United States District Court, D. Arizona
G. Campbell United States District Judge
Kimberly Wolf moves to dismiss Plaintiff FLP, LLC's
second and third claims, and part of Plaintiff's first
claim pursuant to Rule 12(b)(6). Doc. 17. FLP opposes the
motion and, in the alternative, requests leave to amend. Doc.
23. The motion is fully briefed (Docs. 23, 24) and neither
party has requested oral argument. For reasons that follow,
the Court will grant the motion and grant FLP leave to amend.
purposes of ruling on the motion, Plaintiff's factual
allegations must be accepted as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). FLP is in the business
of selling household goods to retail and wholesale customers
under a variety of trademarked names, including “Live
It” and “Livit” (collectively, the
“Marks”). Doc. 1 at 2, 4. The Marks “have
come to be recognized around the world by the consuming
public as being associated with fine household products,
” and FLP has “considerable profits to expect due
to the sale of” products containing the Marks.
Id. at 3, ¶¶ 2, 9. Wolf, as owner and
manager of a competing company, Liv-IT! LLC, has advertised
and sold wholesale household products containing the Marks.
Id. at 4, ¶ 14. This has resulted in
“confusing and misleading representations to the effect
that Wolf is somehow affiliated” with the Marks.
Id. ¶ 15. Wolf's use of the Marks allegedly
constitutes “willful, wanton and callous
disregard” of FLP's rights. Id. ¶ 17.
Wolf's conduct has resulted in harm to the public and
harm to FLP in the form of lessened competition between FLP
and Wolf, lost profits, and “reduced prospective
business advantages.” Id. at 4-5, ¶¶
on these allegations, FLP asserts three claims against Wolf:
violation of the Lanham Act, injurious falsehood, and
interference with prospective advantage. Id. at
5-16. Wolf moves to dismiss the injurious falsehood and
interference claims and the request for punitive damages
under the Lanham Act. Doc. 17.
successful motion to dismiss under Rule 12(b)(6) must show
either that the complaint lacks a cognizable legal theory or
fails to allege facts sufficient to support its theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss as
long as it contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has
facial plausibility when “the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). “The plausibility
standard is not akin to a ‘probability requirement,
' but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. / / /
Exhibits Attached to Plaintiff's Response.
response includes a number of factual exhibits intended to
support its injurious falsehood and interference with
prospective advantage claims. Doc. 23-1. Wolf objects to
these exhibits. Doc. 24 at 11. The Court's focus in
ruling on a motion to dismiss under Rule 12(b)(6) is on the
face of the complaint. The Court will not consider these
factual matters and convert the motion to one for summary
Punitive Damages Under the Lanham Act.
complaint seeks “exemplary and punitive damages”
under the Lanham Act. Doc. 1 at 8, ¶ 5. Citing
Duncan v. Stuetzle, 76 F.3d 1480, 1490 (9th Cir.
1996), Wolf argues that punitive damages are not available
under the Lanham Act. Doc. 17 at 14. FLP responds that its
allegation refers to treble damages, which are available
under 15 U.S.C. § 1117(b). Doc. 23 at 16. But that
section applies to cases brought under § 1114(1)(a) or
36 U.S.C. § 220506. The complaint does not allege a
violation of either of those sections. See Doc. 1 at
5 (alleging a violation of 15 U.S.C. § 1125(a)). To the
extent the complaint requests punitive or treble damages for
the alleged violation of 15 U.S.C. § 1125(a), it will be
for injurious falsehood requires: (1) publication of a false
statement harmful to another's interests, (2) intent or
knowledge that the publication will result in harm, (3)
knowledge that the statement is false or in reckless
disregard of the truth, and (4) resulting pecuniary loss.
Restatement (Second) of Torts § 623A; Gee v. Pima
Cty., 612 P.2d 1079, 1079 (Ariz.Ct.App. 1980). Wolf
argues that FLP has not identified a specific statement that
she made regarding ...