ThermoLife International LLC v. Vital Pharmaceuticals Incorporated

Filing 131

ORDER ON MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS Denying 121 Motion. Signed by Judge Beth Bloom on 11/18/2020. See attached document for full details. (jbs) Modified text on 11/18/2020 (jbs).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 19-cv-61380-BLOOM/Valle
THERMOLIFE INTERNATIONAL, LLC,
Plaintiff,
v.
VITAL PHARMACEUTICALS INCORPORATED,
Defendant.
___________________________________________/
ORDER ON MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
THIS CAUSE is before the Court upon Defendant Vital Pharmaceuticals Inc.’s
(“Defendant” or “VPX”) Motion for Partial Judgment on the Pleadings, ECF No. [121]
(“Motion”). Plaintiff ThermoLife International, LLC (“Plaintiff” or “ThermoLife”) filed a
response, ECF No. [121] (“Response”), to which VPX filed a reply, ECF No. [126] (“Reply”).
The Court has considered the Motion, the Response and Reply, the record in this case, the
applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is denied.
I.

BACKGROUND
The Court assumes the parties’ familiarity with the facts of this case; however, a brief

review of the procedural posture is in order. In the Complaint, ECF No. [1], ThermoLife asserts
claims against VPX, including violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)
(Count 1), and common law unfair competition (Count 2). See generally ECF No. [1]
(“Complaint”). VPX previously sought dismissal of ThermoLife’s claims, arguing that
ThermoLife lacked statutory standing to assert its Lanham Act claim, that the Lanham Act claim
failed to satisfy Rule 9(b) of the Federal Rules of Civil Procedure, and that the alleged statements

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made by VPX were not actionable statements or representations. See ECF No. [73] (“Motion to
Dismiss”). Significantly, VPX did not seek dismissal of ThermoLife’s unfair competition claim
on separate grounds from the Lanham Act claim. Ultimately, the Court denied VPX’s Motion to
Dismiss with respect to Counts 1 and 2 of the Complaint. See ECF No. [82].1
On October 18, 2019, VPX filed an Answer and Affirmative Defenses to the Complaint,
and a Counterclaim for trade libel (Count 1) and tortious interference with advantageous business
relationships (Count 2). ECF No. [83] (“Counterclaim”). ThermoLife previously sought dismissal
of VPX’s Counterclaim, see ECF No. [88], which the Court granted in part. Specifically, the Court
dismissed the claims against ThermoLife’s President and Chief Executive Officer and dismissed
the claims for tortious interference with advantageous business relationships. See ECF No. [107].
Thereafter, on February 7, 2020, ThermoLife filed its Answer to the Counterclaim. ECF No. [108].
In the Motion currently before the Court, VPX requests judgment upon ThermoLife’s claim for
common law unfair competition (Count 2 of the Complaint).
II.

LEGAL STANDARD
“After the pleadings are closed – but early enough not to delay trial – a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A party may move for judgment on the
pleadings if there are no material facts in dispute. See Palmer & Cay, Inc. v. Marsh & McLennan
Cos., 404 F.3d 1297, 1303 (11th Cir. 2005); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1291
(11th Cir. 2002). In rendering judgment, a court may consider the substance of the pleadings and
any judicially noticed facts. Cunningham v. Dist. Att’y’s Office for Escambia Cnty., 592 F.3d 1237,
1255 (11th Cir. 2010). “A motion for judgment on the pleadings is governed by the same standard
as a Rule 12(b)(6) motion to dismiss.” Guarino v. Wyeth LLC, 823 F. Supp. 2d 1289, 1291 (M.D.
The Court granted in part VPX’s Motion to Dismiss and dismissed Count 3 of the Complaint, which
sought declaratory relief. See ECF No. [82].
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Fla. 2011). As such, a complaint must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s
pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at
570). Through this lens, the Court considers the instant Motion.
III.

DISCUSSION
VPX argues that it is entitled to judgment on the pleadings regarding ThermoLife’s

common law unfair competition claim because ThermoLife fails to plausibly establish the critical
element of direct competition with VPX. ThermoLife responds that the allegations in the
Complaint are sufficient to state that the parties’ products are going after the same consumer
dollars, the Court previously found ThermoLife’s claim to be adequately pleaded, and VPX’s
Motion is essentially a belated request for the Court to reconsider its prior ruling upon VPX’s
Motion to Dismiss.
At the outset, the Court notes that in ruling upon VPX’s Motion to Dismiss, the Court
considered the issues of statutory standing under the Lanham Act, whether a heightened pleading
standard applied to the Lanham Act claim, and the sufficiency of the allegations regarding false
and misleading statements. See ECF No. [82]. In that Order, the Court specifically noted that VPX
had not made separate arguments regarding ThermoLife’s unfair competition claim, and thus, the
unfair competition claim survived on the same basis as the Lanham Act claim. See id. at p. 8 n.2.

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Accordingly, the Court did not have occasion to review the arguments now asserted in the Motion
as to the unfair competition claim. As such, ThermoLife’s characterization of the Motion is not
accurate. The Court now considers the sufficiency of the pleading as to ThermoLife’s common
law unfair competition claim.
In order to prevail on an unfair competition claim, Florida law requires that a plaintiff
establish deceptive or fraudulent conduct of a competitor and likelihood of customer confusion.
Donald Frederick Evans & Assocs, Inc. v. Cont’l Homes, Inc., 785 F.2d 897, 914 (11th Cir. 1986).
“Rather than going to the question of copying in the manufacture of a product, ‘unfair competition
goes to the question of marketing’ and the pleading party must allege that it competes with its
opponent for a common pool of customers.” Exch. Int’l, Inc. v. Vacation Ownership Relief, LLC,
No. 6:10-cv-1273-Orl-35DAB, 2010 WL 4983669, at *4 (M.D. Fla. Oct. 27, 2010) (quoting Third
Party Verification, Inc. v. Signaturelink, Inc., 492 F. Supp. 2d 1314, 1325 (M.D. Fla. 2007)).
VPX argues that there are no allegations in the Complaint that ThermoLife and VPX are
direct competitors, and therefore, ThermoLife’s claim for unfair competition fails as a matter of
law. However, the cases cited by VPX in support of its argument are inapposite, or do not hold
that parties must be direct competitors. See Burciaga v. Gold Club Tampa, Inc., No. 8:16-cv-790T-27JSS, 2016 WL 9526567, at *7 (Dec. 28, 2016) (unfair competition claim dismissed where
plaintiffs, models in California, failed to allege how they competed with the defendant strip club
located in Florida); King Ranch, Inc. v. King Ranch Contractors, LLC, No. 6:12-cv-597-Orl37KRS, 2013 U.S. Dist. LEXIS 76777, at *20 (M.D. Fla. Jan. 29, 2013) (noting that the
competition requirement requires a showing of “similarity in businesses of the parties.”) (citations
omitted); Living Color Enterps., Inc. v. New Era Aquaculture, Ltd., No. 14-62216-CIV, 2015 WL
1526177, at *5 (S.D. Fla. Apr. 3, 2015) (dismissing unfair competition claim where complaint did

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not plead defendant was “competitor for a common pool of customers or anything about the pool
of customers”); Marks v. Cayo Hueso, Ltd., 437 So. 2d 775, 777 (Fla. 3d DCA 1983) (observing
that Florida Statutes, section 495.151 eliminated the common law requirement of showing
competition or confusion as to the source of goods or services for a claim for injury to business
reputation or trade name dilution); Prac. Mgmt. Assocs., Inc. v. Old Dominion Ins. Co., 601 So.
2d 587, 588 (Fla. 1st DCA 1992) (specifying that unfair competition requires unfairness and
competition and “requirement that the offense include an element of rivalry”); Home Design
Services, Inc. v. Park Square Enterprises, Inc., No. 6:02-CV-637-ORL28JGG, 2005 WL 1027370,
at *14, (M.D. Fla. May 2, 2005) (finding upon summary judgment that unfair competition
counterclaim failed because there was no indication that defendant competed with the plaintiff for
a common pool of customers); Asokan v. Am. Gen. Life Ins. Co., 302 F. Supp. 3d 1303, 1313 (M.D.
Fla. 2017) (granting summary judgment upon unfair competition claim where no facts alleged in
the complaint or found in the record to suggest parties competed for a common pool of customers).
In fact, King Ranch, Inc., and the authorities cited in it, supports the broader interpretation that
competition requires only a showing of similarity in business, and not as narrow a showing of
direct competition as VPX argues. See Am. United Life Ins. Co. v. Am. United Ins. Co., 731 F.
Supp. 480, 486 (S.D. Fla. 1990) (“The competition requirement has been interpreted by the Florida
Supreme Court to require a showing of ‘similarity in businesses of the parties.’” (quoting Sun
Coast v. Shupe, 52 So. 2d 805 (Fla. 1951))).
ThermoLife responds that the allegations in the Complaint are sufficient, as VPX’s “Super
Creatine” competes directly in the dietary supplement market with products containing
ThermoLife’s creatine nitrate. In addition, ThermoLife contends that parties need not sell directly
competing products to state a claim for unfair competition under Florida law. Upon review, the

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Court agrees with Thermolife that the allegations, viewed in the light most favorable to them, are
sufficient.
Here, the Complaint alleges the following regarding each party’s customers:
ThermoLife licenses and sells its patented creatine nitrate for use in
Dietary Supplement products. Sourced and licensed from
ThermoLife, creatine nitrate and other Amino Acid Nitrates
supplied by ThermoLife are included in many of the top-selling
Dietary Supplements in the world. [. . .] VPX sells Dietary
Supplements to consumers over the internet, . . . [and] VPX’s
products are also sold at brick-and-mortar stores across the United
States. BANG energy drinks are sold at retail stores such as 7Eleven, gas stations, and other specialty stores throughout the
United States.
ECF No. [1], ¶¶ 13-14, 16, 21-23. Even though ThermoLife does not allege that it sells its creatine
nitrate directly to retail consumers over the internet or in stores, the Complaint does allege that as
a result of VPX’s false advertising with respect to “Super Creatine” and creatine nitrate, consumers
ultimately choose VPX’s “Super Creatine” product, instead of products containing ThermoLife’s
creatine nitrate, which negatively impacts ThermoLife’s business. As such, the Complaint
sufficiently alleges that ThermoLife and VPX are competitors in the dietary supplement market,
even if they do not compete directly.
Moreover, VPX’s reliance upon similar cases in Arizona in arguing that it is entitled to
judgment as a matter of law is misplaced. Significantly, in the cases cited by VPX in which the
courts dismissed ThermoLife’s unfair competition claims, the defendants did not market their own
creatine containing products, as VPX is alleged to in this case. See ThermoLife Int’l LLC v. Am.
Fitness Wholesalers LLC, No. CV-18-04189-PHX-JAT, 2019 WL 3840988, at *4 (D. Ariz. Aug.
15, 2019) (Defendant sold and advertised dietary supplements manufactured by third parties on its
website); ThermoLife Int’l LLC v. Sparta Nutrition LLC, No. CV-19-01715-PHX-SMB, 2020 WL

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248164, at *2 (D. Ariz. Jan. 16, 2020) (Defendant advertised and sold dietary supplements to
consumers and wholesalers through its website).2
In this case, accepting as true the allegations in the Complaint and construed in the light
most favorable to ThermoLife, VPX is not entitled to judgment as a matter of law upon the unfair
competition claim.
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that VPX’s Motion, ECF No. [121], is

DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, on November 18, 2020.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

In ThermoLife Int’l LLC v. BPI Sports LLC, No. CV-18-04663-PHX-SPL, 2019 WL 6135140, at *2 (D.
Ariz. Nov. 19, 2019), the court dismissed the unfair competition claim because plaintiff failed to allege
direct competition or a competitive injury. As the Court has already noted, the element of competition under
Florida law requires similarity in the businesses of the parties. Absent authority clearly holding that there
must be direct competition, the Court will not so hold based upon a single out-of-district case.
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