Imagine Medispa, LLC v. Transformations, Inc.
| Decision Date | 26 February 2014 |
| Docket Number | Civil Action No. 2:13–26923. |
| Citation | 999 F.Supp.2d 873 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | IMAGINE MEDISPA, LLC, f/k/a Medical Weight Loss Clinic of Charleston, LLC, and David A. Rubio, Plaintiffs, v. TRANSFORMATIONS, INC. a West Virginia Corporation, formerly doing business as Transformations Weight Loss & Skin Clinic, Inc., formerly doing Business as Bariatric Medicine of Huntington, Inc., and Liza Antoinette Frederick, M.D. a/k/a Toni Galbraith, M.D., and Joshua P. Galbraith, Defendants. |
Scott H. Kaminski, Balgo & Kaminski, Charleston, WV, for Plaintiffs.
Callie E. Waers, Karen Tracy McElhinny, Shuman McCuskey & Slicer, Charleston, WV, for Defendants.
Pending is the defendants' motion to dismiss, filed December 20, 2013.
This case arises out of a dispute between two competitors in the medical weight-loss and skin care industry, each of which provides “highly similar goods and services in overlapping geographic areas.” See Compl. ¶¶ 13–14. Plaintiff Imagine Medispa, LLC (“Imagine”), a West Virginia corporation with its principal place of business in Charleston, West Virginia, provides “medical weight loss and skin care services .... through the provision of diet drug therapies[,] exercise[,] and through nutritional counseling.” Id. ¶¶ 1, 9, 10. Plaintiff David Rubio is a West Virginia resident and the owner of Imagine. Id. ¶ 2. Transformations, Inc. (“Transformations”) is a West Virginia corporation with its principal place of business in South Charleston, West Virginia. Id. ¶ 3. Like Imagine, Transformations also provides “medical weight loss and skin care services .... through the provision of diet drug therapies [,] exercise[,] and through nutritional counseling.”Id. ¶¶ 11, 12. Defendant Joshua Galbraith is a West Virginia resident and “an incorporator and officer of Transformations.” Id. ¶ 5. Defendant Liza Antoinette Frederick, M.D., is also a West Virginia resident, and was “an incorporator” of Bariatric Medicine of Huntington, Inc., Transformations' predecessor-in-interest. Id. ¶ 4. The plaintiffs allege that she is now an officer of Transformations. Id. Both Imagine and Transformations operate in southern West Virginia. Id. ¶¶ 9, 11.
In their complaint, the plaintiffs contend that the defendants have engaged in a variety of unfair business practices over the course of several years.
First, the plaintiffs allege that the defendants knowingly published false advertisements touting Transformations' competitive prices for certain services in 2010 and 2011. Specifically, they claim that, beginning in November of 2010 and continuing throughout 2011, the defendants distributed promotional materials and advertisements through Valpak1 claiming that Transformations was “West Virginia's Lowest Price Weight Loss & Skin Care Clinic.” Id. ¶¶ 15–16. In April of 2011, the defendants distributed a coupon through Kroger which similarly claimed that Transformations had the “Lowest Prices in WV!”. Id. ¶¶ 17–18. Both advertisements were distributed in interstate commerce and received by “thousands of persons.” Id. ¶¶ 19–21. The plaintiffs contend, however, that each quoted statement was “literally false,” id. ¶¶ 31–32; that Transformations' prices are, in fact, “not the lowest in West Virginia,” id. ¶ 29; and that “Imagine's prices for substantially identical products and services are lower than the prices offered by” Transformations, id. ¶ 30. In addition to these specific advertisements, the plaintiffs also allege that the defendants have “produced and caused to be aired false and misleading television and radio advertisements concerning their services,” id. ¶ 22; and that the defendants “falsely advertised that they offered three weight loss drugs for $65.00 when in fact two of the so-called drugs offered were merely an over-the-counter nutritional supplement and a diuretic,” id. ¶ 26. The complaint does not disclose when these advertisements were made, or how the advertisement for the weight loss drugs was distributed.
Next, the plaintiffs claim that the defendants engaged in fraudulent or misleading use of online social media websites such as Facebook and Craigslist. See generally id. ¶¶ 23–24. According to the complaint, the defendants created a fictitious or misleading Facebook Profile using Rubio's name. Id. ¶ 23. The Profile falsely stated that Rubio was a former employee of Imagine, and indicated that Rubio “liked” Transformations.2 Id. The plaintiffs assert that the defendants also created a fictitious advertisement for a 2010 Chevrolet Camaro that was posted on the online marketplace Craigslist. The listing named Rubio as the seller and included Rubio's office telephone number, resulting in Rubio receiving “scores of calls from individuals inquiring about [a] Camaro that [wa]s not owned or for sale by” Rubio.3 Id. ¶ 24.
Finally, the plaintiffs allege that the defendants “contacted Imagine employees in an effort to learn trade secrets or other confidential information and/or to lure some of those employees away,” id. ¶ 25, and also “falsely told Imagine's clients and potential clients that Imagine used unlicensed doctors and had to change its name due to issues with the authorities,” id. ¶ 27.4
Plaintiffs assert that the false advertisements and fictitious Facebook Profile have directed clients and potential customers away from Imagine and towards Transformations, and “lessen[ed] ... the good will associated with Imagine's goods and services.” Id. ¶¶ 23, 34, 41. They similarly contend that the Craigslist advertisement was “clearly and intentionally designed to be harassing to [Rubio] and disruptive to his personal life and professional business as owner of [Imagine].” Id. ¶ 24. On October 26, 2013, they commenced this suit, charging the defendants with false advertising and unfair practices in violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count I), tortious interference with contract or business relationship (Count II), defamation (Count III), and invasion of privacy (Count IV).
The defendants moved to dismiss on December 20, 2013, arguing that the well-pleaded facts in the complaint failed to state any claim upon which relief could be granted; alternatively, they argued that the plaintiffs' claims were time-barred by the applicable statutes of limitation. See generally Memorandum of Law in Support of Defendants' Motion to Dismiss ( ).
In response to the motion to dismiss, the plaintiffs introduced a number of new factual allegations and exhibits that were not included in the complaint. They clarified, for example, that Rubio first discovered the fictitious Facebook Profile in his name sometime after June 12, 2013, and that he first began receiving telephone calls regarding the 2010 Camaro in October of 2013. Plaintiffs' Opposition to Defendants' Motion to Dismiss ( ) at 2.
The plaintiffs also alleged, for the first time, that the defendants created a second fictitious Facebook Page under the name “Imagine Medispa.” See id. at 3–4. They claim that the fictitious Page improperly used Imagine's trademark, and that the defendants used the Page to fraudulently induce Facebook members, including an Imagine employee named Amy Lively, as well as Imagine patients, to “Like” Transformations' Facebook Page. Specifically, the plaintiffs assert that the defendants used the fictitious Page to send “friend requests,” to Facebook members that, once accepted, added the recipients to the list of “friends” affiliated with Transformations' Facebook Page. Id.
The plaintiffs did not move to amend their complaint to include these new allegations or exhibits, and the court will not consider them for the purposes of resolving the pending motion to dismiss. Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir.2013) (); Materson v. Stokes, 166 F.R.D. 368, 370 (E.D.Va.1996) ().
Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide “a short and plain statement of the claim showing ... entitle[ment] to relief.” Fed.R.Civ.P. 8(a)(2) ; Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint when it “fail[s] to state a claim upon which relief can be granted....” Fed.R.Civ.P. 12(b)(6).
The required “short and plain statement” must provide “ ‘fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), overruled on other grounds, Twombly, 550 U.S. at 563, 127 S.Ct. 1955 ); see also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir.2007). In order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ); see also Monroe v. City of Charlotesville, 579 F.3d 380, 386 (4th Cir.2009).
Application of the Rule 12(b)(6) standard requires that the court “ ‘accept as true all of the factual allegations contained in the complaint....’ ” Erickson, 551 U.S. at 93–94, 127 S.Ct. 2197 (quoting Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955 ); see also South Carolina Dep't of Health & Envtl. Control v. Commerce and Indus. Ins. Co., 372 F.3d 245, 255 (4th Cir.2004) (quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir.2002) ). The court must also “draw[ ] all reasonable...
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