Mid-America Apartment Communities, Inc. v. DOE-1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

MID-AMERICA APARTMENT )

COMMUNITIES, INC., )

Plaintiff, )

)

v. ) No. 2:23-cv-2186-SHL-cgc

)

DENNIS MICHAEL PHILIPSON, )

Defendant. )

ORDER DENYING MOTION TO DISMISS

Before the Court is pro se Defendant Dennis Michael Philipson’s amended Motion to

Dismiss, filed September 2, 2023.1 (ECF No. 33.) Plaintiff Mid-America Apartment

Communities, Inc. (“MAA”), filed its response on October 2, 2023. (ECF No. 55.) Mr.

Philipson did not file a reply. Because the amended complaint contains sufficient allegations

which, if accepted as true, state a claim for relief that is plausible on its face, the motion is

DENIED.

BACKGROUND2

Mr. Philipson was formerly employed as a property manager for MAA, one of the largest

residential management companies in the nation and the second largest owner of apartments in

the United States. (ECF No. 16 at PageID 175, 177.) In March 2021, Mr. Philipson gave notice

to MAA that he was leaving to pursue his acting career. (Id. at PageID 177.) A few days later,

1 Mr. Philipson filed his original motion to dismiss on August 30, 2023. (ECF No. 31.)

2 The Court only discusses the facts that are pertinent to Defendant’s motion. The facts

are taken from the amended complaint (ECF No. 16), and are accepted as true for purposes of

ruling on the motion.

Mr. Philipson attempted to rescind his resignation but, based on negative comments that he made

at the time he tendered his resignation, MAA denied his attempt and paid him instead of

allowing him to work during his notice period. (Id.)

Since his resignation, according to MAA, Mr. Philipson has engaged in numerous acts of

harassment against MAA and its employees, as well as attempts to divert, harass and confuse

MAA’s customers. These alleged acts include, but are not limited to, sending more than sixty-

five communications to MAA or its employees complaining about alleged fraud, his alleged

mistreatment while working there, the supposed malfeasance of other MAA employees and other

alleged SEC and IRS violations. (Id.) Mr. Philipson also claims to have made complaints about

MAA to various federal agencies, including the Securities and Exchange Commission, the

Internal Revenue Service, and the Department of Justice. (Id.) He is alleged to have pursued

multiple false whistleblower complaints against MAA, left false reviews about MAA on the

Internet and sent emails under a fake name to an MAA board member. (Id. at PageID 178–79.)

According to MAA, Mr. Philipson has used MAA’s valid and registered trademarks on websites

without its permission, including on websites tied to several Internet domain names he purchased

in March 2023, as well as on a fictitious LinkedIn webpage. (Id. at PageID 174, 180–85.)

MAA filed its original complaint on April 4, 2023, in which it named John Doe 1 and

John Doe 2 as Defendants. (ECF No. 1.) It filed its amended complaint on June 13, 2023,

replacing the anonymous Defendants with Mr. Philipson. (ECF No. 16.)3 The amended

complaint states the following claims against Mr. Philipson: trademark infringement and unfair

competition under federal law; trademark infringement, unfair competition and misappropriation

3 In its response, MAA explains that it “was able to determine that John Does 1 and 2

were actually a single person,” i.e., Mr. Philipson, through the issuance of a series of third-party

subpoenas. (ECF No. 55 at PageID 561.)

under Tennessee law; deceptive trade practices and fraudulent misrepresentation under

Tennessee law; negligence per se for violations of the federal law protecting the public from

cyber harassment; defamation; tortious interference with prospective business relationships;

deceit; and violations under the Tennessee Personal and Commercial Computer Act of 2003. (Id.

at Page ID 185–93.) MAA also seeks injunctive relief. (Id. at PageID 188.)

STANDARD

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). It must contain sufficient facts to “state a

claim to relief that is plausible on its face,” meaning it includes “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 556, 570 (2007)). The complaint need not set forth “detailed factual allegations,” but it

must include more than “labels and conclusions,” “a formulaic recitation of the elements of a

cause of action,” and “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citing

Twombly, 550 U.S. at 555, 557).

Federal Rule of Civil Procedure 12(b)(6) allows the Court to dismiss a complaint for

failure to comply with the requirements of Rule 8(a)(2). Fed. R. Civ. P. 12(b)(6). When

considering a 12(b)(6) motion, the Court must accept all factual allegations in the complaint as

true and construe them in the light most favorable to the plaintiff. Adkisson v. Jacobs Eng’g

Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015) (internal citation omitted).

ANALYSIS

Mr. Philipson argues five separate, but often interrelated, grounds for dismissal of the

amended complaint, none of which specifically address any of MAA’s causes of action.4 First,

he broadly asserts that MAA’s factual allegations are insufficient. (ECF No. 33 at PageID 340.)

Second, he asserts that an absence of key information in the amended complaint weakens

MAA’s case and casts doubt on the “comprehensiveness and factual integrity” of its allegations.

(Id.) His third argument is based on the fact that some of the allegations in the amended

complaint are based on a response from a third-party subpoena. According to Mr. Philipson, this

third-party subpoena is not in the record because MAA is withholding it, which, according to

him, potentially violates Federal Rule of Civil Procedure 26(e)(1)(A), but also “impacts the

overall plausibility of [MAA’s] claim.” (Id. at 341.) Relatedly, Mr. Philipson’s fourth argument

asserts that MAA might have used improper means to gather information through that third-party

subpoena, which might render any such evidence excludable. (Id.) Finally, as a fifth basis for

dismissal, Mr. Philipson asserts that, although the amended complaint includes allegations about

his mental state, it fails to provide proof that would substantiate those claims. (Id. at 341–42.)

According to Mr. Philipson, the absence of such proof casts doubt on the facial plausibility of

MAA’s claims and might even violate Federal Rule of Civil Procedure 11(b)(2)’s requirement

4 Only the first section of Mr. Philipson’s motion address whether MAA has stated a

claim upon which relief can be granted under Rule 12(b)(6). The subsequent sections address a

panoply of unrelated issues. So, Mr. Philipson asserts that MAA “violated the provisions and the

spirit of Fed. R. Civ. P. 45” in issuing subpoenas to third parties (ECF No. 33 at PageID 342);

argues that MAA and the Court violated his Due Process rights (id. at 342–43); alleges that

MAA instigated the lawsuit for improper purposes, and has harassed him and abused the

discovery process (id. at 344); and suggests that MAA’s attorneys have engaged in ongoing

ethical violations (id. at 344–45). Because none of these allegations bear on whether MAA has

stated a plausible claim for relief under Rule 12(b)(6), the Court does not address them.

that an attorney certifies that, under the circumstances, “the claims, defenses, and other legal

contentions are warranted by existing law or by a nonfrivolous argument for extending,

modifying, or reversing existing law or for establishing new law.” (Id. at 342.)5

The bulk of Mr. Philipson’s arguments in favor of dismissal are undermined when the

procedural posture of the case is considered. When considering the motion to dismiss, the Court

must construe the amended complaint in the light most favorable to MAA, accept all of the

factual allegations as true, and draw all draw all reasonable inferences in favor of MAA. See L.

C. v. United States, 83 F.4th 534, 550 (6th Cir. 2023) (citations omitted). In other words, at this

stage, MAA need not marshal the proof that would demonstrate it is entitled to the relief sought

in the amended complaint. Instead, it need only plead “sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ammex, Inc. v. McDowell, 24 F.4th

1072, 1079 (6th Cir. 2022) (quoting Iqbal, 556 U.S. at 678); see also Iqbal, 556 U.S. at 696

(explaining that the plausibility standard under Twombly requires courts to accept as true

everything short of “allegations that are sufficiently fantastic to defy reality as we know it:

claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time

travel.”) (Souter, J., dissenting).

In support of his general argument that MAA’s factual allegations are insufficient, Mr.

Philipson asserts that the content within the affidavit that MAA relies upon to support its claims

would “not pass the rigorous Daubert standard for admitting scientific evidence.” (ECF No. 33

5 To the extent Mr. Philipson intends to seek sanctions against MAA under Rule 11, a

motion to dismiss is an inappropriate means for doing so. See Fed. R. Civ. P. 11(c)(2) (“A

motion for sanctions must be made separately from any other motion and must describe the

specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but

it must not be filed or be presented to the court if the challenged paper, claim, defense,

contention, or denial is withdrawn or appropriately corrected within 21 days after service or

within another time the court sets.”)

at PageID 340.) However, the ultimate truth of the contention is not relevant here, as the

Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

and the cases applying it address the admissibility of expert testimony at trial, and have no place

at the motion to dismiss stage. See United States v. Lazar, No. 04-cv-20017-BBD-dkv, 2005

WL 8157026, at *5 (W.D. Tenn. Mar. 29, 2005), report and recommendation adopted, 2005 WL

8157024 (W.D. Tenn. Apr. 14, 2005) (declining “to decide a Daubert issue in the context of a

motion to dismiss” and explaining that the “motion to dismiss based on the lack of expert

testimony is premature”); Bearden v. Honeywell Int’l, Inc., No. 3:09-01035, 2010 WL 1223936,

at *4 (M.D. Tenn. Mar. 24, 2010) (finding that conducting a Daubert-style inquiry on the

sufficiency of expert testimony was inappropriate at the motion to dismiss stage). Mr.

Philipson’s arguments based on Daubert are unpersuasive.

The same holds true for Mr. Philipson’s argument that MAA’s allegations about his

mental state are unsupported by definitive evidence or “expert behavioral analysis.” (ECF No.

33 at Page ID 342.) Mr. Philipson does not identify which allegations from the amended

complaint suggest unfounded assumptions about his mental state. Yet, even assuming there are

such allegations, at this stage they would not need to be supported by “definitive evidence” or

“expert behavioral analysis.” To survive a motion to dismiss, MAA need only assert a short and

plain statement of its claim showing that it is entitled to relief. See Fed. R. Civ. P. 8(a)(2). It has

done so here. Mr. Philipson’s assertion that “allegations of this nature should be substantiated at

the earliest possible stage in the litigation process” has no basis in the law or the federal rules.

He has failed to satisfy his burden of demonstrating that MAA has failed to state a claim upon

which relief can be granted on these grounds.

Mr. Philipson asserts elsewhere that the absence of key information weakens MAA’s

case, as MAA has “conspicuously omit[ted] references to key employees at MAA” which “not

only raises credibility issues but also invites questions about the comprehensiveness and factual

integrity of their allegations.” (ECF No. 33 at PageID 340.) Relatedly, Mr. Philipson argues that

MAA has withheld evidence from the record related to the response to a third-party subpoena,

and characterizes this as “an inability to disclose this key piece of evidence,” which “impacts the

overall plausibility of their claim.” (Id. at 341.) Mr. Philipson again overstates MAA’s burden

at the pleading stage. A motion to dismiss is not the vehicle to test the comprehensiveness or the

veracity of a complaint. Rather, such factual disputes are ripe for determination at the summary

judgment stage or at trial after discovery is complete and the record has been thoroughly

developed. Mr. Philipson’s assertion that there is a lack of evidence in the record or that MAA

has failed to disclose evidence that would support the claims in its amended complaint do not

support the granting of his motion.

Finally, to the extent Mr. Philipson grounds the motion to dismiss in assertions that MAA

may not have complied with its obligations under Federal Rule of Civil Procedure 45, that also

does not provide him a basis for the relief he seeks. Mr. Philipson argues that, even assuming

that the information gleaned from the third-party subpoena is accurate, there is an “absence of

clear documentation detailing the proper legal procedures for acquiring such sensitive

information,” which “raises legal concerns.” (Id.) However, even assuming MAA did not abide

by “procedural safeguards,” as Mr. Philipson alleges, that does not address whether its amended

complaint plausibly states a claim for relief, which is the lone legal concern at issue here.

Ultimately, even if that evidence is inadmissible, as Mr. Philipson suggests (see id.), it does not

form a basis for dismissing the amended complaint.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is DENIED.

IT IS SO ORDERED, this 6th day of November, 2023.

s/ Sheryl H. Lipman

SHERYL H. LIPMAN

CHIEF UNITED STATES DISTRICT JUDGE