Noshirvan v. Couture

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DANESH NOSHIRVAN, an

individual,

Plaintiff,

v. Case No: 2:23-cv-1218-JES-KCD

JENNIFER COUTURE, an

individual, RALPH GARRAMONE

M.D., an individual, RALPH

GARRAMONE M.D. P.A., CENTRAL

PARK OF SOUTHWEST FLORIDA,

LLC, WRAITH, LLC, SULLIVAN

STREET INVESTMENTS, LLC,

HAIRPIN TURN, LLC, OMG

REALTY, LLC, R G WEIGHT

MANAGEMENT, LLC, CENTRAL

PARK SOUTH, LLC, BRANTLEE,

LLC, LEGACY OF MARIE

GARRAMONE, LLC, GARRAMONE

MARKETING, INC., 5681

DIVISION LLC, THE LAW OFFICE

OF PATRICK TRAINOR ESQ. LLC,

PATRICK TRAINOR, an

individual, and ANTI-DOXING

LEAGUE INC.,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of Danesh

Noshirvan’s (Plaintiff or Noshirvan) Motion to Dismiss

Counterclaim (Doc. #72), Motion for Rule 11 Sanctions (Doc. #86),

and Notice of Supplemental Authority (Doc. #87). Jennifer Couture

(Defendant or Couture) filed a Response in Opposition (Doc. #93).

For the reasons set forth below, the motions are granted.

I.

Couture first sued Noshirvan in a separate case before another

district judge. See Couture v. Noshirvan, Case No. 23-cv-340-SPC-

1

KCD (hereinafter Couture). Noshirvan then filed the instant

lawsuit against Couture (hereinafter Noshirvan). After Couture’s

motion to dismiss was denied, 2 Couture filed an Answer along with

a counterclaim for Intentional Infliction of Emotional Distress

(IIED). (Doc. #68.) Noshirvan contends that because the

counterclaim was previously raised, or could have been raised, in

Couture, the counterclaim is barred by res judicata and Couture or

her counsel should be sanctioned. (Docs. ##72, 86.) Couture

counters that because her counterclaim arises from new and ongoing

harmful conduct, both motions should be denied. (Doc. #93.)

1

The Court takes judicial notice of the Complaint and the

Order dismissing the claims with prejudice (Doc. #111) in Couture.

See Horne v. Potter, 392 F. App'x 800, 802 (11th Cir. 2010)(per

curiam)(holding that, in evaluating a claim for res judicata,

“[t]he district court properly took judicial notice of the

documents in [plaintiff]'s first case, which were public records

that were ‘not subject to reasonable dispute’ because they were

‘capable of accurate and ready determination by resort to sources

whose accuracy could not reasonably be questioned.’” (quoting Fed.

R. Evid. 201(b)).

2

The motion to dismiss detailed each case’s allegations. (See

Doc. #65, pp. 2-4.) They require no repeating here, except as later

discussed.

II.

Under Federal Rule of Civil Procedure 8(a)(2), a pleading

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

As previously noted by the undersigned in Pk Studios, Inc.,

In evaluating a Rule 12(b)(6) motion seeking

to dismiss a counterclaim for failing to

comply with Rule 8(a), the Court must accept

as true all factual allegations in the

counterclaim complaint and “construe them in

the light most favorable to the [counterclaim-

]plaintiff.” Baloco ex rel. Tapia v. Drummond

Co., 640 F.3d 1338, 1345 (11th Cir. 2011).

However, mere “[l]egal conclusions without

adequate factual support are entitled to no

assumption of truth.” Mamani v. Berzain, 654

F.3d 1148, 1153 (11th Cir. 2011) (citations

omitted).

By extension, “[a] motion to dismiss a

counterclaim pursuant to Federal Rule of Civil

Procedure 12(b)(6) is evaluated in the same

manner as a motion to dismiss a complaint.”

Sticky Holsters, Inc. v. Ace Case Mfg., LLC,

No. 2:15-CV-648-FTM-29CM, 2016 WL 1436602, at

*6 (M.D. Fla. Apr. 12, 2016) (quoting Geter v.

Galardi S. Enters., Inc., 43 F. Supp. 3d 1322,

1325 (S.D. Fla. 2014)). Thus, to avoid

dismissal under Rule 12(b)(6), each

counterclaim must contain sufficient factual

allegations to “raise a right to relief above

the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). To do so

requires “enough facts to state a claim to

relief that is plausible on its face.” Id. at

570.

This plausibility pleading obligation demands

“more than labels and conclusions, and a

formulaic recitation of the elements of a

cause of action will not do.” Id. at 555

(citation omitted); see also Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare

recitals of the elements of a cause of action,

supported by mere conclusory statements, do

not suffice.”); Chaparro v. Carnival Corp.,

693 F.3d 1333, 1337 (11th Cir. 2012) (“Factual

allegations that are merely consistent with a

defendant's liability fall short of being

facially plausible.” (citation omitted)).

Instead, the counterclaim complaint must

contain enough factual allegations as to the

material elements of each claim to raise the

plausible inference that those elements are

satisfied, or, in layman's terms, that the

counterclaim-plaintiff has suffered a

redressable harm for which the counterclaim-

defendant may be liable.

Pk Studios, Inc. v. R.L.R. Invs., LLC, No. 2:15-CV-389-FTM-99CM,

2016 WL 4529323, at *8 (M.D. Fla. Aug. 30, 2016).

III.

The Court first addresses Noshirvan’s motion to dismiss the

counterclaim and then the motion for sanctions.

A. Dismissal of counterclaim

Noshirvan argues Couture’s counterclaim should be dismissed

because it “is subject to res judicata, fails to state a cause of

action, and filed in bad faith.” (Doc. #72, p. 2.) The first

argument is persuasive and requires dismissal with prejudice.

(1) Res Judicata

“To invoke res judicata—also called claim preclusion—a party

must establish four elements: that the prior decision (1) was

rendered by a court of competent jurisdiction; (2) was final; (3)

involved the same parties or their privies; and (4) involved the

same causes of action.” TVPX ARS, Inc. v. Genworth Life & Annuity

Ins. Co., 959 F.3d 1318, 1325 (11th Cir. 2020)(citing Trustmark

Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1269 (11th Cir. 2002)). Res

judicata bars both “claims that were or could have been litigated

in a prior action between the same parties.” Lobo v. Celebrity

Cruises, Inc., 704 F.3d 882, 892 (11th Cir. 2013). “[F]or res

judicata purposes, claims that ‘could have been brought’ are claims

in existence at the time the original complaint is filed or claims

actually asserted by supplemental pleadings or otherwise in the

earlier action.” Manning v. City of Auburn, 953 F.2d 1355, 1360

(11th Cir. 1992)(internal footnote omitted). “At all times the

burden is on the party asserting res judicata . . . to show that

the later-filed suit is barred.” In re Piper Aircraft Corp., 244

F.3d 1289, 1296 (11th Cir. 2001).

Couture only disputes the fourth element, that is, whether

the counterclaim “arises out of the same nucleus of operative

facts, or is based upon the same factual predicate, as [Couture].”

TVPX ARS, Inc., 959 F.3d at 1325(quoting Griswold v. Cnty. Of

Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010)). Two claims

arise out of the same operative nucleus of facts if “the primary

right and duty are the same.” Id. (quoting Adams v. S. Farm Bureau

Life Ins. Co., 493 F.3d 1276, 1289 (11th Cir. 2007)). “The test is

one of substance, not form.” Manning, 953 F.2d at 1358 (citing

I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1549

(11th Cir. 1986)). “A court ‘must look to the factual issues to be

resolved [in the second cause of action], and compare them with

the issues explored in’ the first cause of action.” Id. at 1359

(alteration in original)(quoting S.E.L. Maduro v. M/V Antonio De

Gastaneta, 833 F.2d 1477, 1482 (11th Cir. 1987). “[A]ll legal

theories and claims arising out of the same operative nucleus of

fact” are barred, regardless of the precise legal theory presented

in the previous litigation. Maldonado v. U.S. Atty. Gen., 664 F.3d

1369, 1376 (11th Cir. 2011)(quoting Pleming v. Universal–Rundle

Corp., 142 F.3d 1354, 1356 (11th Cir. 1998)).

The factual allegations in Couture’s IIED counterclaim are as

follows: “Since January 26, 2022, counter-defendant [Noshirvan]

has used TikTok videos and other social media platforms to lead

and participate in a campaign of online and telephonic harassment

and threats against [Couture].” (Doc. #68, p. 36.) On that day, a

minor related to Couture allegedly gave Noshirvan money, a video

of Couture, and Couture’s personal information so Noshirvan would

harass Couture. (Id. at p. 37, ¶ 29.) The next day, Noshirvan

published his first video of Couture, which lead to Couture

allegedly receiving hundreds of text messages, phone calls, and

voicemails. (Id. at ¶¶ 30-31.) Noshirvan then allegedly messaged

Couture, telling her the “fun hasn’t even started yet,” (id. at ¶

32); chatted online with Couture posing as another person and

posted screenshots of their conversation online, (id. at ¶ 36);

published videos on or about February 2022 of Couture’s location,

which led to people soliciting Couture’s mother’s house, (id. at

¶ 44); purchased native content sponsored advertisements that same

month to promote the videos, (id. at ¶ 40); threatened Couture

with getting her arrested since January 2022, (id. at ¶ 43); filed

false reports with the Florida Department of Children and Families

(FDCF) on July 2022, which led to an unannounced investigative

visit from FDCF in August 2022, (id. at ¶¶ 45-46); and incited his

social media followers to report Couture to Southwest Florida

Crimestoppers. (Id. at ¶ 52.) “Between January 2022 and August

2022, [Noshirvan] posted approximately twelve (12) new videos

directed at Couture, and he repeatedly reposted edited versions of

his previous videos.” (Id. at ¶ 53.)

The counterclaim and the Complaint in Couture are based on

the exact same factual predicate, as evidenced by their practically

copy-and-paste mirroring of each other. (See Couture, Doc. #1, ¶¶

39-41, 44-46, 49-53, 58.) Further, all of the counterclaim’s

pleaded factual allegations took place before May 22, 2023, the

date the Couture Complaint was filed. Thus, Couture could have

brought this IIED claim in the previous litigation. Lawlor v. Nat'l

Screen Serv. Corp., the case Couture relies on, differs in that

the allegations in the second case there “were all subsequent” to

the first action, “new”, and “substantially” different. 349 U.S.

322, 328 (1955). The fourth element is therefore satisfied and res

judicata bars this counterclaim.

Couture’s argument that “this counterclaim arises from

Noshirvan[] continuing [his] campaign of online and telephonic

harassment” by “farm[ing] out the harassment of Couture to third-

parties that he is friendly with who have sizeable social media

followings of their own” (Doc. #93, p. 4) fails to alter the

result. By simply stating that the conduct is “continuing,”

Noshirvan neither alleges new acts that took place after Couture

nor acts that arise from a separate nucleus of operative facts. It

is evident that these unpled facts arise out of the same operative

nucleus of operative facts as Couture, where Noshirvan allegedly

“incited [third-parties] to join his campaign of online and

telephonic harassment” of Couture since January 27, 2020.

(Couture, Doc. #1, ¶ 40.) Both sets of facts arise from the same

transaction or series of transactions. See Ragsdale, 193 F.3d at

1239 n.8 (explaining that a group of facts constitutes a

transaction or series of transactions if they are pragmatically

related in time, space, origin, motivation, and they form a

convenient trial unit in accordance with a parties’ expectations).

This is not a situation where a modification of significant facts

created new legal conditions. See Manning, 953 F.2d at 1359 (“Res

judicata is no defense where, between the first and second suits,

there has been a[ ] . . . modification of significant facts

creating new legal conditions.” (alteration in original)(quoting

Jaffree v. Wallace, 837 F.2d 1461, 1469 (11th Cir. 1988))). Thus,

the counterclaim is barred by res judicata.

Noshirvan asserts that the counterclaim should be dismissed

with prejudice and Couture advances no argument on the issue. Given

the nature of res judicata and the futility of any amendment based

on the same nucleus of operative facts or factual predicate, the

counterclaim will be dismissed with prejudice. See Stafford v.

Kedrion S.p.A., No. 23-10807, 2023 WL 7104809, at *2 (11th Cir.

Oct. 27, 2023)(per curiam)(“Because res judicata would bar the

second amended [counterclaim] . . . further amendment would have

been futile and caused undue delay.”) 3; Ferrier v. Atria, 728 F.

App'x 958, 962 (11th Cir. 2018)(per curiam); Solis v. Glob.

Acceptance Credit Co., L.P., 601 F. App'x 767, 771–72 (11th Cir.

2015)(per curiam)(“[T]he court also did not err in denying leave

to amend because further amendment with respect to the same factual

circumstances would not evade the res judicata bar.”); De Souza v.

JPMorgan Chase Home Lending Div., 608 F. App'x 776, 781 (11th Cir.

2015)(per curiam); Brown v. Comcast Cablevision of Tallahassee,

134 F. App'x 423, 424 (11th Cir. 2005)(per curiam); Butler v. First

3

“Unpublished opinions are not controlling authority and are

persuasive only insofar as their legal analysis warrants.” Bonilla

v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir.

2007).

Finacial Inv. Fund Holdings, LLC, No. 120CV03115WMRAJB, 2021 WL

2518239, at *4 (N.D. Ga. Apr. 7, 2021), report and recommendation

adopted sub nom. Butler v. First Fin. Inv. Fund Holdings, LLC, No.

1:20-CV-3115-WMR, 2021 WL 7707938 (N.D. Ga. June 21, 2021)(“Given

the nature of res judicata, when the doctrine applies to a

particular [claim] the [claim] will be dismissed with prejudice.”

(citing Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498,

1501 (11th Cir. 1990))). 4

(2) Imposition of Sanctions

Noshirvan argues that Couture or her counsel should be

sanctioned pursuant to Rule 11 for filing the invalid counterclaim,

since it was “nearly identical” to the Complaint in Couture and

thus “was clearly frivolous (barred by res judicata), legally

unreasonable, or without legal foundation.” (Doc. #86, p. 7.) In

one sentence, Couture counters that “sanctions pursuant to Rule 11

are unwarranted, because Couture’s counterclaim arises from new

and ongoing harmful conduct.” (Doc. #93, p. 5.)

Rule 11(b) states that:

By presenting to the court a pleading, written motion,

or other paper--whether by signing, filing, submitting,

or later advocating it--an attorney or unrepresented

party certifies that to the best of the person's

4

“Because this conclusion disposes of this [counterclaim],

we need not address [Noshirvan]'s [remaining] arguments” for

dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1190

n.3 (11th Cir. 2003).

knowledge, information, and belief, formed after an

inquiry reasonable under the circumstances:

(1) it is not being presented for any improper

purpose, such as to harass, cause unnecessary

delay, or needlessly increase the cost of

litigation;

(2) the claims, defenses, and other legal

contentions are warranted by existing law or

by a nonfrivolous argument for extending,

modifying, or reversing existing law or for

establishing new law;

(3) the factual contentions have evidentiary

support or, if specifically so identified,

will likely have evidentiary support after a

reasonable opportunity for further

investigation or discovery; and

(4) the denials of factual contentions are

warranted on the evidence or, if specifically

so identified, are reasonably based on belief

or a lack of information.

Fed. R. Civ. P. 11(b). The Rule 11 standard, as recently stated by

the Eleventh Circuit:

Rule 11 sanctions are warranted when a party files a

pleading or motion that “(1) has no reasonable factual

basis; (2) is based on a legal theory that has no

reasonable chance of success and that cannot be advanced

as a reasonable argument to change existing law; and (3)

is filed in bad faith for an improper purpose.”

Rule 11 imposes an affirmative duty on an attorney

to conduct a reasonable inquiry into both the facts and

the law before filing a pleading or motion. When deciding

whether to impose sanctions under Rule 11, a district

court must conduct a two-step inquiry, determining “(1)

whether the party's claims are objectively frivolous;

and (2) whether the person who signed the pleadings

should have been aware that they were frivolous.” A

factual claim is frivolous when it has no reasonable

factual basis. A legal claim is frivolous when it has no

reasonable chance of succeeding. When the attorney's

evidence is “merely weak,” but supports a claim under

existing law after a reasonable inquiry, sanctions are

unwarranted. Sanctions are warranted, however, when the

attorney exhibits “a deliberate indifference to obvious

facts.”

If the attorney failed to make a reasonable

inquiry, then “the court must impose sanctions despite

the attorney's good faith belief that the claims were

sound.” The reasonableness of the inquiry depends on the

circumstances of the case.

In addition, an attorney's obligations with respect

to the contents of pleadings or motions are not measured

solely as of the time when the pleading or motion is

initially filed with the court, but also at the time

when the attorney, having learned the claims lack merit,

reaffirms them to the court. “That the contentions

contained in the complaint were not frivolous at the

time it was filed does not prevent the district court

from sanctioning [the attorney] for his continued

advocacy of them after it should have been clear that

those contentions were no longer tenable.”

Gulisano v. Burlington, Inc., 34 F.4th 935, 941–43 (11th Cir.

2022)(internal citations omitted). “A plaintiff may be sanctioned

under Rule 11 for filing claims barred by res judicata.” Thomas v.

Evans, 880 F.2d 1235, 1240 (11th Cir. 1989)

Couture’s res judicata argument was not supported by the facts

alleged in the counterclaim. The counterclaim here and the facts

in the Complaint in Couture were practically a copy-and-paste

mirror of each other. Yet, Couture’s counsel argued that the claims

did not share the same cause of action. Even if that was his good

faith belief, a reasonable inquiry would have quickly revealed

that the factual issues in the counterclaim arose out of the same

transaction or series of transactions in Couture. Couture’s

counsel filed the counterclaim about twenty days after Couture’s

claims against Noshirvan were dismissed with prejudice in Couture.

(Compare Doc. #68 with, Couture, Doc. #111.) Couture’s counsel was

then afforded more time after Noshirvan’s counsel gave him notice

on April 30, 2024 of a motion for Rule 11 sanctions unless the

counterclaim was withdrawn. (See Doc. #93, p. 4.) Counsel therefore

had more than enough time to conduct a reasonable inquiry.

Instead, Couture’s counsel did not withdraw the counterclaim,

and these motions to dismiss and for sanctions followed. The

completion of the required reasonable inquiry would have resulted

in Couture realizing the pled counterclaim was barred by res

judicata, thus avoiding the costs to Noshirvan of defending against

it. Given that Couture’s counsel violated Rule 11(b), the Court is

now obliged to impose sanctions. Didie v. Howes, 988 F.2d 1097,

1104 (11th Cir. 1993)(“Under Rule 11, a district judge ‘shall’ or

must impose sanctions for a violation.”).

“[When] an attorney or unrepresented party breaches its duty

under Rule 11(b) by filing a pleading that fails to comply with

any of the substantive standards of that rule, Rule 11(c) kicks

in.” Showan v. Pressdee, 922 F.3d 1211, 1224 (11th Cir. 2019).

Here, Noshirvan requests “costs or expenses including attorney’s

fees, and any other relief this Court deems just and proper” from

either Couture herself or her counsel, Patrick Trainor. (Doc. #86,

p. 7.) “Rule 11(c)(4) permits a court to issue ‘an order directing

payment to the movant of part or all of the reasonable attorney's

fees and other expenses’ as a sanction for a violation of Rule

11(b).” Showan, 922 F.3d at 1224 (quoting Fed. R. Civ. P.

11(c)(4)). Nonetheless, “Rule 11 does not create an absolute

entitlement to even reasonable attorney's fees if the court

determines that the rule's central goal of deterrence may be

achieved by a lesser sanction.” Fox v. Acadia State Bank, 937 F.2d

1566, 1571 (11th Cir. 1991). Importantly, “Rule 11 does not permit

sanctioning a client, however, when the basis for the sanction is

that the pleading was legally frivolous.” Byrne v. Nezhat, 261

F.3d 1075, 1118 (11th Cir. 2001) abrogated on other grounds as

recognized by Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1357

n.10 (11th Cir. 2018).

Patrick Trainor and The Law Office of Patrick Trainor, Esq.,

LLC, will be jointly and severally sanctioned for the reasonable

attorney’s fees and costs incurred by Noshirvan in defending

against the frivolous counterclaim. See Fed. R. Civ. P.

11(c)(1)(stating that “[a]bsent exceptional circumstances, a law

firm must be held jointly responsible for a violation committed by

its partner, associate, or employee.”). Rule 11 sanctions are

designed to discourage dilatory or abusive tactics and help

streamline the litigation process by lessening frivolous claims.

Didie, 988 F.2d at 1104. Sanctions may be imposed for the purpose

of deterrence, compensation or punishment. Id. In this case, the

court finds that the purposes of Rule 11 sanctions—deterrence,

compensation, and punishment—are furthered by imposing sanctions

against Patrick Trainor and his law firm for filing a counterclaim

which was clearly barred by the doctrine of res judicata. The one

sentence opposition to sanctions was not supported by the record.

Noshirvan does not disclose the amount of his requested

reasonable attorney’s fees and costs. Therefore, on or before

August 23, 2024, the parties shall confer in person or via

telephone in a good faith effort to agree about the amount of

attorney's fees and costs to be awarded pursuant to this Order. If

the parties are able to reach agreement, they shall file on or

before the same day a joint notice with the Court setting forth

the agreed amount. If the parties are unable to agree on the

amount, then, on or before August 30, 2024, Noshirvan may file a

motion to quantify the attorney's fees awarded in this Order. The

motion for quantification must be supported by evidence concerning

counsels' hourly rate and the time spent, as well as contain

appropriate legal authority to support the requested amounts.

Accordingly, it is now

ORDERED:

1. Plaintiff’s Motion to Dismiss (Doc. #72) is GRANTED and

the Counterclaim in Doc. #68 is dismissed with prejudice.

2. Plaintiff’s Motion for Sanctions (Doc. #86) is GRANTED to

the extent set out above. Patrick Trainor and The Law

Office of Patrick Trainor, Esq., LLC are jointly and

severally sanctioned in the amount of reasonable attorney's

fees and costs incurred by Noshirvan in defending against

the counterclaim.

3. By August 23, 2024, the parties shall file a joint notice

on the agreed upon amount pursuant to this Order.

4.1If no agreement is reached, Noshirvan shall file on or

before August 30, 2024, a motion to quantify the attorney's

fees awarded in this Order.

DONE AND ORDERED at Fort Myers, Florida, this 2nd day of

August, 2024,

J == □□□

: lu dE, Ah Zook

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Parties of record