United States District Court, D. Oregon
PACIFIC OFFICE AUTOMATION, INC., an Oregon corporation, Plaintiff,
DANIEL TRACY, and NORTHWEST IMAGING ANALYSTS LLC, an Oregon limited liability company, Defendants.
Everett W. Jack, Jr. Aaron K. Stuckey Kaley L. Fendall Davis
Wright Tremaine LLP Attorneys for Plaintiff
J. Nelson Keith A. Pitt Slinde Nelson Stanford Attorneys for
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Pacific Office Automation, Inc. (“POA”) brings
claims against Defendants Daniel Tracy and Northwest Imaging
Analysts LLC (“NIA”) for false designation of
origin and false advertising under the Lanham Act, 15 U.S.C.
§ 1125(a), common law unfair competition, and injunctive
relief. Defendants move to dismiss Plaintiff's claims or
in the alternative for a more definite statement under Rule
12 of the Federal Rules of Civil Procedure. Defendants'
Motion to Dismiss  is granted.
an office equipment and management solutions company that
provides office technology products and related services to a
variety of customers. Compl. ¶ 7, ECF 1. Tracy worked
for POA from 2002 to 2010, initially as a sales
representative and later as a field sales manager.
Id. at ¶ 8. Tracy's wife, Megan Tracy, also
worked for POA. Id. at ¶ 9. In 2010, Tracy left
POA and formed NIA with his wife. Id. NIA directly
competes with POA in Oregon, Washington, and California.
Id. Plaintiff alleges that Defendants made
“several false and/or misleading representations
regarding [NIA's] business relationships and/or
affiliations with certain office equipment manufacturers and
supplies for which POA serves as an authorized dealer.”
Id. at ¶ 11. Specifically, Plaintiff alleges
that Defendants made false representations to current and
former POA customers that it was authorized to sell and
service products from certain manufacturers. Id.
According to POA, Defendants are intentionally misleading
customers into believing that they have business
relationships or affiliations with manufacturers in order to
divert customers from POA. Id. at ¶¶
motion to dismiss, the court must review the sufficiency of
the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). A complaint is construed in favor of the plaintiff,
and its factual allegations are taken as true.
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010). “[F]or a complaint to survive
a motion to dismiss, the non-conclusory factual content, and
reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to
relief.” Moss v. United States Secret Serv.,
572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks
omitted). “A claim has facial plausibility when the
plaintiff pleads 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). “[O]nce a claim
has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the
complaint.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 563 (2007). The court, however, need “not
assume the truth of legal conclusions merely because they are
cast in the form of factual allegations.” Id.
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do . . .” Id. at 555.
move to dismiss each of Plaintiff's four claims. First,
Defendants argue that Plaintiff's Lanham Act claims for
false designation of origin and false advertising should be
dismissed for failure to meet the heightened pleading
standard under Federal Rule of Civil Procedure 9(b).
Defendants assert that Plaintiff has insufficiently alleged
the circumstances constituting Defendants' fraud. Second,
Defendants move to dismiss Plaintiff's common law unfair
competition claim on the ground that Oregon common law does
not allow such claims based on false designation of origin or
false advertisement. Third, Defendants move to dismiss
Plaintiff's claim for injunctive relief because it is a
request for a remedy based on Plaintiff's substantive
claims and is not a distinct claim for relief.
Lanham Act Claims
brings two claims for relief under the Lanham Act: (1) false
designation of origin; and (2) a false advertising.
See 15 U.S.C. § 1125(a)(1)(A), (B). Both claims
substantially rely on allegations that Defendants made
“false and/or misleading representations regarding
their business relationships and/or affiliations with certain
office equipment manufacturers . . . .” See
Compl. ¶¶ 16-25. Defendants argue that
Plaintiff's Lanham Act claims must be dismissed under
Rule 9(b) because they have not been sufficiently pled and
fail to put Defendants on notice of the particular misconduct
that constitutes the alleged fraud.
9(b)'s heightened pleading standard provides: “In
alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b). The parties dispute
whether Rule 9(b) is applicable to Plaintiff's Lanham Act
claims. While “fraud” is not a necessary element
of Plaintiff's Lanham claims, the particularity
requirement of Rule 9(b) may apply where the plaintiff
alleges “a unified course of fraudulent conduct and
rel[ies] entirely on that course of conduct as the basis of a
claim.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1103-04 (9th Cir. 2003). Such claims can be said to be
“grounded in fraud.” Id.
Ninth Circuit has not established that Rule 9(b) applies to
false designation of origin and false advertising Lanham Act
claims. However, “several district courts in this
circuit have held that false advertising claims under the
Lanham Act must be pleaded in accordance with Rule
9(b).” SKEDKO, Inc. v. ARC Prod., LLC, No.
3:13-cv-00696-HA, 2014 WL 585379, at *3 (D. Or. Feb. 13,
2014) (collecting cases); see also Nutrition
Distribution, LLC v. New Health Ventures, LLC, No.
16-cv-02338-BTM-MDD, 2017 WL 2547307, at *4 (S.D. Cal. June
13, 2017) (recognizing that “[l]ower federal courts
have applied this heightened pleading standard to claims
under the Lanham Act ...