Southern Illinois Storm Shelters, Inc. v. 4semo.com, Inc.

Filing 68

ORDER denying 36 Motion to Dismiss. Signed by Chief Judge David R. Herndon on 2/22/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SOUTHERN ILLINOIS STORM
SHELTERS,
Plaintiff/Counterclaim Defendant,
v.

No. 13-0297-DRH

4SEMO.COM, INC.,
Defendant/Counterclaimant,
v.
INGOLDSBY EXCAVATING, INC.,
Additional Counterclaim Defendant.

MEMORANDUM and ORDER
HERNDON, Chief Judge:
Introduction and Background
Now before the Court is defendant/counterclaimant 4Semo.com, Inc.’s
motion to dismiss plaintiff’s amended complaint (Doc. 36). 4Semo.com argues
that plaintiff’s amended complaint should be dismissed in its entirety pursuant to
Federal Rules of Civil Procedure 10(b) and 12(b)(6) for failure to state a claim.
Plaintiff opposes the motion (Doc. 43). Based on the following, the Court DENIES
the motion.
On July 2, 2013, plaintiff, Southern Illinois Storm Shelters, Inc., filed an
Page 1 of 18

amended

complaint

for

trademark

infringement,

unfair

competition,

cybersquatting, deceptive trade practices and intentional tortious interference with
contractual relations against 4Semo.com, Inc. (Doc. 34). The amended complaint
contains seven counts: Count I – Federal Unfair Competition Violation of Section
43(a) of the Lanham Act; Count II – Federal Trademark Infringement Violation of
Section 43(a) of the Lanham Act; Count III – Cybersquatting in Violation of the
Anti-Cybersquatting Consumer Protection Act; Count IV – Violation of the Illinois
Uniform Deceptive Trade Practices Act; Count V – Violation of Illinois Trademark
Registration and Protection Act and Common Law; Count VI – Violation of the
Common Law of Unfair Competition and Count VII - Common Law Intentional
Tortious Interference with Contractual Relations. Plaintiff is in the business of
designing, manufacturing and selling fiberglass storm shelters and above ground
metal safe rooms. Defendant is in the business of providing general contracting
work and is also a dealer of storm shelters.

Plaintiff alleges that, despite

knowledge of plaintiff’s extensive use and substantial common law rights in the
marks “Southern Illinois Storm Shelters” and “Lifesaver Storm Shelters,”
defendant has attempted to register and use confusingly similar or identical terms
and domain names in connection with similar services in competition with plaintiff
and in violation of plaintiff’s intellectual property rights. Plaintiff’s lawsuit stems
from defendant’s infringement of the marks through defendant’s website, related
advertisements and on products not manufactured by the plaintiff and defendant’s
purchase of domain names identical or related to the marks.
Page 2 of 18

On October 28, 2013, defendant filed an amended counterclaim against
plaintiff and Ingoldsby Excavating, Inc. (Doc. 55).

The amended counterclaim

contains twelve counts: Count I - Trademark Infringement; Count II – Trademark
Dilution; Count III – Violation of the Lanham Act, 15 U.S.C. § 1225, et seq., For
False Advertising, False Endorsement, and/or Unfair Competition; Count IV –
Common Law Unfair Competition; Count V – Violation of Illinois Uniform
Deceptive Trade Practices Act; Count VI – Violation of Illinois State Trademark
Registration and Protection Act/Common Law Trademark Infringement; Count VII
– Misappropriation of Time and Investment; Count VIII – Breach of Contract; Count
IX – Unjust Enrichment; Count X – Civil Conspiracy; Count XI – Fraud and Count
XII – Cybersquatting in Violation of the Anti-Cybersquatting Consumer Protection
Act. 4Semo.com alleges that it conceived, created and developed the LifeSaver
Storm Shelters mark at its own cost and on its own initiative to indicate the retail
source of the shelters it sold and installed.

4Semo.com also alleges that plaintiff,

as a supplier to 4Semo.com, learned of 4Semo.com’s marks from 4Semo.com and
eventually asked 4Semo.com if it could use the 4Semo.com marks in Southern
Illinois and 4Semo.com agreed to that limited use. 4Semo.com also alleges that
plaintiff and Ingoldsby Excavating moved beyond the approved use and that
plaintiff had started using the marks when selling to their other dealers and had
purported to license their other dealers to the marks.
On July 19, 2013, defendant filed the motion to dismiss stating that plaintiff
filed this action “as a tactical, preemptive maneuver, designed to derail 4SEMO’s
Page 3 of 18

proper registration of 4SEMO’s Lifesaver Storm Shelters trademark with the
United States Patent and Trademark Office.” (Doc. 37, ps. 1-2).
to dismiss plaintiff’s amended complaint in its entirety.

Defendant moves

Plaintiff opposes the

motion. As the motion is ripe, the Court addresses the merits.
Standards
Rule 10(b) requires that a party limit its claims and defenses “as practicable
to a single set of circumstances” and that “each claim founded on a separate
transaction or occurrence ... must be stated in a separate count or defense.”
Fed.R.Civ.P. 10(b); see Frederisksen v. City of Lockport, 384 F .3d 437, 438 (7th
Cir. 2004). The purpose of Rule 10(b), in conjunction with Rule 8, is to “give
defendants fair notice of the claims against them and the grounds supporting the
claims.” Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011) (citations omitted).
Accordingly, dismissal is appropriate where a complaint is so unintelligible that the
defendant cannot reasonably be expected to be on notice of the plaintiff's claims. Id.
at 798 (“[T]he issue is notice; where the lack of organization and basic coherence
renders a complaint too confusing to determine the facts that constitute the alleged
wrongful act, dismissal is an appropriate remedy.”); 5C Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 1376 (3d ed. 1998) (“Rule 10(b) is
designed to improve the intelligibility of pleadings.”).
When considering a motion to dismiss under Rule 12(b)(6), the Court
accepts as true all facts alleged in the complaint and construes all reasonable
inferences in favor of the plaintiff. Killingsworth v. HSBC Bank Nevada, N.A., 507
Page 4 of 18

F.3d 614, 618 (7th Cir. 2007)(citing Savory v. Lyons, 469 F.3d at 667, 670 (7th
Cir. 2006)); accord Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To state a
claim upon which relief can be granted, a compliant must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “Detailed factual allegations” are not required, but the plaintiff must allege
facts that when “accepted as true ... ‘state a claim to relief that is plausible on its
face.’ “ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To determine whether a complaint meets this
standard, the “reviewing court [must] draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 678.
Federal Rule of Civil Procedure 8(a)(2) imposes “two easy-to-clear hurdles”
that a complaint must satisfy in order to survive a motion to dismiss pursuant to
Federal Rule of Procedure 12(b)(6). Tamayo v. Blagojevich, 526 F.3d 1074, 1084
(7th Cir. 2008)(quoting EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773, 776
(7th Cir. 2007)). First, a complaint must describe the plaintiff's claims and the
grounds supporting them in “sufficient detail to give the defendants fair notice” of
the claims alleged against them. This requires more than mere “labels and
conclusions” or a “formulaic recitation of the elements of a cause of action.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).
Second, to survive a motion to dismiss, the court determines whether the
well-pleaded allegations, if true, “plausibly suggest a right to relief, raising that
possibility above a speculative level.” See Iqbal 556 U.S. at 679; Concentra, 496
Page 5 of 18

F.3d at 776. A claim has facial plausibility when the pleaded factual content allows
the Court to draw a reasonable inference that the defendant is liable for the
misconduct alleged. See Iqbal, 556 U.S. at 678. “The plausibility standard ... asks
for more than a sheer possibility that a defendant acted unlawfully. Where a
complaint pleads facts that are merely consistent with a defendant's liability, it
stops short of the line between possibility and plausibility of entitlement to relief.”
Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “ ‘Plausibility’ in this
context does not imply that the district court should decide whose version to
believe, or which version is more likely than not.” Swanson v. Citibank, N.A., 614
F.3d 400, 404 (7th Cir. 2010). Rather, Twombly and Iqbal require “the plaintiff to
‘provide some specific facts' to support the legal claims asserted in the complaint.”
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009)). Though the “degree of specificity required
is not easily quantified, ... ‘the plaintiff must give enough details about the
subject-matter of the case to present a story that holds together.’ “ Id. (quoting
Swanson, 614 F.3d at 404). If a complaint does not satisfy these two criteria, “the
plaintiff pleads itself out of court.” Concentra, 496 F.3d at 776. Accordingly, a
motion to dismiss may be properly granted where the plaintiff does not allege a
plausible entitlement to relief either by (1) failing to provide the defendant with
notice of plausible claims against it or (2) asserting only speculative or conclusory
allegations in the complaint.

Page 6 of 18

Analysis
First, defendants argue that plaintiff’s amended complaint fails to plead
separate allegations as to wrongful activities to each phrase it claims as a mark.
Instead, defendant maintains that plaintiff lumped them together as “the marks”
and referred vaguely to the bunched phrase. The Court disagrees with defendant’s
assessment of plaintiff’s amended complaint.

In fact, plaintiff’s amended

complaint is intelligible and coherent. The amended complaint states all of its
claims and allegations in separate numbered paragraphs.

The amended

complaint begins with sections setting forth the nature of the case, jurisdiction and
venue and the parties. Thereafter, there is a section titled “Factual Background”
which contains allegations that are “common to all claims.” That portion of the
amended complaint is eventually followed by the individual counts setting forth its
claims against defendant. The amended complaint adequately puts defendant on
notice as to its claims. Accordingly, dismissal pursuant to Rule 10(b) is not
necessary and would only serve to further delay this case. The Court denies the
motion on this basis. The Court turns now to address defendant’s Rule 12(b)(6)
arguments.
“Congress passed the Lanham Act in 1946 to ‘federalize” existing common
law protection of trademarks used in interstate commerce. CAE, Inc. v. Clean Air
Eng’g, Inc., 267 F.3d 660, 672 (7th Cir. 2001).

Under the Lanham Act, a

defendant is liable for federal trademark infringement and counterfeiting if the
defendant:
Page 7 of 18

[W]ithout the consent of the registrant … use[s] in commerce any
reproduction, counterfeit, copy or colorable imitation of a registered
trademark in connection with the sale, offering for sale, distribution,
or advertising of any goods or services or in connection with which
such use is likely to cause confusion, or to cause mistake, or to
deceive.
15 U.S.C. § 1114(1)(a). The Lanham Act further imposes liability upon:
Any person who, or in connection with any goods or services … uses in
commerce any … false designation of origin, false or misleading
description of fact, or false or misleading misrepresentation of fact,
which is likely to cause confusion or mistake, or to deceive as to the
affiliation, connection, or other association of such person with
another person, or as to origin, sponsorship, or approval of his or her
goods … by another person.
15 U.S.C. § 1125(a)(1)(A).
Counts I and VI – Federal and State Unfair Competition Claims
Claims brought under 15 U.S.C. § 1125(a) are of two types: “likelihood of
confusion” claims under § 1125(a)(1)(A) and “false advertising” claims under §
1125(a)(1)(B). To state a claim for false advertising under § 1125(a), a plaintiff must
allege: (1) that the defendant made a false statement of fact about its own or another
product in commercial advertisement; (2) that the statement deceived or has the
tendency to deceive a substantial portion of those persons who perceive the
advertisement; (3) that the deception is likely to influence purchasing decisions; (4)
that the defendant caused the advertisement to enter interstate commerce; and (5) a
likelihood of injury. Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir.
1999). On the other hand, a claim that defendant's use of a mark is likely to cause
confusion “a plaintiff must show (1) that its trademark may be protected and (2)
Page 8 of 18

that the relevant group of buyers is likely to confuse the alleged infringer's products
or services with those of plaintiff.”
Further, in Illinois, the common law tort of unfair competition encompasses
a broad spectrum of law and it is difficult to determine exactly what elements are
required in order to prove such a claim. See Wilson v. Electro Marine Sys. Inc.,
915 F.2d 1110, 1118 (7th Cir. 1990)(“[T]the law of unfair competition … is elusive;
its elements escape definition.”).

Under Illinois law, “[u]nfair competition is a

broader concept than trademark infringement and depends upon likelihood of
confusion as to the source of plaintiff’s goods than the whole product, rather than
just the service mark, is considered.” Thompson v. Spring-Green Lawn Care
Corp., 126 Ill.App.3d 99, 466 N.E.2d 1004, 1015 (Ill. App. 1984). However, “[t]he
same set of facts and circumstances may be used to support a claim for both
trademark infringement and unfair competition, and a finding in favor of the former
claim typically results in a finding for the latter.” Id.
First, defendant argues that Counts I and VI should be dismissed with
prejudice because the phrase Southern Illinois Storm Shelters is not a protectable
trademark because it is merely a descriptive term and that such phrases are not
subject to registration as trademarks. Plaintiff argues that Southern Illinois Storm
Shelters is more than merely descriptive as it has acquired a secondary meaning.
Specifically, plaintiff counters that the consuming public identifies Southern Illinois
Storm Shelters as the single source of storm shelters under the mark and is
protectable. The Court agrees with plaintiff.
Page 9 of 18

“The validity of a mark pertains to whether a ‘word, term, name, symbol or
device,’ 15 U.S.C. § 1125(a)(1), is entitled to protection under trademark law by
focusing on whether that mark specifically identifies and distinguishes one
company's goods or services from those of its competitors.” Platinum Home
Mortgage Corp. v. Platinum Financial Grp., Inc., 149 F.3d 722, 726 (7th Cir.
1998). When the mark at issue is not registered with the United States Patent and
Trademark Office, “the burden is on the claimant” to establish that it is entitled to
protection. Id. at 727 (citing Mil–Mar Shoe Co., Inc. v. Shonac Corp., 75 F.3d 1153,
1156 (7th Cir. 1996)).
Marks are classified into five categories of increasing distinctiveness: (1)
generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful. Id. (citing Two
Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 767–68, 112 S.Ct. 2753, 120
L.Ed.2d 615 (1992)). Generic marks are commonly used, do not identify a
particular source and are entitled to no trademark protection. Id. Descriptive
marks are those that describe “the ingredients, qualities, or characteristics of an
article of trade or a service.” Id. (quoting Liquid Controls Corp. v. Liquid Control
Corp., 802 F.2d 934, 936 (7th Cir .1986)). They do not generally receive trademark
protection, but may if they acquire secondary meaning “in the collective
consciousness of the relevant community.” Id. (quoting Mil–Mar Shoe Co., 75 F.3d
at 1157). Finally, suggestive, arbitrary or fanciful marks, “because their intrinsic
nature serves to identify a particular source of a product, are deemed inherently
distinctive and are entitled to protection.” Two Pesos, 505 U.S. at 768.
Page 10 of 18

Secondary meaning arises when a mark “has been used so long and so
exclusively by one company in association with its goods or services that the word
or phrase has come to mean that those goods or services are the company's
trademark.” Packman v. Chicago Tribune Co., 267 F.3d 628, 641 (7th Cir. 2001).
In determining whether a mark has acquired secondary meaning, the Seventh
Circuit considers seven factors: (a) direct consumer testimony; (b) consumer
surveys; (c) exclusivity, length and manner of use; (d) amount and manner of
advertising; (e) amount of sales and number of customers; (f) established place in
the market; and (g) proof of intentional copying. Echo Travel, Inc. v. Travel
Assocs., Inc., 870 F.2d 1264, 1267 (7th Cir.1989).
Here, plaintiff alleges: “Since long before the acts of Defendant described
herein, Plaintiff has, since at least as early as 2000, continuously used the mark
‘Southern Illinois Storm Shelters’ in connection with the marketing and dale of
Shelters to customers in Illinois and throughout the United States and this mark is
Plaintiff’s registered business name in Illinois.” (Doc. 34, ¶ 8a). Further, plaintiff
alleges: “As a result of Plaintiff’s extensive sales, marketing, and advertising
expenditures, and unsolicited media mentions related to Plaintiff’s Lifesaver Storm
Shelters products, Plaintiff has become well-known among the relevant consuming
public as the single source of storm shelters marketed under the Lifesaver Storm
Shelters mark, which has become synonymous with the Southern Illinois Storm
Shelters mark.” (Doc. 34, ¶ 8g.). At this stage of the litigation, the Court finds that
plaintiff has sufficiently pled a protectable trademark regarding Southern Illinois
Page 11 of 18

Storm Shelters to withstand dismissal. Thus, the Court denies defendant’s motion.
Next, defendant argues that Counts I and VI should be dismissed because the
amended complaint alleges that 4Semo.com is a reseller of its products and thus
not a competitor and those counts also fail to allege facts that establish that
4Semo.com’s actions are not “unfair.” Plaintiff counters that it has alleged unfair
competition in that 4Semo.com knowingly exceed its authorization to use the
marks as a reseller thereby unfairly competed with plaintiff in areas outside
4Semo.com was allowed to sell. The Court agrees with plaintiff.
The amended complaint alleges: “Plaintiff has never authorized, licensed or
otherwise permitted the Defendant to use Plaintiff’s marks, other than in
connection with the sale of Plaintiff’s Shelters. Without any authorization, license
or authority from Plaintiff, Defendant has marketed and advertised Plaintiff’s mark
‘Lifesaver Storm Shelters’ on its website. On or about August 9th, 2011, Defendant
purchased

the

domain

names

www.southernillinoisstormshelter.com.

www.lifesaverstormshelter.com

and

Both of the aforementioned domain

names redirect consumers to Defendant’s website www.4semo.com.” (Doc. 34, ¶¶
9a-9d). Further, the amended complaint alleges: “Defendant’s adoption and the
use of Plaintiff’s name and marks, as hereinabove pleaded, constitutes use of a false
designation of origin or a false representation, which falsely designates, describes
or represents the Defendant’s services and business as originating from or being in
connection with Plaintiff, which is not the case, and thereby constitutes false
description or representation used in interstate commerce.”
Page 12 of 18

(Doc. 34, ¶ 15).

Based on these allegations, the Court finds that plaintiff has sufficiently pled claims
of unfair competition under both Federal and Illinois State law. Thus, the Court
denies the motion on this ground.
Counts II and V – Federal and State Trademark Infringement Claims
In order to prevail on a claim of trademark infringement and counterfeiting
under 15 U.S.C. § 1125(a)(1)(A), a plaintiff must prove two elements. See 15
U.S.C. § 1125(a); Segal v. Geisha NYC LLC, 517 F.3d 501, 506 (7th Cir. 2008);
CAE, 267 F.3d at 673-74. First, the plaintiff must show that “its mark is protected
under the Lanham Act.” Barbecue Marx, Inc. v. 551 Ogden, Inc., 235 F.3d 1041,
1043 (7th Cir. 2000). Second, the plaintiff must allege that the challenged mark is
“likely to cause confusion among consumers.” Id. However, “a court doesn’t even
reach the question of likelihood of confusion until persuaded that the putative mark
is sufficiently distinctive to warrant a prima facie protection as a trademark.” Blau
Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 610 (7th Cir. 1986).
Further, Illinois state law also provides for a cause of action under the Illinois
Trademark Registration and Protection Act against any person who:
uses, without the consent of the registrant, any reproduction,
counterfeit, copy, or colorable imitation of a mark registered under
this Act in connection with the sale, distribution, offering for sale, or
advertising of any goods or services on or in connection with which
such use is likely to cause confusion or mistake or to deceive as to the
source of origin of such goods or services.
765 ILCS 1036/60.
The purpose of the trademark “is to provide the consuming public with a
Page 13 of 18

concise and unequivocal signal of the trademarked product’s source and
character.” Draeger Oil, Inc. v. Uno-Ven Co., 314 F.3d 229, 301 (7th Cir. 2002).
However, this “function is thwarted if the quality and uniformity of the trademarked
product are allowed to vary significantly without notice to the consumer.” Id.
Defendants argue that the use of the phrase “Southern Illinois Storm
Shelters” merely as a website director is not the use of the phrase in a trademark
manner by 4Semo.com as a matter of law. Plaintiff opposes the motion arguing
that the use of a phrase as a redirector or for a website is the use of a phrase in a
trademark manner. The Court agrees with the plaintiff.
The amended complaint properly alleges that the marks “Southern Illinois
Storm Shelters” and “Lifesaver Storm Shelters” were improperly registered and
used by 4Semo.com in a manner to redirect customers to its website. At this stage
of the pleadings, the Court finds that plaintiff has alleged that this was the use of a
phrase in a trademark manner and has stated claims for infringement in these two
counts.
Count III - Cybersquatting Claim
Under the ACPA, a person alleged to be a cybersquatter is liable to the owner
of a protected mark, “without regard to the goods or services of the parties” if that
person (1) “has a bad faith intent to profit from that mark, including a personal
name which is protected under this section;” and (2) registers, traffics in, or uses a
domain name that is identical or confusingly similar to or dilutive of a mark that is
distinctive or famous. See 15 U.S.C. § 1125(d)(1)(A). The ACDP was enacted, in
Page 14 of 18

part, to address counterfeit sellers, who “register well-known marks to prey on
consumer confusion by misusing the domain name to divert customers from the
mark owner’s site to the cybersquatter’s own site.”

Lucas Nursery and

Landscaping, Inc. v. Grosse, 359 F.3d 806, 809 (6th Cir. 2004)(quoting S.Rep. No.
106-140, at 5-6).
As to the cybersquatting count, the Court finds that plaintiff properly has
alleged that both Southern Illinois Storm Shelters and Lifesaver Storm Shelters are
distinctive marks entitled to protection; that 4Semo.com used a domain name that
was confusingly similar to plaintiff’s marks and that 4Semo.com had a bad faith
intent to profit from plaintiff’s marks.

As stated previously, the amended

complaint alleges that the mark “Southern Illinois Storm Shelters” has been used
since at least as early as 2000 and the mark “Lifesaver Storm Shelters” has been
used since at least as early as 2002 and that the average annual sales from the
shelters is around $1.2 million. (Doc. 34, ¶ 8a-8c). Also, the amended complaint
alleges that plaintiff has extensive marketing expenditures, received substantial
media attention and has a well-known reputation and dealership network.
Further, the amended complaint alleges that 4Semo.com had a bad faith intent to
profit from plaintiff’s marks, that it is the true owner of the marks and that
4Semo.com has no rights to the marks. The amended complaint also alleges that
4Semo.com intentionally diverted customers from plaintiff’s online location to their
homepage www.4Semo.com and that conduct is harming the goodwill represented
by the mark. (Doc. 34, ¶ 25). Once again, the Court denies defendant’s motion as
Page 15 of 18

plaintiff has sufficiently pled its claim for cybersquatting.
Count IV – Illinois Uniform Deceptive Trade Practices Act Claim
The Illinois Uniform Deceptive Trade Practices Act (“DTPA”) provides that
“[a] person engages in a deceptive trade practice when ... the person: ... causes a
likelihood of confusion or misunderstanding as to the source, sponsorship ...
[etc.].” 815 ILCS 510/2(a)(2). Certain fraudulent conduct—using deceptive
representations about the source or quality of the goods, for example—also violates
the DTPA. See, e.g., 815 ILCS 510/2(a)(4)-(6).
As to Count IV, defendant argues that plaintiffs admit defendant is a
dealer/distributor of its products and, thus, there can be no deception. Plaintiff
maintains that 4Semo.com’s use of the marks was unauthorized and that this
unauthorized use was in connection with the services similar to plaintiff’s services
and thus deceives the public. The Court agrees with plaintiffs. The allegations
contained in the amended complaint are sufficient to state a cause of action under
the Illinois Deceptive Trade Practices Act. Thus, the Court denies the motion to
dismiss as to this claim.
Count VII – Intentional Tortious Interference with Contractual Relations
Claim
Lastly, defendant argues that plaintiff’s intentional tortious interference with
contractual relations fails to allege that there was a contract, a breach of contract,
or that 4SEMO.com’s actions were unjustified. Plaintiff counters that it has set
Page 16 of 18

forth sufficient facts to state a claim for tortious interference with contractual
relations.

The Court agrees with plaintiff and finds that at this stage in the

pleadings plaintiff’s claim survives dismissal.
To establish tortious interference with contractual rights, plaintiff must
allege: “(1) the existence of a contract; (2) the defendants’ awareness of the contract;
(3) the intentional inducement of a contract breach; (4) an actual breach of the
contract; and (5) damages.” Cody v. Harris, 409 F.3d 853, 859 (7th Cir. 2005);
Complete Conference v. Kumon North America, 915 N.E.2d 88 (Ill. App. 2009).
Here, the Court finds that plaintiff has alleged the elements to state a claim
for intentional tortious interference with contractual relations. As to elements 1
and 2, plaintiff alleges: “Plaintiff has valid and enforceable contractual relationships
with dealers throughout the United States and the Defendant is fully aware of said
relationships” and that 4SEMO.com sent letters to dealers (Doc. 34, ¶¶ 46, 47).
Clearly, elements 1 and 2 have been alleged sufficiently. As to element 3, the
amended complaint alleges that 4SEMO.com never contacted the dealers prior to
the May 28th letter and that plaintiff believes that defendant’s sole motivation for
sending the letter was to retaliate against plaintiff for filing suit. (Doc. 34, ¶¶ 48 &
49). Lastly, Count VII alleges that defendant intentionally caused irreparable harm
to plaintiff’s business by inducing the dealers to breach their contract with plaintiff.
Plaintiff has pled sufficient facts to assert a claim for tortious interference with
contractual relations.

Page 17 of 18

Conclusion
Accordingly, the Court DENIES defendant’s motion to dismiss amended
complaint (Doc. 36).
IT IS SO ORDERED.
Signed this 22nd day of February, 2014.

Digitally signed by
David R. Herndon
Date: 2014.02.22
07:06:51 -06'00'

Chief Judge
United States District Court

Page 18 of 18