SPM Thermo-Shield, Inc. v. SICC GmbH et al

Filing 25

ORDER granting 14 Defendants' Motion to Dismiss to the extent that this case is dismissed as duplicative of SPM Thermo-Shield, Inc. v. SICC, GmbH and Waldemar Walczok, case no. 2:15-cv-439-FtM-29CM. The Clerk is directed to CLOSE THE FILE.Plaintiff's Motion to Transfer Case, Alternative Motion to Stay Case, and for Hearing 18 is DENIED. Signed by Judge Sheri Polster Chappell on 10/11/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SPM THERMO-SHIELD, INC.,
Plaintiff,
v.

Case No: 2:16-cv-116-FtM-99CM

SICC GMBH and WALDEMAR
WALCZOK,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants’ Motion to Dismiss (Doc. #14)
filed on May 19, 2016. Plaintiff filed a Response in Opposition (Doc. #21) on June 8,
2016. Plaintiff filed a Motion to Transfer Case, Alternative Motion to Stay Case, and for
Hearing (Doc. #18) on June 2, 2016, to which Defendants responded (Doc. #22) on June
16, 2016.
On February 10, 2016, Plaintiff SPM Thermo-Shield, Inc. (“SPM”) initiated the
instant action, filing a nine (9) count Complaint (Doc. #1) against Defendants SICC GmbH
and Waldemar Walczok (both German citizens), alleging that Defendants impermissibly
used test results, certifications, photographs, and other materials belonging to Plaintiff to
advertise and market SICC’s products (“2016 case”). Roughly three months prior, SPM
had filed an identical Amended Complaint in this Court against the same parties alleging

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the same nine (9) counts in SPM Thermo-Shield, Inc. v. SICC, GmbH and Waldemar
Walczok, case no. 2:15-cv-439-FtM-29CM (Nov. 27, 2015) (“2015 case”).
The parties do not contest that the 2015 case and the instant case are identical.
With two identical actions pending against the same Defendants, Defendants ask the
Court to dismiss the 2016 action as duplicative, among other arguments for dismissal.
Plaintiff opposes the request, arguing that it has no viable alternative forum given that
service has not yet been effectuated in the 2015 case and Defendants plan to oppose an
extension of time for service in that case to occur. However, this argument is now moot
because since its opposition to the instant Motion to Dismiss, Defendants have now
accepted service and filed an Answer and Affirmative Defenses in the 2015 case.
Because Plaintiff has a viable alternative forum to pursue relief under its Complaint in an
identical case, the Court finds that dismissal of the instant case is the appropriate course
of action. See Hickmon v. Sec’y, Dept. of Corrections, No. 6:07-cv-114-Orl-19KRS, 2007
WL 2010801, at *1 (M.D. Fla. July 6, 2007). The Court makes no determination at this
time as to any other arguments for dismissal raised in Defendants’ Motion to Dismiss,
which Defendants may reassert in the 2015 action if they wish.
Accordingly, it is now
ORDERED:
1. Defendants’ Motion to Dismiss (Doc. #14) is GRANTED to the extent that this
case is dismissed as duplicative of SPM Thermo-Shield, Inc. v. SICC, GmbH
and Waldemar Walczok, case no. 2:15-cv-439-FtM-29CM.
directed to CLOSE THE FILE.

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The Clerk is

2. Plaintiff’s Motion to Transfer Case, Alternative Motion to Stay Case, and for
Hearing (Doc. #18) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 11th day of October, 2016.

Copies: All Parties of Record

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