Synergy Real Estate of SW Florida, Inc. et al v. Premier Property Management of SW Florida, LLC et al
OPINION AND ORDER granting 52 Joint Motion to Dismiss Second Amended Complaint. Counts I and II of the Second Amended Complaint are dismissed. The Court declines to retain jurisdiction over the state law claims and those counts are also dismissed . No further amendments will be allowed. The Clerk is directed to enter judgment accordingly and close the file. The Clerk is further directed to terminate all previously scheduled deadlines and pending motions. Signed by Judge John E. Steele on 10/11/2013. (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,
PREMIER PROPERTY MANAGEMENT OF SW
KRISTIN DEPAOLA, CYNTHIA JONES, and
OPINION AND ORDER
This matter comes before the Court on defendants’ Joint Motion
to Dismiss Second Amended Complaint (Doc. #52) filed on July 18,
Plaintiffs filed a Response in Opposition (Doc. #55) on
August 9, 2013.
For the reasons set forth below, the motion is
This matter was first filed on July 5, 2011, by plaintiffs
Synergy Real Estate of SW Florida, Inc., Gulf Coast Management
Group, LLC, and Louis Pfaff against defendants Premier Property
Management of SW Florida, LLC, Naples New Ventures, LLC, Deborah
McCabe, Michael DePaola, Kristin DePaola, Cynthia Jones, and James
Following a joint motion to dismiss (Doc. #8),
the Court dismissed the Complaint without prejudice as a shotgun
pleading and advised plaintiffs to address any additional pleading
For example, plaintiffs failed to
defendants together and the Court advised plaintiffs to clearly and
concisely state the circumstances, occurrences and events which
support each of their claims.
Plaintiffs were given an
opportunity to amend the Complaint and did so on October 2, 2012.1
Following another joint motion to dismiss (Doc. #38),
the Court dismissed the Amended Complaint without prejudice for
failure to state a claim in Counts I and II and the Court declined
to exercise supplemental jurisdiction over the remaining claims.2
The Court granted leave to amend but warned that this
would be the final opportunity and again advised plaintiffs to
addressed in the Court’s earlier Opinion and Order.
On July 1, 2013, plaintiffs filed a nine-count Second Amended
Complaint (Doc. #51) against defendants for cyberpiracy, unfair
The Amended Complaint dropped Naples New Ventures, LLC and
Deborah McCabe as defendants.
The Court dismissed Count I, plaintiffs’ claim against all
defendants for violation of the Anticybersquatting Consumer
Protection Act (ACPA), 15 U.S.C. § 1125(d), because the factual
allegations did not give each defendant fair notice of the nature
of the claim and the Amended Complaint did not include an
allegation that any of the defendants were domain name registrants
or a registrant’s authorized licensee. (Doc. #50, pp. 3-5.) The
Court dismissed Count II, plaintiffs’ claim against all defendants
for unfair trade practices in violation of the Lanham Act, 15
U.S.C. § 1125(a), because the factual allegations did not describe
the mark or allege valid ownership of the mark. (Id., pp. 5, 6.)
advantageous business relationships, breach of fiduciary duty,
organized scheme to defraud, and defamation.
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. #51, ¶ 13.)
Defendants again bring a joint motion to dismiss arguing that
plaintiffs fail to meet the pleading requirements of the Federal
Rules of Civil Procedure and fail to state a claim for each of the
Defendants argue that Count I should be
“registered, and at all times owned” the domain names defeats the
(Id., pp. 4, 5.)
As to Count II, defendants argue
that: (1) plaintiffs have failed to plead “used in commerce,” which
is an element of a Lanham Act claim; (2) plaintiffs fail to plead
the claim with heightened specificity; and (3) plaintiffs do not
meet the pleading requirements of Fed. R. Civ. P. 8(a).
Plaintiffs respond that defendants ignore the law of the
case as established by the Court’s June 10, 2013 Opinion and Order,
which plaintiffs interpret as finding Counts I and II “plausible
claim[s] on [their] face” to the extent plaintiffs allege that
authorized licensee and the allegations describe the mark and
allege valid ownership of the mark.
(Doc. #55, pp. 2-11.)
The Court first notes that plaintiffs’ reading of the Court’s
June 10, 2013 Opinion and Order is incorrect.
The Court did not
find Counts I and II “plausible claim[s] on [their] face,” “[i]n
all other regards.”
In fact, in its Opinion and Order, the Court
specifically advised plaintiffs to address any additional pleading
deficiencies, including those addressed in the Court’s earlier
Opinion and Order.
(Doc. #50, p. 7.)
Although the Court has stated and again reminded plaintiffs
that indiscriminately lumping “defendants” together fails to comply
with Fed. R. Civ. P. 8, the Second Amended Complaint continues to
indiscriminately lump defendants together. For example, paragraphs
56 through 63 and 66 through 70 allege that “defendants,” which
include a limited liability company, committed the acts underlying
the claim. (Doc. #51.) Similarly, the allegations incorporated in
Counts I and II do not allege each defendant’s conduct individually
but rather group them as “defendants” or name all four individual
(Id., ¶¶ 16, 22, 23, 24, 25, 28, 30, 31, 32, 33, 34,
35, 36, 39, 42, 49, 52.)
The Court finds that the Second Amended
Complaint does not give each defendant “fair notice” of the nature
of the claims and the “grounds” on which the claims rest.
Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).
See also Lane
4590705, at *5 (S.D. Fla. 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.”).
deficiencies cited in the Court’s June 10, 2013 Opinion and Order.
As to Count I, a claim of use of a domain name is only unlawful
registrant or the registrant’s authorized licensee.
15 U.S.C. §
While plaintiffs supplement their allegations with
paragraphs 21, 22, 23, 24, 25, 32, 33, 34, 35, 36, and 52, the
defendants registered the domain name or were the authorized
Defendants are not registrants as paragraph 21 alleges
that plaintiff Synergy was the domain name registrant. (Doc. #51.)
allegations are contradictory.
Paragraphs 22 and 34 allege that
defendants “had the authority to use Synergy’s domains during their
authorized to use the domain names for the legitimate business
purposes of Synergy.”
However, paragraphs 30, 31, 32, 34,
36, 39, 57, and 58 allege that defendants used the domain name
“without permission or license,” “in derogation of any permissible
use,” and “knowingly and willfully impermissibly and illegally.”3
As to Count II, in its earlier Opinion and Order the Court
stated that “plaintiffs have not specifically described the mark or
alleged valid ownership of the mark.”
(Doc. #50, p. 6.)
the Court’s reading of the Second Amended Complaint, it remains
unclear what mark is at issue.4
Therefore, as the Court has previously warned that the Second
Amended Complaint would be plaintiffs’ final opportunity to address
the pleading deficiencies, the Court will dismiss the Second
Amended Complaint and will not allow any further amendments.
Accordingly, it is now
Complaint (Doc. #52) is GRANTED and Counts I and II of the Second
Plaintiffs inability to state a claim may also stem from the
fact that the allegations do not seem to fit the definition of
“Cybersquatting is a form of trademark misuse.
‘This activity is defined to be the conduct of one who reserves
with a network information center a domain name consisting of the
mark or name of a company for the purpose of relinquishing the
right to the domain name back to the legitimate owner for a
price.’” Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561
F.3d 1298, 1307 (11th Cir. 2009)(citation omitted).
The Court again need not address the issues raised in
defendants’ motion to dismiss as to the remaining counts, which 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, 108889 (11th Cir. 2004)(encouraging district courts to dismiss state
claims where all claims which provided original jurisdiction have
Amended Complaint (Doc. #51) are DISMISSED.
The Court declines to
retain jurisdiction over the state law claims, pursuant to 28
U.S.C. § 1367(c)(3), and those counts are also DISMISSED.
further amendments will be allowed.
The Clerk is directed to enter judgment accordingly and
close the file.
The Clerk is further directed to terminate all
previously scheduled deadlines and pending motions.
DONE AND ORDERED at Fort Myers, Florida, this 11th day of
Copies: Counsel of record
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