Suede Group, Inc. v. S Group, LLC et al

Filing 15

MEMORANDUM AND ORDER denying 8 Defendants' Motion for a More Definite Statement. Signed by Magistrate Judge David J. Waxse on 1/17/2013. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SUEDE GROUP, INC.,
Plaintiff,
v.

CIVIL ACTION
Case No. 12-2654-CM-DJW

S GROUP, LLC,
et al.,
Defendants.
MEMORANDUM AND ORDER
In this infringement and dilution action, Plaintiff alleges that Defendants are using a word
or service mark which is substantially similar to Plaintiff’s word marks and stylized design service
mark. Plaintiff’s complaint asserts claims for unjust enrichment, common law false designation or
origin and unfair competition, direct and contributory federal trademark infringement, federal and
state trademark dilution, violation of the Digital Millennium Copyright Act,1 and false designation
of origin and/or false representation under the Lanham Act.2 The matter is presently before the
Court on Defendants’ Motion for a More Definite Statement (ECF No. 8). Defendants request an
order under Fed. R. Civ. P. 12(e) requiring Plaintiff to provide a more definite statement of the
claims asserted in its complaint. Defendants assert that the complaint fails to identify the marks and
works that are the subject of Plaintiff’s claims, fails to state how Defendants’ mark allegedly
infringes upon Plaintiff’s marks or the goods and services using the marks, and fails to provide the
essential factual allegations for a violation of the Digital Millennium Copyright Act. Defendants

1

17 U.S.C. § 1201 et seq.

2

15 U.S.C. § 1125.

contend that without this information, Plaintiff’s complaint is so vague and ambiguous that they
cannot reasonably prepare a response. For the reasons set forth below, the motion is denied.
I.

Legal Standard Applicable to Motions for More Definite Statement.
Under Federal Rule of Civil Procedure 12(e), “[a] party may move for a more definite

statement of a pleading to which a responsive pleading is allowed but which is so vague or
ambiguous that the party cannot reasonably prepare a response.”3 The party filing a motion for more
definite statement must file it before filing a responsive pleading and “must point out the defects
complained of and the details desired.”4 Motions under this rule are proper “only in cases where the
movant cannot reasonably be required to frame an answer or other responsive pleading to the
pleading in question.”5 Courts should not grant such a motion “merely because the pleading lacks
detail; rather, the standard to be applied is whether the claims alleged are sufficiently specific to
enable a responsive pleading in the form of a denial or admission.”6 Requiring a more definite
statement is appropriate when addressing unintelligible or confusing pleadings.7 While “Rule 12(e)
is designed to strike at unintelligible pleadings,”8 proper specificity is the key as even an intelligible

3

Fed. R. Civ. P. 12(e).

4

Id.

5

Fed. R. Civ. P. 12(e) advisory committee’s note (1946 amend.).

6

Mechler v. United States, No. 12-1183-EFM-GLR, 2012 WL 5289627, at *1 (D. Kan. Oct.
23, 2012) (citing Shaffer v. Eden, 209 F.R.D. 460, 464 (D. Kan. 2002)).
7

See, e.g., Ewing v. Andy Frain Sec. Co., No. 11-CV-02446-JAR-DJW, 2012 WL 162379,
at *1 (D. Kan. Jan. 19, 2012); Creamer v. Ellis Cnty. Sheriff Dep’t, No. 08-4126-JAR, 2009 WL
484491, at *1 (D. Kan. Feb. 26, 2009); Black & Veatch Int’l Co. v. Wartsila NSD N. Am., Inc., No.
97-2556-GTV, 1998 WL 264738, at *1 (D. Kan. May 21, 1998).
8

Creamer, 2009 WL 484491, at *1.
2

or non-confusing complaint may warrant a more definite statement when more specificity is needed
to draft an appropriate response.9
Courts consider Rule 12(e) motions in conjunction with the “simplified pleading standard”
of Rule 8(a), which “applies to all civil actions, with limited exceptions.”10 Under Rule 8(a)(2), the
complaint must contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” The purpose of Rule 8(a)(2) is to provide opposing parties with “fair notice of what the
. . . claim is and the grounds upon which it rests.”11
When a complaint provides sufficient notice under Rule 8(a), the defendant should elicit
additional detail through the discovery process.12 Courts, however, generally disfavor such motions
given the minimal pleading requirements and liberal discovery provisions of the Federal Rules of
Civil Procedure.13 Whether to grant a motion for more definite statement is within the Court’s sound
discretion.14

9

Mechler, 2012 WL 5289627, at *1.

10

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-14 (2002) (listing Fed. R. Civ. P. 9(b)
as an exception example).
11

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)).
12

JP Morgan Trust Co. Nat’l Ass’n v. Mid-Am. Pipeline Co., 413 F. Supp. 2d 1244, 1270 (D.
Kan. 2006); Bolton v. Sprint/United Mgmt. Co, No. 05-2361-JWL, 2006 WL 449254, at *2 (D. Kan.
Feb. 23, 2006); PAS Commc’ns, Inc., v. U.S. Sprint, Inc., 112 F. Supp. 2d. 1106, 1109 (D. Kan.
2000).
13

Mechler, 2012 WL 5289627, at *2.

14

See Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998); Graham v. Prudential Home
Mortg. Co., 186 F.R.D. 651, 653 (D. Kan. 1999).
3

II.

The Parties’ Arguments.
Defendants argue that Plaintiff’s complaint is deficient in several respects and fails to notify

them of key elements of the claims asserted against them. Specifically, Defendants argue that the
complaint fails to identify the marks or works that are the subject of Plaintiff’s claims. It fails to
describe the works that allegedly infringe upon Plaintiff’s copyright or the use of which allegedly
constitutes unfair competition. Defendants also argue that the complaint fails to describe the goods
and services for which Defendants allegedly used an infringing mark in commerce or in connection
with the sale, offering for sale, advertising and/or production. Finally, Defendants argue that the
complaint fails to provide the required factual allegations necessary to support a claim based upon
a violation of the Digital Millennium Copyright Act, including what protected work or works are
at issue, what technological measure the Defendants allegedly circumvented, and how the alleged
circumvention of the technological measure either infringes or facilitates infringing a right protected
by the Copyright Act.
Plaintiff opposes the motion, arguing that its complaint contains a short and plain statement
of its claims as required by Fed. R. Civ. P. 8(a)(2). It argues that it is not required to prove its case
through pleadings alone as that would defeat the purpose of the liberal discovery available under the
federal rules. Contrary to Defendants’ arguments, Plaintiff asserts that it has carefully identified the
jurisdiction of the Court, the relationship between the parties, the service marks, work marks, and
trademarks which it claims have been infringed and/or diluted, the marks utilized by Defendants that
infringe and/or dilute Plaintiffs marks known to date, the specific causes of action against them, and
how Plaintiff has been or will be damaged. The information which Defendants seek to elicit from

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a more definite pleading is information that is better suited for discovery, and does not prevent
Defendants from preparing a responsive pleading at this juncture.
III.

Whether Plaintiff’s Complaint is so Vague and Ambiguous Defendants Cannot
Reasonably Respond.
Rule 12(e) allows a party to move for a more definite statement when the complaint is “so

vague and ambiguous that the party cannot reasonably prepare a response.” The Court has reviewed
Plaintiff’s 17-page complaint under this standard, keeping in mind the defects raised by Defendants
and the additional information they contend should be pleaded in the complaint. Based on its
review, the Court does not find the complaint to be so vague and ambiguous that Defendants cannot
reasonably prepare an answer or otherwise respond to it. The defects raised by Defendants and the
additional details that they contend should be pleaded in the complaint are not required under the
“short and plain” pleading standard of Fed. R. Civ. P. 8(a)(2).
Defendants urge the Court to grant their Rule 12(e) motion for a more definite statement on
the grounds that Plaintiff’s complaint does not meet the threshold pleading standards set out by the
Supreme Court in Bell Atlantic Corp. v. Twombly,15 and Ashcroft v. Iqbal.16 The Court notes that
the plausibility pleading standard set out by Twombly and Iqbal was in the context of a Rule 12(b)(6)
motion to dismiss for failure to state a claim upon which relief can be granted rather than a Rule
12(e) motion for a more definite statement. The Court here declines to apply a Twombly and Iqbaltype analysis to Plaintiff’s complaint in ruling on Defendants’ motion for more definite statement.
With respect to Defendants’ argument that the complaint fails to identify the marks and

15

550 U.S. 544 (2007).

16

556 U.S. 662 (2009).
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works that are the subject matter of Plaintiff’s claims, a review of the complaint demonstrates
otherwise. Paragraphs 8 and 9 of the complaint identify Plaintiff’s stylized design “suede” service
mark and “Suede or Suede Group” word marks as the marks at issue. Paragraph 16 identifies “S
Group” as the work and/or service mark that Defendants used in connection with their own goods
and services, which Plaintiff alleges is substantially similar to its marks. Exhibit A to Plaintiff’s
complaint also depicts three examples of images on Defendants’ website that are similar to images
on Plaintiff’s website. While the complaint may not identify all the specific copyrighted materials
or images that Plaintiff alleges Defendants used without permission, Defendants should be able to
obtain this information during discovery. Moreover, this information is not necessary to reasonably
prepare an answer or other responsive pleading. Finally, Defendants’ criticism that Plaintiff’s
complaint fails to set out the essential factual allegations to show a violation of the Digital
Millennium Copyright Act does not render the complaint so vague or ambiguous that Defendants
cannot reasonably prepare a response.
In summary, the Court does not find Plaintiff’s complaint to be so vague and ambiguous that
Defendants cannot reasonably prepare a response to the seven claims and corresponding allegations
set forth in the complaint. While certainly the complaint could have contained additional details that
would have made Defendants’ task of responding to the complaint easier, Plaintiff is not required
under Rule 8(a)(2) to plead that level of detail. The additional details that Defendants seek can be
elicited through the discovery process. At this stage of the litigation, Plaintiff’s complaint contains
sufficient allegations to enable Defendants to frame a responsive pleading.
IT IS THEREFORE ORDERED THAT Defendants’ Motion for a More Definite Statement
(ECF No. 8) is denied.

6

Dated in Kansas City, Kansas on this 17th day of January, 2013.

s/ David J. Waxse
David J. Waxse
United States Magistrate Judge

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