Alliance Labs LLC v. Stratus Pharmaceuticals Incorporated et al

Filing 96

ORDER that defendant's 35 Motion for More Definite Statement is DENIED. Signed by Judge John W Sedwick on 1/23/2013.(LFIG)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Alliance Labs, LLC,
Plaintiff,

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vs.
Stratus Pharmaceuticals, Inc.,
Defendants.

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2:12-cv-00927 JWS
ORDER AND OPINION
[Re: Motion at Docket 35]

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I. MOTION PRESENTED
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At docket 35, defendant Stratus Pharmaceuticals, Inc. (“Stratus” or “defendant”)
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moves pursuant to Federal Rule of Civil Procedure 12(e) for a more definite statement
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of the complaint. Plaintiff Alliance Labs, LLC (“Alliance” or “plaintiff”) opposes at
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docket 44, and defendant replies at docket 46. Oral argument was not requested and
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would not assist the court.
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II. BACKGROUND
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Alliance is an Arizona company that markets and distributes enema products,
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including the Enemeez Mini Enema, the Enemeez Plus Mini Enema, and the Docusol
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Mini Enema. Stratus is a Florida corporation that markets and distributes competing
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enema products such as the Vacuant Mini-Enema and the Vacuant Plus Mini-Enema.

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Alliance alleges that Stratus’s Vacuant products are “knock-offs” of its Enemeez

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products. Alliance maintains that Stratus has targeted its customers and represented

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Vacuant products to be less expensive than the Enemeez products, but equally

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effective. Alliance alleges that Stratus uses packaging that is virtually indistinguishable

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from the Enemeez packaging and that Stratus copied substantial portions of the

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Enemeez brochure to promote Vacuant products. Alliance also alleges that Stratus has

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misrepresented the number and quantities of active ingredients in the Vacuant products.

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Alliance has asserted federal claims for false advertising under § 43(a)(1)(B) of
the Lanham Act (Count I), unfair competition under § 43(a)(1)(A) of the Lanham Act

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(Count II), trademark infringement of Alliance’s registered ENEMEEZ and DOCUSOL

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trademarks under § 32 of the Lanham Act (Count IV), and copyright infringement (Count

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VI). Alliance has asserted state law claims for unfair competition (Count III), trademark

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infringement (Count V), and unjust enrichment (Count VII).

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Stratus filed this motion for a more definite statement of the complaint, arguing

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that it is a “shotgun” pleading that fails to comply with Rules 8 and 10 of the Federal

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Rules of Civil Procedure. It argues that it does not contain a short and plain statement

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of the claims and contains lengthy paragraphs that are not limited to a single set of

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circumstances. Alliance argues in response that this motion should not be allowed

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under Rule 12(g)(2) because Stratus already brought a Rule 12 motion to dismiss. It

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also argues that its complaint is not a “shotgun” pleading.

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III. DISCUSSION
This Court concludes that Stratus’s 12(e) motion is procedurally improper. Under

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Rule 12(g)(2), a party must consolidate all Rule 12 defenses in a single pre-answer

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motion to dismiss. Rule 12(g)(2) applies to motions for a more definite statement

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brought under Rule 12(e).1 Therefore, Stratus waived its ability to challenge the

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sufficiency of the complaint.

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Stratus urges the court to use its discretion to allow a Rule 12(e) motion or sua

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sponte order a more definite statement of the complaint, arguing that the complaint is a

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“shotgun” pleading that cannot be adequately answered. The court declines to do so.

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First, a Rule 12(e) motion for a more definite statement is disfavored and rarely granted

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because of the minimal notice pleading requirements of the Federal Rules.2 A

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Rule 12(e) motion should be “ordinarily restricted to situations where a pleading suffers

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from unintelligibility rather than want of detail.”3 Courts will require a more definite

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statement only when the pleading is “so vague or ambiguous that the opposing party

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cannot respond, even with a simple denial, in good faith or without prejudice to

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himself.”4 The court concludes that the First Amended Complaint does not suffer from

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unintelligibility. Stratus is fairly notified of the nature of the claims and any missing

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details could be obtained through discovery.

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Second, Alliance’s complaint is not a shotgun complaint simply because it

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incorporates by reference previous allegations. A shotgun complaint is one in which a

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plaintiff brings every conceivable claim against every conceivable defendant.5 For

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See DiMaria v. Silvester, 89 F. Supp. 2d 195, 196 n.5 (D. Conn. 1999) (finding a
Rule 12(e) motion waived under Rule 12(g) “because defendants failed to consolidate it with
their previous Rule 12 motions to dismiss”); Clark v. Associates Commercial Corp., 149 F.R.D.
629, 632 (D. Kan. 1993) (stating that Rule 12(e) motion for a more definite statement is not
exempt from the rule requiring consolidation of all Rule 12 defenses and objections).
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Margarita Cellars v. Pac. Coast Packaging, 189 F.R.D. 575, 578 (N.D. Cal. 1999); see
also Castillo v. Norton, 219 F.R.D. 155, 163 (D. Ariz. 2008) (noting the limited situations in
which a Rule 12(e) motion is appropriate).

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Castillo, 219 F.R.D. at 163 (internal quotations omitted).

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Margarita Cellars,189 F.R.D. at 578 (internal quotations omitted).

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Gurman v. Metro. Hous. & Redevelopment Auth., 842 F.Supp.2d 1151, 1153 (D. Minn.

2011).

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example, in Shehee v. California6 the district court found the complaint to be a shotgun

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complaint because the allegations in the complaint spanned more than twelve years,

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encompassed three federal venues, and sought damages against more than thirty

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named defendants, as well as “Does #1 through #100.” Alliance’s complaint is not

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similarly broad, vague, or unintelligible.

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IV. CONCLUSION

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Based on the foregoing analysis, defendant’s motion at docket 35 is DENIED.

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DATED this 23rd day of January 2013.

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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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2010 WL 4880698, at *2 (E.D. Cal. Nov. 23, 2010).

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