Synergy Real Estate of SW Florida, Inc. et al v. Premier Property Management of SW Florida, LLC et al

Filing 50

OPINION AND ORDER granting 38 Joint Motion to Dismiss Amended Complaint. The 37 Amended Complaint is dismissed without prejudice. Plaintiffs may file a Second Amended Complaint within twenty-one days of this Opinion and Order. Failure to file a Second Amended Complaint within the allotted time will result in the closing of the file without further notice. Signed by Judge John E. Steele on 6/10/2013. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SYNERGY REAL ESTATE OF SW FLORIDA,
INC., GULF COAST MANAGEMENT GROUP,
LLC, and LOUIS PFAFF,
Plaintiffs,
vs.

Case No.

2:11-cv-707-FtM-29UAM

PREMIER PROPERTY MANAGEMENT OF SW
FLORIDA,
LLC,
MICHAEL
DEPAOLA,
KRISTIN DEPAOLA, CYNTHIA JONES, and
JAMES JONES,
Defendants.
______________________________________
OPINION AND ORDER
This matter comes before the Court on defendants’ Joint Motion
to Dismiss Amended Complaint (Doc. #38) filed on October 16, 2012.
Plaintiffs filed a Response in Opposition (Doc. #41) on November 5,
2012.

For the reasons set forth below, the motion is granted.
I.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This

obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).

To survive dismissal, the factual allegations must be

“plausible” and “must be enough to raise a right to relief above
the speculative level.”

Id. at 555.

See also Edwards v. Prime

Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
unadorned,

This is “more than an

the-defendant-unlawfully-harmed-me

accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff, Erickson v. Pardus, 551
U.S. 89 (2007), but “[l]egal conclusions without adequate factual
support are entitled to no assumption of truth,” Mamani v. Berzain,
654

F.3d

1148,

“Threadbare

1153

recitals

of

(11th

Cir.

the

2011)(citations

elements

of

a

cause

omitted).
of

action,

supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

Iqbal,

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012)(internal quotation marks and citations omitted).

Thus,

the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
and

then

determine

whether

entitlement to relief.”

they

plausibly

give

rise

to

an

Iqbal, 556 U.S. at 679.
II.

Plaintiffs Synergy Real Estate of SW Florida, Inc. (Synergy),
Gulf Coast Management Group, LLC (Gulf Coast) and Louis Pfaff
(Pfaff) filed an eleven-count Amended Complaint (Doc. #37) against
defendants

Premier

Property

Management

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of

SW

Florida,

LLC

(Premier), Michael DePaola, Kristin DePaola, Cynthia Jones, and
James Jones.1

Plaintiffs bring claims against defendants for

cyberpiracy, unfair trade practices, civil conspiracy, tortious
interference with advantageous business relationships, civil theft,
breach of fiduciary duty, organized scheme to defraud, civil
remedies for criminal practices, and defamation.

(Doc. #37.)

Jurisdiction is premised on original federal question jurisdiction,
28 U.S.C. § 1331, for the cyberpiracy and unfair trade practices
claims

brought

under

15

U.S.C.

§

1125,

and

supplemental

jurisdiction, 28 U.S.C. § 1367, for the remaining claims.

(Doc.

#37, ¶ 13.)
Defendants argue that plaintiffs fail to meet the pleading
requirements of the Federal Rules of Civil Procedure, fail to state
a claim for each of the eleven counts, and with the exception of
correcting

their

shotgun

pleading,

fail

to

adhere

to

the

instructions in the Court’s September 12, 2012 Opinion and Order
(Doc. #35).

(Doc. #38.)
III.

A.

Count I
In Count I, plaintiffs contend that all defendants violated

the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. §

1

The Amended Complaint dropped Naples New Ventures, LLC and
Deborah McCabe as defendants.
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1125(d).

The applicable portion of the ACPA provides in relevant

part:
A person shall be liable in a civil action by the owner
of a mark . . . if, without regard to the goods or
services of the parties, that person(i) has a bad faith intent to profit from that mark . .
. and
(ii) registers, traffics in, or uses a domain name that(I) in the case of a mark that is distinctive at
the time of registration of the domain name, is
identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at
the time of registration of the domain name, is
identical or confusingly similar to or dilutive of
that mark; or
(III) is a trademark, word, or name protected by
reason of section 706 of Title 18 or section 220506
of Title 36.
15 U.S.C. § 1125(d)(1)(A).

The ACPA enumerates nine nonexclusive

factors that are relevant to a person’s “bad faith intent.”
U.S.C. § 1125(d)(1)(B).

15

The ACPA also provides that a person is

liable for “using” a domain name “only if that person is the domain
name registrant or that registrant's authorized licensee.”

15

U.S.C. § 1125(d)(1)(D).
Count I of the Amended Complaint alleges that all defendants
“used” domain names.

(Doc. #37, ¶ 51.)

James Jones is the only

defendant for whom factual allegations are made, with the other
defendants apparently being encompassed in the “acting in concert
with other Defendants” language.

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(E.g., Doc. #37, ¶¶ 21, 27).

Even if this is sufficient as to James Jones, it is insufficient as
to

the

other

defendants.

Additionally,

Count

I

contains

no

allegation that any of the defendants are domain name registrants
or a registrant’s authorized licensee.

A claim of use of a domain

name is only unlawful under the ACPA if the person using the domain
name is the registrant or the registrant’s authorized licensee. 15
U.S.C. § 1125(d)(1)(D); Bird v. Parsons, 289 F.3d 865, 880-81 (6th
Cir. 2002); King Ranch, Inc. v. King Ranch Contractors, LLC, No.
6:12-cv-597-Orl-37KRS, 2013 WL 2371246 (M.D. Fla. May 30, 2013).
Therefore, plaintiffs have failed to state a claim under the ACPA
in Count I against any of the defendants.
B.

Count II
Plaintiffs have similarly failed to state a claim in Count II.

Plaintiffs allege unfair trade practices in violation of the Lanham
Act, 15 U.S.C. § 1125(a).

Title 15 U.S.C. § 1125(a) provides in

relevant part:
(1) Any person who, on or in connection with any goods or
services, . . . uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any
false designation of origin, false or misleading
description
of
fact,
or
false
or
misleading
representation of fact, which(A) is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation,
connection, or association of such person with
another person, or as to the origin, sponsorship,
or approval of his or her goods, services, or
commercial activities by another person, or
(B) in commercial
misrepresents
the

advertising or promotion,
nature,
characteristics,
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qualities, or geographic origin of his or her or
another person's goods, services, or commercial
activities, shall be liable in a civil action by
any person who believes that he or she is or is
likely to be damaged by such act.
15 U.S.C. § 1125(a).

“In order to succeed in a claim for unfair

competition . . . the plaintiff must establish the following two
elements: 1) valid ownership of the mark; and 2) the defendant's
use of the mark in commerce creates a likelihood of confusion among
consumers as to the origin of the goods.”

Turner Greenberg

Assocs., Inc. v. C & C Imp., Inc., 320 F. Supp. 2d 1317, 1330 (S.D.
Fla. 2004),

aff'd,

128

F.

App'x

755

(11th

Cir.

2005)(citing

Alliance Metals, Inc. of Atlanta v. Hinely Indus., Inc., 222 F.3d
895, 906 (11th Cir. 2000)). Here, plaintiffs have not specifically
described the mark or alleged valid ownership of the mark in Count
II’s allegations and, thus, this claim must also be dismissed.
C. Remaining Counts
The Court need not address the issues raised in defendants’
motion to

dismiss

as

to

the

remaining

counts.

The remaining

possible claims in the Amended Complaint are all state law claims.
Even assuming these are properly pled, pursuant to 28 U.S.C. §
1367(c)(3) the Court would exercise its discretion and decline to
exercise supplemental jurisdiction over the state claims. Raney v.
Allstate

Ins.

Co.,

370

F.3d

1086,

1088-89

(11th

Cir.

2004)(encouraging district courts to dismiss state claims where all
claims which provided original jurisdiction have been dismissed.)

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The Court will provide plaintiffs with a final opportunity to
file an amended complaint setting forth claims.

Again, plaintiffs

may take this opportunity to address any additional pleading
deficiencies, including those addressed in the Court’s September
12, 2012 Opinion and Order.

The Court will not grant leave to file

any additional complaints if the new pleading is insufficient.
Accordingly, it is now
ORDERED:
1.

Joint Motion to Dismiss Amended Complaint (Doc. #38) is

GRANTED and the Amended Complaint (Doc. #37) is dismissed without
prejudice.
2.

Plaintiffs may file a Second Amended Complaint WITHIN

TWENTY ONE (21) DAYS of this Opinion and Order.

Failure to file a

Second Amended Complaint within the allotted time will result in
the closing of the file without further notice.
DONE AND ORDERED at Fort Myers, Florida, this 10th day of
June, 2013.

Copies: Counsel of record

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