Slep-Tone Entertainment Corporation v. 4145 Pete's Place, Inc.

Filing 43

ORDER striking 27 Second Amended Complaint; denying as moot 35 Motion to Dismiss for Failure to State a Claim. Signed by Judge James D. Whittemore on 7/25/2013. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SLEP-TONE ENTERTAINMENT
CORPORATION,
Plaintiff,
Case No. 8:12-cv-01883-JDW-AEP

vs.
4145 PETE'S PLACE, INC.,
Defendant.

------------------------------------------------------~'
ORDER
BEFORE THE COURT is Defendant's Motion to Dismiss Second Amended Complaint
for Failure to State a Claim and Motion to Dismiss Second Amended Complaint for Failure to
Include an Indispensable Party and Motion to Strike Particular Paragraphs of the Amended
Complaint (Dkt. 35). Plaintiff responded in opposition (Dkt. 38). Upon consideration, the Second
Amended Complaint (Dkt. 27) is STRICKEN, and the motion (Dkt. 35) is DENIED as moot.
Plaintiff owns the three registered trademarks at issue in this case, all of which contain in
some manner the phrase SOUND CHOICE (Dkt. 27 ~~ 11, 12). Defendant is an establishment that
provides karaoke entertainment, allegedly as an "inducement" for "patronage and purchase of food,
drink, and other concessions" (id

~

10). Plaintiff alleges that Defendant hires third-party karaoke

operators who use pirated, counterfeit karaoke accompaniment tracks to produce and perform
karaoke shows (id.

~

2). These accompaniment tracks were originally created by Plaintiff, but the

karaoke operators allegedly duplicated the tracks or purchased non-original copies from other
sources, rather than licensing the original tracks (id
1

~~

18-22).

The claims in this case relate only to Defendant's alleged infringement of the SOUND
CHOICE trademarks by di.splaying them during karaoke performances (see id. ~~57, 58, 64, 65, 77).
Nevertheless, a substantial portion of the Second Amended Complaint is dedicated to the allegedly
infringing use of pirated accompaniment tracks (see, e.g., id.

~

1 ("This is an action by the Plaintiff

for trademark infringement ... in which the Defendant is accused ofknowingly benefiting [sic] from
the permitted use of pirated, counterfeit karaoke accompaniment tracks belonging to the Plaintiff.");

see also id.

~~

2, 18-24, 26-28, 39-49, 51-53). The allegations concerning pirated accompaniment

tracks are, for the most part, wholly impertinent to the causes of action pled in this case. Other
subsets of allegations address Plaintiffs "Safe Harbor Program" and the karaoke market in general

(see id.

~~

34-35, 39-49, 51-53), topics that are likewise irrelevant to Plaintiffs asserted claims.

The incorporation of a wide.swath of impertinent allegations warrants striking the Second
Amended Complaint as a "shotgun" pleading. See Strategic Income Fund, L.L.C. v. Spear, Leeds

& Kellogg Corp., 305 F .3d 1293, 1295-96 (11th Cir. 2002) (describing as a "shotgun" complaint one
that contains "irrelevant factual allegations and legal conclusions," which require the trial court to
undertake the "onerous" task of"sift[ing] out the irrelevancies"); Anderson v. Dist. Bd. ofTrustees

of Cent. Fla. Cmty. Col/., 77 F.3d 364, 366 (11th Cir. 1996) ("[Plaintiffs] complaint is a perfect
example of a 'shotgun' pleading in that it is virtually impossible to know which allegations of fact
are intended to support which claim(s) for relief."); Pelletier v. Zwiefel, 921 F.2d 1465, 1512 (11th
Cir. 1991) (describing "quintessential shotgun pleadings" complete with "factual allegations that
could not possibly be material" that force ''the district court [to] sift through the facts presented and
decide for [itself] which were material to the particular cause of action asserted"), abrogated on

other grounds as recognized in Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146, 1151 (11th Cir.
2

2o11V
The extraneous allegations also violate Federal Rule of Civil Procedure 8(a), which allows
only a "short and plain statement of the claim." By weaving impertinent allegations concerning
pirated accompaniment tracks into the Second Amended Complaint, Plaintiff also fails to provide
Defendant with fair notice of the specific claims against it. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Plaintiffs pleading strategy fosters no advantage to Plaintiff, merely contributing
to an inefficient and delayed resolution of the merits. Ebrahimi v. City of Huntsville Bd. of Educ.,
114 F.3d 162, 165 (11th Cir. 1997).
Accordingly,
1) The Second Amended Complaint (Dkt. 27) is STRICKEN.
2) Defendant's Motion to Dismiss Second Amended Complaint for Failure to State a Claim
and Motion to Dismiss Second Amended Complaint for Failure to Include an Indispensable Party
and Motion to Strike Particular Paragraphs of the Amended Complaint (Dkt. 35) is DENIED as

moot.
3) Plaintiff is GRANTED leave to file a third amended complaint on or before August 13,

2013.2 Plaintiff is cautioned to plead only those allegations necessary to state a claim in a "short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

1See

also Byrne v. Nezhat, 261 F.3d 1075, 1131 {lith Cir. 2001) ("Shotgun pleadings, if tolerated, harm the
court by impeding its ability to administer justice. The time a court spends managing litigation framed by shotgun
pleadings should be devoted to other cases waiting to be heard."), abrogated on other grounds as recognized by
Douglas Asphalt, 657 F .3d at II 5 I. A shotgun complaint must be stricken and the plaintiff required to file an
amended complaint consistent with Rules 8 and 10. See Anderson, 77 F.3d at 367 n.5.
2Generally, a claim may be dismissed with prejudice on the third unsuccessful attempt to plead a cause of
action. See Nettles v. City ofLessburg-Police Dep't, 415 Fed. Appx. 116, 123-24 (11th Cir. 2010). However,
because the First Amended Complaint was stricken on a different basis, Plaintiff will be given an opportunity to file
a Third Amended Complaint.

3

Failure to state a cause of action or comply with Rules 8 and 10 or the applicable pleading
standards will result in dismissal with prejudice without further notice.
DONE AND ORDERED this

2,~ay of July, 2013.

~-=

S D. WHiTTEMORE

::States District Judge

Copies to:
Counsel of record

4