Goodman v. Does 1-10
ORDER - Lagoy's motion to dismiss the Lanham Act claim [DE-12] is ALLOWED and the Lanham Act claim is DISMISSED with prejudice. The court declines to extend supplemental jurisdiction over the remaining claims in this lawsuit, and the complaint i s DISMISSED. The first motion to dismiss [DE-7] is DENIED as moot, and the motion for entry of default [DE-8] is DENIED. The Clerk of Court is DIRECTED to close this case. Signed by Senior Judge James C. Fox on 3/28/2014. Copy mailed to pro se defendant via US Mail. (Grady, B.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
TODD D. GOODMAN,
JOHN and JANE DOES 1-10, and
This matter is before the court on a number of motions. The complaint [DE-1] alleges
various defamation and unfair competition claims related to postings on www.localdirtbags.com
and names the Defendants as “John and Jane Does.” After filing the complaint, Plaintiff Todd
Goodman (“Goodman”) sent the summons and complaint to Aplus.net, the business name listed
on www.localdirtbags.com (hereinafter “localdirtbags”). However, it turned out that Aplus.net
was not responsible for the content on the website. Instead, Aplus.net apparently licensed its
name and business address for use on the localdirtbags website, presumably because the actual
website author wanted to conceal her identity. When Aplus.net received a copy of the summons
and complaint, it forwarded the documents to Linda Lagoy, who has entered an appearance pro
se in the instant action and admits that she is the website author. See Answer [DE-12] ¶¶ 20, 21,
When Lagoy made her appearance, motions practice began in earnest. Lagoy
immediately filed a “motion to dismiss and in the alternative motion for extension of time to file
answer” [DE-7], alleging that Goodman failed to properly effect service under Rule 4 of the
Federal Rules of Civil Procedure. Goodman, in turn, observed that Lagoy’s response was not
timely and promptly filed a motion for entry of default [DE-8]. Subsequently (and before the
court had ruled on either motion), Lagoy filed a “Motion to Dismiss, Answer, and Defenses”
[DE-12]. This “motion” provides multiple arguments for dismissal, including an argument that
Goodman’s false advertising claim under the Lanham Act fails to state a claim upon which relief
can be granted. The motion also provides a full answer to Goodman’s complaint, including
numbered responses corresponding to all 172 paragraphs of Goodman’s 84-page complaint. All
of these motions have been fully briefed and are ripe for disposition. For the reasons that follow,
the second motion to dismiss [DE-12] is ALLOWED as to the Lanham Act claims and that claim
is DISMISSED with prejudice. The court declines to extend supplemental jurisdiction over the
remaining claims and those claims are also DISMISSED. The remaining motions are DENIED.
Goodman has been the target of an extraordinarily aggressive smear campaign on the
localdirtbags website. Goodman, a licensed auto mechanic, owns and operates Affordable
Transmissions, a general automotive and transmission repair shop in Raleigh, North Carolina.
He also owns a number of similar automotive repair businesses in eastern North Carolina. The
localdirtbags website is apparently devoted to ruining Goodman’s personal and business
reputation. The articles and associated comments allege that Goodman cheats customers by,
among other things, rebuilding transmissions that do not need repair, refusing to fix substandard
work without additional payment, and generally overcharging customers. In addition, the
website posts various articles regarding Goodman’s alleged criminal record and alleges that
Goodman remains an incalcitrant criminal and extortonist.
The website is organized as a “blog” that contains various articles regarding Goodman
and his associates and allows users to post comments below the articles. The articles themselves
contain most of the factual content regarding Goodman’s alleged deceptive business practices
and alleged criminal activities. Goodman does not quote from the articles in the complaint, but
he has attached the articles to the complaint and incorporated them by reference. The “Mike and
Tiffany” article [DE-1-14, Ex. 13a] is representative. Goodman allegedly quoted a price of $800
to $1500 to “Mike and Tiffany” to rebuild the transmission in one of their vehicles. After saving
up for a year, the couple returned to Affordable Transmission and Goodman’s employees rebuilt
the transmission. When Tiffany returned to retrieve the vehicle and pay for the work, Goodman
allegedly charged her $2,300. Because the couple had anticipated a maximum price of $1,500
(which they had spent a year saving), Tiffany was forced to arrange a payment plan. Goodman
allegedly required Tiffany to write out a check for $800, which he agreed not to cash if the
couple made the monthly payments.
Tiffany noticed that the transmission was slipping after leaving the store. She returned to
Affordable the next morning and an employee took the car for a test drive. The employee opined
that nothing was wrong with the transmission and Tiffany left again. Shortly after leaving, the
transmission fluid began leaking and Tiffany drove the car to a new mechanic, who informed her
a seal was broken on the transmission. When Tiffany asked Goodman to make the necessary
repairs, he asked for additional money. Tiffany and Mike apparently decided to take their
business elsewhere at that point. However, the parade of horribles did not end. When the couple
missed a payment on their $800 debt, Goodman allegedly cashed the (worthless) $800 check and
“had the nerve to prosecute them for a bad check.” [DE-1-14, Ex. 13a].
The remaining articles on the website either allege similar experiences with Goodman’s
businesses or denigrate his character directly. Their substance can be inferred from the titles:
“Another Victim of Todd Goodman” [DE-1-7, -8, Ex. 7a, Ex. 7b]; “Your Neighbor the Felon”
[DE-1-3, Ex. 3]; “Goodman’s Conviction for Extortion” [DE-1-10, Ex. 9]; “Victim of Todd
Goodman” [DE-1-12, Ex. 11]. Each of these articles (and others) are attached to Goodman’s
complaint and incorporated by reference.
Goodman’s complaint also contains numerous quotations from the “comments” sections
underneath the articles. Because the substantive content of these postings is significant to the
analysis below, the court will recite some representative samples of the comments on the
website. In doing so, the court emphasizes that none of these statements (or the articles), to the
extent they allege facts at all, are supported by any evidence at this stage of the proceedings. As
quoted in Goodman’s complaint, the localdirtbags website contains the following allegations:
Hey, Toddy [Goodman]! Why don’t you give up on the lying . . . all the years you
have been doing it should have made you better at it, instead it has just made YOU
a complete idiot! . . . You are such scum! I hope you get everything you deserve.
LET’S CALL IT WHAT IT IS! THE GUY IS SCUM! LOWER THAN SNAIL
POOP! NOT SURE WHY YOU PEOPLE ARE BEATING AROUDN (sic) THE
BUSH ABOUT IT. HE’S A LOWLIFE, CRIMINAL PUKE!!!!!!! aNYONE THAT
PICKS ON WOMEN AND MARINES DURING WAR TIME.. YOU CAN’T GET
LOWER THAN THAT!!!! i’VE GOT PLENTY OF ROPE, LET’S HANG HIM
AND BE DONE WITH THIS BS!!!!!!!!!!!!!!!!!!
YEAH IT TAKES A REAL TOUGH GUY TO TAKE ADVANTAGE OF WOMEN,
SENIOR CITIZENS AND MARINES ON DEPLOYMENT. NOTE TO TODD
GOODMAN: MARINES, WOMEN AND SENIORS HAVE RELATIVES THAT
AIN’T GOIN’ NOWHERE. CAN’T WAIT TO MEET YA!
I am sure that Todd [Goodman] had a good Christmas as he had every dollar of his
victim’s money, but the couch that will fry him he will soon sit, keep this website
going. For those of you that haven’t been around very long, my view is “get rid of
the electric chair and buy a couch; that way we can fry 3 dirtbags at once.” Peace to
ALL and Happy New Year to you and yours.
Compl. [DE-1] ¶¶ 51(a), 54(b), 63(c), 63(h) (capital letters and errors in original).
In addition, Goodman alleges that the website author herself posted most of the
comments associated with the articles under various pseudonyms and that any comments that
reflect positively on Goodman’s auto repair businesses are immediately deleted. As discussed
above, Linda Lagoy has entered a notice of appearance pro se in this matter and she admits that
she is the website creator and author of many of the articles. As of March 25, 2014, the website
remains operational. See Local Dirtbags, http://www.localdirtbags.com (last visited March 25,
A. Standard of Review
Lagoy has filed a motion to dismiss Goodman’s Lanham Act claim under Federal Rule of
Civil Procedure 12(b)(6).1 The purpose of a motion to dismiss under Rule 12(b)(6) is to test the
legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the
Goodman argues the court should not consider Lagoy’s motion to dismiss because she failed to
answer or otherwise defend within twenty-one days of Goodman filing the complaint. See Fed. R. Civ. P.
12(a). Goodman also requests that the court enter default against Lagoy for failing to respond within the
proper time frame. The court notes that Lagoy appeared (and filed a responsive pleading) approximately
thirty days after Goodman served Aplus.net. A nine-day delay in filing her motion to dismiss/request for
extension of time does not warrant the drastic sanction of default. And even if the court entered default
in this case, Goodman would still be required to show how the factual allegations in the complaint state a
claim for relief to obtain a default judgment. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780
(4th Cir. 2001). As discussed below, Goodman cannot do that, at least as to the Lanham Act claim,
which provides the jurisdictional basis for this action. Goodman’s motion for entry of default is therefore
action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). While the court
accepts the factual allegations as true, the “‘[f]actual allegations must be enough to raise a right
to relief above the speculative level’ and the plaintiff must allege ‘enough facts to state a claim to
relief that is plausible on its face.’” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615
n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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.” Aschcroft v. Iqbal,
556 U.S. 662, 678 (2009). The court may consider “documents incorporated into the complaint
by reference, and matters of which a court may take judicial notice” when deciding a Rule
12(b)(6) motion. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
B. Lanham Act Claim
The Lanham prohibits, among other things, the “use in commerce [of] any . . . false
designation of origin, false or misleading description of fact, or false or misleading representation
of fact, which . . . in commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or
commercial activities . . . .” 15 U.S.C. § 1125(a)(1)(B). Although Goodman variously
denominates his Lanham Act claim as a “false designation of origin” or “false representation”
claim, in reality he brings a claim for false advertising. Goodman’s allegations precisely track
the Lanham Act language, quoted above, that allows for civil claims for false advertising.2 See
The court also notes that Goodman does not allege any facts that could potentially make this a
false designation of origin case. False designation of origin requires that a defendant obtained physical
goods from a plaintiff, repackaged the unaltered goods, and sold them under the defendant’s name.
Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23, 31 (2003). None of Goodman’s factual
allegations suggest the Doe Defendants obtained products from Goodman and resold them under [cont.]
Compl. [DE-1] ¶¶ 102-111 (“Doe Defendants misrepresented the nature, characteristics, and
qualities of Plaintiff’s services and commercial activities in connection with the commercial
advertising and promotion of Doe Defendants’ services and products.”). A Lanham Act false
advertising claim may proceed when a plaintiff sufficiently alleges:
(1) the defendant made a false or misleading description of fact or representation of
fact in a commercial advertisement about his own or another's product; (2) the
misrepresentation is material, in that it is likely to influence the purchasing decision;
(3) the misrepresentation actually deceives or has the tendency to deceive a
substantial segment of its audience; (4) the defendant placed the false or misleading
statement in interstate commerce; and (5) the plaintiff has been or is likely to be
injured as a result of the misrepresentation, either by direct diversion of sales or by
a lessening of goodwill associated with its products.
PBM Prods. LLC v. Mead Johnson & Co., 639 F.3d 111, 120 (4th Cir. 2011); Scotts Co. v.
United Indus., 315 F.3d 264, 272 (4th Cir. 2002); Cashmere & Camel Hair Mfrs. Inst. v. Saks
Fifth Ave., 284 F.3d 302, 310-11 (1st Cir. 2002). Although the Fourth Circuit has not defined the
term “commercial advertisement,” several circuit courts and district courts within the Fourth
Circuit have adopted the four-part test from Gordon & Breach Science Publishers v. American
Institute of Physics, 859 F. Supp. 1521 (S.D.N.Y. 1994). See, e.g., Podiatrist Ass’n, Inc. v. La
Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 19 (1st Cir. 2003); Rice v. Fox Broad. Co., 330 F.3d
1170, 1181 (9th Cir. 2003); Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1273-74 (10th
their names. The court is not aware of any “false representation” causes of action under the Lanham Act,
except to the extent a false representation that occurs in the context of false association or false
advertising is actionable. The Lanham Act provides for two bases of liability: false association and false
advertising. Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). Nothing in the plaintiff’s complaint
suggests that the website created consumer confusion regarding the affiliation or association of
Goodman’s trademark with the website postings, as would be required to maintain a false association
claim. 15 U.S.C. § 1125(a)(1)(A).
Cir. 2000); Design Res., Inc. v. Leather Indus. of Am., 900 F. Supp. 2d 612, 619-20 (M.D.N.C.
Under the Gordon & Breach test, a particular statement is only “commercial
advertisement or promotion” where it is “(1) commercial speech; (2) by a defendant who is in
commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy
defendant’s goods or services [and the representations must be] (4) disseminated sufficiently to
the relevant purchasing public.” Boykin Anchor Co. v. AT&T Corp., 825 F. Supp. 2d 706, 710
(E.D.N.C. 2011) (quoting Gordon & Breach, 859 F. Supp. at 1535-36); Tao of Sys. Integration,
Inc. v. Analytical Servs. & Materials, Inc., 299 F. Supp. 2d 565, 572 (E.D. Va. 2004).
Commercial speech, in turn, is “speech that does no more than propose a commercial
transaction[,]” United States v. Edge Broad. Co., 509 U.S. 418, 426 (1993), or speech “related
solely to the economic interests of the speaker and its audience.” City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 422 (1993).
Courts have also looked to the legislative history of the Lanham Act for guidance on the
definition of commercial speech. See Gordon & Breach, 859 F. Supp. at 1533; Wojnarowicz v.
Am. Family Ass’n, 745 F. Supp. 130, 141-42 (S.D.N.Y. 1990). For example, in discussing the
purposes of the amendment adding the false advertising cause of action to the Lanham Act,
Representative Kastenmeier stated:
Under this proposed change only false or misleading “advertising or promotion”
would be actionable, whether it pertained to the advertiser itself or another party. The
change would exclude all other misrepresentations from section 43(a) coverage.
These others are the type which raise free speech concerns, such as a Consumer
Report which reviews and may disparage the quality of . . . products, [and]
misrepresentations made by interested groups which may arguably disparage a
company and its products . . . . All of these would be judged by first amendment
law . . . and not section 43(a) law . . . .
[T]he proposed change in section 43(a) should not be read in any way to limit
political speech, consumer or editorial comment, parodies, satires, or other
constitutionally protected material . . . . The section is narrowly drafted to encompass
only clearly false and misleading commercial speech.
135 Cong. Rec. H1216-17 (daily ed. April 13, 1989); see also 134 Cong. Rec. 31,851 (Oct. 19,
1988) (statement of Rep. Kastenmeier) (explaining the reach of the false advertising claim
embodied in § 1125(a)(1)(B) “specifically extends only to false and misleading speech that is
encompassed within the ‘commercial speech’ doctrine developed by the United States Supreme
Court.”). Summarizing this legislative history, the Southern District of New York has noted,
“[The Lanham Act] has never been applied to stifle criticism of the goods or services of another
by one, such as a consumer advocate, who is not engaged in marketing or promoting a
competitive product or service.”3 Wojnarowicz, 745 F. Supp. at 141-42.
Here, Goodman has failed to sufficiently allege that these internet postings constitute
commercial speech or that they were made “by a defendant in commercial competition with
plaintiff.” Gordon & Breach, 859 F. Supp. at 1535-36. The complaint contains two allegations
related to the commercial interests of the Doe Defendants. The first is a legal conclusion that the
Likely in response to these observations, an intricate body of law developed around the socalled “prudential standing” requirements a plaintiff must satisfy to bring a false advertising Lanham Act
claim. See, e.g., Nemet Chevrolet, LTD. v. Consumeraffairs.com, 564 F. Supp. 2d 544, 551-53 (E.D. Va.
2008) (describing various approaches to prudential standing used in the Circuit Courts of Appeals in
false advertising cases). In one fell swoop, the Supreme Court recently abrogated essentially all of the
prudential standing doctrine related to false advertising. See Lexmark Intern. Inc. v. Static Control
Components, Inc., No. 12-873, 572 U.S. ___ (March 25, 2014). The court notes that the Supreme Court
did not address whether “Static Control’s allegations failed to describe ‘commercial advertising or
promotion . . . .’” Slip Op. at 4 n.1 (“That question is not before us, and we express no view on it.”).
Accordingly, the court applies the standard test described above for determining whether a statement
constitutes commercial advertising or promotion, which has been adopted by numerous circuit courts
throughout the country and has been in existence since 1994.
postings and articles represent “commercial activities in connection with the commercial
advertising and promotion of Doe Defendants’ services and products,”4 Compl. [DE-1] ¶ 103.
The court is not required to credit legal conclusions when deciding a motion to dismiss.
Twombly, 550 U.S. at 555 (explaining, “on a motion to dismiss, courts are not bound to accept as
true a legal conclusion couched as a factual allegation.” (internal quotation marks omitted)).
The only factual allegation related to the Defendants’ commercial interest in the website is
contained in paragraph 104: “[u]pon information and belief, Doe Defendant who registered and
operates localdirtbags.com engages in the conduct alleged in this Complaint in order to drive
traffic to the blog, and increase the monetary value of the blog, in a collective effort to promote
and sell the blog to a third party.” Compl. [DE-1] ¶ 104.
This allegation is plainly insufficient to state a false advertising claim. That the
Defendant operator5 published the articles and comments in an effort to make the website
attractive for sale to third-parties is not sufficient to bring these postings within the commercial
speech doctrine. The allegation could be made about any website. If a person creates a website
in which he posts videos of kittens in various entertaining endeavors with the aim of ultimately
making the website attractive to third-party purchasers, surely the videos themselves would not
constitute speech that “does no more than propose a commercial transaction[,]”or that is “related
solely to the economic interests of the speaker and its audience.” Edge Broad., 509 U.S. at 426;
The paragraph is simply a recitation of the statutory language. See § 1125(a)(1)(B)
(prohibiting false representations “in commercial advertising or promotion . . . of [the defendant’s or
another’s] goods, services, or commercial activities.”).
The complaint also fails to address the commercial interests of any of the other doe defendants,
other than the legal conclusion in paragraph 103.
Discovery Network, 507 U.S. at 422. As the plain language of Edge Broadcasting and Discovery
Network makes clear, the content of the speech itself is the significant factor in the commercial
Other than the allegation that the website author has a commercial interest in visits to her
website, the complaint utterly fails to allege any commercial interest in the actual content of any
of the articles or comments. Nor can the court draw a reasonable inference in Goodman’s favor
on this issue. See Iqbal, 556 U.S. at 678 (“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.”). As can be seen from even a cursory review of the comments
and articles discussed above, the statements do not propose a commercial transaction in any
traditional sense of that phrase and the court cannot reasonably infer that the statements relate
solely to the speaker and his audience’s economic interests.6 See, e.g., Compl. [DE-1] ¶ 51(a)
(“Hey, Toddy [Goodman]! Why don’t you give up on the lying . . . all the years you have been
doing it should have made you better at it, instead it has just made YOU a complete idiot!”), ¶
63(c) (“NOTE TO TODD GOODMAN: MARINES, WOMEN AND SENIORS HAVE
RELATIVES THAT AIN’T GOIN’ NOWHERE. CAN’T WAIT TO MEET YA!”). In sum,
while the articles and comments may support a claim for defamation, they do not plausibly
constitute commercial speech. See Shell v. Am. Family Rights Ass’n, 899 F. Supp. 2d 1035,
1060-62 (D. Colo. 2012) (“While [allegations regarding internet postings criticizing another’s
work] might state a claim for defamation, [the complaint] does not plausibly allege the
The court acknowledges that it is possible (although not plausible) that some of these postings
come from Goodman’s competitors, which potentially suggests the statements are related solely to the
economic interests of at least the speaker. The court addresses this issue below.
advertising of a product or service sold by [the defendant].”); Nemet Chevrolet, 564 F. Supp. 2d
at 554-55 (finding consumer reviews posted on internet did not constitute commercial advertising
or promotion under Gordon & Breach factors).
The complaint also fails to allege that any of these articles or comments come from
Goodman’s competitors, who would have an economic interest in disparaging Goodman’s
businesses.7 See Gordon & Breach, 859 F. Supp. at 1535-36 (requiring that statement come from
a defendant who is in commercial competition with plaintiff to constitute commercial
advertisement or promotion). Instead, the complaint contains numerous quotations from
anonymous posters on the website, and leaves it to the court to draw inferences regarding
whether these postings come from Goodman’s competitors. The court finds that it cannot draw a
reasonable inference in Goodman’s favor on this issue. As noted above, the tenor of each of
these comments reflect consumer reviews by parties with no commercial interest in the postings
themselves. Goodman essentially concedes as much by alleging that the Defendants’ commercial
interest in this case is in driving traffic to the website, not diverting business from Goodman to
his competitors. See Nemet Chevrolet, 564 F. Supp. 2d at 554 (“Defendant is not in commercial
competition with Plaintiffs. This would in turn prevent a finding that the representations at issue
The viability of the second factor of the Gordon & Breach test is somewhat in question after
the Lexmark decision. In Lexmark, the Supreme Court held direct competition between the plaintiff and
defendant is not required for a plaintiff to have standing to bring a false advertising claim. See Lexmark,
slip op. at 18 (“It is thus a mistake to infer that because the Lanham Act treats false advertising as a form
of unfair competition, it can protect only the false-advertiser’s direct competitors.”). The Court also
noted that “[b]y the time the Lanham Act was adopted, the common law tort of unfair competition was
understood not to be limited to actions between competitors.” Id. at 17. This court does not read the
Supreme Court’s statements to authorize suit against consumers for web postings like the ones at issue in
this case. As explained, the complaint fails to allege any reasonable commercial interest in the content of
the postings. Surely Lexmark is not to be read to eliminate the word “commercial” from “commercial
advertising and promotion.” § 1125(a)(1)(B).
constitute commercial advertising.”); Wojnarowicz, 745 F. Supp. at 141-42 (“[The Lanham Act]
has never been applied to stifle criticism of the goods or services of another by one, such as a
consumer advocate, who is not engaged in marketing or promoting a competitive product or
The court acknowledges that this issue is complicated by the fact that Goodman does not
know the identities of the defendants at this stage of the proceedings. Indeed, the cases the court
has uncovered in which internet postings did not constitute commercial advertising or promotion
involved defendants whose identities were known and where it was obvious that the plaintiff and
defendant were not in commercial competition with each other. See Shell, 899 F. Supp. 2d at
1060-62; Boykin Anchor Co., 825 F. Supp. 2d at 709-11; Nemet Chevrolet, 564 F. Supp. 2d at
546. It is possible that some of the Doe Defendants are commercial competitors of the plaintiff
who have decided to post negative comments in an effort to drive business away from Goodman.
See NTP Marble Inc. v. AAA Hellenic Marble, Inc., 2012 WL 607975, at *1 (E.D. Pa. Feb. 27,
2012) (false advertising claim proceeded when discovery revealed competitors were responsible
for negative reviews on consumer review websites). As explained above, however, the court
finds that this is not a plausible inference given the content of the statements. In addition, the
court has reviewed all of the numerous statements in this complaint and none of them outright
encourage the readers to take their business to a specific competitor. Although in general a
commercial advertisement under the Lanham Act does not need to contain a business solicitation,
see Neuros Co. Ltd. v. KTurbo, Inc., 698 F.3d 514, 522 (7th Cir. 2012), the fact that no
competitor solicitations occur in any of the numerous postings on the website cuts against any
potential inference that these postings come from competitors. Compare NTP Marble, 2012 WL
607975, at *7 (denying motion for summary judgment on false advertising claim despite absence
of outright business solicitations where evidence suggested economic motivation for internet
To summarize, the court finds that Goodman has not sufficiently alleged that these
articles and comments constitute commercial advertising or promotion under the Gordon &
Breach factors. The complaint’s only allegation regarding the Defendants’ commercial interest
in the website is not sufficient to satisfy the commercial speech doctrine. In addition, the facts
alleged in the complaint do not allow the court to draw a reasonable inference that these
comments come from defendants who have a commercial interest in disparaging Goodman’s
reputation. Accordingly, the court finds that the complaint fails to state a false advertising claim,
and count one is therefore DISMISSED.8
C. Supplemental Jurisdiction over State Law Claims
The court’s jurisdiction in this action is predicated on original jurisdiction over the
Lanham Act claim, and supplemental jurisdiction over the remaining state law claims. 28 U.S.C.
The court declines to allow Goodman an opportunity to file an amended complaint attempting
to assert a Lanham Act claim. Specifically, the court is concerned about allowing the false advertising
claim to proceed in the context of this particular case. As explained above, these comments appear to be
non-actionable consumer review comments. Allowing leave to amend on the remote possibility that
discovery will reveal that Goodman’s competitors are responsible for the postings would allow a plaintiff
to maintain a false advertising claim against virtually any website that allows users to post negative
online reviews. Mindful of the limited jurisdiction of the federal courts, the court is concerned about
setting a precedent where a plaintiff can manufacture federal jurisdiction on the questionable allegations
presented by these particular facts. In contrast, if the court were presented with a case where a plaintiff
has a good faith belief that the anonymous posters were competitors, NTP Marble, 2012 WL 607975, at
*1, the court would be open to allowing this claim to proceed. Goodman’s failure to allege any
legitimate commercial interest in the internet postings in the original complaint, along with the content of
these particular postings, counsels against allowing leave to amend in these circumstances. Nevertheless,
nothing in this ruling precludes Goodman from later asserting a Lanham Act claim, should he become
aware of facts which cause him to have a good faith belief that the anonymous posters were competitors.
§ 1367(a). However, because the court is dismissing Goodman’s federal claim, it may decline to
exercise supplemental jurisdiction over Plaintiff’s other claims. 28 U.S.C. § 1367(c)(3); see Hunt
v. Branch Banking & Trust Co., 480 F. App’x 730, 732 (4th Cir. 2012). In this regard, the
Supreme Court has stated that, when “federal claims are dismissed before trial . . . state claims
should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
The court has considerable discretion in deciding whether to extend supplemental jurisdiction.
Hunt, 480 F. App’x at 732. In this case, the court declines to extend supplemental jurisdiction
over Goodman’s state law claims, and they are DISMISSED without prejudice. Pursuant to 28
U.S.C. § 1367(d), the period of limitation for any supplemental claim shall be tolled while the
claim is pending in federal court and for a period of 30 days after it is dismissed.
D. Rule 8 Issues
Finally, the court notes that it considered dismissing this complaint for failure to follow
Rule 8 of the Federal Rules of Civil Procedure. The eighty-four page complaint consists
primarily of lengthy block quotations from the localdirtbags website. After sixty-one pages of
quotations from the website, the reader is finally informed of the first claim for relief on page
sixty-two. And even within the claims for relief, there are numerous instances of additional (and
repetitive) block quotations from the website. Rule 8 requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8. Although the court
recognizes that the new pleading standards under Twombly and Iqbal require more factual
allegations than may have been previously necessary, there is nothing short or plain about this
complaint. Counsel is forewarned that future complaints like this may be subject to summary
dismissal for failure to follow Rule 8.
In summary, Lagoy's motion to dismiss the Lanham Act claim [DE-12] is ALLOWED
and the Lanham Act claim is DISMISSED with prejudice. The court declines to extend
supplemental jurisdiction over the remaining claims in this lawsuit, and the complaint is
DISMISSED. The first motion to dismiss [DE-7] is DENIED as moot, and the motion for entry
of default [DE-8] is DENIED. The Clerk of Court is DIRECTED to close this case.
SO ORDERED .
-:;g day of March, 2014.
enior United States District Judge
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