`
`
`
`CIVIL ACTION
`
`NO: 16-2926
`
`SECTION: “J” (4)
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`Case 2:16-cv-02926-CJB-KWR Document 28 Filed 12/05/16 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
`
`
`EXPRESS LIEN, INC.
`
`VERSUS
`
`NATIONWIDE NOTICE, INC.
`
`
`ORDER AND REASONS
`Before the Court is a 12(b)(6) Motion to Dismiss, Motion to
`Strike Claim for Attorneys’ Fees and Treble Damages, and Motion
`for Award of Attorneys’ Fees and Costs (R. Doc. 22) filed by
`Defendant, Nationwide Notice, Inc. (Defendant), an opposition
`thereto (R. Doc. 24) filed by Plaintiff, Express Lien, Inc., doing
`business as Zlien (Plaintiff), and a reply filed by Defendant (R.
`Doc. 27). Having considered the motion and legal memoranda, the
`record, and the applicable law, the Court finds that the motion
`should be GRANTED in part and DENIED in part.
`FACTS AND PROCEDURAL BACKGROUND
`According to its amended complaint, Plaintiff is a software
`platform that serves parties in the construction industry by
`providing accounts receivable and construction payment services.
`(R. Doc. 20, at 3.) Plaintiff offers its customers “self help”
`resources, such as construction notices and lien forms, so that
`its customers can exert and maintain control over their security
`
`
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`1
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`rights on construction programs. Id. Plaintiff offers these
`services through its website, zlien.com. Id.
`Plaintiff alleges that it has invested substantial time,
`money, and energy creating a website that will attract customers
`and drive sales. The website includes special features designed
`to achieve this goal. For instance, Plaintiff alleges that its
`website has a feature that allows the user to obtain specific lien
`information for each individual state (state-by-state resources).
`Id. at 4. Plaintiff alleges that the website’s state-by-state
`resources include frequently asked questions for each state, a
`chart displaying unique lien information specific to each state,
`and selected text from each state’s statutes on mechanics lien and
`bond law. Id. Plaintiff alleges that each page of its website is
`marked with a copyright notice.
`Plaintiff alleges that Defendant, which provides a similar
`construction document preparation and filing service through its
`web platform, visited Plaintiff’s website and copied the material
`therein. In particular, Plaintiff alleges that Defendant has
`copied the “resources” section of Plaintiff’s website, posted the
`information on its own website, and now claims it as its own.
`Plaintiff
`also
`alleges
`that
`Defendant
`has
`used
`“misrepresentations, suppressions, and other unfair tactics” with
`respect to Defendant’s website to unfairly compete with Plaintiff.
`
`
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`2
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`Plaintiff brought this suit on April 8, 2016. (R. Doc. 1.)
`On September 15, 2016, Plaintiff filed an amended complaint (R.
`Doc. 20), alleging violations of 17 U.S.C. § 501 for copyright
`infringement, and 15 U.S.C. § 1125(a) (§ 43 of the Lanham Act) for
`trade dress infringement. The amended complaint also alleges
`violations of Louisiana law, including the Louisiana Unfair Trade
`Practices and Consumer Protection Law (LUTPA) La. Rev. Stat. §
`51:1401 et seq., and fraud under Louisiana Civil Code Article 1953,
`and makes a demand for stipulated damages pursuant to Louisiana
`Civil Code Article 2007. Additionally, the amended complaint
`requests that Defendant be enjoined from copying, posting, or
`making any other infringing use or distribution of Plaintiff’s
`protected materials.
`Defendant has filed this partial motion to dismiss,
`requesting that the Court dismiss Plaintiff’s claims for trade
`dress infringement, breach of contract, fraud, and unfair trade
`practices. (R. Doc. 22-1, at 1.)1 Defendant also requests that
`the Court strike Plaintiff’s demand for attorneys’ fees and treble
`damages. Finally, Defendant requests an award of reasonable
`attorneys’ fees and costs incurred in bringing its motion to
`dismiss Plaintiff’s LUTPA claim.
`
`
`
`1 The only claim in Plaintiff’s amended complaint that Defendant does not
`request the Court to dismiss is Plaintiff’s Copyright Act claim.
`3
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`PARTIES’ ARGUMENTS
` Defendant argues that Plaintiff’s Lanham Act, breach of
`
`contract, LUTPA, and fraud claims should be dismissed pursuant to
`Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)). First,
`Defendant contends that these claims are all preempted by
`Plaintiff’s Copyright Act claim. Additionally, Defendant argues
`that Plaintiff’s amended complaint fails to plead the Lanham Act,
`breach of contract, LUTPA, and fraud claims with sufficient factual
`detail to survive Rule 12(b)(6) motion to dismiss.
`
`Plaintiff argues that none of its claims are preempted by the
`Copyright Act because they are causes of action entirely separate
`from Plaintiff’s Copyright Act claim. Further, Plaintiff contends
`that it has pled all of its claims with sufficient detail to
`survive Defendant’s motion to dismiss.
`LEGAL STANDARD
`Under the Federal Rules of Civil Procedure, 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). The
`complaint must “give the defendant fair notice of what the claim
`is and the grounds upon which it rests.” Dura Pharm., Inc. v.
`Broudo, 544 U.S. 336, 346 (2005). The allegations “must be simple,
`concise, and direct.” Fed. R. Civ. P. 8(d)(1).
`
`“Under Rule 12(b)(6), a claim may be dismissed when a
`plaintiff fails to allege any set of facts in support of his claim
`
`
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`4
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`which would entitle him to relief.” Taylor v. Books A Million,
`Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
`Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To
`survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
`enough facts to “state a claim to relief that is plausible on its
`face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
`Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is
`facially plausible when the plaintiff pleads facts that allow the
`court to “draw the reasonable inference that the defendant is
`liable for the misconduct alleged.” Id. A court must accept all
`well-pleaded facts as true and must draw all reasonable inferences
`in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
`228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196
`(5th Cir. 1996). The court is not, however, bound to accept as
`true legal conclusions couched as factual allegations. Iqbal, 556
`U.S. at 678.
`
`DISCUSSION
`
`Lanham Act Claim
`
`Defendant’s first argument is that Plaintiff’s Lanham Act
`claim is preempted by the Copyright Act because Plaintiff’s Lanham
`Act claim is merely a restatement of its Copyright Act claim.
`Defendant supports this position by referring the Court primarily
`to cases where courts, upon motions for summary judgment, dismissed
`Lanham Act claims when the Copyright Act provided a sufficient
`
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`5
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`remedy. (R. Doc. 22-1, at 6-7.); see, e.g., Shaw v. Lindheim, 919
`F.2d 1353, 1364-65 (9th Cir. 1990) (“We decline to expand the scope
`of the Lanham Act to cover cases in which the Federal Copyright
`Act provides an adequate remedy.”). But the Fifth Circuit has
`stated:
`The federal Copyright Act does not preempt the
`federal Lanham Act, or vice-versa. In fact, it is
`common practice for copyright owners to sue for both
`infringement under the 1976 Copyright Act and unfair
`competition under the Lanham Act. Such a litigation
`posture has never been disallowed by the courts on
`grounds of either preemption or impermissible double
`recovery.
`Alameda Films v. Authors Rights Restoration Corp., 331 F.3d 472,
`482 (5th Cir. 2003) reh’g denied, (5th Cir. June 26, 2003).
`In this case, Plaintiff’s Lanham Act claim is based upon the
`allegation that Defendant’s copying of certain parts of
`Plaintiff’s website is likely to lead to “consumer confusion” and
`“deceive as to the affiliation, connection, or association of
`[Defendant] with [Plaintiff].” (R. Doc. 20, at 12). Though
`similar, the Copyright Act claim and the Lanham Act claim are
`distinct. Thus, Defendant’s argument that Plaintiff’s Lanham Act
`claim is preempted by the Copyright Act must fail at this stage of
`litigation, especially when it is not clear whether Defendant’s
`Copyright Act claim will provide an adequate remedy. See Dastar
`Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 34 (2003)
`(“[I]n construing the Lanham Act, we have been careful to caution
`
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`against misuse or over-extension of trademark and related
`protections into areas traditionally occupied by patent or
`copyright.”) (internal citations omitted).
`Defendant’s second argument is that Plaintiff’s Lanham Act
`claim failed to provide enough factual detail to satisfy Rule 8(a).
`The relevant portion of the Lanham Act, upon which Plaintiff’s
`claim is based, provides:
`a) Civil action
`
`(1) Any person who, on or in connection with any goods
`or services, or any container for goods, uses in commerce
`any word, term, name, symbol, or device, or any
`combination thereof, or any false designation of origin,
`false or misleading description of fact, or false or
`misleading representation of fact, which--
`
`(A) is likely to cause confusion, or to cause mistake,
`or to deceive as to the affiliation, connection, or
`association of such person with another person, or as to
`the origin, sponsorship, or approval of his or her goods,
`services, or commercial activities by another person, or
`
`(B) in
`commercial
`advertising
`or
`promotion,
`misrepresents the nature, characteristics, qualities, or
`geographic origin of his or her or another person's
`goods, services, or commercial activities,
`shall be liable in a civil action by any person who
`believes that he or she is or is likely to be damaged by
`such act.
`
`15 U.S.C. § 1125(a). The Fifth Circuit has articulated a two-step
`analysis to determine whether a Lanham Act trade dress infringement
`cause of action is available. Allied Mktg Grp. Inc. v. CDL Mktg,
`Inc., 878 F.2d 806, 813 (5th Cir. 1989). The first step is to
`
`
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`determine whether the trade dress is protectable, which requires
`inquiry into three issues: (1) distinctiveness, (2) secondary
`meaning, and (3) functionality. Id. The next step is to determine
`whether the trade dress has been infringed, which “is shown by
`demonstrating that the substantial similarity in trade dress is
`likely to confuse consumers.” Id.
`
`Defendant argues that Plaintiff’s amended complaint fails to
`identify any protectable trade dress. (R. Doc. 22-1, at 13.) In
`particular, Defendant argues that Plaintiff fails to sufficiently
`synthesize the unique elements of its website to demonstrate how
`those elements qualify as protectable trade dress. It is true
`that the amended complaint does not painstakingly describe the
`protectable nature of the trade dress in its section setting forth
`the Lanham Act cause of action. However, the amended complaint
`does clearly identify unique aspects of Plaintiff’s website. In
`particular, the amended complaint alleges that Plaintiff’s website
`has a page providing state-by-state resources for lienholders.
`(R. Doc. 20, at 4-5.) The amended complaint also alleges that the
`website’s design is “widely recognized by consumers and has become
`a valuable indicator of the source and origin of the information
`provided” therein. (R. Doc. 20, at 11.) This satisfies the first
`requirement of trade dress protectability, at least at the pleading
`stage. See Express Lien, Inc. v. Nat’l Ass’n of Credit Mgmt., 13-
`3323, 2013 WL 4517944, at *4 (E.D. La. Aug. 23, 2013) (finding
`
`
`
`8
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`that plaintiff satisfied the pleading requirement for a Lanham Act
`cause of action when the plaintiff alleged that aspects of its
`website design were “widely recognized by consumers and [had]
`become a valuable indicator of the source and origin of the
`information” in the website).
`
`Plaintiff also satisfies the second pleading requirement that
`the substantial similarity in trade dress is likely to confuse
`consumers. The amended complaint lists five specific elements of
`Plaintiff’s website which it alleges that Defendant copied, and
`which contribute to the “look and feel” of Plaintiff’s website.
`For example, Plaintiff alleges that Defendant copied the phrases
`“Trusted by Thousands” and “Thousands trust us” from Plaintiff’s
`website and that Defendant used them. (R. Doc. 20, at 11.)
`Additionally, the amended complaint alleges that Defendant copied
`and used the state-by-state resources section, as well as the chart
`format and layout from Plaintiff’s website. These allegations are
`sufficient to satisfy the pleading requirement.
`Breach of Contract Claim
`
`Defendant’s two arguments in favor of dismissing Plaintiff’s
`breach of contract claim are (1) that the breach of contract claim
`is preempted, and (2) that the factual allegations in the amended
`complaint fail to provide enough factual detail to satisfy the
`pleading stage.
`
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`The first issue is whether a claim for breach of contract is
`
`preempted by the Copyright Act. It is not. Defendant argues that
`Plaintiff’s breach of contract claim is no different than its
`copyright claim, and that the Copyright Act preempts breach of
`contract claim. The Copyright Act’s preemption provision states
`that “all legal or equitable rights that are equivalent to any of
`the exclusive rights within the general scope of copyright as
`specified by section 106 . . . are governed exclusively by this
`title” and “no person is entitled to any such right or equivalent
`right in any such work under the common law or statutes of any
`State.” 17 U.S.C. § 301(a). Courts in the Fifth Circuit employ
`a two-part test to determine whether the Copyright Act preempts a
`state law claim. “First, the claim is examined to determine
`whether it falls within the subject matter of copyright as defined
`by 17 U.S.C. § 102. And second, the cause of action is examined
`to determine if it protects rights that are equivalent to any of
`the exclusive rights of a federal copyright, as provided in 17
`U.S.C. § 106.” Spear Mktg., Inc. v. Bancorpsouth Bank, 791 F.3d
`586, 594 (5th Cir. 2015) (internal citations omitted).
`When determining whether state law claims are equivalent to
`copyright, courts apply the “extra elements” test. As the Fifth
`Circuit has explained:
`[I]f the act or acts of [the defendant] about which [the
`plaintiff] complains would violate both misappropriation
`law and copyright law, then the state right is deemed
`
`
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`“equivalent to copyright.” If, however, one or more
`qualitatively
`different elements are
`required
`to
`constitute the state-created cause of action being
`asserted, then the right granted under state law does
`not lie “within the general scope of copyright,” and
`preemption does not occur.
`
`GlobeRanger Corp. v. Software AG U. S. A, Inc., 836 F.3d 477, 485
`(5th Cir. 2016) (citing Alcatel USA, Inc. v. DGI Techs., Inc., 166
`F.3d 772, 787 (5th Cir. 1999)). The Fifth Circuit has addressed
`the preemption question in the context of a breach of contract
`claim and held that the claim was not preempted by the Copyright
`Act. Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th
`Cir. 1990). In that case, the breach of contract claim “involve[d]
`an element in addition to mere reproduction, distribution or
`display . . . ,” namely a contractual promise. Id.; see also
`Dorsey v. Money Mack Music, Inc., 304 F. Supp.2d 858, 865 (E. D.
`La. 2003) (“This circuit has consistently recognized that a
`legitimate breach of contract allegation serves to defeat
`preemption.”). Thus, Plaintiff’s breach of contract claim should
`not be dismissed due to Copyright Act preemption.
`Defendant’s second argument is that the amended complaint
`fails to provide enough factual detail to satisfy the pleading
`requirement. The essential elements of a claim for breach of
`contract under Louisiana law are “(1) the obligor's undertaking an
`obligation to perform, (2) the obligor failed to perform the
`obligation (the breach), and (3) the failure to perform resulted
`
`
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`in damages to the obligee.” Favrot v. Favrot, 2010-986, p. 14-15
`(La. App. 4 Cir. 2/25/11); 68 So. 3d 1099, 1108-09. But before
`there can be a breach of contract, a contract must exist in the
`first place. A contract is formed in Louisiana by the consent of
`the parties established through offer and acceptance. La. Civ.
`Code. art. 1927. There must be a “meeting of the minds” between
`the parties to make a contract enforceable. Read v. Willwoods
`Cmty., 2014-1475, p. 5 (La. 3/17/15); 165 So. 3d. 883, 887.
`Here, Defendant argues that no such meeting of the minds
`occurred and that Plaintiff’s amended complaint fails to allege
`any contractual undertaking on the part of Defendant. (R. Doc.
`22-1, at 16.) This is because the alleged breach of contract stems
`from Defendant’s use of Plaintiff’s website. The amended complaint
`alleges that use of Plaintiff’s “websites, products, forms, data,
`information, resources, or other services” is governed by its
`website’s Terms of Use. (R. Doc. 20, at 13.) Plaintiff further
`alleges that by using Plaintiff’s website, products, and services,
`Defendant “agreed to be bound,” though the amended complaint fails
`to identify what Defendant agreed to be bound to. The amended
`complaint also alleges that the Terms of Use on Plaintiff’s website
`include an “Intellectual Property Information” section which
`states that the information on Plaintiff’s website is protected by
`copyright, and which sets forth stipulated and liquidated damages
`for unauthorized copying and use of the content.
`
`
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`Notably absent from the amended complaint is any clear
`allegation that Defendant knowingly entered into a contract with
`Plaintiff. Rather, the amended complaint relies upon the mere
`existence of Terms of Use on Plaintiff’s website, and alleges that
`use of the website obligates Defendant, and all other users, to
`abide by the website’s Terms of Use. The amended complaint fails
`to claim that Defendant engaged in a meeting of the minds with
`Plaintiff, or that Defendant was even aware of the Terms of Use.
`The Court does not foreclose the possible existence of a
`contractual relationship being consummated between a website host
`and a website user through use of the website, but only concludes
`that no such relationship has been alleged in Plaintiff’s amended
`complaint. See Internet Archive v. Shell, 505 F. Supp.2d 755,
`760, 764-67 (D. Col. 2007) (finding that a website owner’s
`allegation that its website included a copyright notice2 which
`stated that copying anything on the site would result in the user
`entering into a relationship with the website owner satisfied the
`existence of a contractual relationship at the pleading stage).
`Accordingly, Defendant’s motion to dismiss the breach of contract
`claim is granted.
`
`
`
`2 The copyright notice stated: “IF YOU COPY OR DISTRIBUTE ANYTHING ON THIS SITE—
`YOU ARE ENTERING INTO A CONTRACT. READ THE CONTRACT BEFORE YOU COPY OR
`DISTRIBUTE. YOUR ACT OF COPYING AND/OR DISTRIBUTING OBJECTIVELY AND EXPRESSLY
`INDICATES YOUR AGREEMENT TO AND ACCEPTANCE OF THE FOLLOWING TERMS:” Internet
`Archive, 505 F. Supp.2d at 760.
`
`
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`LUTPA Claim
`
`As with the previous two claims, Defendant argues that
`Plaintiff’s Louisiana Unfair Trade Practices and Consumer
`Protection Law (LUTPA) claim is preempted by the Copyright Act.
`Once again, the Fifth Circuit has held otherwise: “Because a cause
`of action under the Louisiana Unfair Trade Practices Act requires
`proof of fraud, misrepresentation or other unethical conduct, . .
`, we find that the relief it provides is not ‘equivalent’ to that
`provided in the Copyright Act and, thus, it is not pre-empted.”
`Comput. Mgmt. Assistance Co. v. DeCastro, Inc., 220 F.3d 396, 404-
`05 (5th Cir. 2000). Accordingly, Plaintiff’s LUTPA claim is not
`preempted.
`
`Defendant also argues that Plaintiff has failed to
`sufficiently allege a LUTPA claim. LUTPA prohibits “unfair methods
`of competition and unfair or deceptive acts or practices in the
`conduct of any trade or commerce.” La. Rev. Stat. § 51:1405(A).
`“Any person who suffers any ascertainable loss of money or movable
`property, corporeal or incorporeal” due to the unfair trade
`practices has a right to bring a LUTPA claim. La. Rev. Stat. §
`51:1409(A). Conduct only qualifies as unfair if it offends
`established public policy. Double-Eight Oil and Gas L.L.C. v.
`Caruthers Producing Co., 41,451, p. 8 (La. App. 2 Cir. 11/20/06);
`942 So. 2d 1279, 1284. Courts are to decide on a case-by-case
`basis whether a defendant’s behavior so qualifies, but “a plaintiff
`
`
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`must prove ‘some element of fraud, misrepresentation, deception,
`or other unethical conduct’ on the part of the defendant.”
`Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-0871,
`p. 10 (La. 4/23/10); 35 So. 3d 1053, 1059 (citing Dufau v. Creole
`Eng’g, Inc., 465 So. 2d 752, 758 (La. App. 5. Cir. 1985)).
`Furthermore, only “egregious” actions are sanctionable under
`LUTPA. Id. at 1060.
`
`The amended complaint alleges that Defendant has made
`numerous misrepresentations on its website, and that Defendant has
`used these misrepresentations and suppressions of truth to
`unfairly compete with Plaintiff in a manner which is against public
`policy. The amended complaint alleges that Defendant has used
`these “misrepresentations, suppressions, and other unfair tactics”
`to gain an unjust advantage. (R. Doc. 20, at 18.) In particular,
`Plaintiff alleges Defendant violated LUTPA through the following
`actions:3
`and
`copyrights
`Plaintiff’s
`violated
`1. Defendant
`misrepresented or suppressed the truth about the material’s
`authorship to Defendant’s customer base and to potential
`customers.
`
`
`
`3 The amended complaint also alleges that Defendant violated LUTPA through
`behavior allegedly detailed in a case called NACM Tampa Inc., Et Al., v. Alexaner
`Mensh, Et Al., which the amended complaint alleges was filed in the United
`States District Court for the Middle District of Florida on July 30, 2015. (R.
`Doc. 20, at 16.) The amended complaint alleges that the plaintiff in that case
`alleged Racketeer Influenced and Corrupt Organizations Act, Florida Deceptive
`and Unfair Practices Act, and theft of intellectual and proprietary property
`claims against the Defendant. Id. The amended complaint vaguely alleges that
`the referenced case is somehow related to the instant matter, but the connection
`is entirely unclear. This allegation was not sufficiently pled.
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`2. Defendant violated the copyrights of parties other than
`Plaintiff in an attempt to unfairly compete with Plaintiff.
`3. Defendant misrepresented on its website that it was
`“trusted by thousands” when the amended complaint alleges
`that Defendant is not trusted by thousands of customers
`because it does not have thousands of customers.
`4. Defendant misrepresented on its website that “100% of
`Nationwide Clients Experience Increased Productivity and
`Streamlined Workflow,” when the amended complaint alleges
`that Defendant has no study, survey, or information to
`support this statement, and that it is not true.
`5. Defendant misrepresented on its website that “97% of
`Nationwide’s Clients Experience Increase in Timely
`Payments,” when the amended complaint alleges that
`Defendant has no study, survey, or information to support
`this statement, and that it is not true.
`6. Defendant misrepresented on its website that “91% of
`Nationwide’s Clients Avoid Collections,” when the amended
`complaint alleges that Defendant has no study, survey, or
`information to support this statement, and that it is not
`true.
`7. Defendant misrepresented on its website that “2 Hours [are]
`Saved Per Notice by Nationwide Clients,” when the amended
`complaint alleges that Defendant has no study, survey, or
`information to support this statement, and that it is not
`true.
`8. Defendant misrepresented on its website that that the
`company has been in existence or has experience of “more
`than 20 years,” when the amended complaint alleges that
`Defendant was first incorporated in 2011.
`
`Allegation number 1, is purely referential to Plaintiff’s
`Copyright Act claim and is therefore preempted. But the other
`allegations (numbers 2 through 8) are entirely independent from
`Plaintiff’s Copyright Act claim, and are therefore not
`“equivalent” to actions prohibited by the Copyright Act.
`
`
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`The next question, then, is whether the allegations here
`
`satisfy a cause of action under LUTPA. As described above, the
`Louisiana Supreme Court has instructed courts to analyze the
`applicability of LUTPA on a case-by-case basis, and only
`“egregious” acts of unfairness fall within the statutory scheme.
`Cheramie Servs., Inc., 35 So. 3d at 1059-60. Defendant’s argument,
`which focuses mainly on Copyright Act preemption and the conclusory
`nature of Plaintiff’s LUTPA claim, does not include any case law
`to support its assertion that the amended complaint fails to allege
`that Defendant’s behavior was “immoral, unethical, oppressive, or
`unscrupulous.” (R. Doc. 22-1, at 19.); see Monroe Med. Clinic,
`Inc. v. Hosp. Corp. of Am., 622 So. 2d 760, 781 (La. App. 2 Cir.
`1993). Neither has the Court identified any support for the
`proposition that the type of conduct alleged by Plaintiff is not
`egregious enough to state a LUTPA cause of action.
`
`Nevertheless, a LUTPA claimant must allege that it has
`suffered “an ascertainable loss” as a result of another person’s
`unfair acts. Cheramie Servs., Inc., 35 So. 3d at 1057 (referring
`to La. Rev. Stat. § 51:1409(A)); see also Hurricane Fence Co. v.
`Jensen Metal Prods., Inc., 12-956, p.7 (La. App. 5 Cir. 5/23/13);
`119 So. 3d. 683, 688 (“To sustain a cause of action under LUTPA,
`the petition must pass a two-prong test: (1) it must allege the
`plaintiff suffered an ascertainable loss; and (2) the loss must
`have resulted from another's use of unfair methods of competition
`
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`17
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`Case 2:16-cv-02926-CJB-KWR Document 28 Filed 12/05/16 Page 18 of 20
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`and unfair or deceptive acts or practices.”). The amended
`complaint fails to identify any concrete ascertainable loss
`allegedly suffered by Plaintiff. Accordingly, Plaintiff’s LUTPA
`claim must fail.
`Fraud Claim
`Plaintiff’s fraud claim is based upon the same allegations as
`its LUTPA claim, specifically allegations numbered “1-8” in this
`Order’s “LUTPA Claim” section. Plaintiff brings his fraud claim
`pursuant to Louisiana Civil Code Article 1953: “Fraud is a
`misrepresentation or a suppression of the truth made with the
`intention either to obtain an unjust advantage for one party or to
`cause a loss or inconvenience to the other.” Fraud, as applied
`here, is a vice of consent, the remedy for which is rescission of
`a contract. See Stutts v. Melton, 2013-0557, p. 9 (La. 10/15/13);
`130 So. 3d 808, 814 (“Fraud vitiates consent . . . and thus is
`grounds for rescission.”); see also La. Civ. Code art. 1958
`(providing that damages and attorneys’ fees also may be available
`in addition to rescission). Furthermore, the correct party to
`bring a claim for fraud is the victim of the fraud. “The victim
`of fraud is induced into an error through a misrepresentation or
`suppression of the truth.” Saul Litvonoff, Vices of Consent, Error,
`Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 53
`(1989).
`
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`18
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`Case 2:16-cv-02926-CJB-KWR Document 28 Filed 12/05/16 Page 19 of 20
`
` The allegations in Plaintiff’s amended complaint do not
`suggest that Plaintiff itself engaged in a contract with Defendant
`based upon the alleged misrepresentations found in Defendant’s
`website.4 Rather, allegations numbers 1-8 in the LUTPA Claims
`section of Plaintiff’s amended complaint allege that Defendant’s
`misrepresentations have misled customers or potential customers.
`In other words, the alleged misrepresentations have purportedly
`misled individuals other than Plaintiff. Because Plaintiff is not
`itself claiming to be a victim of fraud as applied in Louisiana
`Civil Code Article 1953, Plaintiff has not succeeded in stating a
`claim. Plaintiff’s fraud claim must therefore be dismissed.
`CONCLUSION
`
`Accordingly,
`
`IT IS HEREBY ORDERED that Defendant’s 12(b)(6) Motion to
`
`Dismiss, Motion to Strike Claim for Attorneys’ Fees, and Motion
`for Award of Attorneys’ Fees (R. Doc. 22) is GRANTED in part and
`DENIED in part.
`IT IS FURTHER ORDERED that Defendant’s motion to dismiss
`
`Plaintiff’s trade dress infringement claim is DENIED.
`
`
`4 An important distinction exists between Plaintiff’s breach of contract claim
`and its fraud claim. The breach of contract claim alleges that the Defendant
`entered into a contractual relationship with Plaintiff when Defendant used
`Plaintiff’s website. By contrast, Louisiana Civil Code Article 1953 only
`provides a cause of action to a plaintiff whose consent to enter into a contract
`was vitiated due to fraud. Because Plaintiff never alleged to have been induced
`through fraud to enter in a contract with Defendant, the fraud claim is not
`applicable to these facts.
`
`
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`19
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`Case 2:16-cv-02926-CJB-KWR Document 28 Filed 12/05/16 Page 20 of 20
`
`IT IS FURTHER ORDERED that Defendant’s motions to dismiss
`Plaintiff’s breach of contract and LUTPA claims are GRANTED.
`Plaintiff’s breach of contract and LUTPA claims are DISMISSED
`WITHOUT PREJUDICE. Plaintiff is granted leave to file a second
`amended complaint with respect to the LUTPA and breach of contract
`claims within twenty-one days of this Order.
`IT IS FURTHER ORDERED that Defendant’s motion to dismiss
`Plaintiff’s fraud claim is GRANTED. Plaintiff’s fraud claim is
`DISMISSED WITH PREJUDICE.
`IT IS FURTHER ORDERED that Defendant’s motion to strike
`
`Plaintiff’s claim for attorneys’ fees and treble damages pursuant
`to Plaintiff’s LUTPA claim is GRANTED. Nothing in this Order
`prohibits Plaintiff from requesting attorneys’ fees and other
`damages available through LUTPA in a second amended complaint.
`IT IS FURTHER ORDERED that Defendant’s motion for award of
`
`attorneys’ fees and costs is DENIED.
`IT IS FURTHER ORDERED that Defendant’s Partial Motion to
`
`Dismiss for failure to State a Claim, Motion to Strike Claim for
`
`Attorneys’ Fees and Treble Damages, and Motion for Award of
`Attorneys’ Fees and Costs (Rec. Doc. 8) is DENIED as moot.
`New Orleans, Louisiana this 5th day of December, 2016.
`
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`____________________________
`CARL J. BARBIER
`
`
`UNITED STATES DISTRICT JUDGE
`
`
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`20
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