North American Insurance Agency Inc et al v. Bates

Filing 93

ORDER granting in part and denying in part #82 defendant Joey D. Dills Motion to Dismiss for Failure to State a Claim Pursuant to FRCP 12(b)(6) and for Lack of Subject Matter Jurisdiction Pursuant to FRCP 12(b)(1) and Alternatively Motion for More Definite Statement Pursuant to FRCP 12(c) as follows: The Court grants the motion to dismiss as to Count V (Violation of Computer Fraud and Abuse Act as Against All Defendants) of plaintiffs' First Amended Complaint, dismisses Count V as to Dills, and denies the motion in all other respects (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 1/3/2013. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NORTH AMERICAN INSURANCE
AGENCY, INC., d/b/a INSURICA,
ROBERT C. BATES, L.L.C., and
COMMERCIAL INSURANCE
SERVICES L.L.C.,
Plaintiffs,
vs.
ROBERT C. BATES, JOEY D. DILLS,
and COMMERCIAL INSURANCE
BROKERS, L.L.C., a State of Oklahoma
Corporation,
Defendants.

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Case No. CIV-12-544-M

ORDER
Before the Court is defendant Joey D. Dills’ (“Dills”) Motion to Dismiss for Failure to State
a Claim Pursuant to FRCP 12(b)(6) and for Lack of Subject Matter Jurisdiction Pursuant to FRCP
12(b)(1) and Alternatively Motion for More Definite Statement Pursuant to FRCP 12(c), filed
September 10, 2012. On October 1, 2012, plaintiffs filed their response.
Dills moves this Court to dismiss Count I (Violation of the Lanham Act under 15 U.S.C. §
1125(a) as against all Defendants) and Count V (Violation of Computer Fraud and Abuse Act as
against all Defendants) for failure to state a claim against him. If the above counts are dismissed,
Dills further moves this Court to dismiss plaintiffs’ state law claim against him for lack of
jurisdiction.
In his motion, Dills asserts that he is not mentioned by name anywhere in Count I and that
he is presumably included in plaintiffs’ generic reference to “Defendants.” Dills further asserts that
plaintiffs have failed to plead one fact or any basis for finding that Dills, in his individual capacity,

has violated the Lanham Act regarding the naming of defendant Commercial Insurance Brokers,
L.L.C. (“CIB”). Specifically, Dills contends that plaintiffs have not pled a single fact that would
raise the question of whether Dills is individually liable for the naming of CIB and have not pled any
legal theory that would form the basis for ignoring the legal protections afforded Dills individually
as a member or partner in a limited liability company.
Having carefully reviewed plaintiffs’ First Amended Complaint, the Court finds that
plaintiffs’ Lanham Act claim does not allege a violation of the Lanham Act solely based upon the
naming of CIB. Plaintiffs’ Lanham Act claim also alleges a violation of the Lanham Act based upon
defendants’ intended use of documents marked with the Robert C. Bates, L.L.C. letterhead and
name. Further, the Court finds that it is clear upon review of plaintiffs’ First Amended Complaint
in its entirety that plaintiffs’ use of the term “Defendants” includes Dills. Throughout the First
Amended Complaint, plaintiffs use an individual defendant’s name when referring to that specific
defendant and use the term “Defendants” when referring to all defendants. Assuming the allegations
in plaintiffs’ First Amended Complaint are true, the Court finds that plaintiffs have set forth
sufficient allegations of a Lanham Act claim against Dills individually – plaintiffs clearly allege that
Dills’ intended use of documents marked with the Robert C. Bates, L.L.C. letterhead and name
would be a violation of the Lanham Act and should be enjoined. Accordingly, the Court finds that
Count I should not be dismissed.
Regarding plaintiffs’ Computer Fraud and Abuse Act claim, Dills asserts that plaintiffs have
not set forth sufficient facts to state a violation or intended violation of the Computer Fraud and
Abuse Act by Dills. Dills contends that plaintiffs’ First Amended Complaint simply contains

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general allegations of the elements but contains no facts demonstrating any violation or intended
violation by him.
“A pleading that offers labels and conclusions or a formulaic recitation of the elements of
a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid
of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
and citations omitted). Having carefully reviewed plaintiffs’ First Amended Complaint, the Court
finds that plaintiffs have not set forth sufficient facts, as opposed to conclusory allegations, to state
a claim against Dills for violation of the Computer Fraud and Abuse Act. Accordingly, the Court
finds that Count V should be dismissed as to Dills.
Finally, because this Court has found that plaintiffs’ Lanham Act claim should not be
dismissed as to Dills, the Court finds that it clearly has supplemental jurisdiction over plaintiffs’
state law claim against Dills.
Therefore, for the reasons set forth above, the Court GRANTS IN PART and DENIES IN
PART Dills’ Motion to Dismiss for Failure to State a Claim Pursuant to FRCP 12(b)(6) and for Lack
of Subject Matter Jurisdiction Pursuant to FRCP 12(b)(1) and Alternatively Motion for More
Definite Statement Pursuant to FRCP 12(c) [docket no. 82] as follows: The Court GRANTS the
motion to dismiss as to Count V (Violation of Computer Fraud and Abuse Act as Against All
Defendants) of plaintiffs’ First Amended Complaint, DISMISSES Count V as to Dills, and DENIES
the motion in all other respects.
IT IS SO ORDERED this 3rd day of January, 2013.

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