Purple Innovation, LLC v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:24-cv-21362-GAYLES/GOODMAN

PURPLE INNOVATION, LLC,

Plaintiff,

v.

THE INDIVIDUALS, CORPORATIONS,

LIMITED LIABILITY COMPANIES,

PARTNERSHIPS, AND

UNINCORPORATED ASSOCIATIONS

IDENTIFIED ON SCHEDULE “A”

Defendants.

_____________________________________________/

PUBLIC, NON-REDACTED1 REPORT AND RECOMMENDATIONS

ON DEFENDANT SELECTSOMA’S MOTION TO DISMISS

In this intellectual property action, Defendant Henson Holdings, LLC d/b/a

SelectSoma (“Defendant” or “SelectSoma”)2 filed a motion to dismiss Plaintiff Purple

1 In the Sealed version of this same Report and Recommendations (“R&R”), I

instructed the parties to jointly file a redacted version of this R&R because “the Undersigned

generally disfavors filings things outside of the public view (but understands the

importance of keeping certain information private) [.]” [ECF No. 70, p. 1 n.1]. On October

22, 2024, the parties jointly filed a notice “that neither party proposes any redactions” and

publicly attached a copy of my Sealed R&R to it. [ECF No. 72]. Therefore, the Undersigned

issues this public version of the R&R pursuant to the parties’ notice.

2 There are five defendants in this action: Defendant No.1 Aiouarc; Defendant No. 2

Cheng Li Shop; Defendant No. 3 ChenKunUS; Defendant No. 4 LiTaoUS; and Defendant

Innovation, LLC’s (“Plaintiff”) Complaint [ECF No. 1], arguing that both parties previously

resolved the disputes raised in the Complaint, and that Plaintiff’s Complaint fails to state a

claim. [ECF Nos. 35; 39]. Plaintiff filed a response, and Defendant filed a reply. [ECF Nos.

58; 62]. United States District Judge Darrin P. Gayles referred the motion to the Undersigned

for a report and recommendations. [ECF No. 64].

For the reasons outlined below, the Undersigned respectfully recommends that

Judge Gayles grant the motion and dismiss the Complaint (albeit without prejudice and

with leave to file an amended complaint). However, as we shall soon see, the basis for this

ruling is not the purported resolution, as that argument relies on extrinsic exhibits which

the Court cannot consider on a motion to dismiss.

I. Factual Background (i.e., Plaintiff’s Allegations)

Plaintiff’s Complaint contains two causes of action: Trademark Infringement and

Counterfeiting under 15 U.S.C. § 1114 (Count I), and Design Patent Infringement under 35

U.S.C. § 271 (Count II). [ECF No. 1]. Plaintiff originally brought Count I against Defendant

but later stipulated to dismissing it with prejudice against Defendant. [ECF No. 26].3

Therefore, the following allegations concern Count II, “Design Patent Infringement”:

No. 5 SelectSoma. [ECF No. 12]. As of October 9, 2024, only Defendant SelectSoma has

participated in this action, and the remaining four defendants have defaulted. [ECF No. 68].

3 Count I involves eleven different registered trademarks. [ECF No. 1-1]. Plaintiff

stipulated to dismissing Count I with prejudice as to U.S. Trademark Registration No.

5,661,556. With regards to the remaining ten trademarks, Plaintiff agreed to dismiss Count

I without prejudice as to Defendant SelectSoma. [ECF No. 26, ¶¶ 1-2].

2. This is also an action for patent infringement to combat e-commerce

store operators who trade upon Plaintiff’s reputation and goodwill by making,

using, offering for sale, selling and/or importing into the United States for

subsequent sale or use, unauthorized and unlicensed products that infringe

Plaintiff’s design patents, U.S. Patent Nos. US D991,706 S, D990,930 S,

D959,176 S, D951,670 S, D917,926 S, D909,790 S, and D 909,092 S (the “PURPLE

INNOVATION Patents”). The PURPLE INNOVATION Patents are valid,

subsisting, and in full force and effect. Plaintiff is the owner and lawful

assignee of all right, title, and interest in and to the PURPLE INNOVATION

Patents, which were duly and legally issued by the United States Patent and

Trademark Office.4

3. Defendants are improperly advertising, marketing and/or selling

unauthorized and noncompliant products by reference to marks identical or

substantially identical to the PURPLE INNOVATION Trademarks and/or that

embody the design(s) depicted in the PURPLE INNOVATION Patents (the

“Counterfeit Products”).

4. [ ] Defendants have created numerous fully interactive commercial

internet stores operating under the online marketplace accounts (the

“Defendant Internet Stores”) and using the account names identified in

Schedule A (collectively, the “Defendants”).

5. [ ] Defendants design the online marketplace accounts to appear to be

selling Plaintiff’s genuine PURPLE INNOVATION Products (the “PURPLE

INNOVATION Products”), while selling inferior imitations of such products.

6. [ ] Defendants’ online marketplace accounts also share unique

identifiers, such as design elements and similarities of the Counterfeit

Products offered for sale, establishing a logical relationship between them and

suggesting that [the] Defendants’ illegal operations arise out of the same

transaction, occurrence, or series of transactions or occurrences.

7. Defendants attempt to avoid liability by going to great lengths to

conceal both their identities and the full scope and interworking of their illegal

counterfeiting operation. Plaintiffs are [sic] forced to file this action to combat

Defendants’ counterfeiting of the PURPLE INNOVATION Trademarks and

PURPLE INNOVATION Patents, as well as to protect unknowing consumers

from purchasing Counterfeit Products.

4 Plaintiff attached a copy of these patents to the Complaint. [ECF No. 1-2].

***

14. Plaintiff PURPLE INNOVATION, LLC is a limited liability company

organized under the laws of the State of Delaware and is the registered owner

of the PURPLE INNOVATION Trademarks (referred to above, copies of

federal registrations attached as Exhibit 1) and the PURPLE INNOVATION

Patents (referred to above, copies attached as Exhibit 2).

15. Plaintiff is a leading supplier and manufacturer of the exclusive

GelFlex® Grid products, such as pillows and mattresses which encompass

proprietary technology, and has earned an international reputation for

quality, reliability and value. Plaintiff is credited for many breakthroughs that

have occurred in the industry, including its PURPLE INNOVATION Products.

***

28. On personal knowledge and belief, Defendants facilitate sales by

designing Defendant Internet Stores so that they appear to unknowing

consumers to be authorized online retailers, outlet stores, or wholesalers

selling genuine PURPLE INNOVATION Products.

29. Many of the Defendant Internet Stores look sophisticated and accept

payment in U.S. dollars via credit cards, Western Union, and PayPal.

Defendant Internet Stores often include images and design elements that make

it very difficult for consumers to distinguish such counterfeit sites from an

authorized website.

30. Defendants further perpetuate the illusion of legitimacy by offering

“live 24/7” customer service and using indicia of authenticity and security that

consumers have come to associate with authorized retailers, including the

McAfee® Security, VeriSign®, Visa®, MasterCard®, and PayPal® logos.

31. Plaintiff has not licensed or authorized Defendants to use the PURPLE

INNOVATION Trademarks or PURPLE INNOVATION Patents, and none of

the [d]efendants are authorized retailers of genuine PURPLE INNOVATION

Products.

32. On personal knowledge and belief, Defendants deceive unknowing

consumers by using the PURPLE INNOVATION Trademarks and/or PURPLE

INNOVATION Patents without authorization within the product descriptions

of their Defendant Internet Stores to attract customers, as well as embodied by

the Counterfeit Products themselves.

***

45. Defendants, without any authorization or license from Plaintiff, have

knowingly and willfully used and continue to use the PURPLE INNOVATION

Trademarks and PURPLE INNOVATION Patents in connection with the

advertisement, distribution, offering for sale, sale and import of Counterfeit

Products into the United States and Florida over the Internet.

46. Each [d]efendant Internet Store offers shipping to the United States,

including Florida (in this Judicial District) and, on information and belief, each

[d]efendant has offered to sell Counterfeit Products into the United States,

including Florida (in this Judicial District), which is likely to cause and has

caused confusion, mistake, and deception by and among consumers and is

irreparably harming Plaintiff.

***

55. Defendants are and have been making, using, selling, offering for sale,

and/or importing into the United States for subsequent sale or use, without

authority, Counterfeit Products that infringe directly and/or indirectly the

PURPLE INNOVATION Patents.

***

57. Defendants’ activities constitute willful patent infringement under 35

U.S.C. § 271.

58. Defendants have infringed the PURPLE INNOVATION Patents

through the aforesaid acts and will continue to do so unless enjoined by this

Court. Defendants’ wrongful conduct has caused Plaintiff to suffer irreparable

harm resulting from the loss of its lawful patent rights to exclude others from

making, using, selling, offering for sale, and importing the patented invention.

59. Plaintiff is entitled to injunctive relief pursuant to 35 U.S.C. § 283.

60. Plaintiff is entitled to recover damages adequate to compensate for the

infringement pursuant to 35 U.S.C. §§ 284, 289, including Defendants’ profits.

[ECF No. 1, ¶¶ 2–7; 14–15; 28–32; 45–46; 55; 57–60].

II. Applicable Legal Standards

To survive a motion to dismiss under Rule 12(b)(6), “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

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). To meet

this “plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court

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

(citing Twombly, 550 U.S. at 556). The standard “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. (quoting Twombly, 550 U.S. at 555).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

On a motion to dismiss, “the court must accept all factual allegations in a complaint

as true and take them in the light most favorable to plaintiff.” Dusek v. JPMorgan Chase &

Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (emphasis added).

Federal Rule of Civil Procedure 8(a) requires only “a short and plain statement of the

claim showing that the pleader is entitled to relief.” It does not “require that a plaintiff

specifically plead every element of a cause of action.” Balaschak v. Royal Caribbean Cruises,

Ltd., No. 09-21196, 2009 WL 8659594, at *6 (S.D. Fla. Sept. 14, 2009) (citing Roe v. Aware

Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), which, in turn, cited Jack H.

Friedenthal, et al., Civil Procedure, § 5.7 (2d ed. 1993) for the view that “[w]hat the pleader

need not do is worry about the particular form of the statement or that it fails to allege a

specific fact to cover every element of the substantive law involved.”).

III. Analysis

Defendant argues that Plaintiff’s Complaint should be dismissed with prejudice

because the parties “previously resolved5 the dispute [Plaintiff] improperly brings forth [,]”

and because the Complaint’s “mere formulaic recitation of the elements of claims for . . .

patent infringement [ ] are insufficient to meet pleading requirements.” [ECF No. 39, p. 1].

There are two approaches a defendant can take in attacking a complaint: “(1) a facial

attack, which challenges whether the plaintiff has alleged a basis for subject matter

jurisdiction, taking all allegations in the complaint as true; and/or (2) a factual attack, which

challenges the existence of subject matter jurisdiction irrespective of the pleadings, and

allows extrinsic evidence to be considered.” Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221,

1230 (11th Cir. 2021).

These “two forms of attack differ substantially.” Lawrence v. Dunbar, 919 F. 2d 1525,

1529 (11th Cir. 1990). “While facial attacks afford plaintiffs ‘safeguards similar to those

provided in opposing a Rule 12(b)(6) motion,’ factual attacks offer no presumption of

truthfulness to plaintiffs’ allegations and ‘the existence of disputed material facts will not

5 Defendant attached to its dismissal motion a copy of the settlement agreement

allegedly resolving this dispute. [ECF No. 39-1]. The parties entered into the agreement after

Plaintiff sued Defendant in the United States District Court for the District of Utah, Purple

Innovation v. Chuang Fan Handicraft et al., Case No. 2:22-cv-00620-DBP and the International

Trade Commission (“ITC”), In the Matter of Certain Pillows and Seat Cushions, Components

Thereof, and Packaging Thereof, Case No. 337-TA-1328.

preclude the trial court from evaluating for itself the merits of jurisdictional claims.’”

Betancourt v. River Lanes of Titusville Inc, No. 6:23-CV-414-PGB-DCI, 2023 WL 4405487, at *2

(M.D. Fla. July 7, 2023) (quoting Lawrence, 919 F. 2d at 1529).

Here, Defendant’s motion presents both a factual and a facial attack on Plaintiff’s

Complaint. Defendant’s motion is based on Rules 12(b)(1) and 12(b)(6) and relies upon

extrinsic evidence, such as a copy of the parties’ past settlement agreement and emails. “A

motion to dismiss for lack of subject matter jurisdiction brought pursuant to Rule 12(b)(1)

of the Federal Rules of Civil Procedure can be asserted on facial or factual grounds.” Hossfeld

v. Am. Fin. Sec. Life Ins. Co., 544 F. Supp. 3d 1323, 1329 (S.D. Fla. 2021) (citing Carmichael v.

Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009)).

“In ruling upon a motion to dismiss, the district court may consider an extrinsic

document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged.”

SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (citing Day v.

Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); see also Maxcess, Inc. v. Lucent Technologies, Inc.,

433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“[A] document outside the four corners of the

complaint may still be considered if it is central to the plaintiff's claims and is undisputed in

terms of authenticity.”)). Defendant contends that its extrinsic evidence meets those two

qualifications. [ECF No. 39, p. 15].

Plaintiff argues that Defendant is barred from relying on extrinsic evidence such as

the settlement agreement and emails because it is an “indirect attack on the merits of

Plaintiff’s claim” and “not the Court’s ability to hear the subject matter of the case.” [ECF

No. 58-1, p. 6]. It implies that Defendant’s arguments are a de facto trojan horse to improperly

introduce evidence that “goes beyond the four corners of the Complaint[.]” Id. Plaintiff

included the following instructions from the Eleventh Circuit in its response:

The Williamson court discussed the standard by which a district court should

decide factual attacks on subject matter jurisdiction when the defendant's

attack also implicates an element of the cause of action:

[T]he proper course of action for the district court . . . is to find that

jurisdiction exists and deal with the objection as a direct attack on the merits

of the plaintiff's case. . . . Judicial economy is best promoted when the

existence of a federal right is directly reached and, where no claim is found

to exist, the case is dismissed on the merits. This refusal to treat indirect

attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater

level of protection to the plaintiff who in truth is facing a challenge to the

validity of his claim: the defendant is forced to proceed under Rule 12(b)(6)

. . . or Rule 56 . . . both of which place great restrictions on the district court's

discretion. . . . [A]s a general rule a claim cannot be dismissed for lack of

subject matter jurisdiction because of the absence of a federal cause of

action. The exceptions to this rule are narrowly drawn, and are intended to

allow jurisdictional dismissals only in those cases where the federal claim

is clearly immaterial or insubstantial.

Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting Williamson v.

Tucker, 645 F. 2d 404, 415 (5th Cir. 1981)).

Defendant contends that the settlement agreement “is of paramount importance to

the current claims, as it was the cause for the dismissal [of Count I].” [ECF No. 62, p. 3]. It

acknowledges that the Court’s “power to make findings of facts and to weigh the evidence

depends on whether the factual attack on jurisdiction also implicates the merits of

[P]laintiff’s cause of action.” Id. at 5 (quoting Kennedy v. Floridian Hotel Inc., No. 1:18-CV-

20839-UU, 2018 WL 10601975, at *2 (S.D. Fla. May 15, 2018) (citing Garcia v. Copenhaver, Bell

& Assocs., M.D.’s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) (emphasis in original)). Defendant

states that its 12(b)(1) arguments do not implicate the merits of Count II, and that

“infringement is not an issue in the motion.” Id. The Undersigned disagrees. Count II is

based on design patent infringement. Defendant wants the Court to review the extrinsic

evidence (such as the settlement agreement) to illustrate how Plaintiff supposedly permitted

Defendant to produce the alleged-infringing product.

Infringement is generally defined as “whoever without authority makes, uses, offers

to sell, or sells any patented invention, within the United States or imports into the United

States any patented invention during the term of the patent[.]”35 U.S.C. § 271 (emphasis

added). If Defendant had permission to produce the product, then it would not be

infringement because Plaintiff had hypothetically given it permission to do so. Therefore,

Defendant’s 12(b)(1) arguments directly implicate Count II’s merits, and, as Defendant states,

“[o]nly when the defendant’s attack also implicates an element of the cause of action is the

defendant forced to proceed under Rule 12(b)(6).” [ECF No. 62, p. 5 (quoting Lawrence, 919

F. 2d at 1529)]. Consequently, the Undersigned will not consider Defendant’s 12(b)(1)

arguments nor its relied-upon extrinsic evidence, and will restrict the motion’s analysis to

Rule 12(b)(6).6

6 This also includes Defendant’s request for attorney’s fees and costs pursuant to the

settlement agreement. Defendant may file a separate appropriate request for relief outside

of this motion in accordance with federal and local rules.

Defendant makes a parallel argument with regards to its extrinsic evidence being

considered for 12(b)(6) purposes because “the documents are central to the claims-at-hand

and their authenticity is undisputed.”7 [ECF No. 39, p. 13 (citing Physician's Cent. Bus. Off.

& Affiliate v. Underwriters at Lloyd's, London, No. 1:20-CV-23592, 2024 WL 580345, at *6 (S.D.

Fla. Feb. 13, 2024) (Gayles, J.))]. The Undersigned disagrees because not only does the

Complaint fail to make any reference to Defendant’s extrinsic evidence including the

settlement agreement, but the evidence is not central to Plaintiff’s claims. Day, 400 F.3d at

1276 (“Our prior decisions also make clear that a document need not be physically attached

to a pleading to be incorporated by reference into it; if the document's contents are alleged

in a complaint and no party questions those contents, we may consider such a document

provided it meets the centrality requirement imposed in Horsley [v. Feldt, 304 F.3d 1125, 1134

(11th Cir. 2002)].”). “A document is ‘central’ to a claim when its contents are at ‘the very

heart’ of the dispute.” Healthier Choices Mgmt. Corp. v. Philip Morris USA, Inc., 65 F.4th 667,

676 (Fed. Cir. 2023) (quoting Day, 400 F. 3d at 1276). “For example, a contract is central to a

contract dispute and a patent is central to a patent infringement case.” Id.

Defendant’s extrinsic evidence is at the heart of its arguments, not Plaintiff’s claims.

In describing how each of its exhibits is “central to” Plaintiff’s claims, Defendant’s reasoning

makes no mention of, nor includes any specific references or comparisons to, the Complaint.

7 The Undersigned notes that Plaintiff does not dispute the authenticity of Defendant’s

evidence.

For example, Exhibit A is the settlement agreement that was reached after the parties were

involved in two previous separate litigations.8 Defendant argues that this agreement led to

the current alleged product-at-issue and that this product gave rise to the Complaint. But

Plaintiff’s claims are about its valid patent or trademark being infringed. The Complaint

makes no reference to this previous litigation between the parties nor their settlement

agreement. In fact, the Complaint fails to include any specific details related to Defendant,

including its name. Additionally, as Defendant declared in its reply, “[i]nfringement is not

an issue in the [m]otion.” [ECF No. 62, p. 5 (emphasis added)]. Infringement is a necessary

element to Plaintiff’s claims, and if Defendant’s evidence is not disputing the validity of

Plaintiff’s patents nor their alleged infringement, then it is simply not central to Plaintiff’s

claims.

Defendant cites Yost-Rudge v. City of Stuart, No. 23-14270-CIV, 2024 WL 1513898, at

*5 (S.D. Fla. Mar. 18, 2024), report and recommendation adopted, No. 23-14270-CIV, 2024 WL

1513894 (S.D. Fla. Apr. 8, 2024) (appeal pending) for support, and described the case as

“considering a settlement agreement under 12(b)(6) and granting [the] defendants’ motion

to dismiss as the agreement had settled [the] plaintiff’s (sic) disputes.” Id. at 4.

In Yost-Rudge, the plaintiffs sued the City of Stuart alleging that “they were illegally

deprived of their property through various code enforcement actions and unlawfully

denied hearings in various cases[.]” 2024 WL 1513894 at *5. The plaintiffs’ complaint

8 Exhibits B and C are the complaints associated with those cases.

specifically mentioned multiple state court cases. Id. at *1. When the defendants filed their

12(b)(6) motion, they attached a copy of a settlement agreement between the parties and an

affidavit. Id. The Yost-Rudge Court considered the evidence over the plaintiffs’ objection. Id.

at *5. The Yost-Rudge Court held that the evidence was “sufficiently central” to the plaintiffs’

claims because the settlement agreement was tethered to the lawsuits and legal action

specifically mentioned in the complaint. Id.

Here, Plaintiff’s Complaint does not specifically mention (nor broadly reference) any

of the litigation history Defendant wants the Court to rely on to justify the requested

dismissal. Defendant’s arguments, at least at this procedural point, are the only thing tying

its evidence to the Complaint. As noted, this evidence is central to its claims, not Plaintiff’s.

Therefore, the Undersigned will not rely upon Defendant’s extrinsic evidence in reviewing

its 12(b)(6) arguments because the evidence is not “at the heart” of Plaintiff’s claims.

Defendant may bring this evidence to the Court’s attention again at a future stage of this

litigation, such as the summary judgment or trial stage.

Relying on Rule 12(b)(6), Defendant then argues that the Complaint should be

dismissed because Plaintiff’s “allegations are insufficient and fail to ‘raise a right to relief

above the speculative level’ to survive a motion under Federal Rule of Civil Procedure

12(b)(6).” [ECF No. 39, p. 14]. The Undersigned agrees.

As previously stated, Plaintiff’s Complaint contains two counts. Before Plaintiff’s

Stipulated Dismissal of Count I against Defendant [ECF No. 26], both counts were alleged

against all five Defendants. However, the Complaint is problematic because of its lack of

specificity. The issues that plague Count II also plague Count I because the Complaint: (1)

fails to differentiate between Defendants or their actions in either count; (2) contains mere,

conclusory recitations of the claim elements; and (3) never mentions Defendant by name. At

bottom, Plaintiff’s Complaint is considered an impermissible shotgun pleading.

A shotgun pleading is a pleading that is “virtually impossible to know which

allegations of facts are intended to support which claim(s) for relief.” Anderson v. Dis. Bd. of

Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). In Weiland v. Palm Beach Cnty.

Sherriff’s Off., the Eleventh Circuit established four types of shotgun pleadings: (1) “a

complaint containing multiple counts where each count adopts the allegations of all

preceding counts[;]” (2) a complaint with “conclusory, vague, and immaterial facts not

obviously” associated with a specific cause of action; (3) a complaint that fails to set out each

claim into various counts; and (4) a complaint with “multiple claims against multiple

defendants without specifying which of the defendants are responsible for which acts or

omissions, or which of the defendants the claim is brought against.” 792 F.3d 1313, 1321–23

(11th Cir. 2015).

“Shotgun pleadings are condemned by the Eleventh Circuit, which has specifically

instructed district courts to dismiss shotgun pleadings as ‘fatally defective.’” Smith v.

Carnival Corp., No. 22-cv-22853, 2022 WL 16791783, at *2 (S.D. Fla. Nov. 8, 2022) (granting

cruise ship operator’s motion to dismiss and quoting B.L.E. v. Ga., 335 F. App’x 962, 963 (11th

Cir. 2009)). “Overall, shotgun pleadings do not establish a connection between ‘the

substantive count and the factual predicates . . . [and] courts cannot perform their

gatekeeping function with regard to the averments of [the plaintiff’s claim].” Id. (quoting

Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279–80 (11th Cir. 2006)).

As noted above in the citation to Weiland, the Eleventh Circuit has identified four

types of shotgun pleadings:

The most common type—by a long shot—is a complaint containing multiple

counts where each count adopts the allegations of all preceding counts,

causing each successive count to carry all that came before and the last count

to be a combination of the entire complaint. The next most common type, at

least as far as [the Eleventh Circuit’s] published opinions on the subject reflect,

is a complaint that does not commit the mortal sin of re-alleging all preceding

counts but is guilty of the venial sin of being replete with conclusory, vague,

and immaterial facts not obviously connected to any particular cause of action.

The third type of shotgun pleading is one that commits the sin of not

separating into a different count each cause of action or claim for relief. Fourth,

and finally, there is the relatively rare sin of asserting multiple claims against

multiple defendants without specifying which of the defendants are

responsible for which acts or omissions, or which of the defendants the claim

is brought against. The unifying characteristic of all types of shotgun

pleadings is that they fail to one degree or another, and in one way or another,

to give the defendants adequate notice of the claims against them and the

grounds upon which each claim rests.

792 F.3d at 1321–23 (footnotes omitted).

Plaintiff’s Complaint falls within the fourth type of shotgun pleading because it

asserts Count II against all Defendants “without specifying which of the defendants are

responsible for which acts or omissions, or which of the defendants the claim is brought

against.” Id. Both counts merely include a generic recitation of the elements, an image

comparing Plaintiff’s product with an infringing product (but nothing indicating which

Defendant that product is attributed to), a statement that Defendants’ activities constitute

willful infringement under the relevant statute, and how Defendants’ conduct caused

Plaintiff irreparable harm.

Plaintiff acknowledges that “[t]o establish a case of patent9 infringement, Plaintiff

must prove two elements: (a) that it owns a duly issued patent and (b) that the defendant

has infringed its patent.” [ECF No. 58-1, p. 6 (quoting A.W. Indus. Inc. v. Elec. Connector Serv.

Inc., 1997 WL 873869, at *6 (S.D. Fla. Nov. 24, 1997))]. Plaintiff also states that to evaluate

whether a product infringes on a patent, the Court must: “(1) interpret the claims followed

by (2) comparing the properly interpreted claims to the accused device.” Id. However, the

Complaint is void of anything allowing the Court to compare Plaintiff’s claims with the

accused devices from each Defendant. Both of the images within the counts fail to specify

which Defendant they are attributed to here.

Judge Gayles dismissed a similarly problematic complaint in Peleg Design Ltd. v.

Individuals, Corps., Ltd. Liab. Companies, Partnerships, & Unincorporated Associations Identified

on Schedule "A" to the Complaint, No. 1:23-CV-24672, 2024 WL 1759139, at *2 (S.D. Fla. Apr.

9 To establish a trademark infringement claim, “Plaintiff must demonstrate that (1) it

had prior rights to the mark at issue; and (2) Defendants adopted a mark or name that was

the same, or confusingly similar to Plaintiff's trademarks, such that consumers were likely

to confuse the two. Run-Tiger, LLC v. Individuals, Corps., Ltd. Liab. Companies, Partnerships, &

Unincorporated Associations Identified on Schedule A to Complaint, No. 1:23-CV-23185, 2024 WL

1860966, at *3 (S.D. Fla. Mar. 29, 2024), report and recommendation adopted, No. 23-23185-CV,

2024 WL 1859760 (S.D. Fla. Apr. 29, 2024) (citing Planetary Motion, Inc. v. Techsplosion, Inc.,

261 F.3d 1188, 1193 (11th Cir. 2001)).

24, 2024).10 There, the Court ordered the plaintiff to explain whether its joinder of 176

defendants was proper under Federal Rule of Civil Procedure 20. Judge Gayles reviewed

the plaintiff’s filings and found that joinder was improper because the Complaint lacked

specificity and that a joinder would not promote judicial economy. Judge Gayles found that

the complaint was not specific enough because:

While there may be some common questions of law and fact as to the

[d]efendants, the Complaint does not allege how each [d]efendant's acts of

infringement “[arose] out of the same transaction, occurrence, or series of

transactions or occurrences” of all the other [d]efendants. Fed. R. Civ. P.

20(a)(2)(A). See [Omega, SA v. Individuals, Bus. Entities, & Unincorporated

Associations Identified on Schedule “A”, 650 F. Supp. 3d 1349,] 1352 (S.D. Fla.

2023) (“One defendant's alleged . . . infringement does not necessarily arise

out of the same transaction, occurrence, or series of transactions or occurrences

as another's unrelated infringement of the same [patent].)”; Kay v. Individuals,

Partnerships, & Unincorporated, No. 23-22755-CIV, 2023 WL 6809762, at *2 (S.D.

Fla. Oct. 16, 2023). [The] [p]laintiff alleges that [d]efendants' Internet Stores

have similar layouts and bear indicia of being related to one another and that

[d]efendants engage in similar approaches to selling their counterfeit goods.

However, [the] [p]laintiff has not explained how having similar storefronts or

using the same approach to infringe upon the same copyright or patent,

without more, establishes that [d]efendants' infringements are logically

related. In addition, [the] [p]laintiff’s speculation that the infringing products

come from a common source is insufficient to support joinder. Importantly,

[the] [p]laintiff does not explain how ordering joint and several relief against

all [d]efendants would be proper. See Kay, 2023 WL 6809762 at *2.

Id.; see also Zuru Inc. v. Individuals, Partnerships, & Unincorporated Associations Identified on

Schedule "A", No. 1:22-CV-23504-KMM, 2023 WL 4014802, at *2 (S.D. Fla. Feb. 28, 2023)

(same).

10 Plaintiff’s counsel also represented the plaintiff in this action. Therefore, counsel was

on notice of the Complaint’s problematic lack of specificity.

Therefore, Plaintiff's Complaint should be dismissed under 12(b)(6) because it fails

to state a claim. Plaintiff's Complaint improperly lumps all Defendants and their actions

together as if they were in concert with one another. The lack of specificity within it bars the

Court from determining whether Plaintiff has met the necessary elements (of either claim)

against each Defendant. Additionally, because Plaintiff fails to detail how each Defendant

caused irreparable harm, such harm is baseless speculation.

IV. Conclusion

The Undersigned respectfully recommends that Judge Gayles grant Defendant's

motion to dismiss and dismiss the Complaint, albeit without prejudice and with leave to

amend.

V. Objections

The parties will have eight (8)"! days from the date of being served with a copy of

this Report and Recommendations within which to file written objections, if any, with the

District Judge. Each party may file a response to the other party’s objection within fourteen

(14) days of the objection. Failure to timely file objections shall bar the parties from a de novo

determination by the District Judge of an issue covered in the Report and shall bar the

parties from attacking on appeal unobjected-to factual and legal conclusions contained in

This deadline is shortened to match the one set in the original Sealed version of this

R&R because it is the same filing but with a different title. [ECF No. 70].

this Report except upon grounds of plain error if necessary in the interest of justice. See 28

U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794

(1989); 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, October 22,

2024.

L; lf

Jgnathan Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Darrin P. Gayles

All Counsel of Record