Physicians Care Alliance LLC v. All Day Beauty LLC et al

Filing 44

ORDER - Defendants' 30 motion to dismiss plaintiff's complaint in its entirety is denied, but defendants' alternative 30 motion to dismiss plaintiff's tortious interference with contract claim is granted. Plaintiff's t ortious interference with contract claim in its fifth cause of action is dismissed. Plaintiff is given leave to amend this claim. Should plaintiff elect to file an amended complaint, the amended complaint shall be filed on or before January 22, 2019. (See document for further details). Signed by Judge H Russel Holland on 1/10/19. (LAD)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Physicians Care Alliance, LLC,
d/b/a PCA Skin;

)
)
)
Plaintiff,
)
)
vs.
)
)
All Day Beauty, LLC and Jaime Mesa,
)
)
Defendants.
)
_______________________________________)

No. 2:18-cv-2602-HRH

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

1

Docket No. 30.

2

Docket No. 41.
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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
3

Complaint [etc.] at 3, ¶ 8, Docket No. 1.

4

Id. at 4, ¶ 11.

5

Id. at 5, ¶ 18.

6

Id. at 16, ¶ 109.

7

Id. at 6, ¶ 26.

8

Id. at 7, ¶ 29.

9

Id. at 9, ¶ 42.
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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.
Discussion
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 occurrence--and each defense other than a denial--must be stated in a
separate count or defense.

10

Id. at 7, ¶¶ 30-31.

11

Id. at 7, ¶ 33.
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“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

12

Id. at 10, ¶ 56; 12, ¶ 69; 13, ¶ 84; 15, ¶ 97; and 16, ¶ 108.

13

Plaintiff’s Response [etc.] at 7, Docket No. 41.
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incorporates by reference previous allegations.”

Alliance Labs, LLC v. Stratus

Pharmaceuticals, 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 which claim
and which defendant. The fact that defendants filed their answer14 is evidence that they were
not overwhelmed by plaintiff’s complaint and were able to adequately respond to plaintiff’s
allegations.15 Defendants’ motion to dismiss plaintiff’s complaint in its entirety is denied.
In the alternative, defendants move to dismiss plaintiff’s tortious interference with
contract claim for failure to state a plausible claim. Because defendants have already filed
their answer, their alternative motion must be treated as a Rule 12(c) motion. In deciding a

14

Docket No. 29.

15

Defendants contend that they only filed their answer because local rules required that
they file their answer at the same time as they filed the instant motion. Defendants do not
cite the local rule to which they are referring and the court is not aware of any such rule.
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Rule 12(c) motion, “[t]he [c]ourt inquires whether the complaint at issue contains ‘sufficient
factual matter, accepted as true, to state a claim of relief that is plausible on its face.’” Harris
v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). “The [c]ourt may find a claim plausible when a plaintiff pleads
sufficient facts to allow the [c]ourt to draw a reasonable inference of misconduct, but the
[c]ourt is not required ‘to accept as true a legal conclusion couched as a factual allegation.’”
Id. (quoting Iqbal, 556 U.S. at 678).
In Arizona,
[a] prima facie case of intentional interference with contract
requires alleging the following:
(1) the existence of a valid contractual relationship;
(2) knowledge of the relationship on the part of the interferor;
(3) intentional interference inducing or causing a breach;
(4) resultant damage to the party whose relationship has been
disrupted; and
(5) that the defendant acted improperly.
ABCDW LLC v. Banning, 388 P.3d 821, 831 (Ariz. Ct. App. 2016) (citation omitted).
Plaintiff alleges that it “had entered into agreements with its ‘Authorized Sellers’ to
sell PCA Skin products[,]” that defendants knew about these agreements, that defendants
interfered with these agreements by acquiring PCA Skin products from Authorized Sellers
with the intent to resell the products online, that it was injured by defendants’ conduct, and

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that defendants had no right to sell PCA Skin products because they were not Authorized
Sellers.16
Defendants argue that these allegations are conclusory and insufficient because
plaintiff never identifies any of the “Authorized Sellers” nor which specific contracts
defendants allegedly interfered with. Defendants point out that “multiple district courts have
set aside tortious interference with contract claims where no specific parties to the contracts
were alleged.” R Power Biofuels, LLC v. Chemex LLC, Case No. 16-CV-00716-LHK, 2016
WL 6663002, at *17 (N.D. Cal. Nov. 11, 2016).
Plaintiff, however, argues that its allegations are sufficient. Plaintiff cites to Pacific
Scientific Energetic Materials Co. (Ariz.) LLC v. Ensign-Bickford Aerospace & Defense
Co., Case No. CV–10–02252–PHX–JRG, 2011 WL 4434039 (D. Ariz. Sept. 23, 2011), in
support. There, the court found that “[a]lthough the Complaint does not point to individual
contracts, its allegation that the defendant induced the plaintiffs’ customers to violate a
specific class of contracts, namely, their confidentiality agreements with PSEMC” was
adequate to survive a motion to dismiss. Id. at *12; see also, Swingless Golf Club Corp. v.
Taylor, Case No. C 08–05574 WHA, 2009 WL 2031768, at *4 (N.D. Cal. July 7, 2009)
(“[a]lthough the complaint does not point to any single contract, it does allege a specific class
of existing contracts that defendants purportedly induced the breach thereof—those existing
between plaintiff and its customers for the swingless golf club”). Similarly here, plaintiff

16

Complaint [etc.] at 16-17, ¶¶109-116, Docket No. 1.
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argues that it is sufficient that it has alleged that defendants interfered with a specific class
of contracts, namely its contracts with its Authorized Sellers.
Plaintiff’s allegations suggest that defendants interfered with every Authorized Seller
contract, which seems implausible, particularly since plaintiff does not allege how many
Authorized Sellers there are. Plaintiff has failed to plead sufficient factual support for its
tortious interference with contract claim. Plaintiff’s tortious interference with contract claim
is dismissed, but plaintiff is given leave to amend as to this claim as it is possible that
plaintiff could allege sufficient factual support for this claim.
Conclusion
Defendants’ motion to dismiss17 plaintiff’s complaint in its entirety is denied, but
defendants’ alternative motion to dismiss18 plaintiff’s tortious interference with contract
claim is granted. Plaintiff’s tortious interference with contract claim in its fifth cause of
action is dismissed. Plaintiff is given leave to amend this claim. Should plaintiff elect to file
an amended complaint, the amended complaint shall be filed on or before January 22, 2019.
DATED at Anchorage, Alaska, this 10th day of January, 2019.
/s/ H. Russel Holland
United States District Judge

17

Docket No. 30.

18

Docket No. 30.
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