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Kotcheff v. Kafallo

United States District Court, C.D. California

January 2, 2015

TED KOTCHEFF, Plaintiff/Counter-Defendant
IVAN DEMETRIUS KAFALLO, Defendant/Counterclaimant.


OTIS D. WRIGHT, II, District Judge.

Before the Court is Plaintiff and Counter-Defendant Ted Kotcheff's unopposed Motion to Dismiss Counterclaims. For the reasons stated below, the Court GRANTS Kotcheff's Motion to Dismiss WITH LEAVE TO AMEND.[1] (ECF No. 31.)

Kotcheff initiated this action on May 8, 2014, seeking declaratory and injunctive relief against Kafallo. (ECF No. 1.) Kotcheff's claims relate to intellectual property rights for a text written by Kafallo on King Boris III of Bulgaria. ( Id. ) Kafallo has elected to represent himself without counsel.[2]

On October 17, 2014, Kafallo filed an Amended Answer, which includes counterclaims. (ECF No. 28.) The counterclaims read in their entirety as follows:


By the Plaintiff's actions and allegations stated in this complaint, TED KOTCHEFF, as Individual, has caused harm to IVAN DEMETERIUS KAFALLO; the actions are:

a) Attempt to perpetrate a fraud;
b) Intent to infringe on Defendant's copyright;
c) Damage to the defendant's ability to promote and sell his work;
d) Causing severe emotion distress and anxiety.

( See ECF No. 28 at 7.) Kafallo goes on to ask for damages in the amount of $4, 000, 000.00. ( Id. at 8.)

On November 7, 2014, Kotcheff filed the instant Motion to Dismiss Counterclaims. (ECF No. 31.) Opposition to the Motion was due no later than November 17, 2014. See L.R. 7-10. To date no opposition has been filed. The unopposed Motion is now before the Court for decision.

A court may dismiss a claim for relief-including counterclaims-under Federal Rule of Civil Procedure 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a dismissal motion, a complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual "allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Here, Kafallo's counterclaims are devoid of factual allegations and are far from sufficient to put Kotcheff on notice as required by Rule 8. The Court believes that Kafallo's claims are for fraud, copyright infringement, and perhaps intentional infliction of emotional distress. But Kafallo must do more than create a list of claims. He must make factual allegations with regard to Kotcheff's conduct and, in the case of copyright infringement, allegations with regard to the copyrighted work. Moreover, fraud claims have a heightened pleading standard under Rule 9(b), requiring specific facts including "the who, what, when, where, and how" of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-06 (9th Cir. 2003). Kafallo has failed to allege any facts to support his listed claims, so they necessarily fail under the pleading standards.

For the reasons discussed above, the Court GRANTS Kotcheff's Motion to Dismiss Counterclaims. (ECF No. 31.) Dismissal is WITH LEAVE TO AMEND. Kafallo may file amended counterclaims no later than 21 days from the date of this Order.


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