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
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
Daniel Tracy and Northwest Imaging Analysts LLC
(“NIA”) move to dismiss Plaintiff Pacific Office
Automation, Inc.'s (“POA”) Amended Complaint.
See Mot. to Dismiss, ECF 15. Plaintiff brings claims
for false designation of origin and false advertising under
the Lanham Act, 15 U.S.C. § 1125(a). The Court finds
that Plaintiff has sufficiently alleged its Lanham Act
claims. Accordingly, the Motion  is denied.
an office equipment and management solutions company that
provides office technology products and related services to a
variety of customers. Am. Compl. ¶ 7, ECF 14. POA is an
authorized dealer for several office equipment manufacturers,
including Canon, HP, Konica Minolta, Lexmark, Ricoh, and
Sharp. Id. at ¶ 8. NIA was founded by Tracy and
his wife Megan Tracy, both of whom were former POA employees.
Id. NIA is not an authorized dealer of
manufacturers' office equipment; rather, it claims that
it is a broker that partners with some of the manufacturers
listed above to provide office equipment and services to
customers. Id. at Ex. 2. NIA seeks to sell and
service office equipment and provide print and document
services in direct competition with POA in Oregon,
Washington, and California. Id. at ¶ 8.
alleges that, by at least March 2017, Defendants
intentionally confused, mislead, and/or deceived customers
and potential customers into believing that NIA was also an
authorized dealer of office products from the manufacturers
for which POA is an authorized dealer. Id. at ¶
10. Particularly, Plaintiff alleges that Defendants
“have made false and/or misleading statements in the
advertising, promotion, or sale of products and
services” regarding its affiliation with certain office
equipment manufacturers “which are intended to create
the false impression that [NIA] is authorized to sell and
service equipment from such manufacturers when it is not so
authorized.” Id. at ¶ 11. Defendants
allegedly used manufacturers' trade names and trademarks
on NIA's websites and other promotion materials in
addition to making false and misleading representations to
current and former POA customers. Id.
Court previously granted Defendants' motion to dismiss
Plaintiff's original complaint and granted Plaintiff
leave to amend. See Feb. 10, 2018, Op. & Order,
ECF 13. Plaintiff's Lanham Act claims were dismissed for
failure to satisfy the particularity requirement of Rule 9(b)
of the Federal Rules of Civil Procedure. Id. at 7.
Plaintiff reasserted its Lanham Act claims in its Amended
Complaint which Defendants now move to dismiss for failure to
state a claim under Rule 12(b)(6).
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.
Amended Complaint asserts two Lanham Act claims. First,
Plaintiff alleges false designation of origin, claiming that
Defendants' have made false and/or misleading
representations to customers regarding Defendants'
association with certain manufacturers. As a result, NIA has
allegedly diverted customers from POA and damaged POA's
goodwill and reputation. Second, Plaintiff alleges a false
advertising claim based on the same course of conduct.
Defendants move to dismiss Plaintiff's false designation
of origin claim, arguing that there are no allegations, nor
can there be, that Defendants ever represented themselves as
authorized dealers. Likewise, Defendants move to dismiss the
false advertising claim because Plaintiff cannot show that
Defendants ever made any statement that was literally false
or likely to mislead or confuse customers.
threshold matter, Plaintiff argues that Defendants'
Motion is precluded by Rule 12(g)(2) because Defendants
should have raised their failure to state a claim argument in
the first motion to dismiss. See Fed. R. Civ. P.
12(g)(2) (“[A] party that makes a motion under [Rule
12] must not make another motion under this rule raising a
defense or objection that was available to the party but
omitted from its earlier motion.”). In the Motion
currently before the Court, Defendants argue that they only
represented themselves as “partners” with certain
manufacturers as opposed to authorized dealers. Plaintiff
argues that this defense was available to Defendants from the
outset and should have been asserted in the first Rule 12
Court declines Plaintiff's invitation to deny
Defendants' Motion under Rule 12(g)(2). Plaintiff's
Lanham Act claims alleged in its original complaint were
dismissed for lack of particularity. Plaintiff's Amended
Complaint remedied that deficiency by including more detailed
allegations. While the term “partner” may have
been alleged throughout the original complaint,
Plaintiff's Lanham Act claims failed to articulate the
particular circumstances constituting the alleged fraud. In
other words, Defendants could not have raised the failure to
state a claim argument that they now assert based on
Plaintiff's original ...