United States District Court, N.D. Mississippi, Aberdeen Division
RONALDO DESIGNER JEWELRY, INC. PLAINTIFF
JAMES B. COX and CATHERINE A. COX d/b/a JC DESIGNS d/b/a WIRE N RINGS and JOHN DOE a/k/a LEROY and JOHN DOES No. 1 through 99 DEFENDANTS
M. BROWN, UNITED STATES DISTRICT JUDGE
the Court is Ronaldo Designer Jewelry Inc.'s second
motion to dismiss. Doc. #104.
Procedural History 
April 28, 2017, Ronaldo Designer Jewelry, Inc., with leave of
the Court, filed a second amended complaint against James and
Catherine Cox “d/b/a JC Designs d/b/a Wire N
Rings.” Doc. #82. The three-count complaint seeks
injunctive and monetary relief for the Coxes' production
of jewelry, which allegedly infringes on Ronaldo's
12, 2017, the Coxes answered the second amended complaint.
Doc. #87. The Coxes' answer asserted fifteen
counterclaims. Id. at 13-48. On June 16, 2017, after
receiving a requested extension to respond to the
counterclaims, Ronaldo filed a motion to dismiss five of the
counterclaims. Doc. #92.
March 16, 2018, this Court granted Ronaldo's motion and
dismissed the challenged counterclaims but with leave for the
Coxes to re-file them within twenty-one days. Doc. #101 at 4.
The Coxes filed an answer with their first amended
counterclaims on April 6, 2018. Doc. #102. The Coxes assert,
among other things, a counterclaim for tortious interference
with actual business relations (Count X) and a counterclaim
for tortious interference with prospective business relations
(Count XI). Id. at 45-47.
April 26, 2018, Ronaldo filed a motion to dismiss Count X and
Count XI, Doc. #104, and a motion to strike two affidavits
attached to the Coxes' amended counterclaims, Doc. #105.
Both motions are fully briefed.
Coxes attached two affidavits to their answer and amended
counterclaims: (1) an affidavit of Judy Irvine, “a
sales representative in the jewelry industry, ” which
expresses the opinion that “Ronaldo company's
actions would interfere with [JC Designs] obtaining
additional business from new vendors due to the cloud of
confusion and disruption Ronaldo has created, ” Doc.
#102-2; and (2) an affidavit of Jennie Bruning, the
“Vendor Coordinator for Monograms America, ” in
which Bruning expresses “concern that …
non-Ronaldo vendors [at a 2016 vendor forum] were improperly
dissuaded and/or intimidated from reordering from JC Designs
in an anticompetitive manner by either Ronaldo company itself
or through its agents, representatives, and/or distributors,
” Doc. #102-3. The affidavits are “incorporated
by reference” in the counterclaims and are cited as
support for certain factual assertions. See Doc.
#102 at 28-29. Ronaldo argues that the affidavits should be
stricken because “affidavits are not to be part of a
complaint and violate of [sic] Rule
10(c).” Doc. #107 at 2.
Rule of Civil Procedure 10(c) provides, in relevant part,
that “[a] copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all
purposes.” Courts are divided on the issue of whether
an affidavit qualifies as a “written instrument”
under Rule 10(c). The Second and Third Circuits have held
that an affidavit does not qualify as a written instrument
because “[t]he case law demonstrates … that the
types of exhibits incorporated within the pleadings by Rule
10(c) consist largely of documentary evidence, specifically,
contracts, notes, and other writings on which a party's
action or defense is based ….” See Rose v.
Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989) (internal
quotation marks and alterations omitted); Smith v.
Hogan, 794 F.3d 249, 254 (2d Cir. 2015) (adopting
reasoning of Bartle). The Seventh Circuit, noting
that a “broader interpretation comports with the
traditionally generous nature in which we view pleadings,
” has reached the opposite conclusion. N. Ind. Gun
& Outdoor Shows, Inc. v. City of South Bend, 163
F.3d 449, 453 & n.4 (7th Cir. 1998). The Eighth Circuit,
in an unpublished opinion with no analysis on the issue, has
held that an affidavit falls under the ambit of Rule 10(c).
Rasidescu v. Globe Coll., Inc., 105 Fed.Appx. 121,
123 (8th Cir. 2004).
Fifth Circuit, for its part, has not definitively addressed
the scope of Rule 10(c). It has, however, held that a
district court did not abuse its discretion in refusing to
consider opinions or conclusions (as distinct from facts) set
forth in an affidavit attached to a complaint. Fin.
Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286
(5th Cir. 2006). In so holding, the Fifth Circuit cited with
approval a district court case which adopted the Third
Circuit's holding that an affidavit is not a written
instrument. Id. at 285-86 (citing DeMarco v.
DepoTech Corp., 149 F.Supp.2d 1212, 1221 (S.D. Cal.
2001)). In Blackwell, the Fifth Circuit did not
reach the larger issue of whether an affidavit itself may be
considered a written instrument under Rule 10(c) but noted
that “[e]ven if non-opinion portions of an
expert's affidavit constitute an instrument pursuant to
Rule 10, opinions cannot substitute for facts
….” Id. at 286. In an unpublished
decision issued two years later, however, the Fifth Circuit
held that an affidavit attached to a complaint and
specifically incorporated in an allegation was
“properly consider[ed] in ruling on [a] motion to
dismiss for failure to state a claim.” Malik v.
Cont'l Airlines Inc., 305 Fed.Appx. 165, 166 n.2
(5th Cir. 2008).
distinction between affidavits setting forth facts and
affidavits setting forth opinions finds some support in the
history of Rule 10(c). The advisory committee's note to
the 1937 enactment of Rule 10(c) states that “[f]or
written instruments as exhibits, see Smith-Hurd ...