United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE UNITED STATES DISTRICT COURT
DirecTV, LLC (“DirecTV”) alleges that Defendants
Paul Wright and Theresa Wright, doing business as Anametrics
Cable, violated Residential Account contracts with DirecTV
and illegally provided DirecTV television programming to
subscribers in the Buffalo, New York area. ECF No. 1.
Presently before the Court are two motions to dismiss filed
by Mr. Wright, who represents himself pro se. ECF
Nos. 25, 30. Both motions are denied.
Mr. Wright is proceeding pro se, his submissions
“must be construed liberally and interpreted to raise
the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (alterations, citations, and internal
quotations omitted); see also Ruotolo v. I.R.S., 28
F.3d 6, 8 (2d Cir. 1994) (observing that district courts
should afford pro se litigants “special
Wright has filed three separate motions to dismiss in this
case. In his first motion, Mr. Wright cited Rule 12(b)(6) and
argued that DirecTV failed to state a claim upon which relief
can be granted. ECF No. 13. The Court reviewed Mr.
Wright's arguments, denied the motion to dismiss, and
directed Mr. Wright to answer the complaint. See ECF
Nos. 19, 21.
Wright then filed a second motion to dismiss under Rule
12(b)(6). ECF No. 25. In his second motion, Mr. Wright states
that he “had a preexisting contractual relationship
which Defendant exercised all reasonable care in
executing.” Id. at 3. This is a new argument
that was not included in Mr. Wright's first motion.
See ECF No. 13.
third motion, Mr. Wright cites Rule 19 and asks the Court to
dismiss DirecTV's complaint for “failure . . . to
enjoin [sic] indispensable parties.” ECF No. 30.
Specifically, Mr. Wright argues:
Plaintiff has not enjoined the Plaintiffs agents,
representatives, contractors and/or employees, working on
commissions from the Plaintiff and who made substantial
representations to the Defendant on the use of Plaintiffs
equipment and who with their special knowledge/expertise,
facilitated its installation and use for the Defendant. The
agents of the Plaintiff received extensive consideration for
installing said equipment in the locations where the
equipment was used by the Defendant for the purposes agreed
upon by Plaintiffs agents and this Defendant.
For failure of Plaintiff to enjoin indispensable parties
Defendant asks the court to dismiss the complaint under Rule
Id. at 3. Reading this third motion liberally, the
Court construes it as a motion to dismiss pursuant to Rule
12(b)(7) for “failure to join a party under Rule
19.” See Fed. R. Civ. P. 12(b)(7). Again, this
argument was not raised previously.
Wright's motions are denied for two basic reasons. First,
Rule 12(g)(2) states that “[e]xcept as provided in Rule
12(h)(2) or (3), a party that makes a motion under this rule
must not make another motion under this rule raising a
defense or objection that was available to the party but
omitted from its earlier motion.” The arguments in Mr.
Wright's second and third motions were not included in
his first motion, and there is no indication that those
arguments were omitted because they were somehow unavailable
to him. The exceptions in Rule 12(h)(2) and (3) do not apply.
Mr. Wright's motions must be denied because they are
meritless. With respect to the motion under Rule 12(b)(6),
Mr. Wright's argument regarding a “preexisting
contractual relationship” with DirecTV is not
appropriate at this stage of the litigation. At a later
stage, such as summary judgment or trial, Mr. Wright will
have the opportunity to argue-and present evidence-that
DirecTV's allegations are false. But for now, in judging
the sufficiency of DirecTV's complaint, the Court assumes
the truth of DirecTV's factual allegations. See
Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100
(2d Cir. 2005).
Wright's motion under Rule 12(b)(7) must be denied
because he has not shown why the unnamed individuals he
references are indispensable parties under ...