Humphries v. Button ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 SAGE HUMPHRIES, GINA MENICHINO, Case No. 2:21-cv-01412-ART-EJY 5 ROSEMARIE DeANGELO, DANIELLE GUTIERREZ, JANE DOE 1, AND JANE ORDER 6 DOE 2 7 Plaintiffs, v. 8 MITCHELL TAYLOR BUTTON and 9 DUSTY BUTTON, 10 Defendants. 11 12 This case concerns multiple allegations of sexual abuse and Defendants’ 13 counterclaims for defamation, abuse of process, and civil conspiracy. Before the 14 Court are Defendants’ Motion to Dismiss (ECF No. 231) and Motions to 15 Supplement (ECF Nos. 241, 312), in addition to Plaintiffs’ Motion to Dismiss (ECF 16 No. 248).1 17 I. BACKGROUND 18 The Court reviews the relevant history in this case. Plaintiffs filed this action 19 on July 28, 2021. (ECF No. 1.) On July 8, 2022, Defendants first filed a Third 20 Party Complaint and Counterclaims. (ECF No. 54.) Defendants brought 21 counterclaims for abuse of process against Sage Humphries (“Humphries”), Gina 22 Menichino (“Menichino”), Rosemarie DeAngelo (“DeAngelo”), Danielle Gutierrez 23 (“Gutierrez”), Jane Doe 1, Juliet Doherty (“Doherty”), and Jane Doe 2, civil 24 conspiracy against Humphries, Menichino, DeAngelo, Gutierrez, Jane Doe 1, 25 Doherty, Jane Doe 2, and Michael and Micah Humphries, equitable contribution 26 against Anthony Giovanni Deane (“Deane”), Daryl Allan Katz (“Katz”), and Chase 27 28 1 The Court will address the other pending motions in a separate order 1 Finlay (“Finlay”), and defamation per se against Humphries for statements she 2 made to Good Morning America and Boston Magazine. (Id. at 16-21.) On August 3 12, 2022, Defendants amended their counterclaims; they maintained their 4 defamation claim against Humphries. (ECF No. 67 at 16-18.) 5 Plaintiffs filed a Motion to Dismiss the Counterclaims. (ECF No. 69.) On 6 February 2, 2023, the Court heard oral arguments on multiple motions but 7 deferred ruling on the motion to dismiss the defamation claim against 8 Humphries. (ECF No. 130.) In a separate order, the Court denied the motion to 9 dismiss the defamation counterclaim because factual issues precluded finding 10 that Humphries’ statements were protected based on the fair reporting privilege 11 or Nevada’s anti-SLAPP statute. (ECF No. 131 at 1-2.) 12 Plaintiffs filed a Third Amended Complaint on June 20, 2023. (ECF No. 188.) 13 Defendants filed a Motion to Dismiss the Third Amended Complaint with 14 Counterclaims on August 23, 2023. (ECF No. 231.) Defendants added various 15 counterclaims in this motion, including 1) amending their defamation claim 16 against Humphries to include statements she allegedly made to Cosmopolitan 17 Magazine on April 5, 2022, Pointe Magazine on December 1, 2021, the New York 18 Times on July 27, 2021, and on her social media on May 13, 2021; 2) adding 19 defamation claims against Gutierrez, DeAngelo, Menichino for statements they 20 allegedly made on their social media and to Cosmopolitan Magazine on April 5, 21 2022; and 3) adding a defamation claim against Jane Doe 1 for alleged statements 22 she made to the Daily Mail on September 29, 2021 and to CNN on September 30, 23 2021. (Id. at 57-74.) Defendants also filed two Motions to Supplement their 24 Motion to Dismiss on September 5, 2023 and February 29, 2024. (ECF Nos. 241, 25 312.) 26 On September 14, 2023, Plaintiffs filed a Motion to Dismiss Defendants’ 27 Counterclaims. (ECF No. 248.) Plaintiffs argue that 1) Defendants’ new claims of 28 conspiracy, abuse of process, and defamation against Menichino, DeAngelo, 1 Guttierez, and Jane Doe 1 are waived compulsory counterclaims, 2) Defendants 2 failed to seek leave of the court before asserting their new counterclaims; 3) the 3 abuse of process and conspiracy claims fail as a matter of law; and the defamation 4 claims fail because the statements to the New York Times are barred by the 5 statute of limitations, the other statements are protected by Nevada’s anti-SLAPP 6 statute and the fair report privilege, and Defendants failed to allege actual malice. 7 Id. 8 II. LEGAL STANDARD 9 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon 10 which relief can be granted.” FED. R. CIV. P. 12(b)(6). A properly pleaded complaint 11 must provide “a short and plain statement of the claim showing that the pleader 12 is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 13 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it 14 demands more than “labels and conclusions” or a “formulaic recitation of the 15 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 16 Twombly, 550 U.S. at 555). All factual allegations set forth in the complaint are 17 taken as true and construed in the light most favorable to the plaintiff. Lee v. City 18 of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). Thus, to survive a motion to 19 dismiss, a complaint must contain sufficient factual matter to “state a claim to 20 relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 21 U.S. at 570). Furthermore, filings by pro se parties are to be liberally construed, 22 especially in civil rights cases. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 23 (“[W]e continue to construe pro se filings liberally when evaluating them under 24 Iqbal.”). 25 III. DISCUSSION 26 a. Defendants’ Motion to Dismiss 27 i. Timeliness of Claims 28 Defendants first argue that Plaintiffs’ claims are untimely. In Nevada, the 1 statute of limitations for assault, battery, false imprisonment, and intentional 2 infliction of emotional distress are two years. NRS §§ 11.190(4)(c); 11.190(4)(e). 3 The statute of limitations for breach of fiduciary duty claims is three years. Id. § 4 11.190(3)(d). Nevada tolls the statute of limitations until the minor reaches the 5 age of majority. Id. § 11.250(1). However, there is no statute of limitations for 6 actions “arising from the sexual abuse or sexual exploitation of the plaintiff which 7 occurred when the plaintiff was less than 18 years of age. NRS § 11.215. 8 The statute of limitations for sex trafficking, forced labor, and involuntary 9 servitude is either 10 years after the cause of the action arose or 10 years after 10 the alleged victim turned eighteen years of age. 18 U.S.C. §1595(c). The statute 11 of limitation for sexual exploitation of a minor is either not later than 10 years 12 after the Plaintiff reasonably discovers the basis of the violation or injury that 13 forms the basis of her claim, or 10 years after she has reached the age of majority. 14 Id. § 2255(b). Both the state and federal claims may be subject to equitable 15 estoppel or tolling, but their applicability “is not generally amenable to resolution 16 on a Rule 12(b)(6) motion, where review is limited to the complaint alone.” 17 Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). 18 The Court previously heard oral arguments on this issue in response to 19 Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint. The Court 20 found that dismissal was inappropriate because the claims “could be timely 21 under the statute and/or there could be equitable doctrines that apply.” (ECF No. 22 129 at 49.) Because Plaintiffs’ Third Amended Complaint did not substantially 23 change their allegations, now remains an inappropriate time to resolve this “fact- 24 intensive” issue. (Id.) As such, the Court will deny Defendants’ Motion to Dismiss 25 on this basis. 26 ii. Personal Jurisdiction and Venue 27 Defendants also asserted that this Court lacks personal jurisdiction and/or 28 the Court should transfer the case to a different venue. The Court finds that 1 Defendants have waived these arguments by not raising them sooner, since 2 Defendants bring up these arguments for the first time after two years of 3 litigation. See e.g., Schnabel v. Lui, 302 F.3d 1023, 1037 fn. 5 (“For example, 4 when a party who has appeared only as a defendant, defends and files a 5 counterclaim, objection to personal jurisdiction is waived.”) (internal citations 6 omitted); King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992) (“Improper venue 7 is waived under Rule 12 only if a defendant moves to dismiss on one or more of 8 the other grounds specified by Rule 12 while failing to raise venue in the same 9 motion.”). Because these arguments are untimely, the Court denies Defendants’ 10 Motion to Dismiss for lack of personal jurisdiction or improper venue. 11 iii. Striking Statements 12 The Court will also deny Defendants’ request for the Court to strike 13 portions of Plaintiffs’ Third Amended Complaint. “The court may strike from a 14 pleading an insufficient defense or any redundant, immaterial, impertinent, or 15 scandalous matter.” FED. R. CIV. P. 12(f). Motions to strike are “not favored” and 16 “rarely granted.” Page v. Grandview Marketing, Inc., No. 2:09-cv-01150-RCJ- 17 GWF, 2010 WL 11579616, at *1 (D. Nev. Jan. 7, 2010). “Motions to strike should 18 not be granted unless it is clear that the matter to be stricken could have no 19 possible bearing on the subject matter of the litigation.” Id. at *2. 20 Defendants have failed to meet the high burden for granting a motion to 21 strike. Defendants argue that the Third Amended Complaint was “written for the 22 media” and they object to Plaintiffs not using the term “allegedly” in portions of 23 the complaint. (ECF No. 231 at 22-24.) However, Plaintiffs are not required to use 24 the term allegedly throughout their complaint. In addition, Defendants’ general 25 accusation that the complaint was written for the media does not justify granting 26 the motion to strike. “[N]on-neutral allegations will invariably be found in 27 pleadings…and are not a proper basis for a motion to strike.” Willson v. Cage, 28 711 F. Supp. 1521, 1535 (N.D. Cal. 1988), aff’d sub nom. Willson v. Hubbard, 900 1 F.2d 263 (9th Cir. 1990). Because Defendants have not shown how the 2 statements meet the criteria for granting a motion to strike or how the statements 3 fail to relate to Plaintiffs’ claims, the Court will deny the motion to strike. 4 iv. Motions to Supplement 5 Defendants have filed two Motions to Supplement their Motion to Dismiss. 6 (ECF Nos. 241, 312). The Court will deny these motions as premature. These 7 motions contain various exhibits that Defendants allege challenge the veracity of 8 Plaintiffs’ claims and provide evidence in support of their counterclaims. At the 9 motion to dismiss stage, the Court must take as true the moving party’s 10 allegations and disregard any evidence outside of the four corners of the 11 complaint. See, e.g., Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 12 925 (9th Cir. 2001) (“[E]xtraneous evidence should not be considered in ruling on 13 a motion to dismiss.”); Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 14 658, 661 (9th Cir. 1998) (stating that in considering a motion to dismiss, “all well- 15 pleaded allegations of material fact are taken as true and construed in a light 16 most favorable to the non-moving party”). As such, at this stage, the Court will 17 assume the truth of the claims in Plaintiffs’ complaint and Defendants’ 18 counterclaims, so the Court cannot consider extrinsic evidence. As the Court has 19 previously advised, such evidence is better suited to the motion for summary 20 judgment stage. Thus, the Court will deny both Motions to Supplement. 21 b. Plaintiffs’ Motion to Dismiss Counterclaims 22 i. Timeliness 23 In their response to Plaintiffs’ motion to dismiss Defendants’ counterclaims, 24 Defendants argue that Plaintiffs’ motion is untimely because Plaintiffs could have 25 filed their motion to dismiss with their response to Defendant’s motion to dismiss. 26 (ECF No. 265 at 5.) “A party must serve an answer to a counterclaim or crossclaim 27 within 21 days after being served with the pleading that states the counterclaim 28 or crossclaim.” FED. R. CIV. P. 12(a)(1)(B). In addition, “[a] motion asserting any of 1 [the FRCP 12(b)] defenses must be made before pleading if a responsive pleading 2 is allowed.” FED. R. CIV. P. 12(b). Here, Defendants filed their amended 3 counterclaims on August 23, 2023 (ECF No. 231) and Plaintiffs filed their motion 4 to dismiss on September 14, 2023. (ECF No. 248.) In their reply, Plaintiffs rely on 5 the date Defendants filed a redacted version of the counterclaims, August 25, 6 2023, when calculating whether their motion was timely. (ECF No. 247 at 6.) 7 While Plaintiffs’ filing was untimely by a day, the court will still consider the 8 motion to dismiss because of the confusion surrounding the filing dates and the 9 fact that Defendants were not prejudiced by this late filing. Abuse of Process 10 Claim 11 Plaintiffs argue that this Court should dismiss Defendants’ abuse of 12 process claim. “The two elements required to establish the tort of abuse of process 13 are: (1) an ulterior purpose by the defendants other than resolving a legal dispute, 14 and (2) a willful act in the use of the legal process not proper in the regular 15 conduct of the proceeding.” Kovacs v. Acosta, 787 P.2d 368, 369 (Nev. 1990). 16 “[T]he claimant must provide facts, rather than conjecture, showing that the party 17 intended to use the legal process to further an ulterior purpose.” Land Baron Inv. 18 v. Bonnie Springs Family LP, 356 P.3d 511, 519 (Nev. 2015) (citing LaMantia v. 19 Redisi, 38 P.3d 877, 880 (Nev. 2002)). In addition, “[t]he utilized process must be 20 judicial, as the tort protects the integrity of the court.” Id. (internal citations 21 omitted). Furthermore, the party cannot meet the willful act requirement by 22 merely referencing the opposing party’s filing of a complaint. Id. at 520. 23 Defendants’ abuse of process claim fails as a matter of law. Defendants 24 allege that Plaintiffs filed their complaint “to entice the media…and to ruin [their] 25 reputations with salacious and untrue allegations.” (ECF No. 231 at ¶ 302.) 26 However, “filing a complaint does not constitute abuse of process.” Land Baron 27 Inv., 356 P.3d at 520. Filing a complaint is not “a ‘willful act’ that would not be 28 ‘proper in the regular conduct of the proceeding.’” Id. (internal citation omitted). 1 Furthermore, to the extent that Defendants challenge Plaintiffs’ communications 2 with the media, such conduct is not considered use of the legal process for 3 purposes of an abuse of process claim. See, e.g., Allstate Ins. Co. v. Shah, No. 4 2:15-cv-01786-APG-CWH, 2017 WL 1228406, at *3 n.28 (D. Nev. Mar. 31, 2017) 5 (“[C]ontacting the media does not involve using a judicial process.”); see also In 6 re Acacia Media Techs. Corp., No. C 05-01114 JW, 2005 WL 1683660, at *6 (N.D. 7 Cal. July 19, 2005) (“Statements (or misstatements) to the media…do not abuse 8 judicial process.”). As such, the Court will grant Plaintiffs’ motion to dismiss the 9 abuse of process counterclaim. 10 ii. Civil Conspiracy Claim 11 The Court will also grant Plaintiffs’ motion to dismiss Defendants’ civil 12 conspiracy counterclaims. Civil conspiracy claims are not standalone claims; 13 they require an underlying civil wrong. See Sahara Gaming Corp. v. Culinary 14 Workers Union Local 226, 984 P.2d 164, 168 (Nev. 1999) (dismissing civil 15 conspiracy claim because the court dismissed the underlying defamation claim). 16 Here, Defendants’ civil conspiracy claims are derivative of their abuse of process 17 claim because they allege that Plaintiffs “agreed to abuse process by filing a 18 Complaint with this Court with the sole intention of ruining the Buttons’ well- 19 known and respected reputations.” (ECF No. 231 at ¶313.) Because the Court 20 has already dismissed the abuse of process claim, it will also dismiss the 21 derivative civil conspiracy claim. 22 iii. Defamation Claims 23 1. Statute of Limitations 24 Plaintiffs raise multiple arguments regarding Defendants’ defamation 25 claims. First, Plaintiffs argue that Defendants’ defamation claims based on 26 statements Humphries allegedly made to the New York Times are time barred. 27 (ECF No. 248 at 20-21.) However, in Defendants’ defamation claim against 28 Humphries, they allege she made defamatory statements on multiple occasions 1 to different news outlets, but Plaintiffs only raise a statute of limitation issue with 2 the alleged statements to the New York Times.2 Because the defamation claim 3 involves multiple events, and the Court has not yet even determined if Nevada 4 law is the source of the statute of limitations for the claim, the Court will allow 5 the full defamation claim to proceed. 6 2. Anti-SLAPP Statute 7 Plaintiffs argue that the defamation claims should be dismissed pursuant 8 to Nevada’s anti-SLAPP statute. The anti-SLAPP statute protects speakers from 9 civil actions related to “a good faith communication in furtherance of the right to 10 petition or the right to free speech in direct connection with an issue of public 11 concern.” NRS § 41.650. A “[g]ood faith communication in furtherance of the right 12 to petition or the right to free speech in direct connection with an issue of public 13 concern” includes, as relevant here, a “[w]ritten or oral statement made in direct 14 connection with an issue under consideration by a legislative, executive, or 15 judicial body, or any other official proceeding authorized by law” or a 16 “[c]ommunication made in direct connection with an issue of public interest in a 17 place open to the public or in a public forum.” NRS § 41.637(3)-(4). 18 The Court finds that factual issues preclude dismissing Defendants’ 19 defamation claims based on Nevada’s anti-SLAPP statute. As the Court discussed 20 in its order denying the prior motion to dismiss (ECF No. 131), these alleged 21 statements are not protected under NRS 41.637(3) as statements made in direct 22 connection with an issue under consideration by a judicial body because the 23 statements were directed to the general public, not just persons having some 24 interest in the litigation. See Patin v. Ton Vinh Lee, 429 P.3d 1248, 1251-52 (Nev. 25 2018) (upholding the district court’s conclusion that a statement was not 26 protected by NRS 41.637(3) because, inter alia, “the statement was not directed 27 2 In a footnote, Plaintiffs also say that the statement posted on the Instagram 28 account @realworldballerina are time-barred. (ECF No. 248 at 21 n.7). 1 to any specific person or group, let alone to someone with an interest in the 2 litigation”).3 In addition, it is unclear at this stage whether Plaintiffs’ alleged 3 statements are protected under NRS 41.637(4) as statements made in direct 4 connection with an issue of public interest in a public forum. See NRS 41.660(3)- 5 (5) (explaining the procedures for seeking a special motion to dismiss pursuant 6 to Nevada’s anti-SLAPP statute); Taylor v. Colon, 482 P.3d 1212, 1215 (2020) 7 (observing that Nevada’s anti-SLAPP motion to dismiss functions like a summary 8 judgment motion); Shapiro v. Welt, 389 P.3d 262, 268 (2017) (setting forth factors 9 for whether a statement is made in direct connection with an issue of public 10 interest). Because the Court cannot determine at this time whether Plaintiffs’ 11 statements are protected by Nevada’s anti-SLAPP statute, it will deny Plaintiffs’ 12 motion to dismiss the defamation claims on this basis. 13 3. Fair Reporting Privilege 14 Plaintiffs also argue that the defamation claims should be dismissed 15 because they are protected by the fair reporting privilege. The Court finds, as it 16 did in its order on Plaintiffs’ earlier motion to dismiss, that factual issues prevent 17 the Court from concluding that the fair reporting privilege applies to Plaintiffs’ 18 statements. See Restatement (Second) of Torts, § 611 cmt. c. (stating, “A person 19 cannot confer [the fair reporting] privilege upon himself”); Wynn v. Assoc. Press, 20 136 Nev. 611, 613, 475 P.3d 44, 47 (Nev. 2020) (citing § 611 of the Second 21 Restatement of Torts and applying summary judgment standard in deciding 22 whether statements were privileged); Shapiro, 389 P.3d at 269 (observing that the 23 analysis of whether statements are privileged “is a case-specific, fact-intensive 24 inquiry that must focus on and balance the underlying principles of the 25 privilege”). Thus, the Court will deny Plaintiffs’ motion to dismiss with regards to 26 3 While Plaintiffs revived their argument that the statements are protected under 27 NRS 41.637(3), they simply focus on the fact that the statements were about allegations in the lawsuit and do not address the issue of whether the statements 28 were directed to those with an interest in the litigation. 1 the fair reporting privilege. 2 4. Actual Malice 3 Plaintiffs assert that Defendants are limited purpose public figures in the 4 dance and automotive communities and thus they were required to, and failed 5 to, allege that Plaintiffs made their statements with actual malice. “A limited- 6 purpose public figure is a person who voluntarily injects himself or is thrust into 7 a particular public controversy or public concern, and thereby becomes a public 8 figure for a limited range of issues.” Pegasus v, Reno Newspapers, Inc., 57 P.3d 9 82, 91 (Nev. 2002) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). 10 In Pegasus, the Nevada Supreme Court adopted the test outlined in Gertz, which 11 focuses on whether the people played a voluntary and prominent role in a matter 12 of public concern. Id. (citing Gertz, 418 U.S. at 351). 13 Plaintiffs cite a variety of non-controlling cases to support their argument 14 that Defendants are limited purpose public figures. (ECF No. 248 at 30.) However, 15 the Court finds these cases distinguishable and concludes that Defendants are 16 not limited purpose public figures. 17 Plaintiffs first cite Fine v. ESPN, Inc., 2016 WL 6605107 (N.D.N.Y. Mar. 25, 18 2016). In that case, the Northern District of New York concluded that the wife of 19 a basketball coach was a limited purpose public figure as to statements that her 20 husband molested former ball boys. However, that case is distinguishable from 21 the present case because in Fine, the plaintiff bringing the defamation claim had 22 appeared on television, was a radio personality, and “leveraged her public fame” 23 to obtain positions in various youth organizations. Fine, 2016 WL 6605107 at *7. 24 In addition, she was actively involved in matters involving at-risk youth and had 25 even discussed on television the need to properly screen adult mentors in 26 mentoring programs. Id. at *8. She thus “affirmatively injected herself into the 27 public spotlight in connection with [issues concerning the basketball team and 28 organizations supporting at-risk youth].” Id. at *11. Furthermore, she maintained 1 regular and continuing access to the media through her regular interviews and 2 media connections. Id. In contrast, Plaintiffs have failed to show that Defendants 3 inserted themselves into the public conversation surrounding sexual abuse in 4 the dance industry to such an extent. Instead, Plaintiffs merely state that 5 “Defendants are limited purpose public figures because they have voluntarily 6 injected themselves into the dance (and automotive) communities, using their 7 own and each other’s notoriety to earn income, solicit business, and garner 8 attention from young dancers, thus assuming the risk of publicity.” (ECF No. 248 9 at 29-30.) 10 The Court is similarly unpersuaded by Plaintiffs’ other cited cases. For 11 instance, Plaintiffs cite Barry v. Time, Inc., 584 F. Supp. 1110, 1119 (N.D. Cal. 12 1984) for the idea that professional and collegiate athletes are public figures. 13 However, that case concerned articles focusing on the University of San 14 Francisco’s investigation of charges that a player received improper payments 15 and accused the plaintiff, his coach, of involvement in the improper payment 16 scheme. Barry, 584 F. Supp. at 1112. The court noted that the coach “voluntarily 17 accepted a position which inevitably made him the focal point of substantial 18 media attention with regard to his team…[including his] performance in 19 conducting the basketball program within NCAA rules.” Id. at 1121. Thus, that 20 case is distinguishable because the statements at issue directly related to the 21 coach’s conduct in his professional role. Here, the Court finds that Plaintiffs’ 22 allegations fail to show that Defendants voluntarily inserted themselves into a 23 prominent role in the public issue of sexual abuse in the dance industry simply 24 by being a famous dancer or married to a famous dancer. Similarly, to find that 25 Defendants voluntarily inserted themselves into this issue of public concern by 26 allegedly committing acts of sexual abuse would require courts to find that all 27 people with some fame accused of a crime are necessarily limited purpose public 28 figures. 1 Because the Court concludes that Defendants are not limited purpose 2 public figures, they were not required to allege actual malice in their defamation 3 claims. Thus, the Court will deny Plaintiffs’ motion to dismiss on this basis. 4 iv. Compulsory Counterclaims 5 Plaintiffs next argue that Defendants are barred from asserting new 6 counterclaims because they waived previously omitted compulsory 7 counterclaims. “A pleading must state as a counterclaim any claim that-at the 8 time of its service-the pleader has against an opposing party if the claim arises 9 out of the transaction or occurrence that is the subject matter of the opposing 10 party’s claim.” FED. R. CIV. P. 13(a)(1)(A). As an initial matter, because the Court 11 has already dismissed Defendants’ civil conspiracy and abuse of process 12 counterclaims, it will only consider this argument with regards to the new 13 defamation counterclaims. Because the Court finds that the record is unclear as 14 to when Defendants became aware of the facts underlying their new defamation 15 counterclaims, and thus whether Defendants were required to bring the claims 16 earlier, the Court will deny the motion to dismiss. Plaintiffs, if they so desire, may 17 raise this issue again at the motion for summary judgment stage. 18 v. Seeking Leave of Court 19 Plaintiffs also argue that Defendants’ new counterclaims are barred 20 because Defendants failed to seek leave of Court before bringing their new 21 counterclaims. The Court notes that Defendants are proceeding pro se, and thus 22 the Court should liberally construe their filings. Bleisdell v. Frappiea, 729 F.3d 23 1237, 1241 (9th Cir. 2013) (internal citations omitted). While the Court recognizes 24 that courts in the Ninth Circuit generally “allow counterclaims without leave of 25 court ‘only when the breadth of the changes in the amended response reflect the 26 breadth of the changes in the amended complaint,’” Cap. One, Nat’l Assoc. v. SFR 27 Inv. Pool 1, LLC, No. 2:17-cv-00604-RFB-VCF, 2018 WL 11280816, at *2 (D. Nev. 28 0ct. 17, 2018) (cleaned up) (quoting UDAP Indus., Inc. v. Bushwacker Backpack 1 || & Supply Co., No. CV 16-27-BU-JCL, 2017 WL 1653260, at *3 (D. Mont. May 2, 2 || 2017)), it also notes that “[n]o appellate court has squarely addressed whether 3 || counterclaims filed in response to an amended complaint pursuant to Rule 15 4 || must be permitted as of right.” Id. (quoting Sierra Dev. Co. Chartwell Advisory 5 || Grp., Ltd., No. 13cv602 BEN (VPC), 2016 WL 6828200, at *2 (D. Nev. Nov. 18, 6 || 2016)). Because the Court must liberally construe pro se parties’ filings and the 7 || law regarding needing to seek leave of court in this situation is complicated, the 8 || Court will allow the counterclaims to proceed except for those already dismissed 9 || in this order. 10 IV. CONCLUSION 11 It is therefore ordered that Defendants’ Motion to Dismiss (ECF No. 231), and 12 || the redacted version of the motion (ECF No. 234), are denied in full. 13 It is further ordered that Defendants’ Motions to Supplement (ECF Nos. 241, 14 || 312) are denied. The Court also denies the redacted versions of the motions (ECF 15 || Nos. 245, 314). 16 It is further ordered that Plaintiffs’ Motion to Dismiss (ECF No. 248) is granted 17 || in part and denied in part. The Court will dismiss Defendants’ abuse of process 18 || and civil conspiracy claims. Defendants’ original defamation claim against 19 || Humphries is allowed to proceed. The Court defers ruling on whether Defendants’ 20 || new defamation claims are dismissed as waived compulsory counterclaims. 21 22 23 DATED THIS Sth day of August 2024. 24 25 Ares jlosead iden 26 ANNER TRAUM 27 UNITED STATES DISTRICT JUDGE 28