The Aspen Brands Holding Company et al v. Wish Rocket, Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.July 27, 2016

4827-8605-5989.1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION THE ASPEN BRANDS HOLDING COMPANY, KATE ASPEN, INC., and SMART MARKETING, INC., Plaintiffs v. WISH ROCKET, LLC, CHEAPFAVORSHOP.COM, INC., WEDDINGFAVORS.ORG, INC., BABYFAVORS.COM, INC., and RONALD GARY SPINKS, Defendants. CIVIL ACTION NO.: 1:16-cv-01208-AT DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT COME NOW Defendants Wish Rocket, LLC, Cheapfavorshop.com, Inc., Weddingfavors.org, Inc., Babyfavors.com, Inc. and Ronald Gary Spinks (collectively "Defendants") and, pursuant to Rule 56 of the Federal Rules of Civil Procedure, hereby moves the Court to dismiss Plaintiffs' Complaint. This motion is based on the following: 1. Defendants' Memorandum of Law in Support of Its Motion to Dismiss Plaintiffs' Complaint; 2. The Declaration of Ronald Gary Spinks. All other pleadings, discovery, documents and evidentiary materials in the record of the case at the time the Court considers this motion. Case 1:16-cv-01208-AT Document 15 Filed 07/27/16 Page 1 of 4 4827-8605-5989.1 LEWIS BRISBOIS BISGAARD& SMITH, LLP 1180 Peachtree Street, N.E. Suite 2900 Atlanta, GA 30309 Telephone: 404.348.8585 Facsimile: 404.467.8845 Email: jonathan.goins@lewisbrisbois.com Thomas.grant@lewisbrisbois.com Sheri.bagheri@lewisbrisbois.com s/ Jonathan D. Goins JONATHAN D. GOINS Georgia Bar No. 738593 Thomas C. Grant Georgia Bar No. 297455 Sheri Bagheri Georgia Bar No. 174460 Counsel for Defendants Case 1:16-cv-01208-AT Document 15 Filed 07/27/16 Page 2 of 4 4827-8605-5989.1 CERTIFICATE OF COMPLIANCE The undersigned counsel hereby certifies that this DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT complies with the type-volume limitations set forth in Rule 5.1 of the Local Rules of the United States District Court for the Northern District of Georgia and that it has been typed in Times New Roman 14 count. /s/ Jonathan D. Goins Georgia Bar No. 738593 Case 1:16-cv-01208-AT Document 15 Filed 07/27/16 Page 3 of 4 4827-8605-5989.1 CERTIFICATE OF SERVICE This is to certify that on this 27th day of July, 2016, I electronically filed the foregoing DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT with the Clerk of Court using CM/ECF system which will send notification of such filing to the following attorneys of record: Eileen H. Rumfelt Laura Ashby MILLER & MARTIN PLLC 1180 West Peachtree Street NW Suite 2100 Atlanta, GA 30309 /s/ Jonathan D. Goins Georgia Bar No. 738593 Counsel for Defendants Case 1:16-cv-01208-AT Document 15 Filed 07/27/16 Page 4 of 4 4842-5124-6389.1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION THE ASPEN BRANDS HOLDING COMPANY, KATE ASPEN, INC., and SMART MARKETING, INC., Plaintiffs v. WISH ROCKET, LLC, CHEAPFAVORSHOP.COM, INC., WEDDINGFAVORS.ORG, INC., BABYFAVORS.COM, INC., and RONALD GARY SPINKS, Defendants. Civil Action No: 1:16-cv-01208-AT MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT Defendants Ronald Gary Spinks ("Defendant" or "Spinks") and Wish Rocket, LLC ("Defendant" or "Wish Rocket") respectfully submits this Memorandum in support of his motion to dismiss the Complaint filed by The Aspen Brands Holding Company, Kate Aspen, Inc., and Smart Marketing, Inc. ("Plaintiffs" or "Aspen Brands") and respectfully states as follows: Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 1 of 20 4842-5124-6389.1 2 INTRODUCTION Pursuant to Fed. R. Civ. P. 12(b)(2), Plaintiffs' Complaint should be dismissed as against Defendant Spinks individually as he does not personally "transact business" in Georgia for purposes of the Georgia long-arm statute, or maintain "minimum contacts" with Georgia so as to confer due process. Pursuant to Fed. R. Civ. P. 12(b)(6), Plaintiffs' Complaint should be dismissed for failure to state a claim upon which relief may be granted as against Defendant Spinks or the websites captioned as Defendants (cheapfavorshop.com, weddingfavors.org and babyfavors.com) (the "named website Defendants"). Even liberally construed, the claims asserted in the Complaint either do not state a legally cognizable cause of action, or merely recite elements of a legally cognizable cause of action without alleging sufficient facts to establish a modicum of plausibility, as against Defendant Spinks individually; he did not supervise, manage, oversee, control or otherwise direct the allegations in the Complaint. Further, the named websites Defendants do not exist as a corporation, entity or organization. They are simply domain names registered and owned by Wish Rocket. Thus, the named websites Defendants should be dismissed. With respect to Wish Rocket, the Complaint conclusory lumps all alleged infringing activities together and it is speculative and unclear as to which Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 2 of 20 4842-5124-6389.1 3 allegations pertain to Wish Rocket (versus the other named defendants). As such, the Complaint does not meet the pleading requirements of FED. R. CIV. P. 8(a), and should therefore be dismissed pursuant to FED. R. CIV. P. 12(b)(6). ANALYSIS I. Aspen Brands Has Not Established Personal Jurisdiction Over Defendant Spinks. Kate Aspen has the burden of establishing a prima facie case of personal jurisdiction over each named defendant. See, e.g., Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006) (internal citations omitted). With respect to nonresident defendants, federal courts must undertake a two-part analysis of a plaintiff's jurisdictional allegations. See, e.g., Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990) (internal citations omitted). First, courts look to the forum state's long-arm statute to ascertain whether it confers jurisdiction. Imageline, Inc. v. Fotolia LLC, 663 F. Supp. 2d 1367, 1372 (N.D. Ga. 2009). Next, even where the exercise of personal jurisdiction over a nonresident would be permissible under such statute, courts must ensure that the exercise of jurisdiction is consistent with the Due Process Clause of the Fourteenth Amendment-which requires that a nonresident defendant have sufficient minimum contacts with the forum state such that Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 3 of 20 4842-5124-6389.1 4 maintenance of the a lawsuit would not offend traditional notions of fair play and substantial justice. Id. at 1372-73. A. Georgia's Long-Arm Statute Without providing any specificity, Aspen Brands surmises that Defendant Spinks is subject to personal jurisdiction in Georgia pursuant to the Georgia long- arm statute because he transacted business in Georgia, contracted with parties in Georgia, supplied goods in Georgia, caused tortious injury by act or omission in Georgia; and directed or controlled the alleged tortious activities. (Doc. 1, Compl. at ¶¶ 10, 14) But Plaintiffs' Complaint fails to identify one single act of business that Defendant Spinks individually and personally engaged in or supervised within the State of Georgia, let alone as it relates to any allegations of infringement conducted specifically by Defendant Spinks. No specific contract that names Defendant Spinks was supplied. Subsection (1) long-arm jurisdiction "expressly depends on the actual transaction of business-the doing of some act or consummation of some transaction-by the defendant in the state." Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1260 (11th Cir. 2010); O.C.G.A. § 9-10-91(1). Aspen Brands' broad pleading as against Defendant Spinks is a futile attempt to extend the reach of the long-arm. Plaintiffs' mere recitation of general, Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 4 of 20 4842-5124-6389.1 5 conclusory statements on their face are insufficient to satisfy the pleading requirements. A reviewing court is not bound to accept conclusory statements, bare assertions, and legal recitations posing as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) ("conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal"). Plaintiffs' Complaint does not plead what, if any, specific acts that were done by Defendant Spinks - either in his professional or individual and personal capacity. Moreover, "Georgia courts recognize a sharp distinction between the personal actions of a corporate officer and actions undertaken in their official capacity for purposes of determining whether a court may assert personal jurisdiction over that officer." See Club Car, Inc. v. Club Car (Quebec) Imp., Inc., 276 F. Supp. 2d 1276, 1293 (S.D. Ga. 2003) aff'd, 362 F.3d 775 (11th Cir. 2004). Under Georgia law, "an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act or participated or cooperated therein." Ceasar v. Shelton Land Co., 596 S.E.2d 755, 756 (2004) (citing Cherry v. Ward, 420 S.E.2d 763 (1992); Brown v. Rentz, 441 S.E.2d 876 (1994)). Plaintiffs have Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 5 of 20 4842-5124-6389.1 6 not alleged, nor are there any facts that could support, that the other named defendants are the alter ego of Mr. Spinks; indeed, the named website Defendants are simply domain names-they are not separate and existing, functioning entities or organizations. As to Defendant Spinks' corporate acts with Defendant Wish Rocket, Aspen Brands "supplies conclusory allegations . . . that amount to a formulaic recitation of the alter ego and joint venture elements. Such conclusory allegations in a complaint 'will not do… Plaintiff makes no factual allegations . . . that would support its additional claims.'" Interstate Nat'l Dealer Servs. v. United States Auto Warranty, LLC, 2013 U.S. Dist. LEXIS 129287, 15-16 (N.D. Ga. Sept. 11, 2013) (in the context of denying leave to amend the pleading) (citing to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (other citations omitted)). Similarly, the Federal Circuit in Hoover Group v. Custom Metalcraft, 84 F.3d 1408 (Fed. Cir. 1996) (applying similar alter ego principles vis-à-vis patent infringement) reversed the district court's ruling that held the individual defendant personally liable for patent infringement because: "In the case at bar it was not alleged that Custom's corporate structure was a sham, or existed merely to shield Mr. Holden from liability for 'fraud or wrong' or violation of any legal duty." Id. at 1412. And in Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 553, 16 U.S.P.Q.2D (BNA) 1587, 1594 (Fed. Cir. 1990), the Federal Circuit held that "to Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 6 of 20 4842-5124-6389.1 7 be personally liable for Paramount's infringement under section 271(a), there must be evidence to justify piercing the corporate veil." Id. at 552, 16 U.S.P.Q.2D (BNA) at 1593. Aspen Brands' allegations are precisely the type of fact-barren, conclusory pleading that is insufficient under Rule 8. The Complaint's claims against Defendant Spinks do not rely on any factual predicates. Rather, the Complaint is based solely on legal conclusions and is nothing more than "a threadbare recitation of the elements of cause of action." Iqbal, 556 U.S. at 678. As Plaintiffs have made no attempt to plead Defendant Spinks' individual liability or alter ego theory of liability on its claims, the Court should grant the pending dismissal motion against Defendant Spinks. Plaintiffs have not identified (a) Defendant Spinks' individual or personal role in any of the alleged infringing activities; (b) what specific supervisory acts were done by Defendant Spinks as it pertains to the allegations; and (c) how Defendant Spinks abused any corporate purpose or acts. Because Georgia's long-arm statute does not apply to Defendant Spinks, the inquiry into personal jurisdiction ends and Defendant Spinks must be dismissed. See Diamond Crystal, 593 F.3d at 1263. ("[C]ourts must apply the specific limitations and requirements of O.C.G.A. § 9-10-91 literally."). Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 7 of 20 4842-5124-6389.1 8 B. Due Process Even assuming arguendo that Defendant Spinks, individually, somehow "transacted business" in Georgia within the meaning of the long-arm statute, he does not have sufficient contacts with the forum state such that the exercise of personal jurisdiction over him would not offend traditional notions of fair play and substantial justice. See Diamond Crystal, 593 F.3d at 1267 (citing Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 (1984)). When analyzing due process as it relates to personal jurisdiction over a nonresident defendant, the nature and quality of the defendant's "minimum contacts" required to exercise jurisdiction vary depending upon whether "specific" or "general" jurisdiction is asserted. Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292 (11th Cir. 2000). Specific jurisdiction may arise from a party's activities in the forum that are related to the cause of action alleged in the complaint. Id. To exercise specific personal jurisdiction, the nonresident defendant must have purposefully availed itself of the privilege of conducting activities within the forum state, thereby invoking the benefits and protections of its laws. Id. (internal citations and quotations omitted). General jurisdiction refers to the power of a court in the forum to adjudicate any cause of action involving a nonresident defendant irrespective of any relationship between the cause of action and the defendant's Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 8 of 20 4842-5124-6389.1 9 contacts with the forum. Id. at 1292. "The due process requirements for general personal jurisdiction are more stringent than for specific personal jurisdiction, and require a showing of continuous and systematic general business contacts between the defendant and the forum state." Id. Here, Defendant Spinks has not engaged with any contacts directly in Georgia so as to have purposefully availed himself, individually, of the forum of Georgia. Mr. Spinks most certainly does not have "continuous and systematic general business contacts" within Georgia. See Taeger Enterprises, Inc. v. Herdlein Technologies, Inc., 213 Ga. App. 740, 746, 445 S.E.2d 848, 854 (Ga. App. 1994) (affirming trial court's granting of defendant's motion to dismiss for lack of personal jurisdiction because there was no evidence that either the corporation or the president of the corporation transacted business in Georgia despite two visits to the site in Georgia and telephone or mail contact). Defendant Spinks did not oversee, manage, control or supervise any of the advertising of goods available on Wish Rocket's websites, or any of the offering for sale of goods available on Wish Rocket's websites. (Spinks Decl. at ¶6) Defendant Spinks has not engaged in any business within the State of Georgia. (Id. at ¶7) He does not maintain any bank accounts in the State of Georgia, own any real or personal property in the State of Georgia, or pay any taxes to the State of Georgia. (Id. at Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 9 of 20 4842-5124-6389.1 10 ¶8) He does not, either personally or in my professional capacity, regularly visit or travel thru the State of Georgia. (Id. at ¶9) He has not supervised or managed any employees or representatives within the State of Georgia. (Id.) In short, Aspen Brands has failed to identify any contact Defendant Spinks has had with Georgia as it pertains to allegations of infringement that would permit "specific" or "general" jurisdiction in this matter. See Club Car, Inc., 276 F. Supp. 2d at 1293 (discussing actions taken in the forum solely in the capacity of a corporate officer.). II. Aspen Brands has Failed to State Any Claim upon Which Relief Can Be Granted As Against Defendant Spinks. In evaluating a motion to dismiss, a reviewing court is not bound to accept conclusory statements, bare assertions and legal recitations posing as factual allegations. Twombly, 550 U.S. at 570; Oxford Asset Mgmt., 297 F.3d at 1188. Nor is the reviewing court obliged to allow a complaint to survive a motion to dismiss simply because it contains conceivable causes of action. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) ("Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.") (internal quotations omitted). To the contrary, after the reviewing court has stripped away the pleader's threadbare recitals and conclusory statements, to survive a motion to dismiss, the complaint must contain well-pleaded factual Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 10 of 20 4842-5124-6389.1 11 allegations that establish not the mere possibility, but rather, the plausibility of entitlement to relief. Twombly, 550 U.S. at 557. Here, Aspen Brands pleads no specific factual allegations to support their claims against Defendant Spinks in his individual capacity. Plaintiffs' Complaint lumps Defendant Spinks with Wish Rocket and all of the other named defendants collectively and in a general, conclusory manner. This tactic has been rejected on Rule 12(b)(6) grounds in infringement cases. See, e.g., Bar's Products, Inc. v. Bar's Products Intern., Ltd., 2011 WL 4507363 at *4 (E.D. Mich. Sept. 29, 2011) (court dismissed Lanham Act claims since plaintiff neglected to aver which specific defendants had committed specific alleged acts of infringement). Aspen Brands' Complaint fails to identify any factual allegations that Defendant Spinks himself had infringed upon Aspen Brands' intellectual property rights. Id. ("As to the individual Defendant Mr. Omoto, other than noting that he is the principal of the corporations, there are no factual allegations that Mr. Omoto himself has infringed Plaintiff's marks. Mr. Omoto is dismissed from the Lanham Act claims since there are no plausible factual claims against him."). A. Copyright Infringement Claim Aspen Brands has not pled any facts that would support a cause of action against Mr. Spinks, individually, for copyright infringement. Aspen Brands simply Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 11 of 20 4842-5124-6389.1 12 makes broad factual allegations against all Defendants in a conclusory and general manner. (Complaint at ¶¶71-¶72) To subject Defendant Spinks to liability, Aspen Brands must show that he supervised, directed and controlled the copyright infringing-activity. See, e.g., NAFRA Worldwide, LLC v. Home Depot U.S.A., Inc. et al., Case No. 1:12-cv-02808-AT (filed N.D. Ga. Aug. 29, 2013) (Doc. 41) (dismissing individual officer of company in copyright infringement case as the person did not have the ability to supervise the infringing activity); S. Bell Tel. & Tel. v. Associated Tel. Directory Publishers, 756 F.2d 801, 811 (11th Cir. 1985)); Chi-Boy Music v. Towne Tavern, Inc., 779 F. Supp. 527, 530 (N.D. Al. 1991) (holding that the imposition of vicarious liability for copyright infringement is based on the premise that a controlling individual is in a position to control the conduct of the “primary” infringer). Here, Aspen Brands has failed to make any non-conclusory allegations against Defendant Spinks that supports he had supervised or directed any of the alleged infringing activity. B. Lanham Act Claims Similarly, Aspen Brands has not pled any facts that would support a cause of action against Defendant Spinks, individually, for trademark infringement or false Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 12 of 20 4842-5124-6389.1 13 designation of origin.1 (Compl. at ¶¶80-89) Under the Lanham Act, when the alleged infringement is performed by an agent or employee of a corporation, liability as to that employee is permitted only on evidence that the employee "actively and knowingly caused the infringement” as a "moving, active, conscious force" behind the company’s decision to engage in the infringement. See, e.g., Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477-78 (11th Cir. 1991); see also Bar's Products, Inc., supra, 2011 WL 4507363 at *4. There are no factual allegations relating to Defendant Spinks that he actively, knowingly caused any alleged infringing activity; that he was the "moving, active, conscious force" behind any of the alleged infringing activity. Aspen Brands' Lanham Act claims as against Defendant Spinks are either absent or wholly conclusory, and should be dismissed. Even interpreting more broadly, Plaintiffs' Complaint fails to allege facts sufficient to show a plausible likelihood of confusion as required under either 1 Plaintiff's federal trademark claims are based on Sections 32 and 43 of the Lanham Act, 15 U.S.C. §§ 1114, 1125 via theories of trademark infringement and "false designation of origin" - both of which are analyzed the same. See, e.g., B & F System, Inc. v. LeBlanc, 2011 WL 4103576, at *21 (M.D. Ga. Sept. 14, 2011) ("Plaintiff's last claim in Count II of its First Amended Complaint is a false designation of origin/unfair competition claim based on §43(a)(1)(A) of the Lanham Act. . . . Likelihood of confusion is an essential element to a claim under § 43(a)(1)(A)."); Golden Bear Intern., Inc. v. Bear U.S.A., Inc., 969 F.Supp. 742, 748 (N.D. Ga. 1996) (noting that " claim under §43(a) of the Lanham Act also depends on establishing a likelihood of confusion"). Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 13 of 20 4842-5124-6389.1 14 Section 43(a) or 32 of Plaintiffs' Lanham Act claims. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007) (noting that in applying the "plausibility" requirement, the court's consideration is limited to those facts contained in the pleadings and attached exhibits); Architectural Mailboxes, LLC v. Epoch Design, LLC, 2011 WL 1630809 (S.D. Cal. 2011) (court dismissed plaintiff's infringement claim since the complaint failed to allege sufficient facts to demonstrate a likelihood of confusion).2 Conclusory allegations regarding a "likelihood of confusion" may be rejected on Rule 12(b)(6) grounds by a Court as a matter of law. See, e.g., Leigh v. Warner Bros., Inc., 10 F.Supp.2d 1371, 1382-83 (S.D. Ga. 1998) (affirmed in part and reversed in part, on other grounds, 212 F.3d 1210 (11th Cir. 2000)); Sweet v. City of Chicago, 953 F. Supp. 225, 231 (N.D. Ill. 1996) (granting dismissal on a 12(b)(6) motion and noting that "[t]he complaint merely makes the conclusory assertion that confusion is likely and sets forth no facts that would permit [such] a conclusion."). Absent throughout the Complaint's Lanham Act 2 The Eleventh Circuit considers seven factors in assessing whether or not "likelihood of confusion" exists: (1) the strength of the plaintiff's mark; (2) the similarity of the marks; (3) the similarity of the goods; (4) the similarity of the parties' trade channels; (5) the similarity of advertising media; (6) the defendant's intent; and (7) evidence of actual confusion. Custom Mfg. & Eng'g, Inc., 508 F.3d at 648 (citing Frehling Enters., Inc. v. Int'l Select Group, Inc., 192 F.3d 1330, 1335-41 (11th Cir.1999)) Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 14 of 20 4842-5124-6389.1 15 claims are any sufficient facts or essential elements of the threshold likelihood of confusion factors as against Defendant Spinks. The Complaint's failure to identify each of these factors alone as to Defendant Spinks is grounds for dismissal (or even as to Defendant Wish Rocket for that matter).3 C. Related State Statutory & Unfair Competition Claims Under Georgia law, claims under Georgia's UDTPA and unfair competition are treated analogously to a Lanham Act claim. See, e.g., Kason Indus., Inc. v. Component Hardware Grp., 120 F.3d 1199, 1203 (11th Cir. 1997); Optimum Tech., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, n.11 (2007); Tri- State Consumer Ins. Co., Inc. v. LexisNexis Risk Solutions, Inc., 823 F. Supp.2d 1306, 1326 (2011); Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 n. 4 (11th Cir. 2001). In a similar vein as the foregoing, Aspen Brands has not pled any facts that would support a cause of action against Defendant Spinks, individually, for the related business tort and comparable state statutory claims.4 3 For the same reasons, and because it is not clear as to whether the allegations of infringement were directed to the named website defendants (versus Wish Rocket as a corporate entity)-so too shall Wish Rocket be dismissed under Rule 12(b)(6), or at very least, Plaintiffs should be required to more readily identify said specific allegations as against Wish Rocket and provide a more definite statement of its pleading solely as to Wish Rocket pursuant to Fed. R. Civ. P. 12(e) before any defendant is required to answer (presuming the motion is denied). 4 Moreover, under Georgia law, "unjust enrichment" is not a separate tort, as pled in the complaint, but an alternative theory of recovery if a contract claim fails. See, e.g., Tidikis v. Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 15 of 20 4842-5124-6389.1 16 III. The Named Website Defendants Do Not Exist, And Should Be Dismissed. The named website defendants are not corporate entities or organizations. They do not exist and are merely domain names owned by Defendant Wish Rocket. (Spinks Decl. at ¶¶3-5) It is well-settled that in every suit there must be a legal entity as the real plaintiff and the real defendant, either as a natural person or a corporation. See, e.g., Parker v. Board of Education of Sumter County, 209 Ga. 5, 5, 70 S.E.2d 369, 370 (Ga. 1952) ("An action cannot be maintained in a name as plaintiff which is neither that of a natural person, a partnership, nor of such artificial person as is recognized by the law as capable of suing. A proceeding commenced in such a name, there being no plaintiff, is not an action, but a mere nullity, and may be dismissed at any time on motion.") (other citations omitted); see also Keith v. Alexander Underwriters Gen. Agency, 219 Ga. App. 36, 38, 463 S.E.2d 732, 733 (Ga. App. 1995) ("There is no legal entity named the Greenville Insurance Agency, which appears to be only a trade name. Thus, only Keith was sued; the inclusion of 'DBA GREENVILLE INSURANCE AGENCY' does not alter that fact and it cannot make a nonexistent entity a party to the suit.") (other Network for Med. Commc’ns & Research LLC, 274 Ga. App. 807, 811 (2005). There was no express, written contract between the Aspen Brands and Defendant Spinks in any individual capacity; thus, this count should be dismissed. Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 16 of 20 4842-5124-6389.1 17 citations omitted); Clive Samuels & Assocs. v. Boxcar Foods, USA, Inc., 286 F. App'x 708, 710 n.1 (11th Cir. 2008) ("It is undisputed that Boxcar Foods USA Inc. is a non-existent entity. Boxcar Foods USA Inc. was originally named as a defendant in this action but was dismissed by the district court after the parties agreed that it did not exist."). As such, the named websites Defendants should be dismissed. IV. By Generally And Conclusory Alleging Activities Of All Defendants Collectively, Plaintiffs Have Created A Shotgun Pleading. Shotgun pleadings have been repeatedly condemned by the Eleventh Circuit. See, e.g., Thompson v. RelationServe Media, Inc., 610 F. 3d 628, 650 (11th Cir. 2010) ("This circuit condemns shotgun pleadings."). Shotgun pleadings make it "virtually impossible to know which allegations of fact are intended to support which claim(s) for relief." Anderson v. Dist. Bd. Of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996); Family Watchdog, LLC v. Schweiss, 2009 WL 2151152 (M.D. Fla. 2009) (court dismissed complaint since it comprised a judicially disfavored 'shotgun pleading'). Here, with the named website Defendants being non-existent, Plaintiffs' Complaint has made it difficult to prepare any type of response as to Defendant Wish Rocket (or even Defendant Spinks should the Court deny the motion). See Ferrell v. Durbin, 311 Fed. App’x Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 17 of 20 4842-5124-6389.1 18 253, 259 (11th Cir. 2009) ("In shotgun style pleading, the complaint incorporates all of the general factual allegations by reference into each subsequent claim for relief."). Each of Plaintiff’s counts re-allege and incorporate the preceding paragraphs of the Complaint. (See, e.g., Compl. at ¶¶ 67, 77, 85, 90, 95, 103, 107 and 111) Thus, this Court should dismiss the Complaint. CONCLUSION Based on the foregoing reasons, Defendant Spinks respectfully requests that this Court grant the pending motion, dismissing both Defendant Spinks as well as the named website defendants. Respectfully submitted this 27th day of July, 2016. LEWIS BRISBOIS BISGAARD & SMITH, LLP 1180 Peachtree Street, NE Suite 2900 Atlanta, Georgia 30309 404.348.8585 (Telephone) 404.467.8845 (Facsimile) jonathan.goins@lewisbrisbois.com Thomas.grant@lewisbrisbois.com Sheri.bagheri@lewisbrisbois.com /s/ Jonathan D. Goins JONATHAN D. GOINS Georgia Bar No.: 738593 Thomas C. Grant Georgia Bar No. 297455 Sheri Bagheri Georgia Bar No. 174460 Counsel for Defendants Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 18 of 20 4842-5124-6389.1 19 CERTIFICATE OF COMPLIANCE The undersigned counsel hereby certifies that this MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT complies with the type-volume limitations set forth in Rule 5.1 of the Local Rules of the United States District Court for the Northern District of Georgia and that it has been typed in Times New Roman 14 count. /s/ Jonathan D. Goins Georgia Bar No. 738593 Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 19 of 20 4842-5124-6389.1 20 CERTIFICATE OF SERVICE This is to certify that on this 27th day of July, 2016, I electronically filed the foregoing MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT with the Clerk of Court using CM/ECF system which will send notification of such filing to the following attorneys of record: Eileen H. Rumfelt Laura Ashby MILLER & MARTIN PLLC 1180 West Peachtree Street NW Suite 2100 Atlanta, GA 30309 /s/ Jonathan D. Goins Georgia Bar No. 738593 Case 1:16-cv-01208-AT Document 15-1 Filed 07/27/16 Page 20 of 20 Case 1:16-cv-01208-AT Document 15-2 Filed 07/27/16 Page 1 of 2 Case 1:16-cv-01208-AT Document 15-2 Filed 07/27/16 Page 2 of 2