Sprint Solutions, Inc. et al v. Fils-Amie

Filing 66

ORDER denying 23 Defendant Kedner Fils-Aime's Motion to Dismiss Plaintiffs' Amended Complaint; denying 32 Defendant Paul Fils-Aime, Jr.'s Motion to Dismiss Plaintiffs' Amended Complaint. Signed by Judge James I. Cohn on 9/12/2014. (ns)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-60224-CIV-COHN/SELTZER
SPRINT SOLUTIONS, INC. and SPRINT
COMMUNICATIONS COMPANY, L.P.,
Plaintiffs,
v.
KEDNER FILS-AMIE and PAUL FILS-AMIE,
JR., individually and d/b/a WE BUY PHONES,
Defendants.
/
ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS
THIS CAUSE is before the Court upon Defendant Kedner Fils-Aime's Motion to
Dismiss Plaintiffs' Amended Complaint [DE 23] and Defendant Paul Fils-Aime, Jr.'s
Motion to Dismiss Plaintiffs' Amended Complaint [DE 32]. The Court has reviewed the
Motions, Defendants' Responses, and the record in this case, and is otherwise advised
in the premises. For the following reasons, the Court will deny the Motions.
I.

BACKGROUND
In this case, Plaintiffs Sprint Solutions, Inc. and Sprint Communications

Company, L.P. (collectively "Sprint") allege that Defendants Kedner Fils-Aime
("Kedner") and Paul Fils-Aime, Jr. ("Paul") carried out a scheme of unlawfully obtaining,
modifying, and reselling wireless telephones sold by Sprint ("Sprint Phones"). Sprint
contends that Defendants' scheme has caused it reputational and business harms, and
violates numerous federal laws, including the Lanham Act, 15 U.S.C. § 1051, et seq.,
and various criminal statutes. See generally DE 14 ("Amended Complaint") ¶¶ 55–177.
On this basis, Sprint has asserted 14 causes of action against Defendants seeking both

damages and injunctive relief. Defendants have responded with two substantially
identical motions seeking dismissal of the Amended Complaint under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. See DE 23 & 32.
II.

LEGAL STANDARD
Under Rule 12(b)(6), a court shall grant a motion to dismiss where the factual

allegations of the complaint cannot support the asserted cause of action. Glover v.
Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (per curiam). "Factual
allegations must be enough to raise a right to relief above the speculative level . . . ."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must give a
defendant fair notice of the plaintiff's claims and the grounds upon which they rest. Id.
Thus, a complaint must contain "sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570).
A complaint must be liberally construed, assuming the facts alleged therein as
true and drawing all reasonable inferences from those facts in the plaintiff's favor.
Twombly, 550 U.S. at 555. A complaint should not be dismissed simply because the
court is doubtful that the plaintiff will be able to prove all of the necessary factual
allegations. Id. A well-pled complaint will survive a motion to dismiss "even if it appears
that a recovery is very remote and unlikely." Id. at 556 (internal quotation marks
omitted). Nevertheless, a plaintiff must provide "more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do." Id. at 555.
III. ANALYSIS
Defendants' Motions hint that the Amended Complaint is fatally flawed in
countless ways. Defendants do not develop the bulk of their criticisms, and rather focus
2

on one core argument: that the Amended Complaint does not give each Defendant
notice of the allegations against him because it refers to Kedner and Paul together as
"Defendants." However, Sprint's use of the term "Defendants" is an acceptable method
of pleading that Kedner and Paul each engaged in the alleged misconduct, and does
not offend the applicable pleading standard. The Court also rejects Defendants' lessdeveloped arguments that Sprint proceeds on flawed legal theories and has failed to
plead facts or produce evidence to support its claims. Therefore, the Court will deny the
Motions.
A. Sprint's Reference to Defendants as "Defendants"
Does Not Require Dismissal of the Amended Complaint
In the Amended Complaint, Sprint alleges that Kedner and Paul, individually and
doing business as We Buy Phones, engaged in unlawful and deceptive business
practices involving the resale of Sprint Phones. In each of the Amended Complaint's 14
causes of action, Sprint alleges that each Defendant perpetrated these wrongs, often
acting together. When referring to Kedner and Paul together, Sprint has used the term
"Defendants." See Am. Compl. ¶¶ 55–177.
Defendants argue that Sprint's use of the term "Defendants" turns the Amended
Complaint's allegations into "group allegations" that cannot satisfy the pleading standard
set forth in Twombly, 550 U.S. 544. Defendants contend that a complaint must contain
"specific facts supporting each allegation against each defendant individually." DE 23 at
6–7; DE 32 at 6–7. Defendants conclude that because allegations about "Defendants'"
conduct are not allegations against each individual Defendant, Sprint's use of the term
"Defendants" requires dismissal of the Amended Complaint.

3

However, a plaintiff may plead claims against multiple defendants by referring to
them collectively, for example by referring to a group of defendants as "defendants."
See Crowe v. Coleman, 113 F.3d 1536, 1539 (11th Cir. 1997). These collective
allegations are construed as applying to each defendant individually. Id. The practice
only runs afoul of the applicable pleading standard where it results in a complaint that
fails to give each defendant notice of the claims against it. See Frazier v. U.S. Bank
Nat’l Ass’n, No. 11-8775, 2013 U.S. Dist. LEXIS 45330 at *10–12 (N.D. Ill. Mar. 29,
2013) (holding that group pleading did not render complaint infirm where complaint
provided fair notice of claims).
Collective references to defendants most often create problems when broad
allegations are directed at a large and diverse group of defendants, leaving unclear just
who is alleged to have committed which acts. See Pierson v. Orlando Reg'l Healthcare
Sys., Inc., 619 F. Supp. 2d 1260, 1271–74 (M.D. Fla. 2009) (requiring repleader where
plaintiff used single defined term to refer to numerous individual doctors and business
entities, and alleged varying involvement in complex peer-review process as to entire
group), aff'd, 451 F. App'x 862 (11th Cir. 2012) (per curiam). But here, Sprint alleges
that two individuals—Kedner and Paul—participated in conduct relevant to each claim.
When Sprint alleges that Kedner and Paul each engaged in an act, or acted together, it
refers to Kedner and Paul collectively as "Defendants." On the other hand, where Sprint
alleges independent conduct by only one Defendant, Sprint refers to that Defendant
separately by name. See Am. Compl. ¶ 42 (alleging purchase by Paul of Sprint Phone);
id. ¶ 44 (alleging statements by Kedner regarding efforts to buy Sprint Phones). In these
circumstances, Sprint's use of the term "Defendants" does not deprive Defendants of

4

fair notice of the conduct attributed to them; instead, it simply signals that Defendants
are both alleged to have participated in the conduct at issue. The Court thus rejects
Defendants' contention that Sprint's use of the term "Defendants" in the Amended
Complaint requires dismissal.
B. Defendants' Miscellaneous Legal Arguments in the
"Facts" Sections of the Motions Do Not Warrant Dismissal
After a brief introduction, the body of each Motion begins with a section entitled
"Facts." DE 23 at 2; DE 32 at 1. The "Facts" section, however, is not the usual recitation
of the facts of a case that often precedes a brief's argument section. Instead, within the
space of a single paragraph, the Facts section devolves into an argumentative,
rambling, and—most importantly—unsupported enumeration of the many supposed
faults of Sprint's case.
For example, Defendants argue that "Sprint is attempting to gain unjust
enrichment by selling their device to customers getting the purchase price for the device
itself then maintain a possessory interest over the device because the phone is branded
as a 'Sprint' device." DE 23 at 3; DE 32 at 2–3. Defendants appear to contend that
Sprint should not have any say in the post-sale use or resale of its products. However,
Defendants cite to no legal authority regarding why this argument requires dismissal.
Defendants also suggest that Sprint misunderstands the importance of a "bad
ESN." DE 23 at 4; DE 32 at 4. An "ESN" is an electronic serial number assigned to a
mobile telephone. Am. Compl. ¶ 44. In the Amended Complaint, Sprint alleges that a
Sprint Phone identified as connected with fraud or theft will be flagged as having a "bad
ESN" that precludes it from being legitimately activated on Sprint's network. Id. Sprint
maintains that Defendants' willingness to purchase Sprint Phones with bad ESNs is

5

evidence of their alleged phone-trafficking scheme, because it indicates that Defendants
intended to do something with the Sprint Phones other than activate them on Sprint's
network. Id. Defendants counter that "in fact a 'bad ESN' phone has SEVERAL other
meaning[s] and does not preclude it from being resold. This lack of definition and
understanding by Sprint removes several of the claims from consideration because the
devices and actions are no longer supported based on the correct definitions." DE 23 at
4; DE 32 at 4. Again, Defendants provide no authority as to why Sprint's purported
misunderstanding of ESNs requires dismissal of unspecified claims in the Amended
Complaint.
On a Rule 12(b)(6) motion to dismiss, "[t]he moving party bears the burden to
show that the complaint should be dismissed." Mendez-Arriola v. White Wilson Med Ctr.
PA, No. 09-495, 2010 U.S. Dist. LEXIS 95091 at *10 (N.D. Fla. Aug. 25, 2010). The
movant must support its arguments for dismissal with citations to legal authority. S.D.
Fla. L.R. 7.1(a)(1). Where a defendant seeking dismissal of a complaint under Rule
12(b)(6) does not provide legal authority in support of its arguments, it has failed to
satisfy its burden of establishing its entitlement to dismissal. See Super. Energy Servs.,
LLC v. Boconco, Inc., No. 09-0321, 2010 U.S. Dist. LEXIS 30196 at *13–16 (S.D. Ala.
Mar. 26, 2010); United States v. Vernon, 108 F.R.D. 741, 742 (S.D. Fla. 1986).
In the Facts section of each Motion, Defendants have catalogued many reasons
they believe Sprint's lawsuit should fail. Defendants, however, have not directed the
Court to any legal authority in support of their oft-confusing arguments for dismissal.
Defendants therefore have failed to meet their burden of establishing that the points
raised in the Facts section warrant dismissal.

6

C. Sprint Has Pled Its Claims with Sufficient Factual
Detail and Need Not Produce Evidence at This Time
In the Argument section of each Motion relating to the issue of group pleading,
Defendants have also scattered a handful of miscellaneous points relating to other
purported failures of Sprint's factual allegations. Defendants suggest broadly that Sprint
has failed to allege facts supporting the elements of each of its claims. Defendants
assert that "[t]he conclusory nature of the allegations in this case are entitled to no
deference and do not satisfy Sprint's burden to plead sufficient factual allegations for
each mandatory element of the fourteen causes of action." DE 23 at 8; DE 32 at 7.
Defendants continue that "Sprint alleges zero facts to support allegations o[f] a
conspiracy nor a 'Bulk trafficking scheme'" by either Defendant. DE 23 at 8; DE 32
at 7–8.
But Sprint's Amended Complaint, as a whole, is a relatively clear and
unremarkable pleading, containing ample factual allegations of Defendants' acts and the
nature of their alleged scheme to resell Sprint Phones to support each claim. To recite
just a few of the Amended Complaint's factual allegations, Sprint alleges that
Defendants: unlawfully purchased Sprint Phones, disabled them, and resold them for
use on other wireless networks (Am. Compl. ¶ 56); trafficked in Sprint's confidential
codes stored on Sprint Phones (id. ¶¶ 107–08); unlocked Sprint Phones with assistance
from Sprint by making misrepresentations to Sprint (id. ¶ 135); and sold altered or
counterfeited phones as Sprint Phones (id. ¶ 155). Defendants' contentions that all of
Sprint's allegations uniformly fail as conclusory or that Sprint "alleges zero facts" to
support allegations of a phone-trafficking conspiracy fall flat.

7

Defendants also assert that Sprint has failed to allege that Defendants' actions
harmed it in any way. DE 23 at 6; DE 32 at 6. But Sprint's Amended Complaint is
replete with allegations of reputational and business injuries it has suffered as a result of
Defendants' practice of obtaining, modifying, and reselling Sprint Phones. See, e.g.,
Am. Compl. ¶¶ 46–51. Defendants' suggestion that Sprint has failed to allege injury is
meritless.
Defendants further deride the probative value of some of Sprint's factual
allegations. For example, Defendants point out that "[Sprint] offers as fact [an]
unauthenticated text message exchange arranging a legal sale of one device." DE 23 at
8; DE 32 at 7. Presumably, Defendants mean to imply that the text message, which the
Amended Complaint attributes to Kedner (Am. Compl. ¶ 41 & Ex. E), was either
fabricated or sent by someone other than Kedner. However, at the pleading stage, the
Court must take each of Sprint's factual allegations as true. See Twombly, 550 U.S. at
555. Therefore, any suggestion by Defendants that Kedner did not send the text
message at issue does not justify dismissal.
On a related note, Defendants argue throughout their papers that this case
should be dismissed because the Amended Complaint's allegations lack evidentiary
support. See, e.g., DE 23 at 3; DE 32 at 4. But a Rule 12(b)(6) motion to dismiss tests
the sufficiency of the pleadings, and whether a plaintiff should later be permitted to offer
evidence in support of its claims. Twombly, 550 U.S. at 563 n.8. At this early stage of
litigation, a plaintiff must only satisfy the applicable pleading standard, and need not
come forward with evidence. See Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1298–99 (11th

8

Cir. 2007). Therefore, even were Defendants correct that Sprint has no evidence to
back up its claims, the lack of evidence would not require dismissal.
IV. CONCLUSION
In sum, Sprint's reference to Kedner and Paul collectively as "Defendants" in the
Amended Complaint does not require dismissal of this action. Nor does the Court find
Defendants' remaining arguments for dismissal persuasive. It is accordingly
ORDERED AND ADJUDGED that Defendant Kedner Fils-Aime's Motion to
Dismiss Plaintiffs' Amended Complaint [DE 23] and Defendant Paul Fils-Aime, Jr.'s
Motion to Dismiss Plaintiffs' Amended Complaint [DE 32] are DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 12th day of September, 2014.

Copies provided to:
Counsel of record via CM/ECF

9