I Love Omni LLC et al v Omnitrition International Inc
The defendant's Rule 12(b)(6) 9 motion to dismiss is GRANTED in part and DENIED in part. The defendant's 9 motions to dismiss pursuant to Rule 12(b)(1) and 12(e) are DENIED. The plaintiffs shall have leave to amend their complaint to cure these pleading defects, if they can, provided the amended complaint is filed and served no later than 3/31/2017. (Ordered by Senior Judge A. Joe Fish on 3/17/2017) (epm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
I LOVE OMNI, LLC, ET AL.,
HEIDI WHITEHAIR, ET AL.,
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendant, Omnitrition International,
Inc. (“Omnitrition”), to dismiss the claims of the plaintiffs, I Love Omni, LLC
(“ILO”) and Heidi Whitehair (“Whitehair”), pursuant to FED. R. CIV. P. 12(b)(1)
and 12(b)(6), or alternatively for a more definite statement pursuant to Rule 12(e)
(docket entry 9). For the reasons stated below, the defendant’s Rule 12(b)(1) and
Rule 12(e) motions are denied. The defendant’s Rule 12(b)(6) motion is granted in
part and denied in part.
A. Factual Background
Omnitrition is a direct sales, person-to-person marketing company. Original
Complaint (“Complaint”), Exhibit A, at 6 (docket entry 1). Whitehair is an
individual residing in Auburn, Washington. Id. ¶ 3. ILO is a privately-held limited
liability company with its principal place of business in Auburn, Washington. Id. ¶ 2.
The plaintiffs allege that Whitehair acted through ILO in dealing with Omnitrition
and that both of the plaintiffs generated millions of dollars in sales for Omnitrition.
Id. ¶ 39.
Whitehair became a distributor of Omnitrition products in 1998. Id. ¶ 10. A
distributor of Omnitrition products is also referred to as an Independent Marketing
Associate (“IMA”). Id. IMAs are paid for selling Omnitrition products in accordance
with Omnitrition’s sales and marketing plan. Id. ¶¶ 20, 21. IMAs may sponsor other
Omnitrition distributors, and an IMA’s sponsored distributors become part of the
IMA’s down-line organization or personal/group organization. Id., Exhibit A, at 4.
IMAs earn money by selling Omnitrition products purchased at a discount to
retail customers; by selling Omnitrition products to distributors within the IMA’s
personal/group organization; by earning the difference between a down-line
distributor’s discount and the IMA’s discount on the Omnitrition product purchases
made by the down-line distributor; by earning up to a five percent “royalty value” of
three generations of qualified down-line distributors’ volume (“royalty overrides”); by
earning a bonus of up to four percent of a “royalty value” of the fourth, fifth, and
sixth generation qualified down-line supervisors (“bonus level royalty overrides”); and
by earning “periodic promotional bonuses.” Id. ¶¶ 20, 22, 23, 24, 25, 27.
The plaintiffs contend that ILO qualified as a “Bonus Level Supervisor.” Id.
¶ 28. IMAs qualified as bonus level supervisors can earn an additional three levels of
royalty overrides, but in exchange must sign a non-compete agreement. Id. ¶ 27. On
July 26, 2016, ILO “voluntarily terminated its non-compete.” Id. ¶ 35. ILO was
suspended by Omnitrition on July 28, 2016, and terminated on August 5, 2016. Id.
¶ 35. The plaintiffs maintain that they developed a down-line of distributors prior to
termination and that this down-line constitutes an independent business owned by
the plaintiffs. Id. ¶ 41.
B. Procedural Background
The plaintiffs filed their complaint on August 18, 2016. See id. Whitehair
sues Omnitrition for breach of contract, violating the Texas Theft Liability Act
(“TTLA”), business disparagement, tortious interference with business relationships,
and violating the Lanham Act. Id. at 8-12. ILO accuses Omnitrition of breach of
contract, violating the TTLA, tortious interference with business relationships, and
violating the Lanham Act. Id. The plaintiffs also seek a declaratory judgment
concerning five provisions of the contract. Id. at 7-8.
In response, Omnitrition filed the instant motion pursuant to Federal Rules of
Civil Procedure 12(b)(1), 12(b)(6), and 12(e). See Defendant’s Motion to Dismiss
(“Motion”) (docket entry 9). The plaintiffs then filed a timely response, which was
followed by Omnitrition’s timely reply. See Plaintiffs’ Response to Defendant’s
Motion to Dismiss (“Plaintiffs’ Response”) (docket entry 18); Defendant’s Reply to
the Motion to Dismiss (docket entry 19). The motion is now ripe for decision.
A. Rule 12(b)(1) Motion to Dismiss
Rule 12(b)(1) authorizes the dismissal of a case for lack of jurisdiction over the
subject matter. FED. R. CIV. P. 12(b)(1). Subject-matter jurisdiction must be
resolved before any other challenge because “the court must find jurisdiction before
determining the validity of a claim.” Moran v. Kingdom of Saudi Arabia, 27 F.3d 169,
172 (5th Cir. 1994) (citation and internal quotation marks omitted); see also Ruhrgas
AG v. Marathon Oil Company, 526 U.S. 574, 577 (“The requirement that jurisdiction
be established as a threshold matter . . . is inflexible and without exception.”). On a
Rule 12(b)(1) motion, which “concerns the court’s ‘Very power to hear the case . . .
[,] the trial court is free to weigh the evidence and satisfy itself as to the existence of
its power to hear the case.’” MDPhysicians & Associates, Inc. v. State Board of Insurance,
957 F.2d 178, 180-81 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir.), cert. denied, 454 U.S. 897 (1981)).
Article III of the United States Constitution limits federal courts’ jurisdiction
to “cases” and “controversies.” U.S. CONST. art. III § 2. Standing -- i.e., the need to
show that the plaintiffs have a direct, personal stake in the outcome of the suit -- is
an “essential and unchanging part” of this case-or-controversy requirement. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The federal courts are under an
independent obligation to examine their own jurisdiction, and standing is perhaps the
most important of [the jurisdictional] doctrines.” United States v. Hays, 515 U.S.
737, 742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 (1990))
(internal quotation marks omitted). As the Supreme Court explained in Lujan, the
“irreducible constitutional minimum of standing” has three elements:
First, the plaintiff must have suffered an “injury in fact” -an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Second,
there must be a causal connection between the injury and
the conduct complained of -- the injury has to be “fairly
. . . trace[able] to the challenged action of the defendant,
and not . . . th[e] result [of] the independent action of
some third party not before the court.” Third, it must be
“likely,” as opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.”
504 U.S. at 560-61 (internal citations and footnote omitted); see also Vermont Agency
of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000); Public
Citizen, Inc. v. Bomer, 274 F.3d 212, 217-18 (5th Cir. 2001). All three elements must
exist to establish Article III standing. Vermont Agency, 529 U.S. at 771. Because
these elements “are not mere pleading requirements but rather an indispensable part
of the plaintiff’s case, each element must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of litigation.” Lujan, 504 U.S. at
561. “At the pleading stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that
general allegations embrace those specific facts that are necessary to support the
claim.’” Id. (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)).
In ruling on a motion to dismiss under Rule 12(b)(1), the court may rely on:
“1) the complaint alone; 2) the complaint supplemented by undisputed facts; or
3) the complaint supplemented by undisputed facts and the court’s resolution of
disputed facts.” MCG, Inc. v. Great Western Energy Corporation, 896 F.2d 170, 176
(5th Cir.1990) (citing Williamson, 645 F.2d at 413)).
Omnitrition urges that ILO lacks standing to bring its claim because “ILO
failed to allege what written contract or other writing it claims to have been a party
with Omnitrition.” Motion ¶ 5. The plaintiffs argue that the “Sales and Marketing
Plan and Rules and Regulations Handbook” (“the handbook”) establishes a
contractual relationship between ILO and Omnitrition. See Complaint ¶¶ 9, 31-32.
However, the complaint fails to describe the nature of the relationship between ILO
and Omnitrition and does not state when or even if ILO was approved as an IMA.
The complaint does not explain why ILO was created. Further, the complaint does
not distinguish between Whitehair’s down-line and ILO’s down-line, although
presumably the plaintiffs contend that ILO and Whitehair have one down-line
between them. See id. ¶¶ 39, 35.
Here, if the facts alleged in the complaint are taken as true, ILO has a direct
and personal interest in the outcome of this case. It states that “Whitehair, acting
through I Love Omni, produced millions of dollars in sales to Defendant.” Id. ¶ 39.
The complaint further avers that ILO was a bonus level supervisor which, the
plaintiffs contend, renders ILO an IMA. See id. ¶ 28, Exhibit A, at 4. According to
the complaint, when an IMA reaches a certain sales volume for a specified period of
time, the IMA is eligible “to receive a royalty Override and/or Bonus Level Royalty
Override payment(s).” Id., Exhibit A, at 8.
The complaint contains sufficient factual allegations to demonstrate that ILO
suffered an “injury in fact,” both “concrete and particularized” and “actual and
imminent” by alleging that ILO was terminated prior to the end of the response
period, that Omnitrition withheld earned commissions from ILO, and that
Omnitrition improperly calculated commissions, royalty payments, and bonus
payments to ILO. Id. ¶¶ 35, 36. ILO has a direct, personal stake in the outcome of
the case because of its alleged economic injuries, and ILO has standing to bring its
claims. See Lujan, 504 U.S. at 560; Texas Democratic Party v. Benkiser, 459 F.3d 582,
586 (5th Cir. 2006) (“[E]conomic injury is a quintessential injury upon which to
base standing.”). Therefore, Omnitrition’s motion to dismiss for lack of standing is
B. Rule 12(b)(6) Motion to Dismiss
“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
‘enough facts to state a claim to relief that is plausible on its face.’” In re Katrina
Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 552 U.S. 1182
(2008). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief 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 555
(internal quotation marks, brackets, and citation omitted). “Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if doubtful in fact).” In re Katrina
Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal quotation
marks omitted). “The court accepts all well-pleaded facts as true, viewing them in
the light most favorable to the plaintiff.” Id. (quoting Martin K. Eby Construction
Company, Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004))
(internal quotation marks omitted).
The Supreme Court has prescribed a “two-pronged approach” to determine
whether a complaint fails to state a claim under Rule 12(b)(6). See Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009). The court must “begin by identifying the pleadings
that, because they are no more than conclusions, are not entitled to the assumption
of truth.” Id. at 679. The court should then assume the veracity of any well-pleaded
allegations and “determine whether they plausibly give rise to an entitlement of
relief.” Id. The plausibility principle does not convert the Rule 8(a)(2) notice
pleading standard to a “probability requirement,” but “a sheer possibility that a
defendant has acted unlawfully” will not defeat a motion to dismiss. Id. at 678. The
plaintiff must “plead factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged -- but it has not ‘show[n]’ -- ‘that the pleader
is entitled to relief.’” Id. at 679 (alteration in original) (quoting FED. R. CIV. P.
8(a)(2)). The court, drawing on its judicial experience and common sense, must
undertake the “context-specific task” of determining whether the plaintiffs’
allegations “nudge” their claims against Omnitrition “across the line from conceivable
to plausible.” See id. at 679, 683.
1. The Plaintiffs’ Claim for Declaratory Judgment
Under Texas law, a party to a written contract “may have determined [by
declaratory judgment] any question of construction or validity arising under the . . .
contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (Vernon 2014). “When
declaratory relief is sought, all persons who have or claim any interest that would be
affected by the declaration must be made parties. A declaration does not prejudice
the rights of a person not a party to the proceeding.” TEX. CIV. PRAC. & REM. CODE
ANN. § 37.006(a) (Vernon 2014). “A declaratory judgment requires a justiciable
controversy as to the rights and status of parties actually before the court for
adjudication, and the declaration sought must actually resolve the controversy.”
Brooks v. Northglen Association, 141 S.W.3d 158, 163-64 (Tex. 2004).
The plaintiffs fail to state a claim for declaratory judgment because they fail to
demonstrate, on each issue, that a justiciable controversy exists and that the
controversy will be resolved by the declaration sought. See id. Further, the plaintiffs’
declaratory judgment claim lacks sufficient factual allegations and is a formulaic
recitation of the elements. See Twombly, 550 U.S. at 555. Therefore, Omnitrition’s
motion to dismiss the plaintiffs’ declaratory judgment claims pursuant to Rule
12(b)(6) is granted.
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2. The Plaintiffs’ Claim for Breach of Contract
“Under Texas law, [t]he essential elements in a breach of contract claim are as
follows: (1) the existence of a valid contract; (2) that the plaintiff performed or
tendered performance; (3) that the defendant breached the contract; and (4) that the
plaintiff was damaged as a result of the breach.” Bridgmon v. Array Systems
Corporation, 325 F.3d 572, 577 (5th Cir. 2003) (internal quotations omitted).
Omnitrition first argues that Whitehair did not assert a breach of contract claim.
Motion ¶ 1.1 However, the court finds that both of the plaintiffs asserted a breach of
contract claim.2 Omnitrition does not seek to dismiss Whitehair’s breach of contract
claim. See Motion ¶¶ 18, 19, 20.
Omnitrition seeks to dismiss ILO’s claim, contending that ILO failed to allege
the existence of a contractual relationship between ILO and Omnitrition. Motion
¶ 19. While the relationship between ILO and Whitehair is not detailed in the
complaint, the plaintiffs alleged that ILO was terminated by Omnitrition, and prior
to termination, ILO was a bonus level supervisor. Complaint ¶¶ 28, 35. These facts
In its motion to dismiss, Omnitrition contends that Whitehair does not
assert “[a Breach of Provisions of Sales and Marketing Plan and Rules and Regulation
Handbook] claim on the face of the complaint.” Motion ¶ 1.
The breach of contract section of the complaint includes the use of the
word “plaintiffs.” See Complaint ¶¶ 34, 37. For example, the complaint includes the
following: “As a result of Defendant’s failure to honor the Sales and Marketing Plan
and improper enforcement of the Rules and Regulations, Plaintiffs have suffered
monetary damages that are likely to exceed $2,000,000.” Id. ¶ 37.
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support an inference that a contractual agreement governed the relationship between
ILO and Omnitrition. As a result, Omnitrition’s motion to dismiss ILO’s breach of
contract claim pursuant to Rule 12(b)(6) is denied.
3. The Plaintiffs’ Claim for Violation of the Texas Theft Liability Act
The TTLA provides that a defendant is liable to a plaintiff for damages
resulting from a theft, as defined by the Texas Penal Code. TEX. CIV. PRAC. & REM.
CODE ANN §§ 134.002-134.003 (Vernon 2011). The Texas theft statute provides
that it is an offense to “unlawfully appropriate[ ] property with intent to deprive the
owner of property.” TEX. PEN. CODE ANN. § 31.03(a) (Vernon 2011). “Appropriate”
is defined as bringing about the transfer of title, TEX. PEN. CODE ANN. § 31.01(4)
(Vernon 2011), which the plaintiffs contend occurred when Omnitrition claimed
ownership of the ILO/Whitehair down-line following ILO’s suspension and
termination and when Omnitrition retained the plaintiffs’ commissions and other
payments. Complaint ¶¶ 41, 42.
The plaintiffs brought their TTLA claim under Texas Penal Code
§ 31.04(a)(4). Complaint ¶ 38. Under that section, a person commits theft if “the
actor intentionally or knowingly secures the performance of the service by agreeing to
provide compensation and, after the service is rendered, fails to make full payment
after receiving notice demanding payment.” TEX. PEN. CODE ANN. § 31.04(a)(4).
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Omnitrition has met its heavy burden of demonstrating that the plaintiffs will
not able to establish a TTLA claim under § 31.04(a)(4). The complaint makes only
conclusory allegations, merely recites the elements of the applicable codes, and does
not offer sufficient factual support. See Twombly, 550 U.S. at 555. Further, the
plaintiffs do not assert that Omnitrition received notice demanding payment -- one of
the two elements of TEX. PEN. CODE ANN. § 31.04. Thus, the court concludes that
the plaintiffs have not pleaded “enough facts to state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. Omnitrition’s 12(b)(6) motion to dismiss
the plaintiffs’ TTLA claims is granted.
4. Whitehair’s Business Disparagement Claim
The general elements of a claim for business disparagement are (1) publication
by the defendant of the disparaging words, (2) falsity, (3) malice, (4) lack of
privilege, and (5) special damages. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d
167, 170 (Tex. 2003); 67 TEX. JUR. 3D SLANDER OF TITLE § 4 (2015). “The tort is
part of the body of law concerned with the subject of interference with commercial or
economic relations.” Hurlbut v. Gulf Atlantic Life Insurance Company, 749 S.W.2d 762,
766 (Tex. 1987). The Restatement identifies the tort by the name “injurious
falsehood” and notes its application “in cases of the disparagement of property in
land, chattels, or intangible things or of their quality.” Id. (citing RESTATEMENT
(SECOND) OF TORTS § 623A, comment a (1977)).
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In her business disparagement claim, Whitehair averred that Omnitrition
undertook a “campaign to disparage” her reputation following ILO’s suspension and
termination. Complaint ¶¶ 41, 43. However, Whitehair fails to include exactly
where and to whom the statements were published. See id. Because a plaintiff is
required to plead that the statements were published for the claim of business
disparagement, the plaintiffs’ claim is deficient and must be dismissed. See Desperado
Motor Racing & Motorcycles, Inc. v. Robinson, No. H-09-1574, 2010 WL 2757523, at *3
(S.D. Tex. July 13, 2010) (dismissing defamation and business disparagement claims
when the plaintiff “failed to plead any facts in support of the publication element of
his claims”).3 Thus, Omnitrition’s motion to dismiss pursuant to Rule 12(b)(6) is
granted as to Whitehair’s business disparagement claim.
5. The Plaintiffs’ Claims for Tortious Interference
with Business Relationships
Under Texas law, the “elements of a cause of action for tortious interference
are (1) the existence of a contract subject to interference, (2) the act of interference
was willful and intentional, (3) such intentional act was a proximate cause of
plaintiff’s damage and (4) actual damage or loss occurred.” Victoria Bank & Trust
Company v. Brady, 811 S.W.2d 931, 939 (Tex. 1991). “To establish proximate cause,
Because the plaintiffs failed to meet the first element of a claim for
business disparagement, the court need not address whether Whitehair’s factual
allegations satisfy the remaining elements of the claim.
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a party must show that the defendant took an active part in persuading a party to a
contract to breach it.” Amigo Broadcasting, LP v. Spanish Broadcasting System, Inc., 521
F.3d 472, 493 (5th Cir. 2008) (citation and internal quotation marks omitted).
The plaintiffs failed to provide factual assertions supporting the elements of a
tortious interference claim. First, the plaintiffs did not explicitly plead the existence
of a contract subject to interference between ILO, or Whitehair, and the down-line.
Further, the plaintiffs did not provide any facts, even tangentially, demonstrating
that the “defendant took an active part in persuading a party to a contract to breach
it” and thus failed to adequately plead Omnitrition’s acts were the proximate cause of
the plaintiffs’ damage. Id. Because the plaintiffs failed to meet the first and third
elements, Omnitrition’s motion to dismiss pursuant to Rule 12(b)(6) is granted as to
the plaintiffs’ tortious interference claim.
6. The Plaintiffs’ Claims for Lanham Act Violations
The plaintiffs contend that Omnitrition made the following false and
misleading commercial statements, and that these statements injured the plaintiffs:
Omnitrition has 5.2 million distributors in 24
countries around the world.
Any distributor who signed up on or after
March 1st, 2012 will be subject to auto
renewal annually within 1 month of the
anniversary of their sign up date and will have
the charge applied to the credit card on file.
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Complaint ¶ 48. Omnitrition, on the other hand, asserts that the plaintiffs lack
standing to bring their Lanham Act claim. Motion ¶¶ 41-42 (citing 15 U.S.C.A.
To establish standing under § 1125(a), a plaintiff “must plead (and ultimately
prove) an injury to a commercial interest in sales or business reputation proximately
caused by the defendant’s misrepresentations.” Lexmark International, Inc. v. Static
Control Components, Inc.,
, 134 S. Ct. 1377, 1395 (2014). Further, a
plaintiff “ordinarily must show economic or reputational injury flowing directly from
the deception wrought by the defendant’s advertising; and that that occurs when
deception of consumers causes them to withhold trade from the plaintiff.” Id. at
Omnitrition contends, and the court agrees, that the plaintiffs do not provide
any facts regarding their alleged injuries, or that Omnitrition’s conduct deceived
consumers. Motion ¶ 35. The plaintiffs failed to allege that Omnitrition’s conduct
“caused [consumers] to withhold trade from the plaintiff.” Lexmark International, Inc.,
134 S. Ct. at 1391. The plaintiffs do not make any factual allegations that
Omnitrition’s statements caused customers to switch from purchasing the plaintiffs’
products to purchasing Omnitrition’s products or that consumers do not distinguish
the plaintiffs’ products from Omnitrition’s products. Lastly, the plaintiffs generally
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assert the statements caused “material injury” but do not provide any factual support
linking Omnitrition’s conduct and the plaintiffs’ injuries. Complaint ¶ 48.
The plaintiffs have not adequately pleaded an “injury to a commercial interest
in sales or business reputation proximately caused by the defendant’s
misrepresentation.” Lexmark International, Inc., 134 S. Ct. at 1395. Further, the
plaintiffs have not averred that Omnitrition’s conduct “caused consumers to withhold
trade from the plaintiffs.” Id. at 1391. Therefore, the plaintiffs have failed to show
that they have standing to sue under the Lanham Act.
C. Rule 12(e) Motion for a More Definite Statement
When a party moves for a more definite statement, “the court must determine
whether the complaint is such that a party cannot reasonably be required to frame a
responsive pleading.” Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 130 (5th Cir.
1959). Federal Rule of Civil Procedure 8(a)(2) simply requires that a claimant give
“a short and plain statement of the claim showing that the pleader is entitled to
relief,” and Twombly and Iqbal have interpreted “short and plain” to mean that the
plaintiff must plead enough facts to state a claim that is “plausible on its face.” FED.
R. CIV. P. 8(a)(2); Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678. The court does
not believe that the plaintiffs’ surviving claim -- the breach of contract claim -- is so
vague that Omnitrition cannot reasonably respond to it. Thus, Omnitrition’s motion
for a more definite statement is denied.
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For the above stated reasons, the defendant’s Rule 12(b)(6) motion to dismiss
is GRANTED in part and DENIED in part. The defendant’s motions to dismiss
pursuant to Rule 12(b)(1) and 12(e) are DENIED. The plaintiffs shall have leave to
amend their complaint to cure these pleading defects, if they can, provided the
amended complaint is filed and served no later than March 31, 2017.
March 17, 2017.
A. JOE FISH
Senior United States District Judge
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