Holding Company of the Villages, Inc. v. Little John's Movers & Storage, Inc. et al

Filing 21

ORDER: Defendants' Motion to Dismiss Plaintiff's Complaint 14 is GRANTED, Counts III and V are DISMISSED, and all claims against Defendant Little John's Movers & Storage, Inc. are DISMISSED. See Order for further details. Signed by Judge Marcia Morales Howard on 12/11/2017. (DS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
HOLDING COMPANY OF THE
VILLAGES, INC.,
Plaintiff,
Case No. 5:17-cv-187-Oc-34PRL
vs.
LITTLE JOHN’S MOVERS & STORAGE,
INC., a Florida corporation, et al.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Complaint (Doc. 14; Motion), filed on July 5, 2017. Plaintiff Holding Company of the
Villages, Inc. (Plaintiff or Holding Company) filed a response on July 18, 2017. See Plaintiff
Holding Company of the Villages, Inc.’s Response in Opposition to Defendants’ Motion to
Dismiss (Doc. 15; Response). Accordingly, this matter is ripe for review.
I.

Background1
Holding Company has used the marks THE VILLAGES and

,

(collectively, the Marks), “since at least as early as July 1992” “for residential real estate
construction and development, real estate brokerage of residential housing, and resale of
residential housing.”

1

See Complaint (Doc. 1) ¶28.

Holding Company’s predecessor

In considering the Motion, the Court must accept all factual allegations in the Complaint (Doc. 1) as
true, consider the allegations in the light most favorable to Plaintiff, and accept all reasonable inferences that
can be drawn from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa
Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). As such, the facts recited here are drawn from the
Complaint, and may well differ from those that ultimately can be proved.

“coined” the term “The Villages” when it developed The Villages community in central
Florida. Id. ¶¶ 7, 43. The term “is suggestive of a community organized as a group of selfsufficient, interconnected, small towns.” Id. ¶45. Holding Company has registered, and
now owns the rights to, the Marks, as well as twenty related marks. Id. ¶27, 38-39.
Pursuant to 15 U.S.C. §1065, “THE VILLAGES,” has achieved incontestable status. Id.
¶42.2
Holding Company “has spent significant sums to advertise and promote its goods
and services using the Marks” in various forums, including television, newspapers,
magazines, outdoor advertising, and since 1996, a website located at <thevillages.com>
(the Villages Website).

Id. ¶¶30-31, 33, 68.

These advertisements have reached

“prospective customers outside of Florida, who wish to relocate to Florida.” Id. ¶31.
Holding Company’s efforts have enabled it to achieve “significant commercial success.”
Id. ¶36. The Marks are now “widely recognized by consumers” as identifiers of Holding
Company’s goods and services. Id.¶35. Accordingly, Holding Company alleges that the
Marks are “famous,” id. ¶37, 48, “inherently distinctive,” id. ¶46, and to the extent the Marks
are descriptive, they “have acquired distinctiveness and have achieved secondary
meaning in consumers’ minds as to the source of goods and services offered by Plaintiff,”
id. ¶47.
Without Holding Company’s consent, Defendants have used the Marks “in an effort
to associate [their] business with The Villages community and the Marks.” Id. ¶¶56, 75.

2
Under 15 U.S.C. § 1065, “a trademark registration may become incontestable if and when the mark
has been in continuous use for 5 years after the initial registration, there is no pending challenge to the validity
of the mark, and the registrant files an affidavit with the Commissioner of Patents within one year after the
expiration of the initial five-year period, affirming that the mark is still in use.” Wilhelm Pudenz, GmbH v.
Littlefuse, Inc., 177 F.3d 1204, 1206 n.1 (11th Cir. 1999).

2

Defendant John D. Sullivan (Sullivan) owns and operates Defendants Little John’s Movers
& Storage, Inc. (Little John’s) and The Villages Moving Storage and Logistics Corp (The
Villages Moving) (collectively, the Corporate Defendants). Id. ¶¶10, 16, 20. The Corporate
Defendants “are, in operation, the same business.” Id. ¶14. They compete with Holding
Company’s relocation services by offering “residential moving services, commercial
moving services, furniture moving services, ‘senior moving’ services, interstate moving
services, vehicle transportation services, packing services, storage and self-storage
services, and related goods such as packing and packaging supplies.” Id. ¶¶51, 74.
Defendants “intentionally target persons moving to Plaintiff’s community.” Id. ¶64. The
Corporate Defendants share a phone number, id. ¶53, and “[u]pon information and belief,”
promote their services on the website located at <thevillagesmovingandstorage.com>, id.
¶57. Defendant Sullivan owns the domain name for <thevillagesmovingandstorage.com>.
Id. ¶70. “Upon information and belief, Little John’s does not maintain a separate website
or domain name.” Id. ¶71. The Corporate Defendants have also used the website located
at <villagesmovingandstorage.com>. Id. ¶59.
Further, “[u]pon information and belief, all Defendants were acting in concert with or
in a joint venture with the other, were and are the agents of each other, and, in doing the
wrongful acts complained of herein, each was acting within the course and scope of such
agency.” Id. ¶22. All Defendants “committed the acts complained of . . . in interstate
commerce . . . for their individual gain and profit.” Id. ¶¶23-24. By “wrongfully trad[ing]
upon and cash[ing] in on Plaintiff’s reputation and exclusive rights in [the] Marks,”
Defendants have caused Holding Company to suffer irreparable injury “in the form of lost

3

goodwill, diminished reputation, and increased costs.”

Id. ¶¶92, 95.

Additionally,

Defendants’ conduct has “diluted and/or tarnished” the distinctive quality of the Marks. Id.
¶93.
Based on these allegations, on April 27, 2017, Holding Company filed the Complaint
in which it alleges the following four causes of action under federal law: (1) trademark
infringement under the Lanham Act, 15 U.S.C. § 1114(1) (Count I); (2) unfair competition,
false designation of origin, and false advertising under the Lanham Act, 15 U.S.C. §
1114(1) (Count II); (3) trademark dilution under the Lanham Act, 15 U.S.C. § 1125(c)
(Count III); and (4) violation of the Anti-Cybersquatting Consumer Protection Act (ACPA),
15 U.S.C. § 1125(d) (Count VI). Id. ¶¶102-136, 151-162. Plaintiff also alleges two claims
under Florida law: (1) common law trademark infringement (Count IV), and (2) statutory
injury to business reputation and trademark dilution pursuant to Florida Statute section
495.151 (Count V). Id. ¶¶137-150. In response, Defendants filed the instant Motion.
II.

Standard of Review
In ruling on a motion to dismiss, brought pursuant to Rule 12(b)(6), the Court must

accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see
also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In
addition, all reasonable inferences should be drawn in favor of the plaintiff. See Omar ex.
rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003) (per curiam). Nonetheless,
the plaintiff must still meet some minimal pleading requirements. Jackson v. Bellsouth
Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while
“[s]pecific facts are not necessary[,]” the complaint should “give the defendant fair notice

4

of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S.
89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Further, the plaintiff must allege “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556).
A “plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555 (internal quotations omitted); see also
Jackson, 372 F.3d at 1262 (explaining that “[c]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”)
(internal citation and quotations omitted). Indeed, “the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions,”
which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556 U.S. at 678, 68081. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint
contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 570).
III.

Discussion
In the Motion, Defendants seek to dismiss Holding Company’s claims for dilution

under federal and Florida law, Counts III and V, respectively, and to dismiss Little John’s
as a defendant. See generally Motion. First, the Court will determine whether Holding
Company has sufficiently stated its claims for dilution. Then, the Court will consider

5

whether Holding Company has stated any claim for relief plausible on its face against Little
John’s.
A. Dilution Claims
Defendants contend that Holding Company’s claims are due to be dismissed
pursuant to Rule 12(b)(6) because it has not pled all of the elements required to state a
claim. See Motion at 4-12. Specifically, Defendants argue that Holding Company has
failed to allege facts showing that the Marks are famous, and that Defendants have diluted
the Marks by blurring or by tarnishment. Id. at 9-11. In the Response, Holding Company
asserts that it has stated its dilution claims with sufficient particularity to survive a motion
to dismiss and that greater factual specificity is not necessary at this stage of the
proceedings. See Response at 3-9.
“Trademark dilution is the weakening of the ability of a mark to clearly and
unmistakably distinguish the source of a product.” Scott Fetzer Co. v. House of Vacuums
Inc., 381 F.3d 477, 489 (5th Cir. 2004). Section 1125(c) of the Lanham Act prohibits
trademark dilution by providing that:
the owner of a famous mark that is distinctive, inherently or through
acquired distinctiveness, shall be entitled to an injunction against another
person who, at any time after the owner’s mark has become famous,
commences use of a mark or trade name in commerce that is likely to cause
dilution by blurring or dilution by tarnishment of the famous mark, regardless
of the presence or absence of actual or likely confusion, of competition, or
of actual economic injury.
“To establish a dilution claim, a plaintiff ‘must provide sufficient evidence that (1) the mark
is famous; (2) the alleged infringer adopted the mark after the mark became famous; (3)
the infringer diluted the mark; and (4) the defendant’s use is commercial in commerce.’”
Brain Pharma, LLC v. Scalini, 858 F. Supp. 2d 1349, 1356 (S.D. Fla. 2012) (internal citation

6

omitted); see also Rain Bird Corp. v. Taylor, 665 F. Supp. 2d 1258, 1266-67 (N.D. Fla.
2009) (noting that after the anti-dilution statute was amended in 2006, a plaintiff only has
to prove a likelihood of dilution instead of actual dilution). Florida law similarly prohibits
trademark dilution, see Fla. Stat. § 495.151, and the standard for establishing a dilution
claim under the Florida Statute “is essentially the same as that of a dilution claim under the
Lanham Act,” Fla. Int’l Univ. Bd. of Trustees v. Fla. Nat’l Univ. Bd. of Trustees, 91 F. Supp.
3d 1265, 1286 (S.D. Fla. Mar. 4, 2015), aff’d, 830 F.3d 1242 (11th Cir. 2016).3 Here,
Defendants contend that Holding Company has failed to plead facts sufficient to allege that
the Marks are famous and that Defendants have diluted the Marks. See Motion at 4-12.
A mark is considered famous “if it is widely recognized by the general consuming
public of the United States as a designation of source of the goods or services of the mark’s
owner.” 15 U.S.C. § 1125(c). Although under federal law, a plaintiff must allege that the
mark is famous among “the general consuming public” nationally, id., under the Florida
Anti-Dilution Act, a plaintiff must allege only that the mark is famous in Florida, see Fla. Int’l
Univ. Bd. of Trustees, 830 F.3d at 1259; Health & Sun Research, Inc. v. Sunless, Inc., No.
8:14-cv-466-T-35MAP, 2014 WL 12609861, at *3 (M.D. Fla. Oct. 14, 2014). To determine
whether a mark is famous, courts consider factors such as: (1) “[t]he duration, extent, and
geographic reach of advertising and publicity of the mark, whether advertised or publicized
by the owner or third parties”; (2) “[t]he amount, volume, and geographic extent of sales of
goods or services offered under the mark”; (3) “[t]he extent of actual recognition of the
mark”; and (4) “[w]hether the mark was registered under the Act of March 3, 1881, or the

3

“Effective January 1, 2007, the Florida Legislature amended Fla. Stat. § 495.151 to track 15 U.S.C.
§ 1125(c), the Federal Trademark Dilution Act.” Fla. Int’l Univ. Bd. of Trustees, 91 F. Supp. 3d at 1286 n.11
(citation omitted).

7

Act of February 20, 1905, or on the principal register.” 15 U.S.C. § 1125(c). One court has
observed that, applying this criteria, “courts have generally limited famous marks to those
that receive multi-million dollar advertising budgets, generate hundreds of millions of
dollars in sales annually, and are almost universally recognized by the general public.”
Heller v. Design Within Reach, Inc., No. 09 Civ.1909(JGK), 2009 WL 2486054, at *3
(S.D.N.Y. Aug. 14, 2009). That court further explained, “[t]he policy rationale behind the
fame requirement is to encourage and promote competition; without limiting protection to
famous marks, anti-dilution laws would turn every trademark into an ‘anti-competitive
weapon.’” Id. at *4 (citation omitted). As such, the “threshold for a showing of fame . . . is
exceptionally high.” It’s a 10, Inc. v. Beauty Elite Grp., No. 13-60154-CIV, 2013 WL
6834804, at *8 (S.D. Fla. Dec. 23, 2013).
A mark is famous if it is “‘truly prominent and renowned.’” Bentley Motors, Ltd. Corp.
v. McEntegart, 976 F. Supp. 2d 1297, 1313 (M.D. Fla. 2013) (citation omitted). A claimant
“must show that, when the general public encounters the mark ‘in almost any context, it
associates the term, at least initially, with the mark’s owner.’” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1373 (Fed. Cir. 2012) (citation omitted). “[E]ven if a mark is
distinctive in its particular market, it does not render it inherently distinctive so as to
engender immediate recognition in the general public of a particular product.” Michael
Caruso & Co. v. Estefan Enters., Inc., 994 F. Supp. 1454, 1463 (S.D. Fla. 1998), aff’d, 166
F.3d 353 (11th Cir. 1998); see also Coach Servs., 668 F.3d at 1372 (“By using the ‘general
consuming public’ as the benchmark, [15 U.S.C. § 1125(c)] eliminated the possibility of
‘niche fame,’ which some courts had recognized under the previous version of the
statute.”).

“In other words, [a] party claiming dilution must establish that its mark is

8

practically a household name, of the likes of such giants of branding as Exxon, Kodak, and
Coca-Cola.” It’s a 10, 2013 WL 6834804 at *8 (citations omitted).
Here, the Court finds that Holding Company has failed to plead facts sufficient to
state a plausible claim that the Marks are famous among the general consuming public in
the United States. Although Holding Company generally alleges that the Marks are famous
throughout Florida, the United States, and internationally “as designators for the source of
goods and services provided by Plaintiff and its affiliates,” and that the Marks “are widely
recognized by consumers,” see Complaint ¶¶35, 37, 124-26, these are conclusory
allegations which are insufficient to support a dilution claim. Indeed, “whether a mark is
‘famous’ is a legal conclusion and therefore, on a motion to dismiss, the court does not
simply accept Plaintiff’s recitation of that element [of] its dilution case. Rather, under
Twombly and Iqbal, Plaintiff must allege facts which makes such a conclusion plausible.”
Brookwood Funding, LLC v. Avant Credit Corp., No. 1:14-CV-2960-SCJ, 2015 WL
11504556, at *4 (N.D. Ga. July 28, 2015). In the Complaint, Holding Company has failed
to allege facts making its conclusory allegations of fame plausible.
First, Holding Company attempts to support its conclusory allegations of fame by
alleging that the Marks are inherently distinctive as designators of Holding Company’s
goods and services, and to the extent they are descriptive, they have acquired a secondary
meaning identifying Holding Company as their source.

See Complaint ¶¶46-47.

However, these allegations are insufficient because a trademark “can certainly be
‘distinctive’ without being ‘famous,’” even though a “trademark cannot be ‘famous’ unless
it is ‘distinctive.’” 4 McCarthy on Trademarks and Unfair Competition §24:104 (5th ed.
2017) (citation omitted). Further, Holding Company attempts to allege fame by pleading

9

that the THE VILLAGES mark is registered and incontestable pursuant to 15 U.S.C. §
1065. See Complaint ¶¶41-42. However, the fact that a “mark is presumed to have a
secondary meaning given its ‘incontestable’ status is not sufficient to render the mark
‘famous’ for purposes of the dilution analysis.” Carnival Corp. v. SeaEscape Casino
Cruises, Inc., 74 F. Supp. 2d 1261, 1269-70 (S.D. Fla. 1999).
Additionally, Holding Company asserts that it has spent “significant sums” to
promote the Marks and achieved “significant commercial success.”4 See Complaint ¶¶31,
36. In this regard, Holding Company pleads that since July 1992, it “has spent significant
sums to use the Marks to advertise and promote its goods and services on various
platforms, including television, newspapers, magazines, outdoor advertising, and the
Villages Website. Id. ¶¶30-31. However, threadbare “allegations of extensive overall sales
and advertising for a product line are insufficient to unilaterally support an assertion that
the trade dress of those products has achieved the widespread renown necessary to
establish fame.” Urban Grp. Exercise Consultants, Ltd. V. Dick’s Sporting Goods, Inc., No.
12 Civ. 3599, 2013 WL 866867, at *6 (S.D.N.Y. Mar. 8, 2013); see also Brookwood
Funding, 2015 WL 11504556 at *4 (“Other than general allegations that it has invested
time and money into its mark, Plaintiff has not alleged any facts which would make it
plausible that the Brookwood mark is ‘famous’ for the purposes of a federal dilution claim[
].”). Notably, unlike the plaintiff in Superior Consulting Servs., Inc. v. Shaklee Corp., No.
6:16-cv-2001-Orl-31GJK, 2017 WL 2834783 (M.D. Fla. June 30, 2017), who alleged “that
its marks have been used for more than thirty years within the nutritional supplement

4

The use of the adjective “significant” does little to aid Holding Company’s claims. An amount may
well be “significant” to a particular company, but still be wholly inadequate to achieve, or even be suggestive
of, fame.

10

market ‘to identify, market, and sell millions of products worldwide,’” Holding Company has
failed to plead the extent or geographic scope of its sales or promotion efforts. Holding
Company’s only allegation relating to the scope of its promotion efforts indicates that
Holding Company sought to reach “prospective customers outside of Florida, who wish to
relocate to Florida.” Id. ¶31. At best, this allegation suggests fame among a niche
population instead of the general public, which is insufficient. See 411 Kitchen Cabinets
LLC v. King of Kitchen and Granite Inc., No. 16-80206-Civ-Rosenberg/Brannon, 2016 WL
7335840, at *5 (S.D. Fla. Oct. 25, 2016) (alleging fame within a particular industry “does
not establish the requisite fame required for a dilution claim.”); Michael Caruso, 994 F.
Supp. at 1463 (collecting cases). The Court cannot reasonably infer nationwide fame from
the bare assertion that Holding Company advertises to this narrow group of consumers.
See Thane Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 912 (9th Cir. 2002) (“Many
products receive broad incidental media coverage. Such promotion does not lead to the
conclusion that their trademarks have become a part of the collective national
consciousness.”).
Further, Plaintiff fails to provide any estimate of its actual advertising budget or
revenues, or any facts supporting an inference that it has received nation-wide acclaim.
Cf. PortionPac Chem. Corp. v. Sanitech Sys., Inc., No. 8:01-CV-1297-T-17MAP, Doc. 79,
¶14 (M.D. Fla. filed Nov. 2, 2001) (alleging that plaintiff spent millions of dollars to develop
goodwill in its distinctive marks “to cause customers throughout the United States” to
recognize its program as an industry leader,” served as a patron member of a national
association, and that its program was “the leading value-added, comprehensive cleaning,
sanitation and safety system for school districts in the United States.”); 210 F. Supp. 2d

11

1302 (M.D. Fla. 2002) (finding that the plaintiff alleged fame). Instead, Holding Company’s
allegations of fame amount to threadbare conclusory assertions. See Brain Pharma, LLC
v. Scalini, 858 F. Supp. 2d 1349, 1357 (S.D. Fla. 2012) (finding that the plaintiff failed to
plead that its trademarks were famous, among other deficiencies). Upon review of the
Complaint as a whole, the Court concludes that Holding Company’s factual allegations fall
well short of supporting a plausible claim that the Marks have become household names,
in the likes of Exxon, Kodak, and Coca-Cola. See It’s a 10, 2013 WL 6834804 at *8.
For the same reasons that Holding Company has failed to allege that the Marks are
famous among the general population of the United States, Holding Company has failed
to plead facts supporting a conclusion that the Marks are famous among the general
population in Florida. In addition to re-asserting the allegations discussed above, Holding
Company simply states that the Marks “have been used, advertised, and promoted
extensively by Holding Company for years” and then concludes that “consequently the
Marks are famous throughout Florida.”

See Complaint ¶144.

In doing so, Holding

Company fails to present any facts supporting its conclusion. For example, it does not
allege any estimate of its advertising budget or revenues, or the scope of its promotion
efforts and sales. Cf. Wyndham Vacation Ownership, Inc. v. Timeshares Direct, Inc., No.
6:13-cv-195-Orl-28DAB, 2013 WL 5289734, Doc. 24 ¶¶13-14 (M.D. Fla. Sept. 19, 2013)
(finding that a plaintiff stated a claim for dilution under federal and Florida law by alleging
that “WVO is one of the largest vacation exchange providers in the United States” and that
the value of its goodwill exceeded millions of dollars.).

Moreover, although Holding

Company alleges that it developed the Villages community in central Florida and operates
in Lake, Sumter, and Marion Counties, Florida, see Complaint ¶¶7, 25, Holding Company

12

does not allege that it has any ties elsewhere in the state. The well pled factual allegations
of the Complaint fail to support an inference that the Marks have become a household
name throughout Florida.
Because Holding Company has failed to plead sufficient facts to support a plausible
claim that the Marks are famous, the Motion is due to be granted to the extent that
Defendants seek to dismiss Counts III and V of the Complaint. Accordingly, the Court need
not address Defendants’ argument regarding Holding Company’s failure to plead that
Defendants have diluted the Marks by blurring or tarnishment. See Motion at 9-10.
B. Claims Against Little John’s Movers & Storage, Inc.
Defendants also move to dismiss Little John’s as a defendant in this action because
Holding Company has failed to allege a basis for holding Little John’s liable. See Motion
at 12-16. Specifically, Defendants contend that Holding Company neither alleges that Little
John’s personally engaged in any wrongful conduct, nor provides a basis for holding Little
John’s vicariously liable for the other Defendants’ conduct. Id. In the Response, Holding
Company argues that Little John’s is liable for the other Defendants’ wrongful acts because
all Defendants operate as a single entity and therefore, “the acts of one corporate
Defendant appear indistinguishable from the acts of the other.” See Response at 9-11.5

5

Additionally, in the Motion, Defendants argue that Holding Company fails to state a claim for
contributory infringement because it has failed to plead the elements of such a claim. See Motion at 16.
Holding Company does not address this argument. See generally Response. Thus, to the extent Holding
Company intends to assert a claim for contributory infringement against Little John’s, Holding Company
concedes that it has failed to do so with sufficient particularity. Accordingly, to the extent that Holding
Company attempts to assert a contributory infringement claim against Little John’s, such claim is due to be
dismissed. See Walker v. Branch Banking & Trust Co., 237 F. Supp. 3d 1326, 1334 n.3 (S.D. Fla. 2017)
(“Plaintiffs do not dispute Defendant’s argument that the Complaint fails to adequately plead actual damages
in the form of emotional distress and related harm. Accordingly, Plaintiffs’ claims for these damages are
dismissed.”).

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Rule 8(a)(2) requires a claimant to provide “a short and plain statement”
demonstrating that it is entitled to relief.

Generally, a complaint is considered an

impermissible “shotgun pleading” when multiple claims are asserted against multiple
defendants “without specifying which of the defendants are responsible for which acts or
omissions, or which of the defendants the claim is brought against.” Weiland v. Palm
Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321-22 (11th Cir. 2015); see also Magluta v.
Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (dismissing a shotgun complaint with
claims brought against multiple defendants); Ebrahimi v. City of Huntsville Bd. of Educ.,
114 F.3d 162, 164-65 (11th Cir. 1997) (same). That is, a complaint fails to satisfy Rule 8
if the plaintiff “‘indiscriminately lump[s] all . . . Defendants together,’ without articulating the
factual basis for each Defendant’s liability.” Joseph v. Bernstein, 612 F. App’x 551, 555
(11th Cir. 2015) (per curiam); see also Lane v. Cap. Acquisitions & Mgmt. Co., No. 0460602 CIV, 2006 WL 4590705, at *5 (S.D. Fla. Apr. 14, 2006) (dismissing a complaint
where the plaintiff “fail[ed] to differentiate among the defendants, alleging instead violations
by a collective ‘defendant.’”), aff’d on other grounds, 322 F. App’x 675 (11th Cir. 2009).
Notably, Rule 8 does not require a plaintiff to bring separate claims against each defendant
as long as each defendant has notice of the specific claims against it. See Kyle K. v.
Chapman, 208 F.3d 940, 944 (11th Cir. 2000) (“The fact that defendants are accused
collectively does not render the complaint deficient. The complaint can be fairly read to
aver that all defendants are responsible for the alleged conduct.”); Tracfone Wireless, Inc.
v. GSM Grp., 555 F. Supp. 2d 1331, 1336 (S.D. Fla. 2008). Accordingly, “[w]hen multiple
defendants are named in a complaint, the allegations can be and usually are read in such
a way that each defendant is having the allegation made about him individually.” Crowe v.

14

Coleman, 113 F.3d 1536, 1539 (11th Cir. 1997). Therefore, the Court must determine
whether Holding Company has alleged a factual basis to pursue its claims against Little
John’s.
Notably, Holding Company does not seek to hold Little John’s liable for its own
conduct. See generally Response. Instead, Holding Company seeks to hold Little John’s
liable for the other Defendants’ wrongful acts based upon its contention that Defendants
are part of a joint venture and “operate as a single entity.” Id. at 10. Under Florida law, a
joint venture “may be created by express or implied contract, and the contractual
relationship must consist of the following elements: (1) a common purpose; (2) a joint
proprietary interest in the subject matter; (3) the right to share profits and duty to share
losses, and (4) joint control or right of control.” Williams v. Obstfeld, 314 F.3d 1270, 127576 (11th Cir. 2002). “Florida courts have interpreted these requirements to preclude a
finding that a partnership or joint venture exists where any factor is missing.” Id. at 1276.
To support its joint venture theory of liability, Holding Company alleges that “[u]pon
information and belief, all Defendants were acting in concert with or in a joint venture with
the other, were and are the agents of each other, and, in doing the wrongful acts
complained of herein, each was acting within the course and scope of such agency.” See
Complaint ¶22. However, this conclusory allegation is insufficient to plead a joint venture
because a “party’s ‘use of a certain descriptive label for one of the contracting parties is
not determinative of the actual legal relationship between the parties.’” Garcia v. Gravity
Interactive, Inc., No. 10-62162-Civ-COOKE/TURNOFF, 2012 WL 13005342, at *9 (S.D.
Fla. Jan. 17, 2012) (citation omitted). Further, the Court need not accept the truth of
allegations that are based simply “upon information and belief,” see Mann v. Palmer, 713

15

F.3d 1306, 1315 (11th Cir. 2013), unless the “belief is based on factual information that
makes the inference of culpability plausible,” see Associated Indus. Ins. Co. v. Advanced
Mgmt. Servs., Inc., No. 12-80393-CIV, 2013 WL 1176252, at *3 (S.D. Fla. March 20, 2013)
(citing Iqbal, 556 U.S. at 678). To make its conclusory allegation that Defendants engaged
in a joint venture plausible, Holding Company pleads that the Corporate Defendants share
a phone number, see Complaint ¶53, promote their business on the same website, id. ¶57,
and are owned by Defendant Sullivan, id. ¶20. Holding Company contends that “[w]here
two companies share the same owner/operator, phone number, and domain names, and
one of them fails to offer a distinct online presence, it is easy to infer that consumers
seeking to contact ‘The Villages Moving Storage and Logistics Corp’ . . . would likely be
directed to Little John’s moving services as well, and that Defendant Sullivan would
personally be making the decision as to which entity should receive the opportunity.” See
Response at 10. Even assuming that this inference were reasonable, Holding Company’s
allegations would still be insufficient to plead a joint venture. The Complaint is devoid of
any allegations suggesting that Defendants have the right to share profits and a duty to
share losses. This deficiency alone is sufficient to warrant the dismissal of Little John’s as
a defendant on a joint venture theory of liability. Indeed, as noted by the Eleventh Circuit
Court of Appeals, “Florida courts have interpreted [the joint venture requirements] to
preclude a finding that a partnership or joint venture exists where any factor is missing.”
Williams, 314 F.3d at 1276.
Accordingly, because Holding Company fails to allege that Little John’s personally
committed any wrongful conduct, and does not plead sufficiently facts to plausibly assert
that the other Defendants acted as Little John’s agents, Little John’s is due to be dismissed

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as a defendant in this action. See In re Fundamental Long Term Care, Inc., 512 B.R. 690,
695-96 (Bankr. M.D. Fla. 2014) (dismissing a defendant who neither committed any act
individually, nor bore an agency relationship with the tortfeasors), aff’d sub nom., Estate of
Jackson v. Schron, No. 8:16-cv-22-T-17, 2016 WL 4718145 (M.D. Fla. Sept. 8, 2016), aff’d,
873 F.3d 1325 (11th Cir. 2017). Thus, the Motion is due to be granted.6
ORDERED:
1. Defendants’ Motion to Dismiss Plaintiff’s Complaint (Doc. 14) is GRANTED,
Counts III and V are DISMISSED, and all claims against Defendant Little John’s
Movers & Storage, Inc. are DISMISSED.
2. The Clerk of the Court is directed to terminate Defendant Little John’s Movers &
Storage, Inc. from the Court docket.

DONE AND ORDERED in Chambers this 11th day of December, 2017.

lc25
Copies to:
Counsel of Record

6

In determining that these claims are due to be dismissed, the Court notes that on July 20, 2017, the
Court advised Holding Company that to the extent it wished to amend the allegations in the Complaint, it
must file a properly supported motion requesting leave to do so. See Order (Doc. 16) at 2. Holding Company,
which is represented by counsel, did not seek leave to amend or otherwise make any attempt to remedy the
pleading deficiencies identified in the Motion. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d
541, 542 (11th Cir. 2002) (en banc) (“A district court is not required to grant a plaintiff leave to amend his
complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor
requested leave to amend before the district court.”).

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