Hullverson v. Hullverson
| Decision Date | 03 December 2012 |
| Docket Number | No. 4:12-CV-00144-JAR,4:12-CV-00144-JAR |
| Parties | JAMES E. HULLVERSON, JR., Plaintiff, v. JOHN E. HULLVERSON, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Defendants' Motion to Dismiss and/or Strike Plaintiff's Complaint [ECF No. 16] and Plaintiff's Motion to Strike or to Disregard Defendants' Untimely Reply [ECF No. 20]. The motions are fully briefed and ready for disposition.
Plaintiff James E. Hullverson, Jr. (hereinafter "Plaintiff') filed this lawsuit against his family members John E. Hullverson and Thomas C. Hullverson, former law partners Stephen Ringkamp, Mark Becker, and Thomas Burke, and former law firm, The Hullverson Law Firm, P.C., (collectively "Defendants"), alleging violations of the Lanham Act, 15 U.S.C. § 1125, and various Missouri Rules of Professional Conduct. Specifically, Plaintiff claims that Defendants, by continuing to reference John and Thomas Hullverson in their advertising when they are voluntarily "inactive" members of the Missouri Bar, are engaging in false and misleading advertising constituting unfair competition and the promotion of the unauthorized practice of law. Defendants urge dismissal of Plaintiff's claims in their entirety or, in the alternative, that any reference to the Missouri Rules of Professional Conduct or alleged violation of the ethics rules be stricken from the Complaint.
In ruling on a motion to dismiss, the Court must view the allegations in the complaint liberally in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir.2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir.2005)). Additionally, the Court "must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir.2005) (citation omitted). To survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (). Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted "only in the unusual case in which a plaintiff includes allegations that show, on the face of the complaint, that there is some insuperable bar to relief." Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir.2004). The issue on a motion to dismiss is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his or her claim. Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995).
On March 19, 2012, Defendants filed their Motion to Dismiss and/or Strike Plaintiff's Complaint. (Doc. No. 16) Plaintiff filed his Response on March 26, 2012. (Doc. No. 18) Defendants filed their Reply in Support of their Motion to Dismiss and/or Strike Plaintiff's Complaint on April 5, 2012. (Doc. No. 19). Plaintiff argues that pursuant to Eastern District ofMissouri Local Rule 7-4.01(C), the deadline for Defendants to file a reply memorandum was April 2, 2012, seven days after Plaintiff filed his Response, and moves the Court to strike or disregard Defendants' reply as untimely filed.
Defendants filed their reply in accordance with the Federal Rules of Civil Procedure, and the Local Rules of the Eastern District of Missouri. Local Rule 7-4.01(C) allows seven days to file a reply memorandum, and Rule 6(d) of the Federal Rules of Civil Procedure provides for an additional three days when electronic service is made pursuant to Rule 5(b)(2)(E). Section II (G) of the Eastern District of Missouri's administrative procedures for case management and electronic case filing states that Local 38N Graphic Communications Conference/IBT v. St. Louis Post Dispatch, LLC, 2010 WL 2544942, at *1 n.1 (E.D. Mo. June 18, 2010). Defendants' reply memorandum was, therefore, due on April 5, 2012. The reply was timely filed and will be considered by the Court. Plaintiff's motion to strike Defendants' reply will be denied.
Throughout his 56-page complaint, Plaintiff alleges Defendants have violated various Missouri Rules of Professional Conduct by continuing to include references to Thomas and John Hullverson in the firm's advertisements when they are voluntarily "inactive" members of the Missouri Bar.1
In support of their motion, Defendants argue that alleged violations of the Rules of Professional Conduct do not give rise to an independent cause of action. They cite the "scope" section of the Missouri Rules of Professional Conduct which states that Mo.Rules of Prof'l Conduct, Scope, ¶ 7. See also Danzig v. Butler County, 2007 WL 2137813, at *5 (E.D. Mo. July 23, 2007) () (Memorandum in Support, Doc. No. 17, p. 4) Defendants have also provided this Court with numerous examples of federal and Missouri courts holding that alleged violations of rules of professional conduct do not give rise to a civil cause of action against an attorney. (Id., p. 5)
Plaintiff responds that Defendants' violations of the Rules are integral to his false advertising claim and "provide an objective pre-determined framework for considering what is 'misleading' in addition to being 'false.'" (Plaintiff's Response, Doc. No. 18, p. 12)
Plaintiff's repeated references to the Missouri Rules of Professional Conduct are insufficient to form the basis of a civil cause of action. Mo.Rules of Prof'l Conduct R. 4-3.1 at Preamble; Danzig, 2007 WL 2137813, at *6. Moreover, the Court finds such references immaterial to his Lanham Act claims. Accordingly, Plaintiff's allegations concerning purported violations of the Missouri Rules of Professional Conduct will be dismissed. Further, anyreferences to the Missouri Rules of Professional Conduct will be stricken as immaterial from any Lanham Act Claim.
Plaintiff's Complaint states causes of action for unfair competition or trademark infringement under section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), "cyberpiracy" under section 43(d) of the Lanham Act, 15 U.S.C. § 1125 (d), and false advertising under § 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125 (a)(1)(B). (Complaint, Doc. No. 5, ¶¶ 1, 2) Plaintiff seeks to enjoin Defendants from continuing to advertise that Defendants John and Thomas Hullverson are attorneys in the Hullverson Law Firm when they are "inactive" and unauthorized to practice law in Missouri, and from linking Plaintiff's internet domain with Defendants' www.hullverson.com website. Plaintiff also requests the Court declare the promotion of the unauthorized practice of law a public nuisance and order Defendants to inventory and abate the nuisance. Plaintiff seeks monetary damages and attorneys fees. (Id., ¶ 2)
Defendants urge dismissal of Plaintiff's unfair competition or trademark infringement claims and his cyberpiracy claim on the grounds that he cannot establish ownership of a valid trademark. (Doc. No. 17, pp. 8-10) With respect to Plaintiff's claim for false advertising, Defendants contend that the allegedly false statements implying a continued relationship between John and Thomas Hullverson and the firm do not address the "nature, characteristics or qualities" of Defendants' products or services and, therefore, fail as a matter of law. (Id., pp. 11-13)
The Lanham Act protects consumers by broadly prohibiting the use of trademarks2 that are likely to cause confusion about the source of a product or service, and also protects producers from unfair practices by an "imitating competitor." Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 428 (2003). Section 43(a) of the Lanham Act provides:
Any person who, on or in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association ... or as to the origin, sponsorship, or approval of ... goods, services, or commercial activities ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(A)-(B)
The same facts which support a claim for federal unfair competition will also support a claim for trademark infringement. Gilbert/Robinson, Inc. v. Carrie Beverage-Missouri, Inc., 758 F.Supp. 512, 527 (E.D. Mo. 1991). See also Hubbs Mach. & Mfg., Inc. v. Brunson Instrument Co., 635 F.Supp. 2d 1016, 1018 (E.D. Mo. 2009). To establish a claim for either trademark infringement or unfair competition, a plaintiff must generally prove ownership of a valid trademark and...
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