Hornady Manufacturing v. Double Tap Ammunition
MEMORANDUM DECISION AND ORDER -denying 151 Motion to Dismiss for Failure to State a Claim and granting in part and denying in part 176 Motion to Amend/Correct. Signed by Judge Ted Stewart on 4/15/13. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
COMPANY, a Nebraska Corporation,
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
DISMISS AND GRANTING IN PART
AND DENYING IN PART MOTION
DOUBLETAP AMMUNITION, INC., a Utah
Case No. 2:11-CV-18 TS
This matter is before the Court on Defendant Doubletap Ammunition, Inc.’s
(“Doubletap”) Motion to Dismiss and Plaintiff Hornady Manufacturing Company’s (“Hornady”)
Motion to Amend Caption and Identify Defendant by its Correct Legal Name. For the reasons
discussed more fully below, the Court will deny Doubletap’s Motion to Dismiss and grant in part
and deny in part Hornady’s Motion to Amend.
Both Doubletap and Hornady sell high-end ammunition for various types of firearms. In
1997, Hornady began using the TAP trademark in connection with ammunition. Hornady has
registered its TAP marks with the Patent and Trademark office. In 2010, Hornady sent a cease
and desist letter to Doubletap alleging that Doubletap’s use of “tap” in its name was infringing
Hornady’s TAP trademark. In January 2011, Hornady filed this action against Doubletap for
trademark infringement, deceptive trade practice, and unjust enrichment.
In the caption to its Complaint, Hornady named Doubletap as “Double Tap Ammunition,
Inc., a Utah corporation.”1 Doubletap, in its Answer, stated that “there is no such legal entity
named Double Tap Ammunition, Inc.” and indicated that “Doubletap, Inc. is a Utah corporation
operating in Cedar City, Utah, but denies that Doubletap, Inc. has been correctly named as a
Doubletap’s correct legal name, as listed with the Division of Corporations and
Commercial Code for the State of Utah, is “DOUBLETAP, INC.”3 The Division of Corporations
and Commercial Code also lists “Double Tap, Inc.” as a former name for Doubletap.4 During the
Docket No. 2, at 1.
Docket No. 6, at 2.
Docket No. 181 Ex. A, at 1.
course of litigation the parties have referred to Doubletap as “DoubleTap Ammunition, Inc.,”
“Double Tap, Inc.,” “Double Tap Ammunition, Inc.,” and “Doubletap, Inc.”5
Doubletap moves to dismiss Hornady’s Complaint because Doubletap’s proper corporate
name is not included in the caption of the Complaint. Hornady opposes Doubletap’s Motion and
requests that the Court grant it leave to remedy its failure to properly name Doubletap by
amending the caption to its Pretrial Order to contain Doubletap’s correct legal name.
II. STANDARD OF REVIEW
“A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to
dismiss under Rule 12(b)(6).”6 In considering a motion to dismiss for failure to state a claim
upon which relief can be granted under Rule 12(b)(6), all well-pleaded factual allegations, as
distinguished from conclusory allegations, are accepted as true and viewed in the light most
favorable plaintiff as the nonmoving party.7 Plaintiff must provide “enough facts to state a claim
to relief that is plausible on its face,”8 which requires “more than an unadorned, the-defendantunlawfully-harmed-me accusation.”9 “A pleading that offers ‘labels and conclusions’ or a
Docket No. 175, at 7.
Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000)
(citing Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992)).
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
‘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.’”10
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.”11 As the Court in Iqbal stated,
only a complaint that states a plausible claim for relief survives a motion to
dismiss. Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. But where 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 shown—that the pleader is entitled to
As a threshold issue, both parties raise the specter of untimeliness as grounds for denying
the opposing sides motion. Hornady argues that Doubletap’s Motion to Dismiss is untimely
because it was filed on January 16, 2013, and the dispositive motion deadline in this case was
December 13, 2012. Doubletap, in turn, asserts that Hornady’s Motion to Amend is also
untimely under the scheduling order.
The Federal Rules of Civil Procedure provide guidance on the time-frame within which a
motion to amend and motion to dismiss must be filed. Rule 15 provides for the amendment of a
plaintiff’s complaint in advance of trial, during trial, and in some cases, even after a judgment
Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
Iqbal, 556 U.S. at 678–79 (alteration in original) (internal quotation marks and citations
has been entered.13 Rule 12(c) provides that a motion for judgment on the pleadings may be
raised “[a]fter the pleadings are closed[,] but early enough not to delay trial.” Rule 12(h)(2)(C)
further instructs that a “[f]ailure to state a claim upon which relief can be granted . . . may be
raised . . . at trial.” Thus, it is clear that the parties’ motion are authorized under the federal rules.
The delay issue arises from the parties’ failure to abide by the terms of the scheduling
order in place in this case. Federal Rule of Civil Procedure 16(b) provides for the imposition of a
scheduling order limiting the time to “amend the pleadings, complete discovery, and file
motions.” The parties do not dispute that each of their motions were filed in violation of the
scheduling order. Rule 16(f) provides that the Court, on its own motion, “may issue any just
orders, including those authorized under Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . .
fails to obey a scheduling or other particular order.”
It is somewhat difficult for the Court to square the parties’ arguments on delay. Both
parties were aware during the early stages of this case that the proper party had not been named.
Yet neither acted on this understanding until more than two years had passed. During the
intervening time period, the resources of the Court and the parties have been expended in an
attempt to reach a resolution of this case on the merits. In short, the Court finds that the delay in
this case comes as a result of the parties’ tactical procedural maneuvering and deliberate
oversight. Such actions are not condoned by the Court. That being said, the Court will decline to
strike the parties’ motions on untimeliness grounds. The Court will therefore turn to the merits
of the parties’ motions.
See Fed. R. Civ. P. 15(a)-(b).
Doubletap asserts that this case must be dismissed as a matter of law because Hornady
has sued a non-existent company. Hornady contends that dismissal is improper because this is
merely a “misnomer” case and, in any event, Doubletap has not been prejudiced because it has
appeared and litigated the case on the merits. On this basis, Hornady moves the Court to allow it
to amend its caption to include Doubletap’s proper corporate name.
The Tenth Circuit has previously recognized that “[c]orrections of misnomers are
permitted under Rule 15(c).”14 A misnomer situation is one where “the plaintiff actually sued
and served the correct party, the party he intended to sue, but mistakenly used the wrong name of
defendant.”15 It is important in such a case that the defendant “had notice of the suit within the
statutory period and was not prejudiced by a technical change in the style of the action.”16 In
other words, a misnomer case must still meet the requirements of Rule 15(c). The Tenth Circuit
has made clear that
essentially three elements must be met before Rule 15(c) relation back will be
allowed, even when the result could be extinguishment of the claim: (1) same
transaction or occurrence; (2) the new party had notice of the action, prior to the
expiration of the statute of limitations; and (3) he knew or should have known that
but for a mistake in identity the action would have been brought against him.17
Here, these elements are easily met. Whether asserted against Double Tap Ammunition,
Inc., or Doubletap, Inc., this suit involves the same occurrence—the alleged infringement of
Graves v. Gen. Ins. Corp., 412 F.2d 583, 584 (10th Cir. 1969) (internal citations
Id. at 585.
Watson v. Unipress, Inc., 733 F.2d 1386, 1390 (10th Cir. 1984).
Hornady’s TAP mark. Doubletap has been on notice of the claims against it since the inception
of the case and, indeed, has appeared and defended in this matter as if properly sued. Thus,
Doubletap knew, or should have known, that but for a mistake in identity the action would have
been brought against it. For the same reasons, the Court finds that Doubletap will not suffer any
prejudice by being properly named in this suit.
Based on the foregoing, the Court finds that Hornady’s failure to name the proper party in
its Complaint resulted from a misnomer and Hornady meets all the elements necessary for
amendment and relation back under rule 15(c). It follows that justice requires that Hornady be
granted leave to amend.18 Therefore, the Court will deny Doubletap’s Motion to Dismiss and
grant Hornady’s Motion to Amend.
As a final matter, Doubletap properly notes that Hornady seeks leave to amend the
caption in this matter to include “Double Tap, Inc.” as a party. This is not Doubletap’s proper
legal name. In a misguided effort to support its trademark infringement claims, Hornady has
insisted throughout the course of this litigation to refer to Doubletap as “Double Tap,” thereby
providing more emphasis on the “tap” section of Doubletap’s name—the section of Doubletap’s
name for which Hornady has obtained a trade mark. There does not appear to be any legitimate
dispute that Doubletap’s proper name is “Doubletap, Inc.” Thus, to the extent Hornady wishes to
proceed against Doubletap, it must amend its Complaint to include that name, and that name
See Graves, 412 F.2d at 586.
Based on the foregoing, it is hereby
ORDERED that Doubletap’s Motion to Dismiss (Docket No. 151) is DENIED. It is
ORDERED that Hornady’s Motion to Amend Caption and Identify Defendant by its
Correct Legal Name (Docket No. 176) is GRANTED IN PART AND DENIED IN PART.
Hornady is instructed to file an amended complaint that reflects only the changes authorized
above within seven (7) days of this Order.
DATED April 15, 2013.
BY THE COURT:
United States District Judge
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