Tavantzis et al v. American Choppers et al

Filing 157

ORDER denying as moot 141 Defendant The Christopher Reeve Foundation's Motion to Dismiss for Lack of Personal Jurisdiction; granting in part and denying in part 142 Defendant The Christopher Reeve Foundation's Motion to Dismiss; gra nting in part and denying in part 143 Certain Defendants' Motion to Dismiss All Counts of the Amended Complaint for Failure to State a Claim; denying as moot 144 Defendant Craig Piligian's Motion to Dismiss Amended Complaint for Lack of Personal Jurisdiction; denying as moot 145 Defendant Scott Popjes' Motion to Dismiss Amended Complaint for Lack of Personal Jurisdiction; denying as moot 146 Certain Defendants' Motion to Dismiss Amended Complaint for Improper Venue, o r Alternatively to Transfer to Southern District of New York; denying as moot 147 Defendants' Motion for Oral Argument; granting in part and denying in part 148 Certain Defendants' Motion to Dismiss Plaintiff's Amended Complaint; d enying as moot 149 Defendants Jesse Billauer and Life Rolls On's Motion to Dismiss Plaintiff's Amended Complaint for Lack of Personal Jurisdiction; granting in part and denying in part 150 Certain Defendants' Motion to Dismiss All Counts of the Amended Complaint for Failure to State a Claim. Signed by Judge Paul G. Byron on 6/21/2016. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHRISTRIKES CUSTOM
MOTORCYCLES, INC.,
Plaintiff,
v.

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

PAUL TEUTUL, JR., et al.,
Defendants.
OMNIBUS ORDER
This cause comes before the Court on the following:
1. Defendant The Christopher Reeve Foundation’s Motion to Dismiss for Lack of
Personal Jurisdiction (Doc. 141), filed December 14, 2015;
2. Defendant The Christopher Reeve Foundation’s Motion to Dismiss (Doc. 142),
filed December 14, 2015;
3. Certain Defendants’ Motion to Dismiss All Counts of the Amended Complaint
for Failure to State a Claim and Memorandum of Law in Support Thereof
(Doc. 143), filed December 14, 2015;
4. Defendant Craig Piligian’s Motion to Dismiss Amended Complaint for Lack of
Personal Jurisdiction and Memorandum of Law in Support Thereof (Doc. 144),
filed December 14, 2015;
5. Defendant Scott Popjes’ Motion to Dismiss Amended Complaint for Lack of
Personal Jurisdiction and Memorandum of Law in Support Thereof (Doc. 145),
filed December 14, 2015;

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6. Certain Defendants’ Motion to Dismiss Amended Complaint for Improper
Venue, or Alternatively to Transfer to Southern District of New York and
Memorandum of Law in Support Thereof (Doc. 146), filed December 14, 2015;
7. Defendants’ Motion for Oral Argument (Doc. 147), filed December 14, 2015;
8. 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 Plaintiff’s Amended Complaint
(Doc. 148), filed December 14, 2015;
9. Defendants Jesse Billauer and Life Rolls On’s Motion to Dismiss Plaintiff’s
Amended Complaint for Lack of Personal Jurisdiction (Doc. 149), filed
December 14, 2015; and
10. Certain Defendants’ Motion to Dismiss All Counts of the Amended Complaint
for Failure to State a Claim and Memorandum of Law in Support Thereof
(Doc. 150), filed December 14, 2015;
Plaintiff has elected not to respond to Defendants’ respective motions. The abovelisted motions are therefore ripe for review.
I.

BACKGROUND
Christ Tavantzis and ChrisTrikes Custom Motorcycles, Inc. (“ChrisTrikes”) initiated

this lawsuit on September 18, 2014 by filing a ten-count Complaint against myriad
individuals and entities who allegedly infringed on a patent for a wheelchair-accessible
motorcycle (the “Wheelchair Motorcycle”). On November 4, 2015, the Court dismissed
the Complaint as an impermissible shotgun pleading (Doc. 130) and, on November 18,
2015, Mr. Tavantzis and ChrisTrikes filed an eleven-count Amended Complaint
(Doc. 132), which remains the operative pleading in this lawsuit.

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Like the original

Complaint, the gravamen of the Amended Complaint is that Defendants infringed the
Wheelchair Motorcycle patent.
Since the filing of the Amended Complaint, the Court has dismissed a number of
Defendants due to insufficient service of process. (Doc. 153). Additionally, the Court
received notice of Mr. Tavantzis’ death on March 2, 2016. (Doc. 155). However, because
no party moved to substitute the proper party to continue Mr. Tavantzis’ claims within the
time required by Federal Rule of Civil Procedure 25(a), the Court dismissed Mr. Tavantzis
from the lawsuit on June 8, 2016. (Doc. 156). As a result, the only remaining Plaintiff is
ChrisTrikes.
Now before the Court are a litany of motions filed by the remaining Defendants.
Some of them assert that the Court cannot exercise personal jurisdiction over them.
Others claim that this Court is not the proper venue for ChrisTrikes to bring its dispute.
All Defendants, however, agree that the Amended Complaint fails to state any claim for
relief against them. They accordingly move to dismiss the Amended Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6).
II.

DISCUSSION
A.

Dismissal of Claims Asserted Only by Mr. Tavantzis

Due to Mr. Tavantzis’ dismissal from this lawsuit, the Court finds it prudent to begin
by determining which counts in the Amended Complaint were brought only by him and
are, therefore, subject to dismissal.

As some of the Defendants observe, this is a

formidable task given the Amended Complaint’s failure to identify who brings each count.
Nevertheless, the Court discerns that at least Count VI (state law claim for exploitation of
disabled persons), Count VII (ADA Title III claim), Count VIII (ADA Title II claim), and
Count IX (state law claim for intentional infliction of emotional distress) were brought

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solely by Mr. Tavantzis, as all of these counts are personal in nature to Mr. Tavantzis and
do not allege ChrisTrikes’ involvement.

These counts will therefore be dismissed

because there is no longer a plaintiff to assert them.
B.

Whether ChrisTrikes Has Standing to Allege Patent Claims

The Court next examines ChrisTrikes’ standing to bring the patent claims alleged
in Count I, which include claims based on theories of direct infringement, contributory
infringement, and induced infringement. Because standing is a fundamental component
of a federal court’s subject matter jurisdiction, the Court is entitled to examine ChrisTrikes’
standing on its own initiative. See Bischoff v. Osceola Cty., 222 F.3d 874, 877–78 (11th
Cir. 2000). In order to have standing to bring its patent claims, ChrisTrikes must not only
demonstrate that it satisfies Article III’s constitutional standing requirements, but also that
it has standing as defined by the Patent Act. Alps S., LLC v. Ohio Willow Wood Co., 787
F.3d 1379, 1382 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 897 (2016). To that end, the
Patent Act affords standing to the “patentee,” a term which is construed to include both
the individual or entity to whom a patent is issued and any “successors in title to the
patentee.” Id. (quoting 35 U.S.C. § 100(d)). Additionally, well-established case law
provides standing to exclusive licensees of a patent as long as the patent holder transfers
“all substantial rights” in the patent to the licensee. Id. (quoting Int’l Gamco, Inc. v.
Multimedia Games, Inc., 504 F.3d 1273, 1276 (Fed. Cir. 2007)).
Here, the patent in dispute names only Mr. Tavantzis as the patentee. (Doc. 133,
p. 49). Further, ChrisTrikes does not contend that it is an exclusive licensee of the patent
or that Mr. Tavantzis has transferred any interest in the patent to ChrisTrikes. Indeed,
ChrisTrikes concedes that “Mr. Tavantzis is the owner of all rights, title, and interest” in
the patent, including the right to sue for its infringement. (Doc. 132, ¶ 109). ChrisTrikes

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therefore does not have standing to bring any of the patent infringement claims it asserts
and Count I must be dismissed.
C.

Whether ChrisTrikes States Claims for Relief

The Court now turns to Defendants’ motions to dismiss under Rule 12(b)(6). A
motion to dismiss made under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s
complaint. In order to survive the motion, the complaint must “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible on its face when the plaintiff alleges enough facts to “allow[] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The mere recitation of the elements of a claim are not
enough and the district court need not give any credence to legal conclusions that are not
supported by sufficient factual material. Id. District courts must accept all well-pleaded
allegations within the complaint as true and read the complaint in the light most favorable
to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per
curiam). The Court examines ChrisTrikes’ remaining claims in the most logical order:
1.

Fraud and Intentional Misrepresentation Claims

Counts IV and X allege state law claims for fraud and intentional
misrepresentation, respectively. In Florida, the elements required to state both claims
are the same: (1) the defendant made a false statement or representation about a material
fact, (2) the defendant knew that his statement or representation was false or acted with
disregard to its veracity, (3) the defendant intended the plaintiff to rely on the false
statement or representation, (4) the plaintiff did, in fact, justifiably and detrimentally rely
on the false statement or representation, and (5) the plaintiff suffered damages as a result.
See Romo v. Amedex Ins. Co., 930 So. 2d 643, 650–51 (Fla. Dist. Ct. App. 2006), review

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denied, 949 So. 2d 197 (Fla. 2007). When alleging fraud or intentional misrepresentation,
the circumstances constituting the fraud or misrepresentation “shall be stated with
particularity.” Fed. R. Civ. P. 9(b). This heightened pleading standard requires the
plaintiff to identify the precise statements and representations made, the time and place
of each statement and representation, the manner in which each statement and
representation misled the plaintiff, and exactly what each defendant obtained as a result
of the statements and representations. Bearse v. Main St. Invs., 220 F. Supp. 2d 1338,
1345 (M.D. Fla. 2002).
In its fraud claim, ChrisTrikes alleges that the fraud at issue in this case is
Defendants’ act of televising the Wheelchair Motorcycle as being their original creation
and as being built “solely for a charitable purpose.” (Doc. 132, ¶ 153). ChrisTrikes
likewise alleges in its intentional misrepresentation claim that the representations forming
the basis of the claim are Defendants’ statements and conduct indicating that they created
the Wheelchair Motorcycle. (Id. ¶¶ 240–251). However, in neither claim does ChrisTrikes
describe how it relied on these statements and representations. Indeed, ChrisTrikes’
theory appears to be that Defendants made false statements and representations to
others who relied to their detriment. Because these facts are insufficient to state a claim
for fraud or intentional misrepresentation, Counts IV and X will be dismissed.
2.

Trade Dress Infringement Claims

Count XI alleges a claim for trade dress infringement. Although ChrisTrikes labels
Count XI as arising solely under § 43(a) of the Lanham Act, ChrisTrikes additionally
includes references in Count XI to state law claims for trademark dilution and for violation
of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat.
§§ 501.201–.23. The Court addresses each claim in turn.

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To state a trade dress infringement claim under the Lanham Act, a plaintiff must
establish three elements: (1) consumer confusion among the competing trade dresses,
(2) the features of the trade dress are primarily non-functional, and (3) the trade dress is
inherently distinctive or has acquired secondary meaning. Dippin’ Dots, Inc. v. Frosty
Bites Distrib., LLC, 369 F.3d 1197, 1202 (11th Cir. 2004), cert. denied, 543 U.S. 1054.
Where the plaintiff asserts the infringement of an unregistered trade dress, as ChrisTrikes
does in this case, the third element may only be satisfied by a showing of secondary
meaning. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 216 (2000). Trade
dress acquires secondary meaning “when, ‘in the minds of the public, the primary
significance of [the trade dress] is to identify the source of the product rather than the
product itself.’” Id. at 211 (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844,
851 n.11 (1982)).
ChrisTrikes alleges no facts which would allow the reasonable inference that the
design of the Wheelchair Motorcycle has developed secondary meaning. There are no
facts in the Amended Complaint or its attached exhibits tending to indicate that the
Wheelchair Motorcycle’s design is so distinctive that it identifies either ChrisTrikes or the
Wheelchair Motorcycle’s inventor, Mr. Tavantzis. Accordingly, ChrisTrikes fails to state a
claim for trade dress infringement under the Lanham Act.
As part of stating a claim for dilution under Florida law, the plaintiff must show that
its trade dress is “famous.” See Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 91 F.
Supp. 3d 1265, 1286 (S.D. Fla. 2015), appeal docketed, No. 15-11509 (11th Cir. Apr. 8,
2015). To be famous, the trade dress “must have a degree of distinctiveness and strength
beyond that needed to serve as a trademark; it must be truly prominent and renowned.”
Id. (quoting MPS Entm’t, LLC v. Abercrombie & Fitch Stores, Inc., No. 11-24110-CIV,

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2013 WL 3288039, at *16 (S.D. Fla. June 28, 2013)). Florida statute enumerates eight
non-exhaustive factors which speak to a trade dress’s fame.

See Fla. Stat.

§ 495.151(1)(a)–(h).
ChrisTrikes again fails to allege any facts which would warrant the reasonable
inference that the Wheelchair Motorcycle’s trade dress is famous. In fact, by its own
admission, ChrisTrikes has had no impact in the market. (Doc. 132, ¶ 266). The Court
therefore cannot infer that the Wheelchair Motorcycle is prominent or renowned in such
a way as to be protected under Florida law. As a result, ChrisTrikes fails to state a claim
for dilution as well.
Finally, because ChrisTrikes alleges no cognizable trademark or trade dress claim,
its FDUTPA claim must also fail. See Nat. Answers, Inc. v. SmithKline Beecham Corp.,
529 F.3d 1325, 1333 (11th Cir. 2008) (holding that a FDUTPA claim premised on the
infringement of a trademark or trade dress “rises or falls on the success” of the underlying
claims). Count XI will consequently be dismissed.
3.

Vicarious Liability, Respondeat Superior, and Civil
Conspiracy Claims

Finally, Counts II, III, and V allege claims for vicarious liability, respondeat superior,
and civil conspiracy, respectively. In order to state a claim under any of these theories,
however, there must be an underlying claim through which the plaintiff can hold one of
the defendants liable. See United States ex rel. Crenshaw v. Degayner, 622 F. Supp. 2d
1258, 1284 (M.D. Fla. 2008) (holding that a civil conspiracy claim “must be premised on
an underlying tort or cause of action”); Am. Home Assurance Co. v. Nat’l R.R. Passenger
Corp., 908 So. 2d 459, 467–68 (Fla. 2005) (explaining that vicarious liability only applies
where liability attaches to another tortfeasor); Buetner v. Cellular One, Inc., 700 So. 2d
48, 48 (Fla. Dist. Ct. App. 1997) (explaining that respondeat superior only applies where

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liability attaches to one’s principal), review denied, 717 So. 2d 529 (Fla. 1998). Because
the Court has dismissed all of ChrisTrikes’ underlying claims for relief, Counts II, III, and
V must likewise be dismissed.
III.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:
1. Counts VI, VII, VIII, and IX of Plaintiff’s Amended Complaint are DISMISSED
due to Christ Tavantzis’ dismissal from this lawsuit.

Count I of Plaintiff’s

Amended Complaint is DISMISSED for lack of standing.
2. Defendant The Christopher Reeve Foundation’s Motion to Dismiss (Doc. 142)
is GRANTED IN PART. Counts IV, V, X, and XI are DISMISSED as to The
Christopher Reeve Foundation for failing to state claims for relief. 1 The motion
is otherwise DENIED.
3. Certain Defendants’ Motion to Dismiss All Counts of the Amended Complaint
for Failure to State a Claim (Doc. 143) is GRANTED IN PART. Counts II, III,
IV, V, X, and XI are DISMISSED as to Pilgrim Films & Television, Scott Popjes,
Craig Piligian, Viacom, Inc., MTV Networks Music & Logo Group, Inc., and
Country Music Television, Inc. for failing to state claims for relief. The motion
is otherwise DENIED.
4. 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 Plaintiff’s Amended Complaint
(Doc. 148) is GRANTED IN PART. Counts II, III, IV, V, X, XI are DISMISSED

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The Court notes that Counts II and III were not alleged against The Christopher Reeve
Foundation.

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as to Discovery Communications, Inc., Discovery Holding Company, Discovery
Channel, Debmar-Mercury, Lionsgate, TLC, and Christo Doyle for failing to
state claims for relief. The motion is otherwise DENIED.
5. Certain Defendants’ Motion to Dismiss All Counts of the Amended Complaint
for Failure to State a Claim (Doc. 150) is GRANTED IN PART. Counts II, III,
IV, V, X, and XI are DISMISSED as to Jesse Billauer and Life Rolls On for
failing to state claims for relief. The motion is otherwise DENIED.
6. There being no remaining claims against Life Rolls On, Jesse Billauer, Chris
and Dana Reeves Foundation, TLC, Discovery Channel, Discovery Holding
Company, Scott Popjes, Craig Piligian, Christo Doyle, Pilgrim Films &
Television, Debmar-Mercury, Lionsgate (LGF), Country Music Television, Inc.
(CMT), MTV Networks Music & Logo Group, Inc. (MTV), Viacom, Inc./Viacom
Media Networks (VIA), and Discovery Communications, those Defendants are
DISMISSED and the Clerk of Court is DIRECTED to terminate them from the
docket.
7. Defendant The Christopher Reeve Foundation’s Motion to Dismiss for Lack of
Personal Jurisdiction (Doc. 141) is DENIED AS MOOT.
8. Defendant Craig Piligian’s Motion to Dismiss Amended Complaint for Lack of
Personal Jurisdiction (Doc. 144) is DENIED AS MOOT.
9. Defendant Scott Popjes’ Motion to Dismiss Amended Complaint for Lack of
Personal Jurisdiction (Doc. 145) is DENIED AS MOOT.
10. Certain Defendants’ Motion to Dismiss Amended Complaint for Improper
Venue, or Alternatively to Transfer to Southern District of New York (Doc. 146)
is DENIED AS MOOT.

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11. Defendants’ Motion for Oral Argument (Doc. 147) is DENIED AS MOOT.
12. Defendants Jesse Billauer and Life Rolls On’s Motion to Dismiss Plaintiff’s
Amended Complaint for Lack of Personal Jurisdiction (Doc. 149) is DENIED
AS MOOT.
DONE AND ORDERED in Orlando, Florida on June 21, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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