Tavantzis et al v. American Choppers et al

Filing 130

ORDER granting 67 Defendants' Motion to Quash Service of Process; denying as moot 89 Defendants' Motion to Dismiss All Counts for Failure to State a Claim, or, in the Alternative, for a More Definite Statement; denying as moot 90 Defendant's Motion to Dismiss for Lack of Personal Jurisdiction; denying as moot 91 Defendants' Motion to Dismiss for Improper Venue, or Alternatively to Transfer Venue; denying as moot 92 Defendant's Motion to Dismiss for Lack of Personal Jurisdiction; denying as moot 93 Defendant's Motion to Dismiss; denying as moot 94 Defendant's Motion to Dismiss for Lack of Personal Jurisdiction; denying 98 Joint Motion for Oral Argument; granting in part and denying in part 100 Defendants' Motion to Dismiss, or in the Alternative, for a More Definite Statement; denying as moot 103 Defendants' Motion to Dismiss. Signed by Judge Paul G. Byron on 11/4/2015. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHRIST TAVANTZIS and CHRISTRIKES
CUSTOM MOTORCYCLES, INC.,
Plaintiffs,
v.

Case No: 6:14-cv-1519-Orl-40TBS

AMERICAN CHOPPERS, et al.,
Defendants.
OMNIBUS ORDER
This cause comes before the Court on the following matters:
1. Defendants’ Motion to Quash Service of Process (Doc. 67), filed April 17,
2015;
2. Defendants’ Motion to Dismiss All Counts for Failure to State a Claim, or, in
the Alternative, for a More Definite Statement and Memorandum of Law in
Support Thereof (Doc. 89), filed May 22, 2015;
3. Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 90),
filed May 22, 2015;
4. Defendants’ Motion to Dismiss for Improper Venue, or Alternatively to
Transfer to Southern District of New York and Memorandum of Law in
Support Thereof (Doc. 91), filed May 22, 2015;
5. Defendant Scott Popjes’ Motion to Dismiss for Lack of Personal Jurisdiction
and Memorandum of Law in Support Thereof (Doc. 92), filed May 22, 2015;
6. Motion to Dismiss by Defendant The Reeve Foundation (Doc. 93), filed
May 22, 2015;

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7. Defendant Craig Piligian’s Motion to Dismiss for Lack of Personal
Jurisdiction and Memorandum of Law in Support Thereof (Doc. 94), filed
May 22, 2015;
8. Joint Motion for Oral Argument (Doc. 98), filed May 22, 2015;
9. Defendants

Discovery

Communications,

Inc.’s,

Discovery

Holding

Company’s, Discovery Channel’s, Debmar-Mercury’s, Lionsgate’s, TLC’s,
and Christo Doyle’s Dispositive Motion to Dismiss or in the Alternative, for
a More Definite Statement (Doc. 100), filed May 22, 2015;
10. Defendants Jesse Billauer and Life Rolls On’s Motion to Dismiss Plaintiffs’
Allegations and Supporting Memorandum of Law (Doc. 103), filed May 22,
2015; and
11. Plaintiffs’ Response in Opposition to Various Motions to Dismiss and
Challenges to Jurisdiction (Doc. 114), filed July 20, 2015.
I.

BACKGROUND
Plaintiffs, Christ Tavantzis and ChrisTrikes Custom Motorcycles, Inc., bring this

lawsuit against numerous television and entertainment companies, producers, reality
television stars, and other entities and individuals who allegedly infringed on Tavantzis’
patent for a wheelchair-accessible motorcycle (the “Wheelchair Motorcycle”).

The

gravamen of Plaintiffs’ ten-count Complaint is that the thirty-one named defendants acted
individually and/or in concert to steal Tavantzis’ invention and pass the Wheelchair
Motorcycle off as their own through various reality television shows. By doing so, Plaintiffs
claim that Defendants infringed or induced the infringement of Plaintiffs’ intellectual
property rights in the Wheelchair Motorcycle, discriminated against and excluded

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Plaintiffs in violation of the Americans with Disabilities Act, intentionally inflicted emotional
distress on Plaintiffs, and conspired to defraud Plaintiffs. Those defendants who have
been served now move to dismiss the Complaint for a number of reasons, including for
lack of personal jurisdiction, improper venue, and for failing to state claims upon which
relief can be granted. Eight defendants also move to quash service of process.
II.

DISCUSSION
A.

Motion to Dismiss/Motion for More Definite Statement (Doc. 100)

Defendants, Discovery Communications, Inc., Discovery Holding Company,
Discovery Channel, Debmar-Mercury, Lionsgate, TLC, and Christo Doyle (the “Discovery
Defendants”), move to dismiss the Complaint or, in the alternative, move for a more
definite statement. Of particular importance to the Court in this Order, the Discovery
Defendants contend that the Complaint is a “shotgun” pleading which prevents them from
reasonably formulating a response. (Doc. 100, pp. 24–25). Plaintiffs do not respond to
the Discovery Defendants’ position that the Complaint is a shotgun pleading. (See
Doc. 114, ¶ 6).
The Eleventh Circuit has recently outlined four types of “shotgun” complaints:
The most common type—by a long shot—is a complaint
containing multiple counts where each count adopts the
allegations of all preceding counts, causing each successive
count to carry all that came before and the last count to be a
combination of the entire complaint. The next most common
type . . . is a complaint . . . replete with conclusory, vague,
and immaterial facts not obviously connected to any particular
cause of action. The third type of shotgun pleading is one that
commits the sin of not separating into a different count each
cause of action or claim for relief. Fourth, and finally, there is
the relatively rare sin of asserting multiple claims 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.

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Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321–23 (11th Cir. 2015)
(footnotes omitted). All four categories of shotgun pleading require amendment because
they fail “to give the defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Id. at 1323; see also Anderson v. Dist. Bd. of Trs.
of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). Moreover, “[s]hotgun
pleadings wreak havoc on the judicial system” by forcing courts to expend already scarce
judicial resources on “disputes that are not structurally prepared to use those resources
efficiently.” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006).
The Complaint in this case falls into at least three of the four categories of shotgun
pleadings described by the Eleventh Circuit in Weiland. First, each count re-alleges every
preceding count, with the last count incorporating all claims for relief alleged in the entire
Complaint. 1 (Doc. 1, ¶¶ 67, 76, 84, 89, 100, 106, 123, 130, 136, 143). Second, on at
least one occasion, Plaintiffs allege multiple claims under a single count: Count IV of the
Complaint attempts to allege claims for both fraud and civil conspiracy.
Finally, and what causes the most confusion in this case, Plaintiffs do not identify
which counts and factual allegations are alleged against which defendants or which
plaintiff brings each count. For example, Plaintiffs’ patent infringement claim references
“Defendant” in some paragraphs and “Defendants” in other paragraphs. (Id. ¶¶ 70–75).
However, Plaintiffs never name a particular defendant and the Court is left to guess
whether Plaintiffs intend to sue one defendant, some of the defendants, or all thirty-one
defendants for patent infringement. Further, Plaintiffs never identify which of them brings
each count, which can be especially confusing where, as here, one plaintiff is an individual

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Even more confusingly, the first paragraph of each count also re-alleges itself.

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and the other plaintiff is a corporation. For example, as the Complaint currently reads,
both Plaintiffs allege claims for ADA discrimination, ADA exclusion, and intentional
infliction of emotional distress. However, without an explanation from Plaintiffs, the Court
is left to guess whether these counts are brought by the individual plaintiff, the corporate
plaintiff, or both, despite the fact that one would presume a corporation could neither be
disabled within the meaning of the ADA nor suffer emotional distress. Plaintiffs further
exacerbate this confusion by referring to the individual plaintiff and the corporate plaintiff
both collectively and interchangeably throughout the Complaint.
With these deficiencies, there is no doubt that no defendant to this action (let alone
the Court) could reasonably know what Plaintiffs intend to allege against each of them.
For this reason, Plaintiffs will be required to amend their Complaint.
B.

Motion to Quash Service of Process (Doc. 67)

Defendants, Orange County Choppers Holdings, Inc., Orange County Choppers,
Inc., Orange County Choppers International Holdings, Inc., Paul Teutul, Sr., Mikey Teutul,
Rick Petko, Jason, Pohl, and Jim Quinn (the “OCC Defendants”), move to quash service
of process on the grounds that Plaintiffs failed to perfect service of process as required
by Federal Rule of Civil Procedure 4. Specifically, the OCC Defendants state that the
person who Plaintiffs served with the summons and Complaint is not the type of individual
who may accept service of process on their behalf.
Federal Rule of Civil Procedure 4 governs service of process for lawsuits filed in
this Court and Plaintiffs bear the burden of showing that service was proper. Caicedo v.
Food for Life Experience, Inc., No. 1:13-cv-00258-GRJ, 2014 WL 2991090, at *2 (N.D.
Fla. July 2, 2014); Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273, 1277

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(S.D. Fla. 1999). With respect to the individual OCC Defendants (Paul Teutul, Sr., Mikey
Teutul, Rick Petko, Jason Pohl, and Jim Quinn), Rule 4 requires Plaintiffs to accomplish
service in one of the following five ways: (1) by requesting that the individual waive
service, (2) by following the service rules of the state in which the lawsuit is filed or in
which service is to be made, (3) by delivering a summons and the Complaint on the
individual personally, (4) by leaving a summons and the Complaint at the individual’s
usual place of abode with a suitable person who resides there, or (5) by delivering a
summons and the Complaint to an agent of the individual who is authorized by law to
accept service on the individual’s behalf. Fed. R. Civ. P. 4(d), (e).
With respect to the corporate OCC Defendants (Orange County Choppers
Holdings, Inc., Orange County Choppers, Inc., and Orange County Choppers
International Holdings, Inc.), Rule 4 requires Plaintiffs to accomplish service in one of the
following three ways: (1) by requesting that the corporation waive service, (2) by following
the service rules of the state in which the lawsuit is filed or in which service is to be made,
or (3) by delivering a summons and the Complaint to an officer, managing agent, general
agent, or any other agent authorized by law to accept service on the corporation’s behalf.
Fed. R. Civ. P. 4(d), (h)(1).
Plaintiffs contend that they served an individual authorized by law to accept service
on the OCC Defendants’ behalf. (Doc. 114, ¶ 1). A review of the proofs of service filed
by Plaintiffs shows that service was made on each of the OCC Defendants through Cassie
Van Oyan, who the process server describes as a “manager.” (Docs. 53, 54, 55, 56, 57,
59, 60, 61). However, Ms. Van Oyan affirms by way of sworn affidavit that she is not an
officer, shareholder, manager, or employee of any of the OCC Defendants; instead, she

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works at a retail store which sells the OCC Defendants’ products. (Doc. 67-1, ¶¶ 4–7).
Ms. Van Oyan further confirms that none of the individual OCC Defendants reside at her
workplace and that she is not authorized by law to accept service on behalf of any of the
OCC Defendants. (Id. ¶¶ 8–9). Because Plaintiffs did not serve either the individual or
corporate OCC Defendants through the means required by Rule 4, service of process will
be quashed. Plaintiffs will be afforded the opportunity to effectuate proper service on the
OCC Defendants upon the filing of an Amended Complaint.
C.

The Remaining Motions to Dismiss

Many of the defendants to this lawsuit have also filed motions to dismiss on
grounds such as the running of the statute of limitations, lack of personal jurisdiction, and
improper venue. Because of the confusing nature and general inadequacy of Plaintiffs’
Complaint, the Court declines to reach these issues at this time.

Notwithstanding,

Plaintiffs would likely be well-served to take note of these objections in crafting their
Amended Complaint. All remaining motions to dismiss will therefore be denied as moot. 2
III.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:
1. The parties’ Joint Motion for Oral Argument (Doc. 98) is DENIED.
2. Defendants

Discovery

Communications,

Inc.’s,

Discovery

Holding

Company’s, Discovery Channel’s, Debmar-Mercury’s, Lionsgate’s, TLC’s,
and Christo Doyle’s Dispositive Motion to Dismiss or in the Alternative, for

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The denial of the remaining motions to dismiss as moot will not be deemed a waiver
of any defense or objection raised therein. Defendants may renew their motions to
dismiss upon Plaintiffs’ filing of an Amended Complaint and within the time provided
by Rule 12.

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a More Definite Statement (Doc. 100) is GRANTED IN PART and DENIED
IN PART as follows:
a. Defendants’ motion is GRANTED to the extent that Plaintiffs’
Complaint is DISMISSED WITHOUT PREJUDICE as a shotgun
pleading. Plaintiffs have fourteen (14) days from the date of this
Order to file an Amended Complaint.
b. Defendants’ motion is otherwise DENIED AS MOOT.
3. Defendants’ Motion to Quash Service of Process (Doc. 67) is GRANTED.
Service of process is QUASHED as to Orange County Choppers Holdings,
Inc., Orange County Choppers, Inc., Orange County Choppers International
Holdings, Inc., Paul Teutul, Sr., Mikey Teutul, Rick Petko, Jason Pohl, and
Jim Quinn. Plaintiffs have thirty (30) days from the filing of an Amended
Complaint to perfect and prove service of process on these defendants as
required by Federal Rule of Civil Procedure 4. Plaintiffs’ failure to prove
service of process on these defendants within the time provided will result
in the Court dismissing these defendants from the case without prejudice.
4. Defendants’ Motion to Dismiss All Counts for Failure to State a Claim, or, in
the Alternative, for a More Definite Statement (Doc. 89) is DENIED AS
MOOT.
5. Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 90) is
DENIED AS MOOT.
6. Defendants’ Motion to Dismiss for Improper Venue, or Alternatively to
Transfer to Southern District of New York (Doc. 91) is DENIED AS MOOT.

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7. Defendant Scott Popjes’ Motion to Dismiss for Lack of Personal Jurisdiction
(Doc. 92) is DENIED AS MOOT.
8. The Reeve Foundation’s Motion to Dismiss (Doc. 93) is DENIED AS MOOT.
9. Defendant Craig Piligian’s Motion to Dismiss for Lack of Personal
Jurisdiction (Doc. 94) is DENIED AS MOOT.
10. Defendants Jesse Billauer and Life Rolls On’s Motion to Dismiss Plaintiffs’
Allegations (Doc. 103) is DENIED AS MOOT.
DONE AND ORDERED in Orlando, Florida on November 4, 2015.

Copies furnished to:
Counsel of Record

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