Inseco, Inc. v. US Duralast, Inc. et al

Filing 24

OPINION AND ORDER granting in part and denying in part 14 defendant's Motion to Dismiss, or Alternatively to Transfer Venue or Stay. Defendant's Motion is granted to the extent it seeks dismissal for failure to state a claim upon which relief may be granted, and is otherwise denied. The Complaint is dismissed without prejudice to filing an Amended Complaint within fourteen days of this Opinion and Order. See Opinion and Order for details. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
INSECO, INC.,
corporation,

a

Florida

Plaintiff,
v.

Case No:

2:18-cv-77-FtM-99CM

US
DURALAST,
INC.,
US
DURALAST, INC., and JOHN
DOES, Various John Does,
Janes
Does
and
ABC
Companies,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Dismiss, or Alternatively to Transfer Venue or Stay (Doc. #14)
filed on March 23, 2018.

Plaintiff filed a Response in Opposition

(Doc. #20) on April 16, 2018.

For the reasons set forth below,

the portion of the motion seeking dismissal for failure to state
claims is granted, and the remainder of the motion is otherwise
denied.
This is a trademark infringement case brought by plaintiff
Inesco,

Inc.

plaintiff’s

based

mark.

upon
(Doc.

defendants’
#1.)

alleged

Plaintiff

infringement

filed

a

of

six-count

Complaint, alleging: (1) Federal trademark infringement under 15
U.S.C. §§ 1114, 1117; (2) Federal unfair competition under 15
U.S.C. § 1125(a); (3) Federal false designation of origin, false

advertising,

and

false

description

under

15

U.S.C.

§

1125(a)(1)(a); (4) Federal false advertising under 15 U.S.C. §
1125(a)(1)(b); (5) Declaratory relief under 28 U.S.C. § 2202; and
(6) Florida unfair competition, false designation of origin, and
false

description.

(Doc.

#1.)

Each

count

adopted

and

incorporated all the preceding paragraphs of the Complaint, (Doc.
#1, ¶¶ 51, 56, 61, 66, 68), resulting in a “shotgun complaint.”
“The typical shotgun complaint contains several counts, each one
incorporating by reference the allegations of its predecessors,
leading to a situation where most of the counts (i.e., all but the
first)

contain

conclusions.”

irrelevant

factual

allegations

and

legal

Strategic Income Fund, L.L.C. v. Spear, Leeds &

Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002).

The Court

will therefore dismiss the Complaint with leave to amend.

The

Court will otherwise deny the motion, with leave to refile a
similar motion, if appropriate, after an amended complaint is
filed.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Defendant’s Motion to Dismiss, or Alternatively to Transfer
Venue or Stay (Doc. #14) is GRANTED IN PART to the extent
it seeks dismissal for failure to state a claim upon which
relief may be granted.

The Motion is otherwise DENIED.

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2. The Complaint (Doc. #1) is dismissed without prejudice to
filing an Amended Complaint within fourteen (14) days of
the date of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this __7th__ day of
May, 2018.

Copies:
Counsel of Record

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