MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIM
(Doc. 12) 1
AVERN COHN, District Judge.
This is a case under the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125 with a pendent state law claim. Plaintiffs Craig Sherman and Marla Sherman are suing defendant Austin Ritter. Defendant filed an Answer and Counterclaim alleging that the lawsuit is frivolous and constitutes an abuse of process.
Before the Court is plaintiffs' motion to dismiss the counterclaim on the grounds that it fails to state a plausible claim for relief. For the reasons that follow, the motion will be granted.
Plaintiffs allege that defendant established fraudulent websites misusing their names. Specifically, the complaint alleges that defendant established websites at www.craigsherman.com and www.mariasilamianos.com and used them to direct visitors to a twenty-year old press release discussing crimes alleged against members of plaintiff Craig Sherman's family. The complaint further alleges that the content on the websites was designed to appear as though the allegations against members of Craig Sherman's family were recent and breaking news but in reality the allegations were twenty years old. Plaintiffs also allege that defendant has sent harassing and misleading emails and other communications to plaintiffs' business contacts.
Defendant filed an answer and counterclaim. The counterclaim alleges the following:
The defendant has the following claim against the plaintiff . . .
(Doc. 11 at p. 10).
III. Legal Standard
Under Rule 12(b)(6) a complaint must be dismissed if it does not "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."
As an initial matter, the Court arguably could grant plaintiffs' motion because defendant did not file a response
Accepting all of the allegations of the counterclaim as true and construing the Counterclaim in a light most favorable to defendant, the counterclaim fails to state a claim upon which relief can be granted. "Abuse of process is the wrongful use of the process of a court."
Here, the sole basis of the counterclaim is the allegation that plaintiffs' lawsuit is frivolous. However, filing a lawsuit is not sufficient to support an abuse of process claim. As the Michigan Court of Appeals explained, "the mere institution of a lawsuit is not enough to create a cause of action for abuse of process."
For the reasons stated above, plaintiffs' motion is GRANTED. Defendant's counterclaim is DISMISSED.