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Waka LLC v. Kickball

May 25, 2007


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Plaintiff, World Adult Kickball Association, LLC ("WAKA"), filed a complaint alleging copyright infringement and defamation against defendants, Carter Rabasa ("Rabasa") and his non-stock organization, DC Kickball. In response to plaintiff's complaint, defendants filed counterclaims for violations of the antitrust laws of the United States and the District of Columbia. Specifically, defendants allege violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2, and D.C. Code §§ 28-4502 and 28-4503. Pending before the Court is plaintiff's motion to dismiss defendants' counterclaims under Rules 12(b)(6) and/or 12(c) of the Federal Rules of Civil Procedure. Upon review of the motion, response and reply thereto, the pleadings, and applicable law, the Court grants in part and denies in part plaintiff's motion.


Plaintiff, WAKA, was founded in 1998 by four friends (David Lowry, John LeHane, Jimmy Walicek, and Rich Humphrey), who each hold one-quarter interest in the organization. Compl. ¶ 3. The purpose of WAKA was to start a co-ed organization that used kickball to provide a social outlet for young professionals. Id. After discovering how successfully men and women interacted with each other at their functions, WAKA conducted an extensive search for published kickball rules. Id. During this time, there were no other adult kickball groups, no published history of social kickball, or anything of the like. Id. Subsequently, WAKA promulgated what it claims are the first-ever "Official Kickball Rules" that year. Id. ¶ 4.*fn1 In April 1998, WAKA created its first website and email address. Id. ¶ 5. At that time, WAKA had approximately 150 players on seven different teams, all within the same division. Id. In 2001, WAKA increased its membership base to 1,200 players in four different divisions. Id. ¶ 6. In 2004, WAKA expanded to leagues in fifteen different states. Id. ¶ 23. Finally, in 2005, WAKA's "Official Kickball Rules" became registered as copyrighted material. Id. ¶ 22.

On February 10, 2005, WAKA received an email from the Kickball League of Baltimore, Inc. that indicated that an organization called DC Kickball existed and was looking for players in the area. Id. ¶ 25. Upon further investigation, WAKA discovered that Carter Rabasa, former WAKA division officer, was the person responsible for DC Kickball. Id. From May-August 2002, Rabasa was vice president of the WAKA DC Independence Division. Id. ¶ 21. Then from April-August 2002, Rabasa became president of that division. Id. Finally, on April 25, 2004, Rabasa formed and became owner of DC Kickball. Id. ¶ 24.

On February 24, 2005, Rabasa posted a message on, seeking volunteers to join his league. Id. ¶ 26. Lowry, one of WAKA's co-founders made an anonymous request to Rabasa's posting and thereafter received a packet of information. Id. Within that packet, WAKA found a copy of DC Kickball's rules, which are alleged to be copied from WAKA. Id.

Subsequently, WAKA filed a complaint for copyright infringement, which was transferred to this Court from the U.S. District Court for the Eastern District of Virginia on May 30, 2006. On July 21, 2006, defendants submitted an answer to plaintiff's complaint with counterclaims for antitrust violations, and on January 9, 2007, plaintiff filed the instant motion to dismiss defendants' counterclaims.


A. Standard of Review

1. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Dismissal is not appropriate unless the "plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1974) (holding that a court may dismiss a complaint for failure to state a claim only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations"). The complaint "is construed liberally in the plaintiffs' favor, and [the Court should] grant plaintiffs the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Andrx Pharm. v. Biovail Corp. Int'l, 256 F.3d 799, 805 (D.C. Cir. 2001). "[T]he court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276.

To survive a 12(b)(6) motion to dismiss a claim in an antitrust case, plaintiffs must do more than simply paraphrase the language of the antitrust laws or state in conclusory terms that the non-movant has violated those laws. See Dial A Car, Inc. v. Transp., Inc., 884 F. Supp. 584, 588 (D.D.C. 1995), aff'd 82 F.3d 484 (D.C. Cir. 1996). "[I]f [the plaintiff] claims an antitrust violation, but the facts he narrates do not at least outline or adumbrate such a violation, he will get nowhere merely by dressing them up in the language of antitrust." Id. (quoting Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648 (7th Cir. 1984)) (internal quotation marks omitted). "Bare legal conclusion[s]" will not suffice. Id. Furthermore, because "the proof is largely in the hands of the alleged conspirators," dismissal procedures "should be used sparingly in complex antitrust litigation" until the plaintiff is given ample opportunity for discovery. Pollar v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962).

2. Rule 12(c)

Rule 12(c) of the Federal Rules of Civil Procedure provides that a party may move for a judgment on the pleadings after the pleadings are closed. The legal standard to be applied to a Rule 12(c) motion for judgment on the pleadings is the same as that applied to a Rule 12(b)(6) ...

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