Pro-Concepts, LLC v. Resh

Filing 34

OPINION AND ORDER granting in part and denying in part 21 Motion to Dismiss for Failure to State a Claim; denying in part and granting in part 24 Motion to Dismiss: The Court DENIES Plaintiff's Request for a Hearing on Defendant's and Plaintiff's motions to dismiss, ECF No. 26. The Court GRANTS, in part, and DENIES, in part, Plaintiff's Motion to Dismiss Defendant's Counterclaims. ECF No. 21. The Court GRANTS Plaintiff's Motion to Dismiss Defendant's Coun terclaims 1, 3, 4,5, 6, and 7. The Court DENIES Plaintiff's Motion to Dismiss Defendant's Counterclaim 2 for Computer Fraud and Abuse.Defendants' Motion to Dismiss, which is treated as a Motion for Judgment on the Pleadings, is DENIED, in part, and GRANTED, in part. ECF No. 24. Defendant's Motion to Dismiss is DENIED with regard to Plaintiff's Counts I, II, III, IV, VI, and VII. Defendant's Motion to Dismiss Plaintiff's Count V is GRANTED. (Signed by District Judge Mark S. Davis and filed on 2/11/2014). Copy mailed to Pro Se Defendant and distributed to counsels of record as directed on 2/11/2014. (bgra, )

_FILED_
UNITED

STATES

EASTERN

DISTRICT

DISTRICT

Norfolk

OF

COURT

FEB 1 1 2014

VIRGINIA

Division

J

PRO-CONCEPTS,

CLERK, US DISTRICT COURT

LLC,

NORFOI K VA

Plaintiff,
v.

Civil Action No.

2:12cv573

TIMOTHY MARK RESH,
Defendant.

OPINION AND

This matter

is

ORDER

currently before

the

Court

to Dismiss filed separately by Pro-Concepts,
or

"Plaintiff")

In

the

first motion,

Defendant's
to

and Timothy Mark

state

a

Plaintiff

counterclaims
claim

under

on

Resh

moves

the

Fed.

21.

The second motion before

dismiss
below,

Plaintiff's
the

pleadings

Court

claims

with
as

Plaintiff's

relief under Rule 12(b)(6).

order

an
that

ECF No.

Defendant

failed

"and/or

to

ECF No.

is Defendant's motion to

motion

failure

dismissing

P. 12(f)."

prejudice,
a

"Defendant").

12(b)(6)

R. Civ.

the Court

interprets

asserting

for

P.

Motions

LLC ("Pro-Concepts"
or

Civ.

strike his counterclaims under Fed.

two

("Resh"

grounds

R.

on

which,
for

to

as

discussed

judgment

state

a

on

the

claim

for

24.

Plaintiff has filed a response in opposition to Defendant's
motion;

however,

response.
failed

to

Defendant has

With
file

an

regard

to

opposition

not

filed a reply to

Plaintiff's
to

motion,

Plaintiff's

Plaintiff's

Defendant

motion

to

has

dismiss.

The time for doing so has long since passed with regard to both

motions.

While the Court is cognizant that "[p]arties appearing

pro se should be given some leeway in meeting procedural rules

due to their lack of legal knowledge," Todtman, Nachamie, Spizz
& Johns,
aff'd,
has

P.C. v. Ashraf,

316 F.

App'x 51

failed to

241 F.R.D.

(2d Cir.

451,

2009)

file a response or

454

(S.D.N.Y.

(unpublished),

2007),

Defendant

a motion for an extension of

time and has had almost a year to do so.

The Court therefore

deems the motions ripe for decision.

After examination of the briefs
has

determined

unnecessary,
presented,

that

as

a

hearing

the
the

and

facts

and

decisional

on

legal

R. 7(J).

the

See Fed.

Thus,

instant

arguments

process

significantly by oral argument.
E.D. Va. Loc. Civ.

and the record,

the Court

motions

are

is

adequately

would

not

be

R.

Civ.

P.

aided

78(b);

the Court DENIES Plaintiff's

Request for a Hearing on these motions.

ECF No.

26.

For the reasons that follow, the Court GRANTS, in part, and
DENIES,

in

part,

Counterclaims;

Plaintiff's

and

Motion

to

DENIES

Defendants'

Dismiss
Motion

Defendant's
to

Dismiss

Plaintiff's Claims.
I.

Pro-Concepts

FACTUAL AND PROCEDURAL BACKGROUND

filed the

instant action on October 19,

asserting seven counts against Resh.
alleges

Pro-Concepts'

2012

Complaint

causes of action for Trademark Infringement under

the

Lanham

Act,

False

II),

15

U.S.C.

Designation

of

Cybersquatting

Unfair

§

1501

Origin

under

Competition

under

et

under

seq.,
15

15 U.S.C.
Virginia

as

amended

U.S.C.

§

law

§

1125(A)

1125(d)
(Count

(Count

(Count

(Count
IV),

I),

III),

Trademark

Dilution under Virginia law (Count V) , Breach of Contract under

Virginia

law

(Count
See,

(Count VII).

VI),

and

Compl.,

Conversion

ECF No.

under

1.

That

Virginia

same

day,

law
Pro-

Concepts separately moved for a preliminary injunction, based on

Counts I,
(1)

III, VI, and VII of the Complaint,

requiring Resh to:

cease selling or otherwise promoting a website or services

that use any designs or marks confusingly similar to or dilutive

of Risk Radar;

(2) immediately transfer ownership and control of

the Risk Radar Enterprise ("RRE") website1 to Pro-Concepts;

(3)

return any and all copies of software programs belonging to ProConcepts;

and

(4)

cease any and all use of

Risk Radar software

or any other materials belonging to Pro-Concepts.

See, Mot. for

Prelim. Inj., ECF No. 3.
Resh

Answer,

file

a

but,

moved

for

an

extension

as neither motion sought an

response

injunction,
However,

twice

Resh

to

Pro-Concepts'

failed

to

respond

of

to

file

an

extension of

time

to

motion
timely

time

for
to

preliminary
that

motion.

Resh did file a separate motion to deny the injunction

1 The "RRE" website constituting the following domain name:
www.riskradarenterprise.com.

on January 15, 2013.

As Resh is proceeding pro-se,

required to construe his

filings

treated

deny

his

motion

opposition.
for

to

liberally and the Court

injunction

as

The Court held a hearing on

preliminary

injunction

on

the Court is

Wednesday,

a

thus

response

Pro-Concepts'
January

16,

in

motion
2013

at

1:30 p.m. and each side presented testimony and offered argument
in support of their respective positions.
the

hearing,

Defendant

thus making it
the

case.

unavailable to

The

advisement

agreed

Court

then

to

take

At the conclusion of

down

the

"RRE"

website,

the public during the pendency of
took

Pro-Concepts'

and directed the parties

to

a

motion

settlement

under

conference

before a Magistrate Judge.
On January 23,
in

which

he

including

granted,
2013,

2013,

asserted

failure

to

Resh filed his Answer to the Complaint
twenty-two

state

a

claim

and seven counterclaims.

the

parties

attended

Magistrate Judge Prince.

(22)

a

affirmative

upon

which

ECF No.

16.

settlement

defenses,

relief

can

be

On January 28,

conference

The case did not settle,

before

but as

Pro-

Concepts represented to the Court in their motion to stay filed
on

January

30,

2013,

the

parties

agreed

settlement

discussions

settlement

conference.

over

the

ten

(10)

ECF

No.

17.

Agreed Order on Pro-Concepts'

This

to

continue

the

days

following

the

Court

granted

motion to stay on January 30,

and stayed the case for ten (10) days.

ECF No.

18.

the

2013

However,

in

a February 8,
motion

for

described

2013

motion,

Pro-Concepts sought a ruling on its

preliminary

by

injunction,

[Pro-Concepts]

in

its

n[b]ecause

Motion

...

issues described therein remain unresolved."
Prelim.

f

10,

ECF.

No.

the

Mot. for Ruling on

filed a motion for ruling on his motion to deny injunction.

ECF

2013,

On

and

Resh

On October 22,

19.

continue

harms

2013,

No. 23.

Inj.

the

February 20,

the Court

issued a lengthy and

detailed opinion denying Pro-Concepts' request for a preliminary
injunction.

On

ECF No.

February

30.

19,

2013,

Pro-Concepts

filed

a

motion

to

dismiss Resh's counterclaims for failure to state a claim under
Federal Rule of Civil Procedure 12(b)
pursuant

to

Rule

12(f).

ECF

No.

and to strike such claims

21.

Resh

has

not

filed

a

response in opposition to this motion.
However,

dismiss

on

February

Pro-Concepts'

representations

conference.

27,

claims

Pro-Concepts'

ECF

No.

2013,

24.

with

counsel

filed

made

at

the

responded

2013, however,

ECF No. 25.

a

prejudice

Pro-Concepts

motion to dismiss on March 7,
a reply to this response.

Resh

motion

to

based

on

settlement

to

Resh's

Resh has not filed

On March 21, 2013, Pro-

Concepts requested a hearing on both pending motions to dismiss.
ECF No.

April

1,

26.

2013

Subsequently,

the Court

directing the parties

conference before a Magistrate Judge,

issued a

second order

on

to appear at a settlement

which was

held on April

12, 2013.

ECF No.

28.

The Court then held a telephonic status

conference with the parties upon their request on May 7, 2013.
As noted above,

October 22,

the Court issued a lengthy Opinion and Order on

2013, denying Plaintiff's request for a preliminary

injunction.

Because

that

October

22,

2013

contained a detailed statement of the facts

Opinion

and Order

of this case,

the

Court will not go into these facts in detail here.

Having received such written filings, oral testimony, and
oral argument, and having given the parties sufficient time to
try to resolve their dispute in settlement conferences, this
matter is now ripe for decision.
II.

STANDARD OF REVIEW

A. Rule 12(b)(6) Motion to Dismiss

A complaint should be dismissed under Federal Rule of Civil

Procedure 12(b)(6) where it appears that the facts alleged fail
to state a "plausible" claim for relief.
U.S.

662,

678

(2009)

(quoting Bell

U.S.

544,

570 (2007)).

Ashcroft v.

Atl.

Corp.

v.

Iqbal 556

Twombly,

550

"Factual allegations must be enough to

raise a right to relief above the speculative level ... on the
assumption that all the allegations

(even if doubtful in fact)."
of

course,

strikes

a

a

well-pleaded

savvy

judge

that

in the complaint are true

Twombly,

550 U.S. at 555.

complaint

may

actual

proof

proceed
of

even

those

"And,
if

it

facts

is

improbable, and 'that a recovery is very remote and unlikely.'"

Id. at 556.

as follows:

The Fourth Circuit recently explained the standard

"To survive a Rule 12(b)(6)

complaint

must

establish

'factual

content

inference

that

that

the

'facial

allows

the

defendant

motion

to dismiss,

plausibility'

court

is

to

liable

by

a

pleading

draw the

reasonable

for

misconduct

the

alleged.'" Clatterbuck v. City of Charlottesville, 708 F.3d 549,
554 (4th Cir. 2013)
In

(quoting Iqbal, 556 U.S. at 678).

assessing

dismiss,

the

merits

a district court

factual allegations

of

"'must

a

Rule

12(b)(6)

accept as

motion

true all of

contained in the complaint'

and

reasonable inferences in favor of the plaintiff.'"
Volunteer Fire Dept.,

Inc. v. Montgomery County,

462, 467 (4th Cir. 2012)

v.

Kolon

Furthermore,

Indus.,

the

'draw all

Kensington

Md.,

684 F.3d

(quoting E.I, du Pont de Nemours & Co.

637

a district

to

F.3d
court

435,

440

(4th

Cir.

2011)).

"may consider documents

attached

to the complaint or the motion to dismiss 'so long as they are
integral to the complaint and authentic.'"
Fire Dep't,

684 F.3d at

Memorial Hosp.,

572 F.3d 176,

while a district

light

most

elements

of

(quoting

180

Philips v.

(4th Cir.

cause

to
of

the

action,

plaintiff,
and bare

Pitt Cnty.

2009)).

court must construe well-pled

favorable
a

467

Kensington Volunteer

"legal

However,

facts

in the

conclusions,

assertions

devoid

of

further factual enhancement fail to constitute well-pled facts
for

Rule

12(b)(6)

purposes."

Nemet

Chevrolet,

Ltd.

v.

Consumeraf fairs. com,

If

a plaintiff

Inc. , 591

fails

to

F.3d

allege

250,

facts

255

(4th

sufficient

infer that such plaintiff is entitled to relief,

Cir.

2009) .

to plausibly
then dismissal

must be granted.

With these pleading standards in mind,

the Court must also

consider the prior admonitions of the Supreme court, recognizing
that

the

pleadings

stringent standard.
Kerner,

be

a pro se

held

to

drafted by

of

a

pro

se

complaint,

lawyers'

and can

standards
only be

state a claim if it appears
facts

entitle him to relief."'"
(1976)

citations

Fed. Appx. 820

to

a

less

his

404 U.S.

Erickson v.

for

must

pleadings
failure

to

that the plaintiff

Estelle v. Gamble,

claim which would

429 U.S. 97,

519, 520-521
Pardus,

106

(1972))

551 U.S.

89,

Virginia Beach City Public Schools,

364

(4th Cir. 2010)

Columbia Office of Mayor,

formal

dismissed

in support of

omitted);

94 (2007); Dolgaleva v.

than

'"beyond doubt

(quoting Haines v. Kerner,

(internal

held

'however inartfully pleaded,'

stringent

of

are

"As the Court unanimously held in Haines v.

'less

can prove no set

litigant

(relying on Atherton v. Dist. Of

567 F.3d 672, 681-82

(D.C. Cir. 2009)

for the proposition that pro se complaints "must be held to less

stringent standards then formal pleadings" but that "even a pro
se complaint must plead 'factual matter'

that permits the court

to infer 'more than the mere possibility of misconduct.'").

B.

Rule 12(f) Motion to Strike

Federal Rule of Civil Procedure 12(f) provides that "[t]he

court may strike from a pleading an insufficient defense or any
redundant,

immaterial,

(emphasis added).

v.

impertinent,

or

scandalous

matter."

However, as recognized in Whittlestone, Inc.

Handi-Craft Co.,

618 F.3d 970,

974-76 (9th Cir.

2010),

Rule

12(f) is not a proper vehicle for procuring the dismissal of all
or

part

of

a pleading on

claim for relief.

the

ground that

it

fails

to state a

Such relief is better sought by use of Rule

12(b)(6).

Furthermore,

"Rule 12(f) motions are generally viewed with

disfavor 'because striking a portion of a pleading is a drastic

remedy and because it is often sought by the movant simply as a
dilatory tactic.'"

Waste Mgmt.

Holdings,

Inc.

v.

Gilmore,

252

F.3d 316, 347 (4th Cir. 2001) (quoting 5A A. Charles Alan Wright
& Arthur R. Miller, Federal Practice & Procedure § 1380, 647 (2d
ed. 1990)).

"It is a 'generally accepted view that a motion to

strike for redundancy ought not to be granted in the absence of
a clear showing of prejudice to the movant.'" Builders Mut.

Co.

v. Dragas Mgmt.

2010)
Federal

(quoting

5C

Practice

"Nevertheless,

Corp. , 709

Charles
and

F. Supp.

Alan

Procedure

'a defense

Wright
§

that might

2d 432,

&

1382
confuse

case and would not, under the facts alleged,

437

Arthur
(3d.

Ins.

(E.D. Va.

R.

Miller,

ed.

2004)).

the issues

in

the

constitute a valid

defense to the action can and should be deleted.'"

Id.

C. 12(c) Motion for Judgment on the Pleadings

Federal

Rule

of

Civil

Procedure

12(c)

provides

that

"[a]fter the pleadings are closed-but early enough not to delay

trial-a party may move for judgment on the pleadings."
Rule of Civil

Procedure 12(h)(2)

"provides

that

Federal

the defense of

failure to state a claim upon which relief can be granted,
set

forth

in

Rule

12(b)(6),

judgment on the pleadings

may

be

raised

'by

as

motion

for

or at

the

[pursuant to Rule 12(c)],

trial on the merits.'" Shooting Point, L.L.C. v. Cumming, 238 F.
Supp.

2d 729,

2004)

(citing Edwards v. City of Goldsboro,

(4th Cir.

735

1999)).

(E.D. Va.

As

such,

2002)

aff'd,

368 F.3d 379

178

Rule

12(b)(6),

dismiss

making

for failure to

the

decision

irrelevant as a practical matter.

Co.

of Del,

Cir.

v.

Elkins

F.3d 231,

as

is identical to

state a claim under

to

which

applies

Id.; see also Burbach Broad.

2002) .

Radio Corp.,

Accordingly,
the Court will
alleged in the Complaint are
reasonable

inferences

243

the standard of review for a motion

for judgment on the pleadings under Rule 12(c)
that of a motion to

(4th Cir.

in

278

F.3d 401,

405-06

assume that the facts
true and will draw all

Plaintiff's

favor

as

the

nonmoving party. Burbach, 278 F.3d at 405-06. However,
while the Court "takefs] the facts in the light most
favorable to the [P]laintiff, ... [the Court] need not
accept the legal conclusions drawn from the facts,"
and "need not accept as true unwarranted inferences,
unreasonable conclusions or arguments." Giarratano v.
10

(4th

Johnson, 521 F.3d 298, 302 (4th Cir. 2008)
(quoting
Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship,
213 F.3d 175, 180 (4th Cir. 2000)). Additionally, the
Complaint must allege "enough facts to state a claim
to relief that is plausible on its face." Id. (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct.

1955,

Mendenhall
(M.D.N.C.

1974,

v.

167 L.Ed.2d 929

Hanesbrands,

2012).

Inc.,

(2007)).

856

F.

Supp.

2d

717,

"However, unlike on a Rule 12(b)(6) motion,

723
on

a Rule 12(c) motion the Court may consider the Answer as well,"
and the "factual allegations in the Answer are taken as

true to

the extent they have not been denied or do not conflict with the

Complaint."

Id.

at

724

(internal

quotations

omitted) ; see Fed. R. Civ. P. 8(b)(6)
is

not

required,

avoided.").

and

the

McDonald,

case

allegation

Additionally,

appropriate when,
allegations as

an

citations

("If a responsive pleading
is

considered

denied

judgment on the pleadings

or

is only

taking all of the non-moving party's factual

true,
can be

562 F.Supp.

no

genuine issues

determined

829, 842

427 (4th Cir. 1984), aff'd,

as

a

of material
matter

(M.D.N.C.

472 U.S. 479,

III.

A.

and

of

1983),

fact

law.

remain

Smith

v.

aff'd, 737 F.2d

(1985).

DISCUSSION

Plaintiff's Motion to Dismiss Defendant's Counterclaims

Plaintiff

requests

dismissal

of

Defendant's

counterclaims

under Fed. R. Civ. Pro. 12(b)(6) and/or Fed. R. Civ. Pro. 12(f),
depending on the counterclaim in question.

will

Therefore,

the Court

address Plaintiff's motion to dismiss with regard to each
11

counterclaim individually.

1. Counterclaim 1-Declaratory Judgment of Non-Infringement
Pro-Concepts

declaratory

requests

judgment

Pro-Concepts'

first

be

that

Resh's

stricken

argument

is

or

counterclaim

dismissed

that

the

on

two

for

bases.

counterclaim

is

a

"mirror image claim" duplicative of both Pro-Concepts claim for
trademark

infringement

infringement
Concepts'

and

and

should

be

second argument

the court has

Resh's

discretion

is

affirmative

stricken

under

grounded

to decline

to

in

defense

Rule

their

of

12(f).

non

Pro-

assertion

entertain a

that

counterclaim

for declaratory judgment such as Resh's.

While Resh's counterclaim for declaratory judgment of non
infringement

is

non-infringement

infringement,

duplicative

as

well

as

of

Resh's

affirmative

Pro-Concepts

claim

defense

for

of

trademark

it "is a 'generally accepted view that a motion to

strike for redundancy ought not to be granted in the absence of
a clear showing of prejudice to the movant.'" Builders Mut.

Co., 709 F.

Supp. 2d at 437

Arthur R. Miller,

2004)).
prejudice.

(quoting 5C Charles Alan Wright &

Federal Practice and Procedure § 1382

Pro-Concepts

has

Ins.

failed

Thus, Pro-Concepts'

to

make

first argument,

the Court strike Defendant's Counterclaim 1 as

any

(3d. ed.

showing

of

requesting that
duplicative,

is

second argument,

it

not persuasive.

However,

with respect

to

Pro-Concepts'
12

is within the court's sound discretion to dismiss counterclaims

for declaratory judgment when those declaratory judgment claims
would be

fully

plaintiff's

claims

defenses.

(1995).

adjudicated and resolved by
and

Wilton v.

defendant's

Seven Falls Co.,

the

asserted

515 U.S.

of

affirmative

277,

283

& 287

As Resh's counterclaim for declaratory judgment of non

infringement

would

be

fully

resolution of Pro-Concepts'

adjudicated

and

resolved

exercise

its

counterclaim.

discretion

Therefore,

by

the

claim of trademark infringement and

Resh's affirmative defense of non-infringement,
to

resolution

and

Resh's

declines

the Court choses

to

entertain

counterclaim

for

this

declaratory

judgment of non-infringement is dismissed.
2. Counterclaim 2—Computer Fraud and Abuse

Pro-Concepts
fraud

and

failure

Fraud

abuse

to

language

of

and

1030(a)(2).

state

argues
should

state
the

a

that
be

claim.

Act

mirrors

Pro-Concepts

sufficient

intentional access,

facts

counterclaim

dismissed

counterclaim

Abuse

Resh's

alleging
the

language
asserts

support

the

Court

of
in

computer

12(b)(6)

asserts

breach

that

the

for

the

Computer

claim

U.S.C.

§

Resh

that

18

fails

to

elements

of

"protected computer," and the jurisdictional

damage and loss prerequisites under 18 U.S.C.

The

Rule

Pro-Concepts

further

to

under

for

agrees

language used in Resh's

with

Pro-Concepts'

§ 1030(a)(2).

argument

counterclaim 2 mirrors
13

that

that

the

used in 18

U.S.C.

§

1030(a)(2)

and

the

Court

therefore

interprets

Resh's

§ 1030(g)

and §

counterclaim as asserting a civil claim under
1030(a)(2).

With
Concepts

regard

to

argues

the

element

specifically

of

intentional

that

Resh

access,

fails

to

Pro-

provide

sufficient details as to how, when, and what private information
was intentionally accessed by Pro-Concepts.
argument,
Serrano,

Pro-Concepts
2007 U.S.

cites

Dist.

to

In support of this

Atlantic

LEXIS 95203

Recording

(S.D. Cal.

Dec.

Corp.

28, 2007),

a case that did not involve a pro se litigant. Of course,
Resh's

status

apply

a

would

less

to

as

servers

that

by

recovery of the
factual

he

accessed

(asserting
Therefore,

standard

to

In

removed

Pro-Concepts.

his

his

the

Court

Resh's

required

pleadings

factual

servers

is

than

statements,

before

However

Resh

never

because

accompanying

Resh

has

his

what

it

Resh

mentions

counterclaims.

described

to

Pro-Concepts

"SDD drive"2 he previously references

("SDD drive"),

departure,

litigant,

due to

seemingly negating any intentional access

assertions

sufficient,

se

pleadings.

could access them,
such

pro

stringent

formal

acknowledges

a

v.

was

to
any

in his
This

is

allegedly

when it was accessed (sometime after his

is the reasonable inference),

Pro-Concepts

maintained

and how it was accessed

physical

viewing the facts in the light most

possession).

favorable to the

2 The Court believes "SDD drive" to be a typo of "SSD drive."
14

non-movant,

in this instance Resh, he states a plausible claim

that Pro-Concepts intentionally accessed such drive.

With regard to the disputed "protected computer"
18 USC

§ 1030(e)(1)

electronic,

magnetic,

&

2 define a

optical,

"protected computer"

electrochemical,

or

speed data processing device preforming logical,
storage

functions".

interstate or

.

.

element,

"which

is

used

as

other

"an

high

arithmetic,

in

or

foreign commerce or communication."

or

affecting
Resh states

that the "SDD[sic] drive" was at his former place of employment,
where it was presumably used in his work developing software for
Pro-Concepts.
customers

Pro-Concepts

"come

from

stated

different

in

locations,

outside the Commonwealth of Virginia."
infer

that

employment,

the

"SDD[sic]

drive"

was

used in his

sale in interstate commerce.

the

Complaint
including

Thus,

its

locations

Thus it is plausible to

left by Resh

employment

that

at

his

place

developing software

of
for

Resh has stated a plausible

claim for relief with regard to this factor as well.

As

to the asserted failure of Resh to sufficiently allege

damages

and loss,

defines

"loss"

the Court notes

that

18

U.S.C.

§

1030(e)(11)

as:

"any reasonable cost to any victim, including the cost
of
responding
to an offense,
conducting a damage
assessment, and restoring the data, program, system,
or information to its condition prior to the offense,
and
any
revenue
lost,
cost
incurred,
or
other
consequential damages incurred because of interruption
of service."

15

In order to pursue a civil action under 18 U.S.C. § 1030(g),
"loss

to

1

or

more

persons

during

any

aggregating at least $5,000 in value".

damages"

must be alleged.

$100,000

in

the

1-year

a

period,

. . "limited to economic

Resh has alleged a loss exceeding

counterclaim

and

a

loss

of

"$2,256,000"

in

rental fees in his allegation of background facts.
It

is

not

reasonableness

success.
it

is

within

of

these

Twombly,

the

duty of

alleged sufficient

and

the

Court's

discretion

allegations,

nor

550 U.S. at 556.
the

Court

facts

to

their

rule

on

likelihood

At a Rule 12(b)(6)

to determine

if

the

of

stage,

the claimant has

to plausibly state a claim for relief

the claim of a pro se litigant "can only be dismissed for

failure

to state a claim if it appears beyond doubt

plaintiff

can prove no

which would entitle him

set

of

facts

in

to relief."

support

Estelle,

of

429

that
his

U.S.

the

claim
at

106

(internal citations omitted).

Therefore,
favorable

to

applicable
U.S.

at

to

viewing
Resh
the

520-521,

and

the

facts

applying

pleadings
Resh has

of

alleged
the

pro

stated a

less
se

in

the

light

stringent

litigants,

plausible

claim

most

standard

Haines,
for

404

relief

with regard to the counterclaim for computer fraud and abuse.
3. Counterclaim 3—Civil Conspiracy

Resh's
resulting

counterclaim

from

the

for

civil

conspiracy

conspiracy between
16

alleges

Pro-Concepts'

damages

"employees

O'Rourke

and Edwards."

However,

neither Mr.

Edwards are parties to the instant action.

the intracorporate immunity doctrine,
are acts

of the

corporation

itself,

O'Rourke nor Mr.

Furthermore,

"under

acts of corporate agents
and corporate

employees

cannot conspire with each other or with the corporation."

ePlus

Tech., Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir. 2002).

Thus,

Resh has failed to state a claim for civil conspiracy because he
did

not

name

defendants.
would

fail

Mr.
Even

to

O'Rourke
if

state

they
a

and
had

claim

Mr.
been

for

Edwards

relief

counterclaim

this

named,

as

counterclaim

due

to

the

bar

of

intracroporate immunity.

While the Court is required to interpret the pleadings of
pro se litigants liberally,

it is not required

to act as an

advocate and is not required to construct arguments not raised

by the pro se litigant.

Erickson,

551 U.S.

at 94.

Therefore,

Resh's counterclaim 3, alleging civil conspiracy, fails to state
a claim for relief and is dismissed.

4. Counterclaim 4—Declaratory Relief
Pro-Concepts

argues

for

the dismissal

of

this

counterclaim

for its failure to comport with the purpose of the Declaratory
Judgment

Act

counterclaim
action,

as

Specifically,

and

the

sub-claims
the

inappropriateness

which

instant

Pro-Concepts

assert
case

argues
17

of

defenses

is

that

a

several

to a

trademark

the

purpose

of

the

copyright
action.

of

the

Declaratory Judgment

Act

is

to

avoid

the

accrual

damages to a party uncertain of its rights,

of

avoidable

while Resh's stated

purpose in the counterclaim is to prevent "fishing expeditions."

Putting aside the issue of whether the described "fishing
expeditions" would cause the accrual of avoidable damages,

the

Court

the

agrees

that

those

"subclaims"

of

paragraph

86

of

Counterclaim that request relief based on defenses to copyright
claims
there

fail
can

to
be

Furthermore,
judgment

state a claim for relief
no

relief

several

on

several

of

from

the

issues

claims

in the instant case as
which

"subclaims"

which

are

are

nonexistent.

request

also

declaratory

nonexistent

in

the

instant case.

For

example,

"subclaim

(a)"

asserts

that

"Plaintiff's

technical method of attempting to identify infringement within
the

State

of

Virginia

5 86(a), ECF No. 16.
Pro-Concepts

is

legally

However,

insufficient."

Answer,

there are no facts alleging that

used any method of

identifying

infringement other

than first person knowledge of the use of the trademark by Resh.
As such, this counterclaim "subclaim" fails to state a plausible

claim

for

relief,

even

under

the

less

stringent

pleading

standard applied to pro se litigants.
"Subclaim
representations

(b)"
of

asserts

fact

to

"Plaintiff's

Courts

of

Record

use

of

ex

parte

within

the

United

States of America to obtain Defendant's protected confidential,
18

and personal
1Kb)

information in a manner prohibited by FRCP,

and Federal Criminal Law."

However,

Answer,

5 86(b),

Rule

ECF No.

16.

no ex parte representations of fact have been presented

to this Court-the only Court of Record involved in this matter-

to

obtain

protected

information.

"subclaim"

fails

state a

under

less

the

to

As

such,

plausible

stringent pleading

this

claim

counterclaim

for

relief,

standard applied

even

to pro

se

litigants.

"Subclaim

individual

(c)"

claims

asserts

for

"Plaintiff's[sic]

infringement

by

false

ownership and/or control of copyrights.

Answer,

3 86(c),

collectively the Real

ECF No. 16.

their

representation

of

. . [and] that no relief

whatsoever can be granted to Plaintiff's[sic]
Plaintiffs are not

misjoined

However,

because,

as such,

Parties in interest."

there is only a single

Plaintiff in the instant action and there has been no joinder.
Furthermore,
case.

As

state

a

there

such,

are

Resh has

plausible

"subclaim,"

no

even

copyrights
failed to

claim

under

for

the

at

in

the

allege sufficient

relief

less

issue

on

stringent

this

instant
facts

to

counterclaim

pleading

standard

applied to pro se litigants.

"Subclaim
known,

(d)"

asserts

indispensable

Plaintiffs'

own claims

"Plaintiffs

parties

of

in

failed

interest

infringement against

to

who,

join
based

Defendant,

all
on

have

infringement claims such that complete relief cannot be afforded
19

unless and until all indispensable parties are joined."
5

86(d),

who

ECF No.

16.

Resh

fails

to

state

in

his

Counterclaim

the alleged indispensable party is and fails

facts

supporting

indispensable

his

party

allegation

to

be

that

joined.

there

Answer,

to state any
might

Therefore,

Resh

be

an

fails

to

state a claim for relief with regard to counterclaim "subclaim
(d) ."

"Subclaim

enforcing

Waiver,

(e) "

asserts

copyright

claims

"Plaintiffs

under

the

are

barred

doctrines

of

from

Fair

Use,

and/or Laches by failure to affix identifiable copyright

notices

on

all

Answer,

5

86(e),

claims

at

issue

copyrighted
ECF No.
in

websites

16.

this

namely

However,

case

and

as

RISKRADAR.COM."

there are no

such,

this

copyright

"subclaim"

of

Counterclaim 4 fails to state a claim for relief and is subject
to dismissal pursuant

the

Court

to

Rule 12(b)(6).

liberally

defenses

to

defenses

would

and,

the

for

to

Pro-Concepts
be

treat

claim

duplicative

reasons

stated

these

of

Furthermore,

copyright

trademark

of

Resh's

above,

the

even were

defenses

infringment,

affirmative

Court

would

as

such

defenses

decline

to

claim

to

entertain the request for declaratory judgment.
"Subclaim

'statutory

(f)"

damages'

unconstitutional."

asserts

that

under

However,

statutory damages under 17

17

as

U.S.C.
20

"Plaintiff's

U.S.C.

§

Pro-Concepts
§ 504(c),

does

504(c)

not

is

claim

Resh cannot request

such relief.

Therefore,

Resh fails

to state a claim for relief

with regard to counterclaim "subclaim (f)."
Thus,

as

discussed above,

Resh

fails

to

state a

claim for

relief in any of the "subclaims" of "Counterclaim 4. Declaratory
Relief,"

and

as

such

fails

to

state

a

regard to that counterclaim as a whole.

claim

for

relief

with

Resh's counterclaim for

declaratory relief is therefore dismissed.

5. Counterclaim 5—Breach of Implied Duty of Good Faith and Fair
Dealing
Pro-Concepts

argues

because there is no

of

an

implied

Virginia.

that

this

claim

should

be

dismissed

independent cause of action for the breach

covenant

Pro-Concepts'

of

good

faith

assertion,

that

and

fair

dealing

in

"the failure to act in

good faith does not constitute an independent tort" in Virginia,
is correct.

Goodrich Corp. v. BaySys Technologies,

LLC, 873 F.

Supp. 2d 736, 742 (E.D. Va. 2012) (citing Charles E. Brauer Co.,

Inc.

v.

NationsBank of Va.,

Allaun v. Scott,

N.A., 466 S.E.2d 382,

59 Va. Cir.

461,

465 (2002)).

385

(1996);

As the Supreme

Court of Virginia has noted:

"Thus, while a duty of good faith and fair dealing
exists under the U.C.C. as part of every commercial
contract,
faith

we

under

independent

hold
§

tort.

under the U.C.C.

that
8.1-203

The

the

failure

does

breach

to

not

of

act

amount

the

in
to

implied

good
an

duty

gives rise only to a cause of action

for breach of contract."

Charles E. Brauer Co.,

Inc.,

466
21

S.E.2d at

385.

Moreover,

the

Goodrich Court held that where an allegation of "breach of the

implied duty of good faith and fair
plead

as

a

mechanism

through

breached its contract,"
of

a

breach

of

it is

contract

dealing

which

is

sufficiently

[Defendant]

allegedly

"incorporated under the umbrella

claim"

and

allegation of an independent tort.

is

not

viewed

as

an

Goodrich Corp., 873 F. Supp.

2d at 742.

In his
contract,

counterclaims,

such

as

the

Resh

does

employment

complaint, at any point.

not

allege

agreement

breach

attached

of

to

a

the

Furthermore, Resh does not allege any

facts in this particular counterclaim (for breach of the implied
duty of good faith and

fair dealing)

contract by Pro-Concepts.

ownership

a breach

of

This counterclaim merely alleges that

Resh reasonably relied on Mr.
potential

that assert

O'Rourke's statements regarding

interests

in

the

company

to

Resh's

detriment.

Counterclaim 5-alleging breach of the implied duty of good
faith

and

claim.
of

fair

dealing-is

Therefore,

contract

not

pled

as

a

breach

of

contract

the Court views the allegations as an breach
no

such

independent cause of action under Virginia law.

As such,

Resh

has

Thus,

failed

claim.

to

state

As

a

explained

claim

for

above,

there

relief.

is

Resh's

"Counterclaim 5" for breach of the implied duty of good faith
and fair dealing is dismissed pursuant to Rule 12(b)(6).
22

6. Counterclaim 6—Equitable Estoppel
Pro-Concepts asserts that Resh's counterclaim for equitable
estoppel

should

be

dismissed

for

failure

to

state

a

claim

as

there is no recognized cause of action for equitable estoppel in

Virginia.

Pro-Concepts'

Virginia,

'there

is

assertion

no

is

recognized

correct

cause

as,

of

"[i]n

action

for

[equitable] estoppel,' and the doctrine is usually asserted as a

'shield' rather than a 'sword.'"
Inc. v. EOT Energy,

U.S.

Dist.

reported)
544

LLC,

Virginia Power Energy Mktg.,

3:11CV630,

LEXIS 98553 at

*29

2012 WL 2905110 at *10, 2012

(E.D.

(citing Parker v. Westat,

(E.D.

Va.

2004)

Inc., 51 Va.

Thus,

failed

Resh

has

to

July

16,

2012)

Inc.,

301 F.

Supp.

Meriweather

(citing

Anne's-Belfield,

Va.

Mowing

Serv.

Cir. 517,

state

a

519

claim

counterclaim for equitable estoppel

is

(Va.

for

(not

2d 537,
v.

St.

Cir. 2000))).

relief

and

dismissed pursuant

the

to

Rule 12(b)(6).
7.

Pro-Concepts

should be

Counterclaim 6—Fraud

argues

that

dismissed because

Resh's

he

1)

counterclaim

fails

to

state

fraudulent inducement under Virginia state law,

plead
Federal

states

the

claim

Rule

that

of

Resh

with
Civil

sufficient
Procedure

"reasonably relied

on

a

and 2)

particularity
9(b).

for

Resh's

misleading

fraud

claim

for

fails to

pursuant

to

counterclaim

statements,

omissions, and actions of Plaintiff" and that Pro-Concepts "took
23

such actions fraudulently to induce Defendant to enter into the
Employment Agreement."
"To state a

Answer, 5 93-94, ECF No.

16.

cause of action for fraudulent inducement

of contract under Virginia law,
a plaintiff must
allege that the defendant made 'misrepresentations
[that] were "positive statements of fact, made for the
purpose of procuring the contract;
that they are
untrue; that they are material; and that the party to
whom they were made relied upon them, and was induced
by them to enter into the contract."'
Lucas v.
Thompson, 61 Va. Cir. 44, 2003 WL 483831 (Va. Cir. Ct.
2003) (quoting Brame v. Guarantee Fin. Co., 139 Va.
394, 124 S.E. 477 (1924))."

Enomoto
(E.D.

v.

Va.

Space

Adventures,

2009).

Ltd.,

Furthermore,

624
to

F.

"satisfy

plaintiff asserting a claim under the Act
describe

the

time,

representations,
the
rel.

place,

as well

misrepresentation

and

Supp.

2d 443,

Rule

452

9(b),

a

'must, at a minimum,

contents

of

the

false

as the identity of the person making

and

what

Nathan v. Takeda Pharm.

he

obtained

N. Am.,

Inc.,

thereby.'

707

U.S.

F.3d 451,

ex

455-56

(4th Cir. 2013) (quoting United States ex rel. Wilson v. Kellogg
Brown & Root,

Resh

material

Inc.,

alleges

525 F.3d 370,

that

representations

ownership interest

Mr.

to

379

(4th Cir.

O'Rourke,

of

Pro-Concepts,

him

he

could

in Pro-Concepts

that
and

that Mr.

refused to

enter into such an agreement.

not

that

allege

Mr.

O'Rourke's

"[a]s

a

result

of

O'Rourke

24

and

O'Rourke

of

Rather,

Edwards

[sic]

made

purchase

However,

representations

him to enter into the employment contract.
that

2008)).

an

later

Resh does

fact

induced

Resh states
refusal

to

write

a

accept

letter

of

employment

that

were not

Resh

also

establish

recommendation

with

Pro-Concepts

favorable

states
an

force

to

that

employment

plan

was

forced

terms

under

Resh."

" [a] fter

[sic]

and

conditions

Answer,

several
with

f

46,

attempts

interest

ECF No.

by

16.

Resh

sharing,

to

to

Resh

realized that O'Rourke had no intention of offering any type of

profit

sharing

which

was

statements of ownership."

in

contrast

to

O'Rourke's

original

Id. at f 49.

The facts alleged by Resh do not support an assertion that

Resh

was

fraudulently

contract.

Mr.

induced

To the contrary,

to

enter

into

into

the

representation.

employment
Thus,

employment

they support only the inference that

O'Rourke made one representation and then,

entrance

the

Resh

contract,
was

prior to Resh's

made

aware

a

that

contrary
the

first

representation of an offer of ownership interest was no longer
on the table prior to entering into the employment contract.
For the reasons stated,
of

action

for

fraudulent

Resh has failed to allege a cause

inducement

under

Virginia

law

that

satisfies the general pleading standards of Rule 8, Twombly, and
Iqbal.

Resh

has

also

failed

the

Rule

9(b)

requirement

that

fraud be pleaded with particularity as Resh has failed to allege
what specific statements or representations were made, when they
were

made,

counterclaim

and

where

for

fraud

they
is

were

made.

dismissed pursuant
25

Therefore,
to

Rule

Resh's
12(b)(6)

for failure to state a claim for relief.

B.

Defendant's Motion to Dismiss Plaintiff's Claims

Resh does not expressly state the grounds on which he seeks

dismissal of Pro-Concepts'

motion

as a

Rule

12(c)

claims.

motion

based on the timing of Resh's

and based on

Resh's

Defenses

stated

as

sufficient

dismiss

9t 11,

Dismiss,

to

ECF No.

complaint

on January

instant motion,
12(b)(6),

for

that

his

"Defendant's
and

L.P.,

Walker

Kelly,

v.

796 F.
589

are

to
the

2013,

prior

to

"is properly

2d 753,

127,

139

Def.'s

and

Mot.

Supp.
F.3d

Responses

Counterclaims

claims."

but instead under Rule 12(c)."

Servicing,

the pleadings

Since Resh filed an answer to

24.

the motion

on

the motion to dismiss,

Answers

Plaintiff's

23,

judgment

filing of

assertion
in

The Court interprets Resh's

the

filing of

filed not
Sherman v.

757-58
(4th

(E.D.

Cir.

under

the
Rule

Litton Loan

Va.

2011);

2009).

This

conversion of Resh's motion from a motion to dismiss to a motion

for judgment on the pleadings
provides

that "[a]

is necessary because Rule 12 (b)

motion asserting any of these defenses must

be made before pleading if a responsive pleading is allowed."

See Edwards,

178 F.3d at 243.

through

operation

the

of

This conversion is accomplished

Fed.

R.

Civ.

allows a party to raise the defense of

Pro.

12(h)(2),

failure to state a

which
claim

for relief under Rule 12(b)(6) after a responsive pleading has
been made by way of a motion for judgment on the pleadings under
26

Rule 12(c).
Furthermore,

claim

for

Resh

relief

asserts

within

his

a

defense

Answer,

Court's jurisdiction over this case.

is most

not

Accordingly,

the

Resh's motion

589

F.3d

under

motions

are

for

contest

a

See Walker,

12(c)

request

state

pleadings based on Fed. R. Civ. Pro. 12(b)(6).
(Rule

a

does

to

the

139

interpreted as

but

failure

on

at

fairly

of

judgment

"assessed

the

same

standard that applies to a Rule 12(b)(6) motion.").

Since

Resh

understandable

is

proceeding

that

as

Defendant's

legal authority and appears

a

pro

motion

se

litigant,

fails

to

to confuse various

it

cite

legal

is

proper

theories.

In order to ensure proper consideration of Defendant's arguments
and clarity of

the Court's decision,

the Court will address the

motion paragraph by paragraph.
1. Paragraphs 1-10 of Defendant's "Motion to Dismiss"

Paragraphs
litigant

1

and

proceeding

2

re-affirm Resh's

without

the

benefit

status
of

as a pro

counsel.

se

While

Resh's pro se status affects the Court's consideration of Resh's

pleadings

due

to

the

less

stringent

pleadings of a pro se litigant,

standard applied

to

the

it does not affect the Court's

consideration of Pro-Concepts' pleadings under Rule 8,

Twombly,

and Iqbal.

Paragraphs

regarding

a

3,

4,

and

settlement

7

contain

conference
27

assertions

between

and

the

statements

parties

and

conduct

and

Plaintiff's

statements

counsel

allegedly

during

the

made

by

settlement

Federal Rule of Evidence 408(a)(2),

Plaintiff

conference.

or

Under

"conduct or a statement made

during compromise negotiations about

the claim"

is inadmissible

"to prove or disprove the validity or amount of a disputed claim
or

to

impeach

by

contradiction."

408(a)(2),

a

Due

the

prior

to

Court

inconsistent

the

is

operation

prohibited

statement

of

from

Fed.

or

R.

a

Evid.

considering

statements and assertions made by Defendant in paragraphs

the
3,

4

and 7 of Defendant's motion.

Paragraph

6

merely

restates

the

affirmative

defense

of

innocence already alleged in Defendant's Answer, which, as part
of the Answer,

is already within the Court's purview on a Rule

12(c)

Additionally,

not

motion.
Resh's,

judgment

which

on

the

are

as it is Pro-Concepts' pleadings,

under

pleadings,

scrutiny

Resh's

on

Resh's

assertions

of

motion

for

affirmative

defenses are irrelevant to the Court's analysis.

Paragraphs

5,

8,

and

9

comprise

new

allegations

misconduct on the part of Plaintiff and Plaintiff's counsel.

motion

for

judgment

consideration
Mendenhall,

856

is
F.

on

the

limited
Supp.

pleadings,

to
2d

at

the
724,

where

not

A

an

the

court's

and

Complaint
is

of

Answer,

appropriate

vehicle for new assertions regarding misconduct by the opposing
party.

Furthermore,

excluding the above inadmissible assertions
28

regarding

statements

Defendant

offers

misconduct on

paragraphs

made

no

factual

the part

5,

8,

at

of

the

basis

Plaintiff

and

9;

settlement
for

and

the

conference,

allegations

Plaintiff's

notwithstanding

of

counsel

paragraph

in

10's

elaboration upon the alleged harm to Defendant's reputation and
ability

to

attempts

secure

to

employment

provide

caused

further

by

this

evidence

in

Despite Resh's status as a pro se litigant,

suit,

and

support

his

thereof.

it is not

for the

Court to act as an advocate for Resh, nor is it the Court's duty
to

remedy

Resh's

procedural

error

and

required

to

search

for

support

for

construe

the

these allegations.

While
pleadings
advocate

of

Bellmon,

assume

it

the

Despite

se

U.S.

F.3d

935

believe

pro

is

party,

construct

551

425

Court

a

and

Erickson,
Janer,

the

is

pro

94;
840

1106,

the

role

this,

at

836,

F.2d

a

of

"it

se

(10th

is

v.

Cir.

(10th

function

advocate

Court

party's

Garrett

1110

proper

the

liberally

for

incumbent

the

on

not

act

arguments

as

for

an

them.

Selby

Connor

Maddux

2005)

(citing

Hall

Cir.
of

may

1991)

the

pro

[the

("[W]e

district

se

&
v.

do

not

court

to

litigant.")).

court]

to

take

appropriate measures to permit the adjudication of pro se claims
on the merits,

grounds."

555

rather than to order their dismissal on technical

Donald v.

(7th Cir.

1996);

Cook Cnty.

Sheriff's Dep't,

see also Gordon v.
29

Leeke,

95

574

F.3d 548,

F.2d 1147,

1151

(4th

phrasing

Cir.

of

1978)

the

(where

district

the

court

Fourth

in

Circuit

Canty

adopted

regarding

case

the
law—

"'district courts must be especially solicitous of civil rights
plaintiffs.

.

[accordingly,

.

the

Court

in

considering

the

defendants' motion to dismiss will not permit technical pleading
requirements

to

defeat

the

vindication

rights which the plaintiff alleges,

of

any

constitutional

however inartfully,

been infringed.'" Canty v. City of Richmond,

Va.,

383

F.2d 587

F.Supp.

1975),

1396

cert, denied,

However,

have

(E.D.

never

litigation
those who

the

Va.

423 U.S.

United

suggested

should be

1062

States

that

aff'd,

proceed without

526

Police Dept.,
(4th Cir.

(1976)).

Supreme

procedural

counsel."

Court

rules

interpreted so as

508 U.S. 106, 113 (1993)
run,

1974),

to have

has

in

ordinary

to excuse

McNeil

stated

v.

("As we have noted before,

civil

mistakes

United

"we

by

States,

'in the long

experience teaches that strict adherence to the procedural

requirements specified by the legislature is the best guarantee
of
not

evenhanded administration of
the duty of

the Court

the law.'").

to amend Defendant's

Therefore,

it

is

counterclaims

to

include the allegations which Defendant asserts in his motion to
dismiss.

Nor is it

the duty of

the Court to search the record

for factual, valid, and admissible support for these arguments.3

3 "Thus, although we make some allowances for 'the [pro se] plaintiff's
failure to cite proper legal authority, his confusion of various legal
30

Garrett,

425

F.3d at

840.

Thus,

the Court

is not required to

remedy Defendant's error in attempting to assert new allegations

of misconduct through the inappropriate vehicle of a judgment on
the pleadings.

For

the

paragraphs

reasons

3-5

and 7-10

Plaintiff's claims.
a defense,

stated above,
of

the

Defendant's

Court
motion

may not
for

consider

dismissal

of

Paragraphs 1, 2, and 6 restate factors and

which are all already presented in Resh's Answer and

Counterclaims

and which do not

affect

the Court's

Pro-Concepts' claims under Rule 12(b)(6).

analysis

of

Therefore, paragraphs

1-10 are inadmissible or irrelevant to the Court's analysis of
Resh's motion for a judgment on the pleadings.
2.

Paragraph 11 of Defendant's "Motion to Dismiss"

As discussed above,

Dismiss

Plaintiff's

pleadings.

the Court interprets Resh's

Claims"

as

a

motion

to dismiss.

Walker,

of

the

to a Rule 12(b)(6)

589 F.3d at 139.

claims will be dismissed if,

favor

judgment

on

the

The same standard applies to a Rule 12(c) motion for

judgment on the pleadings as applies

in

for

"Motion to

non-movant

drawing all

As such,

motion

Pro-Concepts'

reasonable inferences

(Pro-Concepts),

Pro-Concepts

has

failed to allege facts sufficient to state a plausible claim for

theories, his poor syntax and sentence construction, or his

unfamiliarity with pleading requirements[,]' Hall, 935 F.2d at 1110,
the court cannot take on the responsibility of serving as the
litigant's attorney in constructing arguments and searching the
record."

Garrett,

425 F.3d at 840.
31

relief.

Kensington Volunteer Fire Dep't, 684 F.3d at 467; Iqbal

556 U.S.

at 678.

Pro-Concepts

asserts

that Resh has

failed to sufficiently

argue for dismissal of Pro-Concepts' claims and that in any case

dismissal of Pro-Coneepts' claims would be inappropriate as they
meet

the

general

Procedure 8.

pleading

standards

It is true that,

of

Federal

generally,

Rule

of

Civil

"[t]he party moving

for dismissal has the burden of showing that no claim has been
stated."

Civil

James

Wm.

§ 12.34(1)(a)

courts

"cannot

take

Moore,

et

(3d ed.
on

al.,

Moore's

2010).

Federal

Furthermore,

the responsibility

of

Practice

-

as district

serving

as

the

litigant's attorney in constructing arguments and searching the
record," Garrett, 425 F.3d at 840, those courts are not required
"to conjure up
Beaudett

v.

1985) .

However,

questions never

City of Hampton,
Resh,

squarely presented

775 F.2d

as a pro

se

1274,

litigant,

1278
has

to

them."

(4th Cir.
at

least

presented the Court with the question of whether Pro-Concepts
has failed to state a claim for relief.

Therefore,

the Court

will examine below whether Pro-Coneepts has complied with the
pleading standards of Rule 8, Iqbal and Twombly.
As already stated,

Pro-Concepts asserts seven claims in its

Complaint; Count I-trademark infringement under the Lanham Act,
Count II-false designation of origin under 15 U.S.C. § 1125(A),
Count

Ill-cybersquatting under

18
32

U.S.C.

§ 1125(d),

Count

IV-

unfair

competition under Virginia

dilution under Virginia
under

"Virginia

"Virginia

state

common

common

law."

state

law,

law,"

Compl.,

law,

Count V-trademark

Count Vl-breach of
Count

ECF

contract

Vll-conversion

No.

1.

The

under

Court

will

examine each count to determine whether it sufficiently states a
claim for relief under the Rule 12(b)(6)

standard utilized in a

Rule 12(c) motion for judgment on the pleadings.
Count

I,

which

claims

trademark

infringement

under

the

Lanham Act, will be analyzed in conjunction with Count IV, which

claims

unfair

competition

under

Virginia

state

lav;,

because

"[t]he elements of trademark infringement and unfair competition
under

the

Lanham

Act

are

identical

to

the

competition under Virginia state law. "
v.

Google,

Inc.,

330

F.

Supp.

2d

elements

of

unfair

Gov't Employees Ins. Co.

700,

702

(E.D.

Va.

2004)

(citing Lone Star Steakhouse & Saloon v. Alpha of Virginia,
F.3d 922,

"A

930 n. 10

(4th Cir.

infringement

and

1995)).

alleging

plaintiff

causes

43

of

action

competition

2)

the defendant used the mark;

3)

that

the defendant's use of the mark occurred "in commerce";

4)

that

the

defendant

offering

for

used

sale,
5)

that

the

mark

"in

distribution,

services;

and

that

the

likely to

confuse customers."

or

defendant

show

trademark

unfair

possesses a mark;

must

for

connection

with

advertising"
used

the

mark

Gov't Employees Ins.
33

1)

that

the

of

it

sale,

goods

and

in a

manner

Co.,

330 F.

Supp.

2d

at

702.

Pro-Concepts

has

successfully

alleged

that

Resh used the mark and that Resh's use was "in commerce" through
assertions of Resh's registration and use of

the "RRE" website,

www.riskradarenterprise.com.

With

regard

to

the

first

element,

a plaintiff

must

allege that a particular mark is eligible for protection,

requires a mark be more than merely descriptive.
Factory,

Inc. v. Mohd,

Pro-Concepts

federal

has

done

trademark

federal

for

so

through

2d 325,
its

registration with

trademark

eligibility

622 F. Supp.

registration

protection

because

(E.D. Va.
of

Complaint,

prima

"the

which

Buffalo Wings

submittal

the

is

334

also

facie

Patent

as

2007).

a

valid

a

valid

evidence

and

of

Trademark

Office may not grant registration to a mark which it finds to be

'merely descriptive.'"
1522,

1528

Concepts

(4th Cir.

also

possession of

with

the

Pizzeria Uno Corp.
1984);

satisfactorily

Compl. , Ex.

alleged

Complaint,

of

the

trademark

Temple,

1,

the

the mark by Pro-Concepts

v.

ECF No.

required

through

Concepts as the new owner of the mark "Risk Radar."
2,

ECF No.

1.

F.2d
Pro-

element

the

assignment

747

of

submittal,

naming

Pro-

Compl., Ex.

1.

Additionally,

with

regard

to

Concepts

need

not

allege

services

using

the

registered mark.

PETA decision,

it

that

specifically

the

Resh

actually

"In

rejected
34

fourth

the

the

element,
sold

Fourth

argument

goods

Proor

Circuit's

that

the

defendant's

in

use

connection

of

the

with

PETA

goods

only have prevented users
or services,

703

(citing

Doughney,

263

understanding
services,"

and

in a

services:

domain name was

'[the

defendant]

not

need

from obtaining or using PETA's goods

or need only have connected the website to other's

goods or services.'"
at

trademark

Gov't Employees Ins. Co., 330 F. Supp. 2d

People

for

F.3d 359,

of

the

365

Ethical

(4th Cir.

element

Pro-Concepts

has

Treatment

"in

pled

2001)).

Animals

Thus,

connection

sufficient

of

with

facts

v.

with this

goods
to

and

state

a

claim for relief on both Count I and Count IV of the Complaint.
With respect to the false designation of origin claim,

the

Fourth Circuit has stated that,

in order to prevail on a claim

of false designation of origin,

a plaintiff must prove the same

five

elements

as

discussed

above

infringement and unfair competition.
F.3d

309,

313

discussed

(4th

above,

Cir.

2005).

Pro-Concepts

has

with

regard

to

trademark

Lamparello v. Falwell, 420
Thus,

also

plausible claim for relief as to Count

for

the

same

sufficiently

reasons

stated

a

ll-false designation of

origin under the Lanham Act.

With regard to Count III, cybersquatting under 15 U.S.C.
1125(d),

the Anticybersquatting Consumer Protection Act

§

("ACPA")

"creates a cause of action for cybersquatting against anyone who
registers,

traffics

in,

or uses a domain name

or confusingly similar to a

that is identical

trademark with the bad faith intent
35

to

profit

Hawes

2003)

v.

from

the

good

will

Network Solutions,

(citing

sufficiently

15

U.S.C.

alleged

a

associated

Inc.,

§

claim

337

the

F.3d 377,

1125(d)(1)).
for

with

relief

383

trademark."
(4th Cir.

Pro-Concepts
with

regard

to

has
the

elements of registration and use of the domain name by Resh,

as

well as the element requiring that the domain name be "identical

or confusingly similar to" Pro-Concepts' trademark.
However,

Pro-Concepts must also have plausibly alleged that

Resh's registration and use of

bad faith intent to profit,

§1125(d)(1).4

the

domain name was done with a

utilizing the standard in 15 U.S.C

The facts alleged in the Complaint state that Resh

4 "(i) In determining whether a person has a bad faith intent described
under subparagraph (A), a court may consider factors such as, but not
limited to--

(I) the trademark or other intellectual property rights of the
person, if any, in the domain name;

(II) the extent to which the domain name consists of the legal
name of the person or a name that is otherwise commonly used to
identify that person;
(III) the person's prior use, if any, of the domain name in

connection with the bona fide offering of any goods or services;
(IV) the person's bona fide noncommercial or fair use of the mark
in a site accessible under the domain name;
(V) the person's intent to divert consumers from the mark owner's
online location to a site accessible under the domain name that
could harm the goodwill represented by the mark, either for

commercial gain or with the intent to tarnish or disparage the
mark, by creating a likelihood of confusion as to the source,
sponsorship, affiliation, or endorsement of the site;
(VI) the person's offer to transfer, sell, or otherwise assign
the domain name to the mark owner or any third party for
financial gain without having used, or having an intent to use,
the domain name in the bona fide offering of any goods or
services, or the person's prior conduct indicating a pattern of
such conduct;

(VII) the person's provision of material and misleading false
contact information when applying for the registration of the
36

acquired the domain "on behalf of ASC, who then owned rights to
the Mark"
ASC

to

and

that

upon

Pro-Concepts,

Concepts website at
ECF

No.

1.

the

Resh

transfer

redirected

Pro-Concepts

However,

of

Resh's

trademark rights

the

domain

request.

later

Compl.,

alleged

to

from

the

5 20

redirection

Pro-

& 22,
of

the

domain away from the Pro-Concepts website is sufficient, viewing
all

reasonable

inferences

nonmoving party,

intent

to

to profit.

in

favor

of

Pro-Concepts

create a plausible

inference of

Thus,

has

Pro-Concepts

as

bad

the
faith

alleged sufficient

facts to state a claim for relief on Count III.

In

Count

V,

Pro-Concepts

requests

state law for trademark dilution.
have

a trademark dilution law.

OfficeMax,

Inc.,

949

F.

Supp.

relief

However,
Circuit

409,

under

Virginia

Virginia does not

City Stores,

418

(E.D.

Inc.

Va.

v.

1996)

(explaining that prior to the enactment of the Federal Trademark

domain name,

the person's intentional failure to maintain

accurate contact information, or the person's prior conduct
indicating a pattern of such conduct;
(VIII) the person's registration or acquisition of multiple

domain names which the person knows are identical or confusingly
similar to marks of others that are distinctive at the time of
registration of such domain names, or dilutive of famous marks of
others that are famous at the time of registration of such domain

names, without regard to the goods or services of the parties;
and

(IX) the extent to which the mark incorporated in the person's
domain name registration is or is not distinctive and famous

within the meaning of subsection (c) of this section.
(ii) Bad faith intent described under subparagraph (A) shall not be
found in any case in which the court determines that the person
believed and had reasonable grounds to believe that the use of the
domain name was a fair use or otherwise lawful."
15 U.S.C.A. § 1125(d)(1)(B).
37

Dilution

Act,

"owners

of

locally

famous

marks

in

states

like

Virginia, which do not have trademark dilution laws, might have
had no recourse against

the actions of businesses

marks when confusion was not likely.")

pro

se litigant,

the Court

is not

using their

As Pro-Concepts is not a

required

to interpret

Concepts pleading liberally and as a plaintiff cannot

Pro-

request

relief under a law which does not exist, Pro-Concepts has failed
to

state

a

claim

for

relief

from

trademark

dilution

under

Virginia state law.

With regard to Count VI,

Pro-Concepts

alleges that Resh

breached the employment contract between Pro-Concepts and Resh

by

failing

request.

are:

to

return

copies

"The elements of

(1)

of

Pro-Concepts

a Virginia breach of

a legally enforceable obligation of

plaintiff,

(2)

the

software

defendant's

violation

or

upon

contract claim

a defendant

breach

of

to a

that

obligation, and (3) resulting injury or harm to the plaintiff."
Enomoto

v.

Space

Adventures,

Ltd.,

624

F.

Supp.

2d

443,

449

(E.D. Va. 2009) (citing Filak v. George, 267 Va. 612, 594 S.E.2d

610, 614 (2004)).
software

and

employment,

Pro-Concepts has alleged that Resh took their

failed

to

return

it

termination

of

his

as required by the employment contract attached to

the Complaint,

thus resulting in injury to Pro-Concepts from the

cost of reconstructing the software.
ECF No. 1.

upon

Therefore,

Compl.,

f 25-27 & Ex. 3,

Pro-Concepts has alleged sufficient facts
38

to state a plausible claim for breach of contract.
In

Count

VII,

Pro-Concepts'

Pro-Concepts

software

through

termination of his employment.

claims

his

conversion

refusal

"In Virginia,

to

by

return

Resh

it

of

upon

a conversion claim

requires (1) ownership or right to possession of property at the

time

of

the

conversion,

and

(2)

the

defendant's

wrongful

exercise of dominion or control over the plaintiff's property,

depriving the plaintiff of possession."

Enomoto,

624 F.

Supp.

2d at 457 (citing United Leasing Corp. v. Thrift Ins. Corp., 247

Va.

299,

440 S.E.2d 902,

905 (1994)).

Therefore,

Pro-Concepts

has also alleged sufficient facts to state a plausible claim for
conversion,

Concepts'

as

Pro-Concepts

software with

has

alleged

that

the intent to deprive

Resh

took

Pro-

Pro-Concepts of

such software.

In summary,

Pro-Concepts appears to allege facts sufficient

to state a plausible claim for relief with regard to Counts I,
II,

III,

IV,

VI,

and VII

pleading

standards

However,

Pro-Concepts

regard

to

Count

set

V,

Virginia state law.
on the pleadings

and,

forth

failed

which

thus,

to have met

in Rule
to

state

alleged

8,
a

Iqbal

claim

trademark

the

general

and Twombly.

for

relief

dilution

with

under

Therefore, Defendant's motion for judgment

is denied with respect

to Counts

IV, VI, and VII, but granted with respect to Count V.

39

I,

II,

III,

IV.

The

motions

Court

is

determined

unnecessary,

adequately
aided

has

presented,

significantly

78(b);

E.D.

Va.

CONCLUSION

as

and
by

Loc.

that

the
the

oral

Civ.

a

hearing

facts

and

decisional
argument,

R.

7(J).

on

legal

the

arguments

process

see

would not

Fed.

Therefore,

instant

R.

Civ.

the Court

are
be
P.

DENIES

Plaintiff's Request for a Hearing on Defendant's and Plaintiff's
motions

to dismiss.

ECF No.

26.

Based on the detailed analysis above,
part,

and

DENIES,

Defendant's

in

part,

Counterclaims.

the Court GRANTS,

Plaintiff's
ECF

No.

Motion

to

The

Court

21.

in

Dismiss
GRANTS

Plaintiff's Motion to Dismiss Defendant's Counterclaims 1, 3, 4,

5,

6,

and

inferences

7,

because,

in

favor

even

of

viewing

Defendant

all

facts

under

standard applied to pro se litigants,

Defendant

plausible

less

the

and

stringent

failed to state

a claim for relief with respect to Counterclaims 1, 3, 4, 5,
and

7.

The

Court

DENIES

Plaintiff's

Motion

to

Dismiss

Defendant's Counterclaim 2 for Computer Fraud and Abuse,

applying

the

less

stringent

standard

for pro

se

because

litigants

viewing all facts and inferences in Defendant's favor,

6,

and

Defendant

states a plausible claim for relief.
For

Dismiss,
Pleadings,

the

reasons

which
is

is

stated

treated

DENIED,

as

in part,

above,

a

Defendants'

Motion

for

and GRANTED,
40

Motion

Judgment
in part.

on

to

the

ECF No.

24.

Defendant's

Plaintiff's

viewing
favor,

Counts

I,

facts

the

and

Defendant

claim for
VII.

Motion

relief

has

GRANTED,

because

inferences

in

Dismiss

III,

all

reasonable

not

even

shown

regard

Motion

IV,

is

II,

with

Defendant's

to

Counts

favor,

the

with

VII

I,

in

failure

II,

III,

Plaintiff's

facts

Plaintiff

regard

because,

inferences

Dismiss

viewing

Plaintiff's

and

Plaintiff's

to

to

VI,

DENIED

and

all

failed

to

after

Plaintiff's
to

IV,

state

VI,

Count

a

and
V

is

reasonable
to

state

a

claim for relief with respect to Count V.

The Clerk is requested to send a copy of
Order

to all

counsel

this Opinion and

of record.

It is SO ORDERED.

Is/

Mark S.

Davis

UNITED STATES DISTRICT JUDGE

Norfolk,

February

Virginia

I|

, 2014

41