Treefrog Developments, Inc. v. Turning Point Brands, Inc. et al

Filing 36

ORDER denying 30 Motion to Dismiss for Failure to State a Claim. Defendant SHALL RESPOND to the First Amended Complaint in accordance with Federal Rule of Civil Procedure 12(a)(4)(A). Signed by Judge Todd W. Robinson on 11/17/2022. (fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TREEFROG DEVELOPMENTS, INC.,

Case No.: 22-CV-225 TWR (MDD)

Plaintiff,

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v.

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NU-X VENTURES, LLC,

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS AND STRIKE
PORTIONS OF PLAINTIFF’S FIRST
AMENDED COMPLAINT

Defendant.

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(ECF No. 30)

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Presently before the Court is Defendant Nu-X Ventures, LLC’s Motion to Dismiss

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and Strike Portions of Plaintiff Treefrog Development, Inc.’s First Amended Complaint

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(ECF No. 30, “Mot.”). The Court has also received and reviewed Plaintiff’s Response in

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Opposition to the Motion (ECF No. 32, “Opp’n”) and Defendant’s Reply in Support of the

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Motion (ECF No. 33, “Reply”). The Court held a hearing on the Motion on October 20,

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2022.

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Complaint (ECF No. 28, “FAC”), the Parties’ arguments, and the relevant law, the Court

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DENIES Defendant’s Motion.

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(See ECF No. 35.)

Having carefully considered Plaintiff’s First Amended

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22-CV-225 TWR (MDD)

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BACKGROUND

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Plaintiff is a corporation that sells protective phone cases, (see FAC ¶¶ 1, 11), and

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Defendant is a limited liability company that sells nicotine pouches, (see id. ¶¶ 22, 32).

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Plaintiff maintains an office in San Diego, (see id. ¶ 1), and Defendant sells products in

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various retail locations throughout San Diego, (see id. ¶ 29).

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In 2012, from its office in San Diego, Plaintiff adopted the mark “FRĒ” and

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subsequently obtained a trademark registration to use the FRĒ mark in connection with the

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sale of its phone products, including its LifeProof protective case. (See id. ¶¶ 10–12.)

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Plaintiff’s LifeProof FRĒ products have been the subject of significant marketing and

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promotion, and LifeProof has the second-highest aided advertising awareness of all major

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protective phone case providers. (See id. ¶¶ 16–17.) The LifeProof FRĒ products have

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also received various industry recognitions and awards. (See id. ¶ 15.)

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Defendant sells nicotine pouches online and in retail locations. (See id. ¶¶ 22, 29.)

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Defendant’s products, website, and advertisements also contain an FRĒ mark. (See id.

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¶¶ 22–26.) In response to Defendant’s use of its FRĒ mark, Plaintiff initiated this action

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on February 18, 2022. (See generally ECF No. 1.) Plaintiff’s operative First Amended

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Complaint contains six claims: (1) Trademark Infringement, 15 U.S.C. § 1114(a);

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(2) Unfair Competition and False Designation of Origin, 15 U.S.C. § 1125(a);

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(3) Dilution, 15 U.S.C. §§ 1125(c) et seq.; (4) Unfair Competition, Cal. Bus. & Prof.

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Code § 17200; (5) Common Law Trademark Infringement; and (6) Common Law Unfair

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Competition. (See generally FAC.)

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Generally, Plaintiff’s First Amended Complaint alleges that Defendant “adopted the

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FRĒ Mark in an intentional and willful effort to benefit from the consumer perception of

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Plaintiff’s FRĒ Mark in the marketplace: That is, of a youthful, dynamic, healthy, and

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active lifestyle.” (See id. ¶ 31.) Plaintiff asserts that Defendant adopted this mark “to

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mitigate, offset, or nullify the association of nicotine with tobacco, and to distance

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[Defendant’s] product from any association with tobacco products’ reputation for being

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unhealthy.” (See id. ¶ 33.) Finally, Plaintiff claims that Defendant’s actions caused
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22-CV-225 TWR (MDD)

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Plaintiff irreparable injury by associating Plaintiff’s products with “nicotine and tobacco

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use, targeted to Plaintiff’s young customers.” (See id. ¶ 36.)

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On August 25, 2022, Defendant filed the instant Motion to Dismiss and Strike

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Portions of Plaintiff’s First Amended Complaint pursuant to Federal Rules of Civil

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Procedure 12(b)(6) and 12(f). (See generally Mot.)

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LEGAL STANDARDS
I.

Federal Rule of Civil Procedure 12(b)(6)

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“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to

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state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’”

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Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro

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v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for failure to

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state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of

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a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal

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theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1988)).

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“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and

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plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v.

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Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading

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standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands

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more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678

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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a]

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pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

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cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[W]here the
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well-pleaded facts do not permit the court to infer more than the mere possibility of

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misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is

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entitled to relief.’” Id. at 679 (second alteration in original) (quoting Fed. R. Civ. P.

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8(a)(2)).

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“If a complaint is dismissed for failure to state a claim, leave to amend should be

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granted ‘unless the court determines that the allegation of other facts consistent with the

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challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight

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Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well

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Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court,” however, “does

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not err in denying leave to amend where the amendment would be futile.” Id. (citing Reddy

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v. Litton Indus., 912 F.2d 291, 296 (9th Cir. 1990).

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II.

Federal Rule of Civil Procedure 12(f)

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Federal Rule of Civil Procedure 12(f) provides courts with discretion to “strike from

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a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

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matter.” Fed. R. Civ. P. 12(f). “The function of a [Rule] 12(f) motion to strike is to avoid

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the expenditure of time and money that must arise from litigating spurious issues by

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dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d

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970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.

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1993), rev’d on other grounds, 510 U.S. 517 (1994)).

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“Motions to strike,” however, “are ‘generally disfavored because they are often used

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as delaying tactics and because of the limited importance of pleadings in federal practice.’”

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Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015) (quoting Rosales

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v. Citibank, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001)). Moreover, “motions to strike

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should not be granted unless it is clear that the matter to be stricken could have no possible

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bearing on the subject matter of the litigation.” Colaprico v. Sun Microsys., Inc., 758 F.

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Supp. 1335, 1339 (N.D. Cal. 1991). “When ruling on a motion to strike, the court ‘must

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view the pleading under attack in the light most favorable to the pleader.’” Id. (citing RDF

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Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 561 (C.D. Cal. 2005)). Additionally,
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“courts may not resolve disputed and substantial factual or legal issue[s] in deciding . . . a

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motion to strike.” Whittlestone, 618 F.3d at 973.

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“Unless it would prejudice the opposing party, courts freely grant leave to amend

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stricken pleadings.” Roe v. City of San Diego, 289 F.R.D. 604, 608 (S.D. Cal. 2013) (citing

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Fed. R. Civ. P. 15(a)(2)); Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979),

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abrogated in part on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th

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Cir. 2016).

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ANALYSIS

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Defendant moves to dismiss Plaintiff’s statutory and common law unfair

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competition claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Mot. at 1.)

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In the alternative, Defendant moves to strike various paragraphs within the First Amended

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Complaint pursuant to Federal Rule of Civil Procedure 12(f). 1 (See id.)

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I.

Failure to State a Claim Under Federal Rule of Civil Procedure 12(b)(6)

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A.

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Defendant seeks dismissal of Plaintiff’s unfair competition claim under California’s

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Business and Professional Code (the “17200 claim”) to the extent the claim is founded on

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allegations beyond trademark infringement. (See Mot. at 6.) California’s Business and

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Professional Code defines unfair competition as “unlawful, unfair or fraudulent business

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act[s].” See Cal. Bus. & Prof. Code § 17200. Trademark infringement is unlawful, see

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e.g., 15 U.S.C. § 1114, and therefore “[t]rademark infringement is an act of unfair

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competition,” Lebas Fashion Imports of USA, Inc. v. ITT Hartford Ins. Grp., 50 Cal. App.

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4th 548, 564 (1996). Accordingly, Defendant “does not take issue with [Plaintiff’s]

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pleading of trademark infringement supporting a 17200 claim,” and instead argues that

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Plaintiff’s 17200 claim should be dismissed because Plaintiff’s additional allegations

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regarding the “evils of nicotine” do not provide further support for the claim. (Reply at 6.)

Unfair Competition (Cal. Bus. & Prof. Code § 17200)

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Specifically, Defendant moves to strike all but the first sentence of paragraph 30, paragraphs 69–73, and
paragraphs 75–81, as well as all related footnotes (the “challenged statements”).
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Dismissal is proper under Rule 12(b)(6) when a complaint either (1) “fails to state a

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cognizable legal theory” or (2) “fails to allege sufficient factual support for its legal

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theories.” See Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F3d 1156, 1159 (9th

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Cir. 2016). A Rule 12(b)(6) motion, however, may not be used to challenge specific factual

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allegations that support a claim rather than the claim itself. See Thompson v. Paul, 657 F.

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Supp. 2d 1113, 1129 (D. Ariz. 2009) (explaining that this type of challenge “must be

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brought pursuant to Rule 12(f)”). Here, Defendant challenges only specific allegations

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supporting Plaintiff’s 17200 claim, asserting that various paragraphs supporting the claim

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“should be ordered deleted” pursuant to Rule 12(b)(6).

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(Mot. at 8.)

This is an

impermissible use of a Rule 12(b)(6) motion.

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Furthermore, a court can only dismiss a claim pursuant to Rule 12(b)(6) if a party

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has challenged the claim “on the basis of a dispositive issue of law.” Neitzke v. Williams,

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490 U.S. 319, 326 (1989); see also Seismic Reservoir 2020, Inc. v. Paulsson, 785 F.3d 330,

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335 (9th Cir. 2015). Defendant, however, concedes that Plaintiff’s 17200 claim is

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independently and adequately supported by the allegations of trademark infringement.

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(Reply at 6 (“[Defendant] does not take issue with the pleading of trademark infringement

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supporting a 17200 claim . . . .”).) Because Defendant does not challenge Plaintiff’s 17200

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claim based on a dispositive legal issue, the Court DENIES Defendant’s Motion to Dismiss

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Plaintiff’s 17200 claim.

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B.

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Defendant also seeks dismissal of Plaintiff’s common law unfair competition claim

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pursuant to Rule 12(b)(6). (Mot. at 4.) At common law, unfair competition requires a

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showing of (1) passing off one’s goods as those of another or something analogous to it,

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and (2) competitive injury. Bank of W. v. Super. Ct., 2 Cal. 4th 1254, 1263 (1992).

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Defendant argues that Plaintiff has failed to plead both passing off and competitive injury.

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(Mot. at 5.)

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Common Law Unfair Competition

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1.

Passing Off or Analogous Acts

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The common law tort of unfair competition requires that the defendant engaged in

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an “act of ‘passing off’ one’s goods as those of another” or “acts analogous to ‘passing

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off,’ such as the sale of confusingly similar products, by which a person exploits a

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competitor’s reputation in the market.” Bank of W., 2 Cal. 4th at 1263; see also Southland

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Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1147 (9th Cir. 1997). Defendant argues that

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Plaintiff has failed to state a claim for passing off because one “cannot plausibly allege that

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iPhone cases and nicotine pouches come from the same source or are similar (let alone

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confusingly similar) products.” (Mot. at 5.) Plaintiff has not alleged that nicotine pouches

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and phone cases are confusingly similar products but has alleged that “consumers were and

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are likely to be confused or deceived as to the source of Defendant[’s] goods.” (See FAC

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¶ 93 (emphasis added)). This allegation is supported by images of both Parties’ FRĒ marks,

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demonstrating that Defendant’s mark “is a near-perfect simulacrum of Plaintiff’s logo.”

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(See FAC ¶ 27.) The Court therefore concludes that Plaintiff has stated a claim for passing

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off or analogous acts.

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Passing off can occur in multiple ways. A party can engage in passing off by, for

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example, labeling its goods or services with a mark identical to that of another or

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misrepresenting that its goods were produced by another. Smith v. Montoro, 648 F.2d 602,

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604 (9th Cir. 1981). A plaintiff, therefore, can satisfy the passing off requirement by

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asserting that the defendant “exploited trade names or trade marks.” Golden Eye Media

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USA, Inc. v. Trolley Bags UK Ltd., 525 F. Supp. 3d 1145, 1256 (S.D. Cal. 2021); see also

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Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1153 (9th Cir. 2008).

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Accordingly, facts sufficient to support a trademark infringement claim can also satisfy the

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passing off requirement of a common law unfair competition claim. See Microsoft Corp.

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v. Buy More, Inc., 703 Fed. App’x 476, 479 (9th Cir. 2017) (“The analysis for [unfair

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competition under California common law] is therefore identical to the analysis for

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[Plaintiff’s] trademark infringement claim.”); Vineyard House, LLC v. Constellation

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Brands U.S. Operations, Inc., 515 F. Supp. 3d 1061, 1081 (N.D. Cal. 2021).
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22-CV-225 TWR (MDD)

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Here, in addition to alleging unfair competition, Plaintiff also alleges common law

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and statutory trademark infringement. (See FAC ¶¶ 37–45, 83–89.) Both trademark

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infringement claims require Plaintiff to plausibly allege that Defendant’s actions caused a

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likelihood of confusion amongst consumers, see 15 U.S.C. § 1114; JUUL Labs, Inc. v.

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Chou, 557 F. Supp. 3d 1041, 1054 (C.D. Cal. 2021), and Plaintiff does so, (FAC ¶¶ 41, 86

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(“Defendants’ acts . . . are likely to cause confusion, deception, or mistake that Defendants’

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goods are sold by or otherwise affiliated with TreeFrog . . . .”)). Defendant does not

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challenge the sufficiency of the pleadings for either trademark infringement claim, (see

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generally Mot.), and instead challenges the principle that “a finding of likelihood of

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confusion under Plaintiff’s trademark infringement claim also supports a finding of

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likelihood of confusion under Plaintiff’s common law unfair competition claim,” see Hokto

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Kinoko Co. v. Concord Farms, Inc., 810 F. Supp. 2d 1013, 1032 (C.D. Cal. 2011).

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Defendant relies on Southland Sod Farms to argue that a well-pled trademark

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infringement claim “is not sufficient to state a claim for common law unfair competition.”

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(Reply at 3.) Southland Sod Farms, however, fails to offer any support for Defendant’s

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assertion because that case did not involve a trademark infringement claim. See 108 F.3d

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at 1138. Thus, Southland Sod Farms does nothing to diminish “[t]he decisive test of

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common law unfair competition[:] whether the public is likely to be deceived about the

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source of goods or services by the defendant’s conduct.” Hokto Kinoko Co., 810 F. Supp.

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2d at 1032; see also Walter v. Mattel, Inc., 210 F.3d 1108, 1111 (9th Cir. 2000).

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Throughout the First Amended Complaint, Plaintiff plausibly alleges that the public will

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be confused or deceived about the source of Defendant’s goods. (See e.g., FAC ¶¶ 41–42,

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48–49, 66–67, 86, 91–93.) Therefore, Plaintiff has adequately pled passing off.

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2.

Competitive Injury

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The common law tort of unfair competition also requires a showing of competitive

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injury, meaning the defendant must have “exploit[ed] a competitor’s reputation in the

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market.” See Bank of the West, 2 Cal. 4th at 1263 (requiring plaintiff to be a “competitor”

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rather than a “consumer”); see also American Cyanamid Co. v. American Home Assurance
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Co., 30 Cal. App. 4th 969, 977–78 (1994). Accordingly, a plaintiff must allege that the

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defendant caused “injuries to business reputation and present and future sales.” Lexmark

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Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 131 (2014).

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Although Plaintiff competes in the phone product market and Defendant competes

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in the nicotine product market, “it does not appear necessary that the parties be in

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competitive businesses.” Acad. of Motion Picture Arts & Scis. v. Benson, 15 Cal. 2d 685,

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689, 691 (Cal. 1940). Interfering with economic relationships or revenue enhancement

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activities can satisfy the competitive injury requirement even if the parties do not actually

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compete with one another. See N.H. Ins. Co. v. Foxfire, Inc., 820 F. Supp. 489, 495–96 &

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n.7 (N.D. Cal. 1993). Here, Plaintiff asserts that Defendant’s conduct damaged “the

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reputation of the LIFEPROOF and FRĒ brands and trademarks and harm[ed] [Plaintiff’s]

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established goodwill in the marketplace.” (FAC ¶ 94.) Plaintiff has therefore alleged

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sufficient injury to its status as a marketplace competitor to satisfy the competitive injury

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requirement.

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Ultimately, Plaintiff has pled facts sufficient to support both passing off or analogous

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acts and competitive injury. The Court therefore DENIES Defendants’ Motion to dismiss

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Plaintiff’s common law unfair competition claim.

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II.

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Striking Redundant, Immaterial, Impertinent, or Scandalous Matters Under
Federal Rule of Civil Procedure 12(f)

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Rule 12(f) provides that a court may strike any matter that is “redundant, immaterial,

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impertinent, or scandalous.” Fed. R. Civ. P. 12(f). Pursuant to Rule 12(f), Defendant asks

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this Court to strike the challenged statements from Plaintiff’s First Amended Complaint.

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(Mot. at 8.) According to Defendant, the First Amended Complaint contains “a dozen

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paragraphs and several footnotes . . . about the evils of nicotine, third parties wanting more

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regulation, the effect [of nicotine] on people to whom Defendant does not sell, and

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assertions of what Plaintiff characterizes as immoral, unethical, unscrupulous, and a risk to

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public health.” (Id. at 8–9.) Defendant argues that these statements should be stricken

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because they are “immaterial, irrelevant, scandalous, and prejudicial.” (Reply at 5.)
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Plaintiff disagrees, arguing that the statements should remain because they “inform the

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nature and gravity of Defendant’s misconduct.” (Opp’n at 15.)

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A.

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The Court must first determine whether the challenged statements are immaterial

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and irrelevant. See Fed. R. Civ. P. 12(f). Information in a complaint is immaterial if it has

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“no essential or important relationship to the claim for relief,” and is irrelevant if it does

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not “pertain, and [is] not necessary, to the issues in question.” See Cal. Dep’t of Toxic

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Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1032 (C.D. Cal. 2002). “A

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court must deny the motion to strike if there is any doubt whether the allegations in the

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pleadings might be relevant in the action.” Oracle Am. Inc. v. Micron Tech., Inc., 817 F.

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Supp. 2d 1128, 1132 (N.D. Cal. 2011). Accordingly, a motion to strike should only be

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granted if the challenged statements clearly have “no possible bearing” on the litigation.

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Colaprico, 758 F. Supp. at 1339.

Materiality and Relevance

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To determine whether the challenged statements have a possible bearing on the

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litigation, the Court first looks to the relevant claim for relief. All challenged statements,

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except those within paragraph 30, are part of Plaintiff’s 17200 claim. (See FAC ¶¶ 69–73,

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75–81.) This claim requires Plaintiff to allege that Defendant engaged in an “unlawful,

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unfair or fraudulent” business act that caused Plaintiff injury in fact and pecuniary loss.

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See Cal. Bus. & Prof. Code §§ 17200, 17204. Defendant first argues that the challenged

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statements are irrelevant because Plaintiff’s 17200 claim is adequately supported by the

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allegations of trademark infringement. (See Reply at 6.) The sufficiency of an independent

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theory of liability, however, does not necessarily render an alternative theory of liability

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irrelevant; Plaintiff may prove its case as it sees fit. Cf. Old Chief v. United States, 519

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U.S. 172, 189 (1997).

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Defendant next argues that the challenged statements are irrelevant to Plaintiff’s

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17200 claim because they fail to show that Defendant engaged in any unlawful, unfair, or

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fraudulent conduct or that Plaintiff suffered any injury or loss. (See Mot. at 10–11.) To

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support this argument, Defendant asserts that selling nicotine “cannot be said to be unfair”
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because it is “permitted by the legislature.” (Reply at 7; see also Mot. at 10–11.) Defendant

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is mistaken. Lawful conduct can still be unfair if it “(1) offends public policy; (2) is

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immoral, unethical, oppressive, or unscrupulous; or (3) causes substantial injury to [the]

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consumer.” Colgate, 402 F. Supp. 3d at 758.

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The challenged statements, which address the negative effects of nicotine and its

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regulation by the government, support Plaintiff’s argument that Defendant’s conduct is

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“immoral, unethical, oppressive, unscrupulous, and substantially injurious to consumers,”

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(see FAC ¶ 76), and therefore is unfair, see Colgate, 402 F. Supp. 3d at 758. One of the

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challenged statements, for example, alleges that “Defendant[’s] unauthorized use of the

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FRĒ Mark is oppressive and unscrupulous because it seeks to lure [consumers] into

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addiction before they are mature enough to make an informed decision.” (FAC ¶ 77

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(emphasis added).) Another statement alleges that Defendant used Plaintiff’s FRĒ mark

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to appeal to a “youthful demographic,” (FAC ¶ 74), and that “[a]dvertisements for

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controlled substances directed to appeal to youths, who are unable to purchase the same,

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offends public policy,” (FAC ¶ 75 (emphasis added)). The challenged statements are

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therefore relevant to Plaintiff’s argument that Defendant’s conduct is unfair under

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California’s Business and Professional Code.

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Plaintiff also argues that the challenged statements are “probative of the damages

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and harm” caused by Defendant’s conduct. (Opp’n at 15.) To bring a 17200 claim, a

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plaintiff must have “suffered injury in fact” and “lost money or property.” See Cal. Bus.

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& Prof. Code § 17204. Here, Plaintiff alleges that Defendant’s actions caused Plaintiff to

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be affiliated “with the sale of nicotine or tobacco products and associated public health

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risks,” thereby resulting in “irreparable injury” to Plaintiff’s brand. (FAC ¶ 81.) The

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challenged statements, which describe the “detrimental effects of nicotine,” (Mot. at 14),

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are therefore relevant to Plaintiff’s claim that its affiliation with nicotine has caused it harm.

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Ultimately, the Court cannot conclude that challenged statements are immaterial or

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irrelevant because they appear to support Plaintiff’s allegations of unfair conduct and

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resulting injury. The Court therefore declines to strike the challenged statements on the

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basis of relevance or materiality.

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B.

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Defendant also asserts that the challenged statements should be stricken because

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they are scandalous and prejudicial. (See Mot. at 11–12.) A scandalous statement

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“improperly casts a derogatory light on someone,” see Cortina, 94 F. Supp. 3d at 1182

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(S.D. Cal. 2015) (quoting Aoki v. Benihana, Inc., 839 F. Supp. 2d 759, 764 (D. Del. 2012)),

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and a prejudicial statement “cause[s] the trier of fact to draw ‘unwarranted’ inferences at

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trial” or unnecessarily complicates the issues, see Cal. Dep’t of Toxic Substances Control,

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217 F. Supp. 2d at 1033; see also LeDuc v. Ky. Cent. Life Ins. Co., 814 F. Supp. 820, 830

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(N.D. Cal. 1992) (stating that a court should only strike “unduly prejudicial” material).

Scandal and Prejudice

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Defendant argues that the challenged statements are scandalous because “[t]hey

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serve no purpose other than to portray Defendant in a bad light” and are prejudicial because

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they will force Defendant to spend time and money defending against statements “that are

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not facts or elements that support Plaintiff’s claims.” (Mot. at 11–12.) Specifically,

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Defendant asserts that the challenged statements will require it to refute the irrelevant

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allegation that it illegally sells nicotine products to underage individuals. (Mot. at 12.)

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Such an allegation, however, never appears in the First Amended Complaint.2 (See

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generally FAC.) Instead, the Complaint alleges that Defendant adopted Plaintiff’s FRĒ

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mark to market nicotine products to a youthful demographic. (Id. ¶¶ 80–81.) This

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allegation is relevant to Plaintiff’s unfair competition claims, see supra Section II.A, and

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thus does not serve the sole purpose of portraying Defendant in a bad light or causing it to

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waste time and money, see In re Gitto Glob. Corp., 422 F.3d 1, 12 (1st Cir. 2005)

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(explaining that the court will not strike an allegedly scandalous statement that is relevant).

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While Plaintiff does make this allegation in its Opposition, (see Opp’n at 14), the Court’s review is
limited to the allegations in Plaintiff’s First Amended Complaint.
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22-CV-225 TWR (MDD)

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Although the challenged statements may offend Defendant, “[i]nappropriately

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hyperbolic allegations . . . and other similar manifestations of bad judgement in drafting

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pleadings, by themselves, fall short of the threshold that Rule 12(f) contemplates.”

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Saylavee LLC v. Hockler, 228 F.R.D. 425, 426 (D. Conn. 2005). The Court therefore

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declines to strike the challenged statements on the basis of scandal or prejudice.

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Finding the challenged statements to be neither immaterial, irrelevant, scandalous,

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or prejudicial, the Court DENIES Defendant’s Motion to Strike the challenged statements

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at this time. Defendant MAY, however, elect to file a renewed Rule 12(f) Motion by the

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date that all Pretrial Disclosures shall be lodged with the undersigned if, following the close

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of Discovery, Defendant still believes the challenged statements should be stricken.

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CONCLUSION
In light of the foregoing, the Court DENIES Defendant’s Motion to Dismiss and

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Strike Portions of First Amended Complaint (ECF No. 30).

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RESPOND to the First Amended Complaint in accordance with Federal Rule of Civil

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Procedure 12(a)(4)(A).

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Defendant SHALL

IT IS SO ORDERED.
Dated: November 17, 2022

~,~14~
Honorable Todd W. Robinson
United States District Judge

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22-CV-225 TWR (MDD)