Alvi Armani Medical, Inc. v. Hennessey

• Decision Date: 09 December 2008
• Docket Number: Case No. 08-21449-CIV.
• Citation: 629 F.Supp.2d 1302
• Parties: ALVI ARMANI MEDICAL, INC. and Dr. Antonio Alvi Armani, Plaintiffs, v. Patrick HENNESSEY and Media Visions, Inc., Defendants.
• Court: U.S. District Court — Southern District of Florida

629 F.Supp.2d 1302

ALVI ARMANI MEDICAL, INC. and Dr. Antonio Alvi Armani, Plaintiffs, v. Patrick HENNESSEY and Media Visions, Inc., Defendants.

Case No. 08-21449-CIV.

United States District Court, S.D. Florida.

December 9, 2008.

Jose Manuel Ferrer, Joseph Mamounas, Donald John Hayden, Baker & McKenzie, Miami, FL, Christina Wilson, Richard A. DePalma, Christina Wilson, Baker & McKenzie LLP, New York, NY, for Plaintiffs.

Deanna Kendall Shullman, Thomas & Locicero PL, Ft. Lauderdale, James J. McGuire, Thomas & Locicero Pl, Tampa, FL, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' RENEWED MOTION TO DISMISS COMPLAINT (D.E. 20)

JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on Defendants' Renewed Motion to Dismiss Complaint ("Motion," D.E. 20; see also D.E. 21 (memorandum of law)), filed on July 14, 2008. On September 16, 2008, Plaintiffs filed their Response to the Motion ("Response," D.E. 31). On September 26, 2008, Defendants filed a reply ("Reply," D.E. 35). Having reviewed the Motion, the Response, the Reply and the record, the Court finds as follows:

I. Background

On May 19, 2008, Plaintiffs Dr. Antonio Alvi Armani ("Dr. Armani") and Alvi Armani Medical, Inc. ("Armani Medical") commenced this action with the filing of the Complaint against Defendants Patrick Hennessey ("Hennessey") and Media Visions, Inc. ("Media Visions"). (See D.E. 1.) The Complaint alleges, inter alia, that Dr. Armani is a physician specializing in "hair restorations and hair transplants," and that he founded Armani Medical. (Id. ¶¶ 9, 14.) The Complaint further alleges that, upon information and belief, Defendant Media Visions is the owner, host, and publisher of a website called the "Hair Restoration Network," which is identified as being "dedicated to providing information to the consumer public about the hair restoration and transplant industry," and that such website is controlled by Defendant Hennessey. (Id. ¶ 21.) According to the Complaint, Defendants have engaged in false, deceptive and unfair business practices in knowingly posting disparaging and false statements about Dr. Armani and Armani Medical on the website and by creating the impression that posters on the website are bona fide disgruntled patients of Plaintiffs, when in fact the posters are either fictitious persons or undisclosed affiliates of doctors who are on the website's recommended list of "pre-screened" doctors. (Id. ¶ 30.) The Complaint also asserts that as a result of such posts, many individuals have decided not to use the services of Plaintiffs. (Id. ¶¶ 71-72.) Based on these and additional allegations in the Complaint, Plaintiffs assert claims for Deceptive and Unfair Trade Practices ("FDUTPA") (Count I); Defamation (Count II); and for Temporary and Permanent Injunctive Relief (Count V).¹

II. Defendants' Motion to Dismiss

In their Motion, Defendants first argue that the Court must treat Plaintiffs' claims under FDUTPA and for defamation as a single claim because both claims arise out of the same set of operative facts. (D.E. 21 at 2-4.) Next, Defendants argue that Plaintiffs have failed to comply with Section 770.01 of the Florida Statutes because Plaintiffs have not alleged that they provided the requisite five days' notice before commencing their defamation claim against Defendants, nor can they comply with such prerequisite, as they failed to provide timely notice under the statute. (Id. at 5-7.) Next, Defendants argue that, in any event, Plaintiffs have failed to identify the allegedly defamatory statements with sufficient specificity in order to state claim. (Id. at 7-9.) Additionally, Defendants argue that Media Visions is immune under the Communications Decency Act ("CDA") because the alleged defamatory statements were made by third parties. (Id. at 9-10.) Defendants also argue that Media Vision's forums are not "trade or commerce" under FDUTPA, and thus Count I of the Complaint must be dismissed. (Id. at 11-12.) Finally, Defendants argue that Count V seeks an impermissible prior restraint on speech and should be dismissed as inconsistent with the First Amendment to the United States Constitution. (Id. at 16-17.)

In their Response, Plaintiffs argue that Plaintiffs have alleged an independent basis for their FDUTPA claim, namely, Defendants' deceptive and misleading conduct, separate and apart from defamatory statements. (D.E. 31 at 4-5.) Next, Plaintiffs argue that Section 770.01 of the Florida Statutes is not applicable to internet chat forums such as that at issue here. (Id. at 5-9.) In addition, Plaintiffs argue that they have adequately pled a defamation claim and have satisfied Federal Rule of Civil Procedure 8(a). (Id. at 9-10.) Plaintiffs further argue that Defendants are not entitled to immunity under the CDA, in part because Plaintiffs argue that Defendants have themselves issued false and misleading statements regarding Plaintiffs, and that FDUTPA applies to Defendants and their alleged conduct. (Id. at 10-16.) Finally, Plaintiffs argue that they have not yet moved for injunctive relief, and thus Defendants' First Amendment argument is inappropriately decided on the instant Motion. (Id. at 16-17.)

In their Reply, Defendants in large part reiterate the arguments set forth in their initial pleading. (See D.E. 35.)

III. Standard of Review

Pursuant to Federal Rule of Civil Procedure 12(b), a defendant may move for dismissal of a claim based on one or more of seven specific defenses, including failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In reviewing a motion to dismiss, the Court accepts the facts alleged in the Complaint as true, and construes all reasonable inferences therefrom in the light most favorable to Plaintiffs. Bank v. Pitt, 928 F.2d 1108, 1109 (11th Cir.1991). To survive a motion under Rule 12(b)(6), a claim need not contain detailed factual allegations, but must provide sufficient grounds to show more than a merely speculative entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007); Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231-32 (11th Cir.2000).

IV. Analysis

A. FDUTPA Claim (Count I)

Defendants first appear to argue that Plaintiffs' FDUTPA claim should be dismissed because it arises from the same operative facts as their defamation claim. Nonetheless, "the mere fact that conduct gives rise to more than one type of claim does not prevent it from being a[n][F]DUTPA violation." Army Aviation Heritage Found. & Museum, Inc. v. Buis, 504 F.Supp.2d 1254, 1262-1263 (N.D.Fla. 2007) (noting that on summary judgment, statements that were found to be defamatory also constituted violations of FDUPA, while recognizing that concurrent violations of both causes of action will not necessarily be found in every case) (citing Urling v. Helms Exterminators, 468 So.2d 451 (Fla. 1st Dist.Ct.App.1985)). Accordingly, the Court does not find dismissal of Plaintiffs' FDUTPA claim on this basis to be appropriate at this stage of the litigation.

Defendants' second argument with respect to Plaintiffs' FDUTPA claim is that it must be dismissed because Media Vision's forums are not "trade" or "commerce" under FDUTPA. Pursuant to FDUTPA, "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce" are unlawful. Fla. Stat. § 501.204(1) (2008) (emphasis added). "Trade or commerce," as used in the statute, is defined as "the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated," and includes "the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity." Fla. Stat. § 501.203(8). As such language clearly indicates, the definition of "trade or commerce" is quite broad. Moreover, FDUTPA requires that its provisions "be construed liberally" to, inter alia, "protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." Fla. Stat. § 501.202(2).

Given these provisions of FDUPA, and further accepting the facts alleged in the Complaint as true and construing all reasonable inferences therefrom in the light most favorable to Plaintiffs, the Court does not find it appropriate to dismiss, at this stage of the litigation, Plaintiffs' FDUTPA claim on the basis that Media Vision's forums do not involve "trade" or "commerce" as contemplated by FDUTPA. In the Complaint, Plaintiffs have alleged, inter alia, that Defendants, through their website, provide information to the consumer public about the hair restoration and transplant industry (see, e.g., D.E. ¶¶ 21-25); that potential patients heavily rely upon information provided in the website (id. ¶¶ 27-29); that Defendant Hennessey receives a monthly fee from hair transplant doctors who are placed on a "recommended list" of doctors on the website (id. ¶ 34); that, as a result of pressure from Plaintiffs' competitors, Defendants knowingly posted and/or permitted to be posted disparaging and false statements about Plaintiffs and left them posted for extended periods of time, purposefully creating damage to Plaintiffs' reputation (id. ¶¶ 30, 35-36); that Defendants failed to verify the identity of certain posters on the website (id. ¶¶ 50-51, 57-61); and that Plaintiffs' business and professional reputation was damaged in that many individuals decided not to use Plaintiffs' services after viewing the subject website (id. ¶¶ 66-74). Based on these and additional allegations in the Complaint, the Court finds that Plaintiffs have adequately alleged that Defendants have engaged...