdiction to
consider Aljex's counterclaims, all of which arise
exclusively under state law. Mem. in Supp. of Pl.'s Mot.
to Dismiss Def.'s Countercl. (Dkt. 34-1); Pl.'s Reply
in Supp. of Pl.'s Mot. to Dismiss Def.'s Countercl.
(Dkt. 42). Apparently drawing upon Fed.R.Civ.P. 12(b)(1),
Clarke argues that neither supplemental jurisdiction under 28
U.S.C. § 1367, nor original diversity jurisdiction under
28 U.S.C. § 1332, applies to Aljex's claims.
Id. The Court, however, concludes that there is
supplemental jurisdiction to consider Aljex's
counterclaims for the reasons which follow; therefore, it
need not reach the question of diversity jurisdiction.
compulsory counterclaim is one that “arises out of the
transaction or occurrence that is the subject matter of the
opposing party's claim; and does not require adding
another party over whom the court cannot acquire
jurisdiction.” Fed.R.Civ.P. 13(a). To assess whether a
claim is compulsory, the Ninth Circuit employs a liberal
“logical relationship” test. In re
Lazar, 237 F.3d 976, 979 (9th Cir. 2001). Under this
[a] logical relationship exists when the counterclaim arises
from the same aggregate set of operative facts as the initial
claim, in that the same operative facts serve as the basis of
both claims or the aggregate core of facts upon which the
claim rests activates additional legal rights otherwise
dormant in the defendant.
Id. (citing Pinkstaff v. United States, 974
F.2d 113, 115 (9th Cir. 1992)). “This flexible approach
to Rule 13 problems attempts to analyze whether the essential
facts of the various claims are so logically connected that
considerations of judicial economy and fairness dictate that
all the issues be resolved in one lawsuit.” Pochiro