Jackson et al v. Sweet Sensations, LLC, ET AL. et al

Filing 32

Memorandum Opinion and Order denying 21 MOTION to Dismiss, 25 MOTION to Dismiss. Signed by District Judge Tom S. Lee on 8/5/11 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MONROE’S DONUTS & BAKERY
VS.

PLAINTIFFS
CIVIL ACTION NO. 3:10CV664TSL-MTP

SWEET SENSATIONS BAKERY, LLC,
SWEET SENSATIONS BAKERY, INC.,
JACQUELINE COLEMAN, PHILLIP
COLEMAN AND THE DONUT SHOP CAFÉ, INC.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the separate motions of
defendants Jacqueline Coleman and Phillip Coleman to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiffs Monroe’s Donuts & Bakery and Monroe Jackson have
responded in opposition to the motion, and the court, having
considered the parties’ memoranda and the complaint, together with
attachments, concludes that the motions must be denied.
On November 10, 2010, plaintiffs filed their initial
complaint against defendants Sweet Sensations, LLC and The Donut
Shop Café, Inc., asserting that these two businesses were
infringing on plaintiffs’ registered trademark in violation of the
Lanham Act, 15 U.S.C. §§ 22, 42 and 43.

On April 14, 2011, the

court struck this complaint on the basis that it was not signed by
plaintiffs’ counsel.

The court’s order of that date further

pointed out that while plaintiffs had apparently intended to sue
the now-dissolved Sweet Sensations Bakery, LLC and its successor,
Sweet Sensations Bakery, Inc., they had in fact filed suit against
an unrelated entity.

Finally, the order granted plaintiffs leave

to file an amended complaint.
On May 2, 2011, plaintiffs filed their first amended
complaint, naming as defendants Sweet Sensations Bakery, LLC,
Sweet Sensations Bakery, Inc., Jacqueline Coleman, Phillip Coleman
and The Donut Shop Café, Inc.

In addition to their claims that

the Lanham Act had been violated, by the amended complaint,
plaintiffs assert putative claims of common law trademark
infringement, state trademark infringement and unfair competition
in violation of Mississippi Code Annotated §§ 75-25-21 and 75-2525, as well as intentional and negligent infliction of emotional
distress.
While Sweet Sensations Bakery, Inc. answered the complaint,
defendants Jacqueline and Phillip Coleman filed motions to
dismiss.

Phillip Coleman maintains that the complaint against him

must be dismissed because it does not detail any facts or
allegations against him personally and because he cannot be held
personally liable for the actions of his employer, Sweet
Sensation, Inc.

Jacqueline Coleman seeks dismissal on the bases

that under Mississippi law, as a corporate officer, she cannot be
held liable for the actions of the corporation, and that the
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complaint fails to set forth any allegations against her
personally.

Both defendants further seek sanctions against

plaintiffs and their counsel for frivolously joining them as
defendants.
In response to the motions, plaintiffs, while seemingly
conceding that Phillip Coleman cannot be individually liable as a
mere employee of Sweet Sensations Bakery, Inc., take the position
that Phillip Coleman is subject to liability as an “owner” of the
now dissolved Sweet Sensations Bakery, LLC, and contending that
the complaint sufficiently pleads that prior to the LLC’s
dissolution, the Colemans, personally, had notice of their
infringing activity, but failed to cease and desist.
With regard to the moving defendants, in a section of the
complaint labeled “The Parties,” plaintiffs aver that “[o]n
information and belief, Defendant Jacqueline Coleman was and/or is
the owner and/or manager of Defendant SSBL and SSBI during the
time or times of the actions complained of herein.”

A separate

paragraph makes the same allegations against Phillip Coleman.
a section of the complaint denominated as “Background Facts: B.
Defendants’ SSBL and/or SSBI Infringing Use and Interference,”
plaintiffs charge as follows:
That in or about the spring of 2010, SSBL and/or
SSBI began doing business in Jackson, Mississippi
engaging in the sale of donuts and baked goods. At
about this time, these Defendants erected a confusingly
similar sign to that of Plaintiffs. The sign consisted
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In

of a donut made into the shape of a woman, bearing high
heel shoes, lip stick, and other feminine features.
(See Logo of Sweet Sensations, attached hereto as
Exhibit “C”). Defendants have utilized this mark in
conjunction with the sale of such baked goods,
suggestively donuts [sic] to consumers in this judicial
district.
That on or about June 14, 2010, Plaintiffs sent a
cease and desist letter to these defendants in which it
was demanded that they cease and desist from all further
use of Monroe’s trademark, and that it remove its’ [sic]
display of the symbol. They responded by claiming that
they had not participated in any infringement and/or had
not committed any acts of wrongdoing with respect to the
claims set forth therein. (See Copy of Response Letter,
attached hereto as Exhibit “E”).
Notably, the Cease and Desist letter attached as an exhibit to the
complaint, was directed to Mr. and Mrs. Coleman while the bakery
was apparently still operating as an LLC.

Plaintiffs’ various

causes of action do not purport to specify or detail the actions
of any particular defendant, but rather collectively refer to
“defendants.”
The purpose of a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) is to test the formal sufficiency of
the statement of the claim for relief.

See Wright & Miller,

Federal Practice and Procedure: Civil 3d § 1356 (2004).

With the

limited exception of those cases described in Rule 9, a complaint
need only satisfy the “simplified pleading standard” of Rule 8(a),
which requires a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S. Ct.
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992, 152 L. Ed. 2d 1 (2002).

However, as the Supreme Court has

recently made clear, while Rule 8 is not exacting, it does
“require[] a ‘showing,’ rather than a blanket assertion, of
entitlement to relief,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 n.3, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), so that
to survive a motion to dismiss under Rule 12(b)(6), “a complaint
must contain enough factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face,’” Ashcroft v.
Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d
868 (2009) (quoting Twombly, 550 U.S. at 561-62, 127 S. Ct. 1955).
“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Id.

A

complaint “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Twombly, 550 U.S. at 559, 127 S. Ct. 1955.

Generally, a

court ruling on a 12(b)(6) motion may rely on the complaint, its
proper attachments, “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.”
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.
2008) (citations and internal quotation marks omitted).
Although the complaint here is not a model of clarity and the
matter is altogether confused by plaintiffs’ subject heading

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“Defendants’ SSBL and/or SSBI Infringing Use and Interference” and
by their subsequent use of the term “defendants” without
clarification that the factual allegations of this section reached
not only the business entities listed in the heading, but also
defendants Phillip and Jacqueline Coleman, the court agrees that
plaintiffs have stated a claim against both defendants.

As

plaintiffs point out, defendant Phillip Coleman, a mere employee
of Sweet Sensation Bakery, Inc. has not disclaimed potential
liability as an officer or director of the dissolved LLC.
Further, as to Jacqueline Coleman’s argument that she is shielded
from liability by the corporate form, while it is true under
Mississippi law that “individual liability of corporate officers
may not be predicated merely on their connection to the
corporation,” the law recognizes that where “a corporate officer
directly participates in or authorizes the commission of a tort,
even on behalf of the corporation, he may be held personally
liable.”

Turner v. Wilson, 620 So. 2d 545, 548 (Miss. 1993).

Viewing the allegations of the complaint, illuminated by the
exhibits attached to the complaint, plaintiffs have stated a claim
that the Colemans directly participated in the alleged misconduct
set out in the complaint, and the complaint may not be dismissed
pursuant to Rule 12(b)(6).

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Based on the foregoing, it is ordered that defendants’
motions to dismiss for failure to state a claim upon which relief
may be granted are denied.
SO ORDERED this 5th day of August, 2011.

/s/Tom S. Lee
UNITED STATES DISTRICT COURT JUDGE

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