George & Company, LLC v. Alibaba.com, Inc. et al
Filing
47
ORDER granting 20 Defendant's Motion to Dismiss. Plaintiff shall file an Amended Complaint within twenty-one days. See Order for details. Signed by Judge John E. Steele on 12/13/2011. (GEL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GEORGE & COMPANY, LLC, a New York
limited liability company,
Plaintiff,
vs.
Case No.
2:10-cv-719-FtM-29DNF
ALIBABA.COM, INC., a
Delaware
corporation,
EASTONY
INDUSTRIES
(Ningbo) Co., LTD.
a Chinese
limited liability company, VARIOUS
JOHN
DOES,
JANE
DOES,
ABC
COMPANIES,
Defendants.
______________________________________
OPINION AND ORDER
This matter comes before the Court on Alibaba.com Inc.’s
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2), 12(e) and
12(b)(6) and Memorandum of Points & Authorities in Support (Doc.
#20) filed on April 5, 2011.
on October 12, 2011.
Plaintiff filed a response (Doc. #40)
With the permission of the Court, defendant
filed a reply (Doc. #44) on November 4, 2011.
I.
Plaintiff George & Company LLC (plaintiff or George & Company)
alleges in its Complaint (Doc. #1) that defendants Alibaba.com,
Inc. (Alibaba) and Eastony Industries (NINGBO) Co., Ltd. (Eastony),
a Chinese limited liability company, as well as various John and
Jane Does and ABC Companies have infringed its trademarks, trade
dress,
and
copyright
related
to
plaintiff’s
dice
games,
and
committed other torts by displaying, offering for sale and selling
unauthorized, counterfeit and imitative products on the website
Alibaba.com. Plaintiff alleges that Alibaba is the operator of the
website and that Eastony acted “in complicity and in concert” with
Alibaba by, among other things, manufacturing and supplying the
illegal products to the website.
(Doc. #1, ¶¶ 6, 8.)
Alibaba contends that it neither owns nor controls the website
at issue and that Alibaba.com Hong Kong Limited, an entirely
separate entity, operates the website.
Alibaba claims that its
only connection to the website is that it provides marketing
services to promote brand awareness primarily through trade show
exhibitions, event marketing, online display advertising, search
engine marketing, affiliate marketing, email marketing, social
media marketing, cross promotional business partnerships and public
relations.
(Doc. #21, ¶ 5.)
According to Alibaba, it is a
Delaware corporation with its only place of business in Santa
Clara, California and it has had insufficient contacts with the
state of Florida for this Court to exercise personal jurisdiction.
Although the Court may grant jurisdictional discovery to
determine Alibaba’s connection to the accused website and its
contacts with this forum, the Court will not do so at this stage.
As
set
forth
below,
the
Court
finds
that
the
Complaint
is
unmanageable in its current form and will be dismissed with leave
to amend.
-2-
II.
Eighteen of the nineteen counts in the Complaint contain the
following statement: “Plaintiff repeats and realleges all of the
above paragraphs of this Complaint as if fully set forth herein.”
(Doc. #1, ¶¶ 57, 62, 67, 72, 77, 82, 91, 96, 103, 108, 113, 118,
123, 128, 133, 138, 143, 148.)
This is essentially a shotgun
pleading.
“The typical shotgun complaint contains several counts,
each
incorporating
one
by
reference
the
allegations
of
its
predecessors, leading to a situation where most of the counts [ ]
contain irrelevant factual allegations and legal conclusions.”
Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305
F.3d 1293, 1295 (11th Cir. 2002); see also Magluta v. Samples, 256
F.3d 1282, 1284 (11th Cir. 2001).
Plaintiff will be required to replead each of its claims and
to specify
which factual allegations are relevant to each count.
See Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162
F.3d 1290, 1333 (11th Cir. 1998)(“These types of cases invariably
begin with a long list of general allegations, most of which are
immaterial to most of the claims for relief. The general allegations
are incorporated by reference into each count of the complaint; the
complaint is followed by an answer that responds to each and every
statement. If the trial judge does not quickly demand repleader, all
is lost-extended and largely aimless discovery will commence, and
the trial court will soon be drowned in an uncharted sea of
depositions, interrogatories, and affidavits.”).
-3-
Plaintiff should also take this opportunity to address any
additional pleading deficiencies. For example, by indiscriminately
lumping defendants together, plaintiff has failed to comply with
Federal Rule of Civil Procedure 8.
Rule 8(a) requires “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
Fed. R. Civ. P. 8(a).
“Under this rule, when a
complaint alleges that multiple defendants are liable for multiple
claims, courts must determine whether the complaint gives adequate
notice to each defendant.”
Pro Image Installers, Inc. v. Dillon,
No. 3:08cv273, 2009 WL 112953 at *1 (N.D. Fla. Jan. 15, 2009)(citing
Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001));
Bentley v. Bank of Am., 773 F. Supp. 2d 1367, 1373 (S.D. Fla. 2011).
Although a complaint against multiple defendants is usually read as
making the same allegation against each defendant individually,
Crowe v. Coleman, 113 F.3d 1536, 1539 (11th Cir. 1997), factual
allegations must give each defendant “fair notice” of the nature of
the claim and the “grounds” on which the claim rests. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).
Accordingly, at
times, a plaintiff’s “grouping” of defendants in a complaint may
require
a
more
definite
statement.
See
Veltmann
v.
Walpole
Pharmacy, Inc., 928 F. Supp. 1161, 1164 (M.D. Fla. 1996); Lane v.
Capital Acquisitions & Mgmt., Co., No. 04-60602, 2006 WL 4590705 at
*5 (Apr. 14, 2006)(“By lumping all the defendants together in each
claim and providing no factual basis to distinguish their conduct,
the [] Complaint fails to satisfy the minimum standard of Rule 8.”).
-4-
Here,
plaintiff
briefly
alleges
that
the
defendants
are
separate entities, operating in different countries with different
business
operations1,
misconduct.
but
then
fails
to
distinguish
their
In nearly all of the counts, plaintiff simply asserts
that “defendants’ acts” constitute the particular cause of action.
It
is
unclear
whether
plaintiff
is
alleging
direct
trademark
infringement against both defendants, direct infringement against
one and contributory infringement against the other, or contributory
infringement against both defendants and direct infringement against
an unnamed third party.
Plaintiff must state its claims clearly in
the Amended Complaint.
See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1232, 1245 (11th Cir. 2007)(finding that
a claim for contributory trademark infringement must be separately
stated).
The Complaint also contains legal conclusions couched as
factual allegations.
(1986).
For
See Papsan v. Allain, 478 U.S. 265, 286
example,
plaintiff
states
that
defendants
have
“systematic contacts” and currently do “substantial business” within
the Middle District of Florida, utilize “this District as a forum,”
have committed “tortious acts in Florida,” and are simply “subject
to the jurisdiction of this Court.”
1
(Doc. #1, ¶¶ 7, 9, 37, 41, 42.)
Plaintiff alleges that defendant Alibaba is the operator of
the website Alibaba.com and that defendant Eastony manufactured and
supplied the illegal products to the website. (Doc. #1, ¶¶ 6, 8.)
-5-
Plaintiff
does
not,
however,
allege
facts
to
support
these
conclusory allegations.
Plaintiff should also review the factual allegations asserted
in support of its nineteen substantive claims.
“requires
more
than
labels
and
conclusions,
and
The complaint
a
formulaic
recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
Reciting a laundry list of vague factual
statements based upon “information and belief” and then baldly
asserting that defendants’ acts constitute trademark infringement,
federal unfair competition, federal false designation of origin,
etc. is insufficient.
Plaintiff should clearly and concisely state
the circumstances, occurrences and events which support each of its
claims.
Accordingly, it is now
ORDERED:
1.
Alibaba.com Inc.’s Motion to Dismiss (Doc. #20) is GRANTED
and the Complaint (Doc. #1) is dismissed without prejudice.
2. Plaintiff shall file an amended complaint WITHIN TWENTY ONE
(21) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2011.
Copies: Counsel of record
-6-
13th
day of
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