MEMORANDUM OPINION & ORDER
Pending is the defendants’ motion to dismiss, filed December 20, 2013.
I. Factual and Procedural Background
This case arises out of a dispute between two competitors in the medical weight-loss and skin care industry, each of which provides “highly similar goods and services in overlapping geographic areas.” See Compl. ¶¶ 13-14. Plaintiff Imagine Medispa, LLC (“Imagine”), a West Virginia corporation with its principal place of business in Charleston, West Virginia, provides “medical weight loss and skin care services .... through the provision of diet drug therapies[,] exereise[,] and through nutritional counseling.” Id. ¶¶ 1, 9, 10. Plaintiff David Rubio is a West Virginia resident and the owner of Imagine. Id. ¶2. Transformations, Inc. (“Transformations”) is a West Virginia corporation with its principal place of business in South Charleston, West Virginia. Id. ¶ 3. Like Imagine, Transformations also provides “medical weight loss and skin care services .... through the provision of diet drug therapies[,] exercise[,] and through nutritional counseling.” Id. ¶¶ 11, 12. Defendant Joshua Galbraith is a West Virginia resident and “an incorporator and officer of Transformations.” Id. ¶ 5. Defendant Liza Antoinette Frederick, M.D., is also a West Virginia resident, and was “an incorporator” of Bariatric Medicine of Huntington, Inc., Transformations’ predecessor-in-interest. Id. ¶ 4. The plaintiffs allege that she is now an officer of Transformations. Id. Both Imagine and Transformations operate in southern West Virginia. Id. ¶¶ 9, 11.
A.
In their complaint, the plaintiffs contend that the defendants have engaged in a
First, the plaintiffs allege that the defendants knowingly published false advertisements touting Transformations’ competitive prices for certain services in 2010 and 2011. Specifically, they claim that, beginning in November of 2010 and continuing throughout 2011, the defendants distributed promotional materials and advertisements through Valpak
Next, the plaintiffs claim that the defendants engaged in fraudulent or misleading use of online social media websites such as Facebook and Craigslist. See generally id. ¶¶ 23-24. According to the complaint, the defendants created a fictitious or misleading Facebook Profile using Rubio’s name. Id. ¶ 23. The Profile falsely stated that Rubio was a former employee of Imagine, and indicated that Rubio “liked” Transformations.
Finally, the plaintiffs allege that the defendants “contacted Imagine employees in an effort to learn trade secrets or other confidential information and/or to lure some of those employees away,” id. ¶ 25, and also “falsely told Imagine’s clients and potential clients that Imagine used unlicensed doctors and had to change its name due to issues with the authorities,” id. ¶27.
Plaintiffs assert that the false advertisements and fictitious Facebook Profile have directed clients and potential customers away from Imagine and towards Transformations, and “lessen[ed] ... the good will associated with Imagine’s goods and services.” Id. ¶¶ 23, 34, 41. They similarly contend that the Craigslist advertisement was “clearly and intentionally designed to be harassing to [Rubio] and disruptive to his personal life and professional business as owner of [Imagine].” Id. ¶ 24. On October 26, 2013, they commenced this suit, charging the defendants with false advertising and unfair practices in violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count I), tortious interference with contract or business relationship (Count II), defamation (Count III), and invasion of privacy (Count IV).
The defendants moved to dismiss on December 20, 2013, arguing that the well-pleaded facts in the complaint failed to state any claim upon which relief could be granted; alternatively, they argued that the plaintiffs’ claims were time-barred by the applicable statutes of limitation. See generally Memorandum of Law in Support of Defendants’ Motion to Dismiss (“Defs.’ Mem.”).
In response to the motion to dismiss, the plaintiffs introduced a number of new factual allegations and exhibits that were not included in the complaint. They clarified, for example, that Rubio first discovered the fictitious Facebook Profile in his name sometime after June 12, 2013, and that he first began receiving telephone calls regarding the 2010 Camaro in October of 2013. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (“Pis.’ Opp’n”) at 2.
The plaintiffs also alleged, for the first time, that the defendants created a second fictitious Facebook Page under the name “Imagine Medispa.” See id. at 3-4. They claim that the fictitious Page improperly used Imagine’s trademark, and that the defendants used the Page to fraudulently induce Facebook members, including an Imagine employee named Amy Lively, as well as Imagine patients, to “Like” Transformations’ Facebook Page. Specifically, the plaintiffs assert that the defendants used the fictitious Page to send “friend requests,” to Facebook members that, once accepted, added the recipients to the list of “friends” affiliated with Transformations’ Facebook Page. Id.
The plaintiffs did not move to amend their complaint to include these new allegations or exhibits, and the court will not consider them for the purposes of resolving the pending motion to dismiss. Occupy Columbia v. Haley,
II. Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide “a short and plain statement of the claim showing ... entitle[ment] to relief.” Fed.R.Civ.P. 8(a)(2); Erickson v. Pardus,
The required “short and plain statement” must provide “ ‘fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly,
Application of the Rule 12(b)(6) standard requires that the court “ ‘accept as true all of the factual allegations contained in the complaint....’” Erickson,
III. Discussion
A. Count I: Lanham Act Claims
In Count I, the plaintiffs generally contend that, “by the acts complained of’ in the complaint, the defendants have “committed unfair competition in violation of 15 U.S.C. § 1125(a).” Compl. ¶39. Section 1125(a) of the Lanham Act provides that:
(1) Any person who, or in connection with any goods or services ... 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) his 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 likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(A), (B). Parsing the allegations in the complaint more closely, the plaintiffs appear to allege a claim for false advertising arising out of the Valpak and Kroger 306 advertisements, and a claim for “false endorsement” arising out of the creation of the fictitious Rubio Facebook Profile.
1. False Advertising
A claim for false advertising under the Lanham Act is governed by § 1125(a)(1)(B), which prohibits the use of a “false or misleading description of fact, or false or misleading representation of fact, which ... 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.” 15 U.S.C. § 1125(a)(1)(B). As our court of appeals has explained, a plaintiff asserting a claim for false advertising under § 1125(a)(1)(B) must establish that: •
(1) the defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another’s product; (2) the misrepresentation is material, in that it is likely to influence the purchasing decision; (3) the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience; (4) the defendant placed the false or misleading statement in interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products.
PBM Prods., LLC v. Mead Johnson & Co.,
The plaintiffs contend that the Valpak and Kroger advertisements were literally false, Compl. ¶¶ 31-32; were distributed in interstate commerce and received by thousands of people, id. ¶¶ 19-21; were “likely to influence the decision of persons to purchase goods and services,” id. ¶ 33; and likely caused damage to the plaintiffs by “a direct diversion of sales ... or a lessening of the good will associated with Imagine’s goods and services,” id. ¶ 34. The defendants maintain that, even if true, these allegations fail to state a claim for false advertising, because the challenged statements are nonactionable “puffery.” Defs.’ Mem. at 5-7.
“Puffery is an exaggeration or overstatement expressed in broad, vague, and commendatory language.” Castrol, Inc. v. Pennzoil Co.,
The plaintiffs’ remaining false advertising allegations also fail to state a claim upon which relief can be granted. Specifically, the plaintiffs’ assertion that the defendants falsely advertised “three weight loss drugs for $65.00” fails because the plaintiffs do not allege that the advertisement was distributed in interstate commerce. And the plaintiffs’ claim that the defendants “produced and caused to be aired false and misleading television and radio advertisements concerning their services” is nothing but a conclusory allegation that fails to plead several of the necessary elements of a Lanham Act false
2. False Endorsement
A “false endorsement” claim may arise under § 1125(a)(1)(A) of the Lanham Act if a plaintiffs identity is connected with a product or service in a way that is likely to mislead consumers into thinking that the plaintiff approves of or sponsors the product or service. AvePoint, Inc. v. Power Tools, Inc.,
In this case, the plaintiffs allege that the defendants created a fictitious Facebook Profile in the name of Imagine’s owner, David Rubio, and used that Profile to falsely suggest both that Rubio was a former Imagine employee, and that Rubio “liked” Transformations. They also claim that the Profile “falsely directed] clients and potential customers away from the plaintiffs and to[wards] the defendants.” Compl. ¶23. The defendants have not addressed whether the creation of the fictitious Facebook Profile is actionable under the Lanham Act.
Although the plaintiffs do not tie their allegations regarding the Facebook Profile to any specific section of the Lanham Act, courts have sustained claims for false endorsement based on similar facts. See AvePoint, Inc.,
B. Count II: Tortious Interference
In West Virginia, the elements of a claim for tortious interference with a contract or business relationship are (1) “existence of a contractual or business relationship or expectancy”; (2) an intentional act of interference by a party outside that relationship or expectancy; (3) causation; and (4) damages. See Torbett v. Wheeling Dollar Sav. & Trust,
The plaintiffs claim that “Imagine has a contractual or business relationship with its existing employees and clients as well as potential clients,” that the defendants’ conduct “intentionally interfered with” those relationships, and that “[s]uch inter
The defendants maintain that the complaint does not include “a sufficient factual basis to establish the prima facie elements for tortious interference,” and therefore fails to state a claim to relief that is plausible on its face under any theory. Defs.’ Mem. at 7-9. Alternatively, they argue that the tortious interference claims are time-barred.
1. Interference with Imagine Employees
“Wantonly and maliciously” inducing a competitor’s employees to break an employment contract by resigning may give rise to a claim for tortious interference under West Virginia law. See Thacker Coal & Coke Co. v. Burke,
In this case, the plaintiffs allege that the defendants “contacted Imagine employees in an effort to learn trade secret[s] or other confidential information and/or to lure some of those employees away from Imagine,” Compl. ¶ 25, but they do not claim that the defendants were successful in obtaining any confidential information or in enticing any Imagine employees to leave their employment. As a result, although the complaint asserts that the defendants’ tortious interference “caused harm to Imagine in the loss of business and diminished reputation in the community,” Compl. ¶¶ 44-46, it is unclear how the defendants’ apparently unsuccessful attempts to obtain information or poach Imagine employees caused these harms. The plaintiffs do not allege, for example, that they were required to undertake any efforts — financial or otherwise — to persuade Imagine employees not to defect, nor do they claim that the defendants’ entreaties caused any reduction in the productivity of Imagine’s workforce.
Some link between the challenged conduct and the harms alleged is a necessary element of the plaintiffs’ tortious interference claim. IVS Hydro, Inc. v. Robinson, No. 01-1296, slip op. at 7,
2. Statements to Imagine Clients
The West Virginia Supreme Court of Appeals has recognized that statements by a defendant that destroy a healthcare provider’s relationship with existing and potential patients can be sufficient grounds for a tortious interference claim. See Garrison v. Herbert J. Thomas Mem’l Hosp. Ass’n,
Although the plaintiffs’ factual allegations are relatively thin, they do allege that the defendants made damaging statements to existing Imagine clients, and that those statements resulted in a loss of business. Accepting the factual allegations in the complaint as true, and drawing all inferences in the plaintiffs’ favor, it is plausible that existing Imagine clients, who were told that Imagine was using unlicensed doctors, could have been deterred from continuing to use Imagine’s services, thereby resulting in a loss of business. Accordingly, the defendants’ motion to dismiss the tortious interference claim based on these statements is denied.
3. Statute of Limitations
The defendants maintain that, to the extent that any of the plaintiffs’ tortious interference claims are plausible, they are nevertheless barred by the applicable two-year statute of limitations. Defs.’ Mem. at 13- 15; see also Garrison,
A plaintiff generally need not plead compliance with the statute of limitations. Cf. Zenith Radio Corp. v. Hazeltine Research., Inc.,
Based on the foregoing analysis, the motion to dismiss Count II is granted in-part and denied in-part. Specifically, the plaintiffs’ allegation that the defendants unsuccessfully attempted to obtain confidential information or poach Imagine employees fails to state a claim for tortious interference and is therefore dismissed without prejudice. On the other hand, the plaintiffs’ allegation that the defendants made damaging statements to existing Imagine clients does state a claim for tortious interference, and it is not apparent from the face of the complaint that the claim is time barred. Accordingly, the plaintiffs may proceed on that theory.
C. Count III: Defamation
The elements of a claim for defamation in West Virginia are “(1) defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury.” Crump v. Beckley Newspapers, Inc.,
The plaintiffs’ Count III claim for defamation appears to be directed solely at defendant Galbraith, and, like Count II, it appears to be predicated on two separate sets of factual allegations. Specifically, the plaintiffs allege that “Galbraith [] made ... defamatory statements against [Ru-bio],” by (1) “establishing a false advertisement ... for the sale of a Camaro,” and (2) “t[elling] people that Rubio has had trouble with the authorities.” Compl. ¶¶ 51-52. The complaint does not specify when the statement regarding Rubio’s troubles with the authorities was made, but the plaintiffs do allege that Rubio has suffered dignitary and pecuniary harms as a result of “both the oral and written defamatory statements made by Defendant Galbraithf.]” Id. ¶ 57.
The first allegedly defamatory statement — that Rubio owned a Camaro that was for sale — would not “tend to harm the reputation of another as to lower him in the estimation of the community,” and therefore does not state a claim for defamation. The second allegation appears to reference the plaintiffs’ assertion that the “[d]efendants ... falsely told Imagine’s clients and potential clients that Imagine ... had to change its name due to issues with the authorities.” Compl. ¶ 27. This statement, if focused on Rubio, would likely be defamatory; however, the defendants argue that any defamation claim based on this statement would be time-barred by the applicable one-year limitations period. As noted above, the complaint does not specify when the statement concerning Rubio’s troubles with the authorities was made, and, as a result, the statute of limitations defense is not apparent on the face of the complaint.
Accordingly, the motion to dismiss Count III is granted as to the plaintiffs’ defamation claim based on the Craigslist advertisement, but denied as to the plaintiffs’ allegations that Galbraith “told people that Rubio has had trouble with the authorities.”
D. Count IV: Invasion of Privacy
In West Virginia, “[t]he right of privacy, including the right of an individual to be let alone and to keep secret his private communications, conversations
First, plaintiffs assert that the “defendants have created an unreasonable intrusion upon seclusion ... by causing unknown, unsolicited individuals to call [Rubio] ... at all hours of the day and night inquiring about a Camaro for sale[.]” Compl. ¶ 59. The Second Restatement of Torts (on which the Crump Court relied when articulating the contours of the four-part tort of “invasion of privacy”) states that although occasional telephone calls cannot constitute an intrusion upon seclusion, repeated, persistent calls at inconvenient hours can. See Restatement (Second) of Torts § 652B cmt. d (1977). Courts in this district appear to apply that distinction. Compare Duncan v. JP Morgan Chase Bank, N.A., No. 10-1049,
Here, the plaintiffs’ allege that the defendants created the advertisement for the Camaro and posted it on Craigslist,
Finally, the plaintiffs also claim that the creation of the fictitious Facebook Profile in Rubio’s name gave unreasonable publicity to Rubio’s private life, and unreasonably placed Rubio in a false light.
To state a claim for unreasonable publicity, the plaintiff must show “(1) that there was a public disclosure by the [defendant of facts regarding the [plaintiff; (2) that the facts disclosed were private facts; (3) that the disclosure of such facts is highly offensive and objectionable to a reasonable person of reasonable sensibilities; and (4) that the public has no legitimate interest in the facts disclosed.” Davis v. Monsanto Co.,
On the other hand, a “plaintiff states a claim for false light invasion of privacy when he demonstrates publicity which places him in a false light before the public. For example, using another’s photograph as an illustration for an article or book with which that person has no reasonable connection, and which places the person in a false light, is actionable as an invasion of privacy.” Bell v. Nat’l Republican Cong. Comm.,
IV. Conclusion
For the foregoing reasons:
1. The motion to dismiss Count I is granted as to the false advertising claim but denied as to the false endorsement claim;
2. The motion to dismiss Count II is granted without prejudice as stated above as to the allegation that the defendants “contacted Imagine employees in an effort to learn trade secret[s] or other confidential information and/or to lure some of those employees away from Imagine,” but denied as to the allegation that the defendants “told Imagine’s clients and potential clients that Imagine used unlicensed doctors”;
3. The motion to dismiss Count III is granted as to the allegation concerning the advertisement for the Cámaro, but denied as to the allegation that defendant Galbraith “told people that Rubio has had trouble with the authorities”; and
4. The motion to dismiss Count TV is granted as to the claim for unreasonable publicity, but denied as to the claims for intrusion upon seclusion, appropriation, and false light.
The Clerk is directed to forward copies of this memorandum opinion and order to all counsel of record and any unrepresented parties.
Notes
. Valpak is a "direct marketing” company that mails coupons to households throughout the United States. See About Valpak, http:// www.coxtarget.com/corp/about.html.
. The complaint does not explain when the fictitious profile was created.
. Later in the complaint, the plaintiffs allege that the advertisement caused "unknown, unsolicited individuals to call [Rubio’s] personal home number (which is publicly listed) at all hours of the day and night inquiring about [the] Camaro[.]” Compl. ¶ 59. It is unclear whether the advertisement listed Rubio’s home or office telephone number.
. In Paragraph 28 of the complaint, the plaintiffs claim that "[b]y the business arrangements herein, defendant Frederick is[,] and continues to be[,] in violation of an Amended Consent Order entered on June 7, 2013 by the West Virginia Board of Medicine.” The referenced consent order was not attached to the complaint, and the complaint provided no additional context for this assertion.
. The complaint initially states that the advertisement that prompted the phone calls regarding the Camaro was posted on Craigslist. Compl. ¶ 24 ("Defendants have falsely listed for sale on Craigslist.org a 2010 Chevy Camaro ... and included plaintiff Rubio’s office telephone number as a contact number[, clausing plaintiff Rubio ... to receive scores of calls from individuals inquiring about the Camaro[.]”). Later, the plaintiffs allege that defendant Galbraith "establisbfed] a false advertisement on Facebook for the sale of a Camaro allegedly owned by Rubio providing readers with Rubio’s phone number.” Id. V 51. Regardless of where the advertisement was posted, the relevant question is whether the calls received in response to the advertisement worked an intrusion upon Rubio’s seclusion.
. These allegations more closely resemble a claim for defamation or false-light, see Crump,