Argos Global Partner Servs., LLC v. Ciuchini

• Decision Date: 11 March 2020
• Docket Number: CASE NO. 18-23070-CIV-ALTONAGA/Goodman
• Citation: 446 F.Supp.3d 1073
• Parties: ARGOS GLOBAL PARTNER SERVICES, LLC; et al., Plaintiffs, v. Fabio CIUCHINI, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

446 F.Supp.3d 1073

ARGOS GLOBAL PARTNER SERVICES, LLC; et al., Plaintiffs,

v.Fabio CIUCHINI, et al., Defendants.

CASE NO. 18-23070-CIV-ALTONAGA/Goodman

United States District Court, S.D. Florida.

Signed March 11, 2020

Aldo M. Leiva, Baker Donelson, Fort Lauderdale, FL, Norman S. Segall, Lubell Rosen, Coral Gables, FL, for Plaintiffs.

Patricia Acosta, PAG.Law PLLC, Miami, FL, for Defendants.

ORDER

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Defendants, Fabio Ciuchini; Cosmo Global Lux SARL ("Cosmo"); and Argos GPS North America ("Argos Indiana['s]") Second Amended Combined Motion to Dismiss Amended Complaint [ECF No. 101] for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) ; for improper venue under 28 U.S.C. section 1391(b) ; and for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs, Argos Global Partner Services LLC ("Argos USA"); Argos Global Partner Services, Limited ("Argos Hong Kong"); and Argos GPS Trading (Shanghai) Co., Ltd. ("Argos Shanghai"), filed a Memorandum of Law in Opposition to Defendants' Second Amended Motion to Dismiss [ECF No. 108] on January 13, 2020; to which Defendants filed a Reply [ECF No. 113] on January 29, 2020.¹ The Court has carefully considered the Amended Complaint [ECF No. 46], the parties' written submissions, and applicable law. For the following reasons, the Motion is granted in part and denied in part.

I. BACKGROUND

This case concerns a series of business disputes among several related, but competing, companies. (See generally Am. Compl.). Plaintiff, Argos USA, is a Florida limited liability company with its principal place of business in Miami-Dade County. (See id. ¶ 7). Luciana Ciuchini ("Luciana"), whose citizenship and residence are not alleged, is the manager and owner of Argos USA. (See id. ). Plaintiff, Argos Shanghai is a corporation formed under the laws of China; and Plaintiff, Argos Hong Kong is a corporation formed under the laws of Hong Kong. (See id. ¶ 10). Argos Shanghai and Argos Hong Kong are subsidiaries of Argos USA. (See id. ).

Defendant, Argos Indiana, is an Indiana limited liability company with a principal place of business in Indiana. (See id. ¶ 13). Defendant, Cosmo, is a Luxembourg limited liability company with its principal place of business in Luxembourg. (See id. ¶ 9). Defendant, Fabio Ciuchini ("Fabio"), is a citizen of Brazil and Italy and a resident of France. (See id. ¶ 8). Fabio is the manager of Argos Indiana and he controls two non-defendant entities — Argos Global Partner Services Ltda. ("Argos Brazil") and Argos Global Partner Services S.R.L. ("Argos Argentina"). (See id. ¶¶ 11, 13). Fabio's wife, Renata Canoletti Ciuchini ("Renata"), whose citizenship and residence are not alleged, is the 100 percent owner of Cosmo. (See id. ¶ 9). Fabio and Luciana are siblings. (See id. ¶ 8).

On July 19, 2019, Plaintiffs filed the operative complaint alleging nine claims for relief. These are alleged sometimes in the singular by reference to a Plaintiff; sometimes in the plural by reference to Plaintiffs; and sometimes by reference to a single and plural Plaintiffs in the same count, in a rather unclear fashion. (See id. 9–23). For purposes of the discussion in this Order, the Court assumes the claims are brought by all Plaintiffs given the imprecision in the pleading. The claims presented for one or more of the Plaintiffs are: trademark infringement, false designation of origin, false advertising and unfair competition under the Lanham Act (Count I), infringement of common law rights in trademarks and trade name (Count II), and false designation of origin under 15 U.S.C. section 1125(a) (Count III) against Fabio and Argos Indiana; tortious interference with advantageous business relationships (Count IV), civil conspiracy (Count V), and violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") (Count IX) against all Defendants; breach of contract (Count VI) and rescission (Count VII) against Cosmo; and breach of fiduciary duty (Count VIII) against Fabio. (See generally Am. Compl.).

The facts relevant to the claims follow.

A. The Argos Companies

In 1998, Fabio and his business partner, Leonardo Franco, created Argos Brazil, a company broadly concerned with transportation, supply-chain, and import/export logistics. (See Second Am. Decl. of Fabio Ciuchini ("Fabio Decl.") [ECF No. 101-1] 1–13,² ¶¶ 3–4; Decl. of Luciana Ciuchini ("Luciana Decl.") [ECF No. 108-3] ¶ 5). Fabio's friend, Rodrigo Reis, designed a logo for the company depicting a ship over the word ARGOS. (See Fabio Decl. ¶ 4). In 2001, Argos Brazil acquired the domain name argosgps.com. (See id. ¶ 8). The Argos website, www.argosgps.com, displayed Argos Brazil's original logo and was available to viewers around the world. (See id. ).

In 2002, Argos Brazil expanded its presence to the United States and established Argos North America, Inc. ("Argos NA") in Chicago, Illinois. (See id. ¶ 6).³ The expansion to the United States led to the brand-name "Argos Group," which initially referred to the combination of Argos Brazil and Argos NA, but later included various Argos-related entities. (See id. ¶ 7).⁴ The Argos website advertised a "global presence" showing an Argos-affiliated business in the United States. (See id. ¶ 8 (internal quotation marks omitted)). Defendants submit a client presentation from 2004, affixed with the Argos logo over the words "Argos Global Partner Services," demonstrating "Argos NA existed as part of Argos [Group], and that Argos [Group] marketed itself as having a presence in the United States by virtue of its operations through Argos NA." (Id. (alterations added; first internal quotation marks omitted); see also id. , Ex. C, May 2004 Presentation [ECF No. 101-1] 29–65).

Sometime in 2003, Luciana began working for Argos NA. (See Luciana Decl. ¶¶ 8–10; Fabio Decl. ¶ 9). In 2004, Luciana moved Argos NA from Chicago to Florida. (See Luciana Decl. ¶ 16). In 2005, Fabio and Franco severed their partnership and divided the companies, with Fabio keeping 100 percent of Argos Brazil and Franco keeping 100 percent of Argos NA. (See id. ¶ 19).⁵

On November 23, 2005, Argos USA was formed in Florida, and Luciana was designated the sole owner and director. (See id. ¶ 22). The ensuing relationships between Argos USA and Argos Brazil, and between Argos USA and the "Argos Group," are disputed. According to Plaintiffs, after the formation of Argos USA, there was a clear division of authority between the companies and subsidiaries operated by Luciana and those operated by Fabio. (See Am. Compl. ¶ 16). Customers and suppliers of Argos USA generally maintained contact with Luciana, whereas customers of Argos Brazil and Argos Argentina generally maintained contact with Fabio. (See id. ).

According to Defendants, "[a]lthough corporate formalities were observed, Argos USA never held itself out as anything other than an entity that was affiliated with Argos and a member of Argos Group." (Fabio Decl. ¶ 12 (alteration added)). Defendants submit a January 26, 2006 Letter on Argos Global Partner Services letterhead (see id. , Ex. F [ECF No. 101-1] 74–75) sent to suppliers stating "Argos [NA] has recently changed the company name from Argos [NA] to Argos [USA] .... There are no other changes besides the formal name of the company." (Id. 74 (alterations added; capitalization and bold omitted)). The letter lists Fabio Ciuchini as "Director" and identifies the affiliated website as www.argosgps.com. (Id. ).

Argos USA concedes it and its subsidiaries shared the argosgps.com website domain with Argos Brazil and Argos Argentina. (See Am. Compl. ¶ 22; Luciana Decl. ¶ 40). Argos USA employees used email addresses with "@argosgps.com" until January 11, 2018. (See Luciana Decl. ¶ 41).⁶ Defendants also contend "Argos USA's trade name is identical to Argos, the Brazilian entity ... [and] [s]ince[ ] Argos USA was affiliated with Argos and operated as part of Argos Group, Argos agreed to allow Argos USA [to] utilize the ‘Argos’ trade name and logos under similar terms as Argos NA." (Fabio Decl. ¶ 11 (alterations added)). As late as 2017, Argos USA employees communicated to customers in emails using "@argosgps.com" email addresses. (See Fabio Reply Decl. [ECF No. 113-1] ¶ 3; see also id. , Ex. A, Argos USA Emails [ECF No. 112-1] 7–11). Emails to Argos USA's customers list the company's address as www.argosgps.com, show an "Argos Group" logo, and also use the original Argos Logo containing a ship above the words "Argos" and "global partner services." (Argos USA Emails 7, 11).

Plaintiffs do not contest Argos USA used the same trade name as Argos Brazil.⁷ Following the creation of Argos USA, Luciana formed Argos France, Argos Shanghai, and Argos Hong Kong as subsidiaries of Argos USA. (See Am. Compl. ¶ 15). According to Plaintiffs, "[n]o later than 2009, [Luciana] assumed full responsibility for Argos USA." (Luciana Decl. ¶ 26 (alterations added)).⁸

B. Creation of Cosmo and Sale of Argos France

In 2017, Fabio informed Luciana he wanted to leave Brazil, remove his name from ownership of the Brazilian companies, change the Argos companies' structure, and create a holding company in Luxembourg in his wife, Renata, and Luciana's names. (See Luciana Decl. ¶ 54). According to Plaintiffs, Fabio proposed restructuring the various Argos entities so that "Argos USA and its subsidiaries Argos France, Shanghai and Hong Kong" would be transferred "to a company in Luxemburg [sic]." (Id. ¶ 56). Luciana did not agree to the transfer of Argos USA to Fabio's control, but the parties continued to negotiate the transfer of Argos USA's subsidiaries. (See id. ¶¶ 57–59).

In November 2017, Fabio's wife, Renata established a new company — Cosmo — in Luxembourg. (See Decl. of Renata Canoletti Ciuchini ("Renata Decl.") [ECF No. 101-2] 1–5). Argos USA and Cosmo drafted a share purchase agreement ("SPA") contemplating the sale...