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Physicians Care Alliance LLC v. All Day Beauty LLC

United States District Court, D. Arizona

January 10, 2019

Physicians Care Alliance, LLC, d/b/a PCA Skin; Plaintiff,
All Day Beauty, LLC and Jaime Mesa, Defendants.


          H. Russel Holland United States District Judge.

         Motion to Dismiss

         Defendants move to dismiss plaintiff's complaint in its entirety, or in the alternative, to dismiss count five of the complaint.[1] This motion is opposed.[2] Oral argument was not requested and is not deemed necessary.


         Plaintiff is Physician Care Alliance, LLC d/b/a PCA Skin. Defendants are All Day Beauty, LLC, and Jaime Mesa.

         Plaintiff alleges that it “develops skincare products and professional treatments that are sold exclusively through PCA Skin's website and PCA Skin's network of authorized sellers. . . .”[3] Plaintiff alleges that “[t]o promote and protect” its brand, it “has registered numerous trademarks with the United States Patent and Trademark Office[.]”[4] Plaintiff alleges that it “maintains quality controls over its products by selling its products exclusively through its website and through Authorized Sellers.”[5] Plaintiff alleges that Authorized Sellers are prohibited “from selling PCA Skin products to third parties . . . for purposes of resale.”[6]

         Plaintiff alleges that it “discovered that products bearing the PCA Skin Trademarks are being sold on Walmart through a storefront called ‘All Day Beauty LLC.'”[7] Plaintiff further alleges that “[n]either Mesa nor All Day Beauty are or have ever been Authorized Sellers” of plaintiff's products.[8] Plaintiff alleges that “[d]efendants have purchased PCA Skin products from Authorized Sellers for purposes of reselling them on the Internet.”[9]Plaintiff alleges that in September 2017 and December 2017, it demanded that defendants stop selling its products on the Walmart storefront.[10] Plaintiff alleges, however, that defendants did not stop selling its products.[11]

         On August 16, 2018, plaintiff commenced this action. Plaintiff asserts five claims in its complaint: 1) a trademark infringement claim, 2) a Lanham Act false advertising claim, 3) a Lanham Act unfair competition claim, 4) a common law unfair competition claim, and 5) a tortious interference with contract claim.

         Defendants now move to dismiss plaintiff's complaint in its entirety. In the alternative, defendants move to dismiss plaintiff's tortious interference with contract claim for failure to state a plausible claim.


         Defendants move to dismiss plaintiff's complaint in its entirety on the grounds that it violates Rules 8(a)(2) and 10(b), Federal Rules of Civil Procedure. Rule 8(a)(2) provides that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Rule 10(b) provides that

[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occur-rence--and each defense other than a denial--must be stated in a separate count or defense.

“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often disparagingly referred to as ‘shotgun pleadings.'” Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015). “‘Shotgun pleadings' are pleadings that incorporate all or nearly all antecedent allegation[s] by reference [to] each subsequent claim for relief or affirmative defense.” S.E.C. v. Fraser, Case No. CV-09-00443-PHX-GMS, 2010 WL 5776401, at *9 (D. Ariz. Jan. 28, 2010) (citation omitted). “‘Shotgun pleadings are pleadings that overwhelm defendants with an unclear mass of allegations and make it difficult or impossible for defendants to make informed responses to the plaintiff's allegations.'” S.E.C. v. Bardman, 216 F.Supp.3d 1041, 1051 (N.D. Cal. 2016) (quoting Sollberger v. Wachovia Sec., LLC, No. SACV 09-0766 AG (Anx), 2010 WL 2674456, at *4 (C.D. Cal. June 30, 2010)).

         Plaintiff's complaint fits the definition of a shotgun pleading. At the beginning of each cause of action, plaintiff “re-alleges and incorporates the allegations set forth in the foregoing paragraphs as if fully set forth herein.”[12] Thus, defendants argue that it is impossible for them to respond to plaintiff's complaint and plaintiff's complaint should be dismissed in its entirety.

         Plaintiff concedes that its complaint “incorporate[s] by reference in each count previous allegations, ”[13] but a complaint is not a shotgun pleading “simply because it incorporates by reference previous allegations.” Alliance Labs, LLC v. StratusPharmaceuticals, Inc., Case No. 2:12-cv-00927 JWS, 2013 WL 273404, at *2 (D. Ariz. Jan. 24, 2013); see also, Espinosa v. Bluemercury, Inc., Case No. 16-cv-07202-JST, 2017 WL 1079553, at *5 (N.D. Cal. March 22, 2017) (“a complaint does not employ impermissible shotgun pleading just because it re-alleges by reference all of the factual paragraphs preceding the claims for relief”). In order for a complaint to be considered a shotgun pleading, it must incorporate “all or nearly all” of the previous allegations and “make[] no attempt to lay out which conduct constitutes the violation alleged.” Fraser, 2010 WL 5776401, at *9. Here, plaintiff has laid out in each cause of action the conduct which constitutes the violation alleged. Plaintiff's complaint adequately put defendants on notice of the allegations against them and identifies which allegations corresponded to ...

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