Euro-Pro Operating LLC v. Dyson Inc.
Filing
156
Judge Allison D. Burroughs: ORDER entered For the reasons set forth in the accompanying Order, Plaintiff's Motion for Reconsideration, or, In the Alternative, for Leave to Amend the Complaint [ECF No. 134] is DENIED, and Plaintiff's Motion for Alternative Dispute Resolution [ECF No. 143] is DENIED without prejudice to renew. (Montes, Mariliz)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EURO-PRO OPERATING LLC,
Plaintiff,
v.
DYSON INC., and DYSON LTD.,
Defendants.
*
*
*
*
*
*
*
*
*
1:14-cv-13720-ADB
ORDER
BURROUGHS, D.J.
Before the Court are (1) Plaintiff SharkNinja Operating, LLC’s 1 Motion for Clarification
or Reconsideration, Or, In the Alternative, For Leave to Amend the Complaint [ECF No. 134],
and (2) Plaintiff’s Motion for Alternative Dispute Resolution [ECF No. 143]. For the reasons set
forth herein, both of Plaintiff’s motions are DENIED.
This case involves a dispute between two competing vacuum manufacturers. Plaintiff’s
First Amended Complaint [ECF No. 40, hereinafter “Amended Complaint”] sets forth the
following relevant facts. In 2013, Defendants launched a national advertising campaign
promoting a new line of vacuum cleaners known as the “Dyson Animal.” [Id. ¶ 1]. As part of
that campaign, Defendants made advertising claims that its Dyson Animal vacuums had “twice
the suction” of any other competing vacuum cleaner, including those manufactured by Plaintiff.
[Id.]. On July 8, 2014, however, Plaintiff launched a vacuum product called the “Shark Powered
Lift-Away.” [Id. ¶ 17]. Plaintiff alleges that the Shark Powered Lift-Away has “top-performing
1
When Plaintiff commenced this civil action, its name was Euro-Pro Operating LLC; however,
on September 18, 2015, Plaintiff filed a Notice of Name Change, informing the Court that its
name had been changed to “SharkNinja Operating LLC.” [ECF No. 93].
1
suction performance,” and that the introduction of the Shark Powered Lift-Away “render[ed]
Dyson’s ‘Twice the Suction’ claims literally false and misleading.” [Id. ¶ 2]. The Amended
Complaint alleges that independent, third-party laboratory tests clearly demonstrate that the
Dyson Animal does not, in fact, have twice the suction of the Shark Powered Lift-Away. [Id. ¶¶
33, 37]. Accordingly, Plaintiff claims that Defendants’ “twice the suction” claims are now
literally false, because “since July 8, 2014, the Shark Powered Lift-Away has replaced [prior
Shark products] as the ‘top performing product’ in the Shark vacuum line,” and that “[a]s a
result, any testing by Dyson on the [prior Shark products] can no longer reliably establish that
the Dyson Animal has ‘Twice the Suction of Any other Vacuum.’” [Id. ¶ 40].
The Amended Complaint contains three claims for relief. Count One alleges false
advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B); Count Two alleges
deceptive trade practices in violation of Massachusetts General Laws Chapter 93A, § 11; and
Count Three alleges false advertising in violation of Massachusetts General Laws Chapter 266, §
91.
In the Amended Complaint and throughout this litigation, including active motion
practice and numerous related court appearances, Plaintiff has consistently taken the position that
the gravamen of the dispute is that the introduction of the Shark Powered Lift-Away rendered
Dyson’s “twice the suction” claim literally false. For example, paragraph 2 of the Amended
Complaint alleges in pertinent part that “Euro-Pro recently introduced its newest vacuum product
called the Shark Rotator Powered Lift-Away Upright . . . which has top-performing suction
performance that renders Dyson’s ‘Twice the Suction’ claims literally false and misleading.”
[ECF No. 40]. Similarly paragraph 3 of the Amended Complaint states that
Euro-Pro first notified Dyson in May 2014, that Euro-Pro’s impending
launch of the Shark Powered Lift-Away would render Dyson’s “Twice the
2
Suction” advertising false and misleading. Euro-Pro again contacted Dyson
in July 2014, this time to inform it that Euro-Pro had now launched its new
Shark Powered Lift-Away, and that testing on that product . . . showed that
Dyson’s “Twice the Suction” claim was literally false.
[Id.]. Paragraph 45 of the Amended Complaint asserts that “[u]pon information and belief,
Dyson’s false advertising is willful and knowing because Dyson continues to disseminate its
‘Twice the Suction’ advertising despite the fact that Euro-Pro first notified Dyson in May 2014,
that its impending launch of the Shark Powered Lift-Away would render its advertising false and
misleading.” [Id.].
This theme is evidenced throughout the Amended Complaint, and it has been confirmed
through in-court statements and other documents filed with the Court by Plaintiff and Defendant,
demonstrating that both parties understood this case to revolve around the allegation that Dyson
continued to claim that its vacuums had “twice the suction” even after the introduction of the
Shark Powered Lift-Away. For example, in the parties’ March 30, 2015 Joint Statement
submitted in advance of the Rule 16 Scheduling Conference, Plaintiff described the case, in a
nutshell, as follows:
This case involves false advertising in violation of the federal Lanham Act
based on Dyson’s false statement that its vacuums have “Twice the Suction”
of any other vacuums, including competitor-Plaintiff Euro-Pro’s vacuums.
Dyson kept its false statements on the market for more than half a year
despite having express and scientific evidence (from Euro-Pro, from Dyson
itself, and from Dyson’s outside laboratory), that Dyson’s advertising was
expressly and literally false. Contrary to Dyson’s “Twice the Suction”
advertising, Dyson’s vacuums do not have Twice the Suction of Euro-Pro’s
Shark Rotator Powered Lift-Away vacuum.
[ECF No. 38]. Similarly, in Dyson’s May 4, 2015 Memorandum in support of its partial motion to
dismiss Euro-Pro’s First Amended Complaint, Dyson wrote “[a]s discussed at the April 6, 2015
Pre-Trial Scheduling Conference before the Court, the parties do not dispute that the claim was
literally true when Dyson introduced it, but it merely became outdated when Euro-Pro
3
subsequently released its new Shark Rotator Powered Lift-Away a year later.” [ECF No. 47, p.
1]. Notably, Plaintiff did not dispute this representation in its Opposition to Dyson’s Motion to
Dismiss. [ECF No. 53]. Instead, Plaintiff pointed out that Dyson was continuing to make the
“twice the suction” claim “over ten months after Euro-Pro notified Dyson that ‘its impending
launch of the Shark Powered Lift-Away would render its advertising false and misleading.’” [Id.,
p. 8] (emphasis in original).
Nonetheless, nearly six months later, on November 9, 2015, which was shortly before the
close of fact discovery, Plaintiff filed a Motion to Compel the production of certain documents.
[ECF No. 108]. Plaintiff’s Motion sought the production of, inter alia, documents relating to
testing performed on Dyson vacuums as far back as 2012. Dyson objected to these requests as
irrelevant to any disputed issue in the case, and not reasonably likely to lead to the discovery of
admissible evidence. Specifically, Dyson noted that the Amended Complaint did not allege that
Defendant’s “twice the suction” claims were literally false or misleading from inception; rather,
the Amended Complaint merely alleged that those claims became literally false and misleading
when the Shark Powered Lift-Away was launched into the marketplace. Therefore, Defendants
argued that documents relating to their initial testing on the Dyson Animal in 2012 were not
relevant to Plaintiff’s literal falsity claims.
On November 20, 2015, the parties appeared before the Court for a hearing on Plaintiff’s
Motion to Compel and on Defendants’ Motion for an Emergency Protective Order [ECF No.
100]. In its Motion to Compel and at the hearing, Plaintiff argued—for the first time in this
litigation—that the Amended Complaint “contains allegations of literal falsity which are not
restricted in time,” [ECF No. 109, p. 8], and that it had sufficiently alleged that Dyson’s “twice
4
the suction” advertising was literally false even before Plaintiff launched the Shark Powered
Lift-Away.
For the reasons set forth on the record at the November 20, 2015 hearing, the Court
denied Plaintiff’s Motion to Compel insofar as Plaintiff sought to discover testing documents
aimed at determining whether Defendants’ “twice the suction” claim was literally false from
inception. The Court held that Plaintiff’s literal falsity claim under the Lanham Act, as alleged in
Count One of the Amended Complaint, was limited to the allegation that Defendants’ “twice the
suction” claims became literally false only after the introduction of the Shark Powered LiftAway in 2014. The Court noted that Plaintiff’s Amended Complaint did not allege that
Defendants’ advertising claims were literally false at inception, and that Plaintiff would have
needed to amend the Amended Complaint to assert such a claim.
More than a month later, and after the close of discovery, Plaintiff filed the instant
Motion For Clarification, Or In The Alternative For Leave To Amend The Complaint, in which
Plaintiff (1) asserts that the Court’s ruling on its Motion to Compel constituted an improper sua
sponte dispositive ruling on the validity of its establishment claim, and (2) seeks reconsideration,
or alternatively, leave to amend the First Amended Complaint or take an interlocutory appeal.
The Court, in response to Plaintiff’s Motion for Clarification or Reconsideration, now reaffirms
its holding that the First Amended Complaint is limited to allegations that Defendants’ “twice the
suction” claim became literally false only after the introduction of the Shark Powered Lift-Away,
and that the First Amended Complaint does not allege a claim that the “twice the suction” claim
was false from its inception. Overall, the Court has little patience for Plaintiff’s late efforts to
pursue a legal theory that is not articulated anywhere in the operative Complaint. Furthermore,
Plaintiff’s attempt to frame the Court’s ruling on Plaintiff’s discovery motion as a sua sponte
5
dismissal of a heretofore non-existent legal claim is entirely unsupportable, in light of the record
and Plaintiff’s own conduct throughout this litigation.
In support of its motion, Plaintiff argues that Paragraphs 39 and 72(b) of the Amended
Complaint adequately allege that the “twice the suction” claim was literally false from its
inception. The Court disagrees. Paragraph 39 of the Amended Complaint alleges as follows:
Dyson’s claim that its “Twice the Suction” advertising is proven by
purported testing against the “upright market to ASTM F558 at cleaner
head, dust-loaded as per IEC 60312-1” and “compared to top-performing
product for each brand” is an establishment claim because it represents
that tests prove Dyson’s suction performance claim about the Dyson
Animal. Therefore, to prove literal falsity, SharkNinja only needs to show
that Dyson’s purported tests do not establish the proposition for which
they are cited, including by demonstrating that Dyson’s tests are not
sufficiently reliable to permit the conclusion that the Dyson Animal has
“Twice the Suction” of all other vacuum products, including those in the
Shark line.
[ECF No. 40, ¶ 39]. First, Paragraph 39 does not even contain any factual allegations on which a
literal falsity claim could be based. Instead, Plaintiff sets forth legal conclusions about the
requirements of a literal falsity claim. Such legal conclusions need not be credited. See Cardigan
Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015). Furthermore, Paragraph 39 is
immediately followed by Paragraph 40, which would appear to set forth the actual factual
grounds for Plaintiff’s literal falsity claim:
Dyson’s “Twice the Suction” advertising claims compare the Dyson
Animal to the “top-performing product for each brand,” including
specifically the “Shark Navigator Lift Away.” However, since July 8,
2014, the Shark Powered Lift-Away has replaced the Shark Navigator
Lift-Away as the “top performing product” in the Shark vacuum line. As a
result, any testing by Dyson on the Shark Navigator Lift-Away can no
longer reliably establish that the Dyson animal has “Twice the Suction of
Any Other Vacuum” compared to “the top-performing product for each
brand.”
6
[Id. ¶ 40]. Thus, contrary to Plaintiff’s arguments, Paragraph 39 tends to confirm that Plaintiff’s
literal falsity claim is limited to the period after Plaintiff introduced the Shark Powered LiftAway.
Similarly, Paragraph 72(b) does not allege that Defendants’ “Twice the Suction” claim
was literally false or misleading from inception. Paragraph 72(b) alleges that Dyson’s “twice the
suction” advertisements, “as establishment claims, are literally false and misleading because
Dyson’s claimed tests do not reliably establish the proposition for which they are cited – namely,
that the Dyson Animal has ‘Twice the Suction of All Other Vacuums,’ which includes the Shark
Powered Lift-Away.” [Id. ¶ 72(b)]. When read in context of the Amended Complaint as a whole,
Paragraph 72(b) does not provide Defendants with notice that Plaintiff was alleging literal falsity
from inception. First, there are no facts in the Amended Complaint that would support such an
allegation. Second, Paragraph 72(b), as well as Paragraph 72(a), and Paragraph 72 more
generally, allege that Defendants’ Twice the Suction claims were specifically false with respect
to the Shark Powered Lift-Away. [Id. ¶¶ 72]. Thus, the only plausible reading of Paragraph 72(b)
(which appears towards the end of the Amended Complaint, under the heading “Count One”), is
that it restates and summarizes the previous allegations concerning the release of the Shark
Powered Lift-Away, which is the only literal falsity claim previously alleged in the Amended
Complaint. Paragraph 72(b) cannot fairly be read to introduce new facts or theories.
In sum, Paragraphs 39 and 72(b), considered in conjunction with the other allegations of
the Amended Complaint, allege that Dyson’s “twice the suction” claims became literally false
only after Plaintiff launched its Shark Powered Lift-Away. No other literal falsity claim is
alleged in the Amended Complaint, and the Court rejects Plaintiff’s belated attempt to amend the
7
pleadings in this regard. 2 Although Plaintiff complains that this ruling amounts to a sua sponte
dismissal of its establishment claim, the Court rejects this characterization, as the Court cannot
dismiss a claim that was never alleged in the first place. Instead, the Court reaffirms its previous
denial of Plaintiff’s Motion to Compel [ECF No. 108], insofar as Plaintiff seeks to compel the
production of testing documents aimed at determining whether Dyson’s “twice the suction”
claims were literally false at inception. Such documents are not reasonably likely to lead to the
discovery of admissible evidence relevant to Plaintiff’s claims for relief, as those claims have
been pleaded in the Amended Complaint.
Finally, Plaintiff’s Motion to Amend its Amended Complaint is denied. Although Federal
Rule of Civil Procedure 15(a)(2) provides that leave to amend should be freely granted “when
justice so requires,” that liberal standard is replaced by a “more demanding ‘good cause’
standard” after a party misses the deadline to amend set forth in the Court’s scheduling order.
Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004) (citations omitted). Here, the
Court entered a Scheduling Order providing that all motions to amend the pleadings must be
filed by June 15, 2015. [ECF No. 43]. Plaintiff has not demonstrated good cause for waiting until
December 23, 2015 to move to amend, particularly when all fact discovery closed on November
24, 2015. [ECF No. 89]. The Court further finds that Plaintiff was in agreement with Defendants’
position on the literal falsity claim, or, at a minimum, was on notice of Defendants’ position
2
The Court notes that the Amended Complaint does allege that Defendants’ “twice the suction”
claim was impliedly false from inception, on the basis that a claim of “twice the suction” falsely
implies that the Dyson Animal had superior cleaning power. [Amended Complaint, ¶¶ 56-69].
Plaintiff, however, has not argued that the documents it sought to compel are relevant to this
implied falsity claim; instead, Plaintiff has insisted that the issues presented in its Motion to
Compel are relevant to its claim of literal falsity. The Court clarifies that its rulings to date, and
its ruling in this Order, are limited to the Plaintiff’s literal falsity claim, and that the Court has
not addressed, nor has it been asked to address, any issues relating to the implied falsity
allegations in Paragraphs 56-69 of the Amended Complaint.
8
several months prior to the close of fact discovery, and yet Plaintiff did not file its Motion to
Compel until November 9, 2015, two weeks before fact discovery closed. Plaintiff’s Motion to
Amend was filed more than a month later. Plaintiff offers no valid explanation for why it failed
to raise this critical issue earlier in the proceedings. The Court further finds that allowing an
amendment at this stage of proceedings would be unduly prejudicial, as it would require the reopening of fact discovery and the taking of additional depositions in support of a legal theory
that Plaintiff did not attempt to advance until far too late in the life of this case.
For the foregoing reasons:
1. Plaintiff’s Motion for Reconsideration [ECF No. 134] is DENIED. For the reasons stated
on the record at the November 20, 2015 hearing, and for the reasons set forth in this
Order, the Court reconfirms its prior rulings on Plaintiff’s Motion to Compel [ECF No.
108] and further denies Plaintiff’s request to amend its First Amended Complaint.
2. Plaintiff’s request to certify the Court’s ruling for interlocutory appeal pursuant to 28
U.S.C. § 1292(b) [ECF No. 134] is also DENIED, as Plaintiff has not demonstrated
circumstances that would warrant an interlocutory appeal.
3. Plaintiff’s Motion for Alternative Dispute Resolution [ECF No. 143] is DENIED without
prejudice. Although the Court commends Plaintiff’s willingness to engage in ADR, in
light of Defendants’ Response to Plaintiff’s Motion for Alternative Dispute Resolution
[ECF No. 144], the Court does not believe that additional settlement conferences or
mediation sessions are likely to be productive at this time. Plaintiff may renew its request
for a referral to the Court’s Alternative Dispute Resolution program after dispositive
motions have been fully briefed.
9
SO ORDERED.
Dated: February 12, 2016
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?