Village Pizza House, Inc. v. EIC Agency, LLC
Filing
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Judge George A. OToole, Jr: OPINION AND ORDER entered denying 9 Motion to Dismiss for Failure to State a Claim (Danieli, Chris)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-12293-GAO
VILLAGE PIZZA HOUSE, INC.,
Plaintiff,
v.
EIC AGENCY, LLC,
Defendant.
OPINION AND ORDER
March 26, 2014
O’TOOLE, D.J.
I.
Background
This case, alleging claims under the Anticybersquatting Consumer Protection Act, 15
U.S.C. § 1125(d), the Lanham Act, 15 U.S.C. § 1125(a), and the Massachusetts consumer
protection statute, Mass. Gen. Laws ch. 93A § 11, arises out of a dispute involving the
defendant’s alleged attempt to collect and ultimate collection of a fee to release a specific
internet domain name to the plaintiff. The defendant has moved to dismiss the complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (dkt. no. 9).
The complaint alleges that, from 2004 to early 2010, the defendant provided internet
hosting services for the plaintiff’s website. The defendant was paid approximately $500 per year
for this service. In early 2010, the plaintiff notified the defendant that it intended to discontinue
the defendant’s services. The defendant then demanded a $500 fee to return the domain name,
villagepizzahouse.com, to the plaintiff. The plaintiff refused to pay the fee. The complaint
alleges that the defendant thereafter engaged in certain conduct in an effort to compel the
plaintiff to pay the demanded $500 fee, including posting advertisements for competing pizza
businesses on the villagepizzahouse.com website, changing the physical address listed on the
website to that of a competing pizza business in the area, and altering menu prices. In 2013, the
plaintiff paid a compromise fee of $300 to the defendant to obtain possession of and shut down
the villagepizzahouse.com domain name. The defendant has moved to dismiss the Complaint.
II.
Failure to Comply with Local Rules
At the outset, the defendant’s motion to dismiss fails to comply with this Court’s local
rules, which require that “[a] party filing a motion shall at the same time file a memorandum of
reasons, including citation of supporting authorities, why the motion should be granted.” LR.
7.1(b)(1) (emphasis added). The defendant’s motion does not cite to any relevant case law, not
even the standard motion to dismiss citations to Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) or Ashcroft v. Iqbal, 556 U.S. 662 (2009). The defendant’s only citation is to an unrelated
WIPO Arbitration and Media Center decision (“WIPO”), which has no binding effect on federal
courts. See Sallen v. Corinthians Licenciamentos LTDA, 273 F.3d 14, 26 (1st Cir. 2001). As this
Court has previously stated, the failure to cite to relevant supporting authorities “is reason
enough to deny” a defendant’s motion to dismiss. Bose BV v. Zavala, No. 09-11360-GAO, 2010
WL 152072, at *1 (D. Mass. Jan. 14, 2010); see LR. 1.3.
III.
Motion to Dismiss
Even if the defendant’s motion complied with this Court’s local rules, it must also be
denied on substantive grounds.
The defendant’s motion argues that the Complaint should be dismissed for two reasons:
first, because the 2013 compromise payment of $300 was an accord and satisfaction; and,
second, because a prior arbitration decision by WIPO supports the defendant’s initial request of a
$500 fee to release the domain name.
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First, the defendant’s argument that the 2013 compromise payment of $300 was an
accord and satisfaction must be rejected. Accord and satisfaction is an affirmative defense, where
the burden of proof rests on the defendant. Rust Engineering Co. v. Lawrence Pumps Inc., 401
F.Supp. 328, 333 (D. Mass. 1975). Considering only the information contained in the complaint,
as this Court must do on this motion to dismiss, there are no definitively ascertainable facts to
establish this defense with certitude. See SBT Holdings, LLC v. Town of Westminster, 547 F.3d
28, 36 (1st Cir. 2008).
Second, the defendant’s argument regarding the WIPO arbitration decision in Amy’s
Orchids v. EIC, No. D2009-0466 (2009) must also be rejected. Amy’s Orchids did not involve
the plaintiff in this case and has no precedential value before this Court. See Corinthians
Licenciamentos LTDA, 273 F.3d at 26.
IV.
Conclusion
For the reasons stated herein, the defendant’s Motion to Dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (dkt. no. 9) is DENIED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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