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John Benn offers some comments about the lawsuit and the recent amendment.

Issue #03: Pleading Clarity - Does Novak's proffered amended complaint provide sufficient notice under FRCP Rule 8(a) to the defendants about Novak's claims?

The framework for initially testing a plaintiff's complaint is provided for under Rule 8(a) of the Federal Rules of Civil Procedure. This rule essentially requires a "short" and "plain" statement which includes 1) the grounds upon which the court's jurisdiction rests; 2) a statement of a claim which would entitle the plaintiff to relief, and 3) a demand for relief.

Tested against the requirements of Rule 8(a) along with the concept that each defendant should be adequately alerted about the claims against him/her, Novak's amended complaint should fail.

The remedy for a deficient complaint is provided for under Rule 12(e) which can be invoked when a pleading is so vague or ambiguous that an individual party cannot reasonably be required to frame a responsive pleading.

Judge for yourself the following items noted from Novak's proffered amended complaint.

1. In the caption of the lawsuit Novak names the following entities - "Active Window Publications, Inc., Mark Rosenstein, Cynthia S. Powers, Dan Resler, Jared Weinberger, Thomas Barr, John Benn, Mark Barnett, Robert Hudson, JoAnn Vandersarl, PetsForum Group, Inc., "John Doe" and "Mary Roe."
   
   
2. In the body of the complaint under a section labeled "The Parties" lists Defendant Sean Carney.
   NOTE - Sean Carney is not listed in the caption of the lawsuit pleading.
   
   
3. In the body of the complaint under a section labeled "The Parties" there is no mention of PetsForum Group,Inc.
   
   
4. Recognizing by actual count of the defendants named in the caption of the pleading that there are eleven (11) real entities named, Novak fails to identify which named defendant committed which alleged wrong. For the most part Novak uses a generic "Defendants" terminology. Novak does so very inconsistently.
   

Claim - The Libel, Cyberlibel and Libel Per Se of the Defendants, False Light
Novak claims in the concluding paragraph that this claim only involves Mark Rosenstein, Cynthia Powers, Dan Resler, Jared Weinberger, Thomas Barr and Sean Carney. (My point is that Novak individually names which defendants he claims to be involved in this cause of action.

Claim 2 - As andfor a claim against Defendants Active Window Publications, Inc., Mark Rosenstein and Cynthia Powers
Novak here claims "judgment against defendants". One could speculate that his claim here is limited to Rosenstein, Powers, and Active Window Publications, Inc.

Claim 3 - Intentional Infliction of Emotional Distress; Robert Novak
Novak does not specifically identify which defendants are alleged to have committed this wrong. He again uses the generic "defendants" terminology.

Claim 4 - Tortious Interference with Contractual Relations
Novak again does not specifically identify which defendants are alleged to have committed this wrong. He uses "defendants" again.

Claim 5 - Tortious Interference with Prospective Business Relations
Novak here mentions Karen Randall. As best anyone can tell Karen is not listed in the caption as a defendant or named as a defendant under Novak's "The Parties" section.

Novak also continues his reference to "defendants" without specifying which of the eleven (11) are involved.

Claim 6 - Product Disparagement and Trade Libel
Novak again uses "defendants" terminology.

Claim 7 - Trademark Under Section 43 of the Lanham Act, Dilution, False Description and Unfair Competition
Novak again uses his collective "defendants" terminology.

Claim 8 (Editorial note - there is no listed Claim 8)

Claim 9 Civil Conspiracy
Novak here only refers to "defendant's" acts. Apparently the only defendant here is "John Benn". However, in the initial paragraphs for this claim Novak again reverts to "defendants".

Claim 10 - Concerted Action
Novak again uses "defendants" terminology.

Claim 11 - Computer Fraud and Abuse Act, 18 U.S.C. Section 1030.
Novak again uses "defendants" terminology. For instance he asserts "[d]efendants harvesting and collected the customer files of Petswarehouse.com and actionsalvage.com. Defendants have obtained information via interstate communications to which he was not entitled."

The above is perhaps the clearest example of inadequate pleading. Read literally this would seem to state each of the eleven (11) defendants committed this act - i.e. use of "defendants" and not "defendant xxxxx, yyyyyy, and zzzzz". I doubt that Novak could ever really claim that "Robert Hudson" took any such actions.

Claim 12 - Offenses Against Computer users in Violation of New York's Computer Crimes Act
Novak again uses "defendants" terminology. Again, I wonder did "Robert Hudson" or "Mark Barnett" actually in any way commit this wrong?

Claim 13 - Trespass to Personal Property or Chattels in Violation of Common Law
Novak again uses "defendants" terminology.

The misuse of "defendants" terminology coupled with the lack of any measurable effort to specifically identify which defendant is alleged to have committed which wrong is a glaring deficiency in Novak's amendment.

There are, however, still more problems.

In the initial section of his amendment Novak requests injunctive relief. There is not a single claim in the lawsuit where Novak's claims entitle him to injunctive relief. Rule 65 of the Federal Rules of Civil Procedure is very specific about pleading requirements for injunctions. Novak's amendment satisfies none of the requirements.

Perhaps the most amusing is request #6 by Novak in his prayer for relief - "Attorneys' fees". A basic tenet of civil litigation is that you can't recover these, even if you win, WHEN THERE IS NO ATTORNEY REPRESENTING YOU! Furthermore, aside from perhaps the Lanham Act claim, no other stated claim would authorize recovery of attorney's fees EVEN IF NOVAK WINS.

Finally, this might be an appropriate Issue in which to mention Rule 11 of the Federal Rules of Civil Procedure. This rule proscribes:

By presenting to the court a pleading, written motion, or other paper, [an] unrepresented party is certifying that to the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances - it is not be presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modificiation, or reversal of existing law or the establishment of new law; the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery....

Unrepresented parties can be sanctioned under Rule 11(c), including monetary sanctions as well as attorney's fees and costs, for failure to abide by these requirements.

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