ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
Re: Dkt. No. 21
Plaintiff Luxul Technology Inc. (“Plaintiff’ or “Luxul”) brings this action against Defendants Nectarlux, LLC, JKeeney Consulting, Inc., and James Keeney (collectively, “Defendants”). Before the Court is Defendants’ motion to dismiss. ECF No. 21. Plaintiff filed an opposition. ECF No. 22. Defendants filed a reply. ECF No. 23. Having considered the submissions of the parties, the record in this case, and the relevant law, and for good cause shown, the Court hereby grants in part and denies in part Defendants’ motion.
I. BACKGROUND
A. Factual Background
Plaintiff Luxul Technology Inc. is a California corporation with a principal place of business in Santa Clara, California. First Am. Compl. (“FAC”), ECF No. 19, ¶1. Defendant NectarLux, LLC (“Nectar-Lux”) is a New York limited liability company with a principal place of business in Syracuse, New York. Id. ¶ 2. Defendant JKeeney Consulting, Inc. (“JKeeney Consulting”) is a Florida corporation with a principal place of business in Philadelphia, Pennsylvania. Id. ¶ 3. Defendant James Keeney (“Keeney”) is an individual and a resident of Pennsylvania. Id. ¶ 4.
Luxul is a producer of energy efficient light emitting diode (“LED”) products. Id. ¶ 9. Luxul’s patented LED tube lamps, “EazyLux” are “true retrofit replacements” for fluorescent tube lamps because Luxul’s products do not require rewiring as part of installation. Id. ¶ 11.
On April 6, 2014, Luxul entered into a written “Sales Representation and Marketing Consulting Agreement” (“Agreement”) with Defendant NectarLux. Id. ¶ 13; see Declaration of Adam Lilien submitted in support of Defendants’ motion to dismiss, ECF No. 21, Exh. A.
The Agreement also provided for Luxul to disclose certain confidential information to NectarLux, including information relating to building science technologies, trade secrets, product design, manufacturing, pricing, marketing, distribution, business opportunities and relationships, industry experts, legal entities, and individuals. Id. ¶ 16. Under Section 3 of the Agreement, NectarLux agreed that Luxul was “the owner of all right, title, and interest in the Confidential information, including all tangible copies and ... electronic versions thereof.” Id. ¶ 17. NectarLux agreed that it would not disclose confidential information unless necessary to satisfy its obligations under the Agreement. Id. ¶ 4.
In April 2014, Dr. James Pan, Luxul’s chief executive officer, and Adam Lilien, NectarLux’s Managing Director of Nectar Energy, met with a potential manufacturer in New York. Id. ¶ 27. Luxul continued to negotiate directly with the New York manufacturer. Id. Luxul alleges that in July 2014, Lilien and Keeney contacted the same New York manufacturer to discuss alternative proposals and set up meetings with competing LED companies. Id. ¶ 28. Luxul further alleges that NectarLux and Keeney “made and continue to make false representations to actual and potential customers,” regarding alleged legal problems faced by Luxul. Id. ¶ 29.
In June 2014, Lawrence Bisagni, Director of Marketing and Public Relations for Luxul, visited the Linkedln profiles of Defendants Keeney and JKeeney Consulting. Id. ¶ 19. Bisagni observed that a document titled “NectarLux-HOA White-paper AG” was posted on JKeeney Consulting’s profile, and that the document used several images that Luxul “uses to represent and promote its technology.” Id. ¶ 20. Some of those images, including the “Easy 4-step Installation” graphic, are images copyrighted by Luxul Taiwan Inc., the parent company of Plaintiff. Id. ¶ 25. The documents also contained a statement by Pan about the LED technology. Id. ¶ 23. Plaintiff alleges that Defendants’ use of Pan’s image and quotation is misleading as to whether NectarLux is responsible for the technological innovation behind the “EasyLux” LED tube lamps. Id. Bisangi also observed that products and images identical to those on Luxul’s website appeared on NectarLux’s website, but the “Luxul” brand name had been replaced with “Nectar.” Id. ¶ 21.
On August 12, 2014, Luxul terminated the Agreement with NectarLux.
B. Procedural Background
Plaintiff filed its original Complaint on August 12, 2014. ECF No. 1. Defendants filed a motion to dismiss on September 26, 2014. ECF No. 15. Plaintiff filed a First Amended Complaint (“FAC”) pursuant to stipulation on October 31, 2014. ECF No.
II. LEGAL STANDARD
A.Rule 12(b)(1)
A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction will be granted if the complaint on its face fails to allege facts sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union High Sch.,
B. Rule 12(b)(2)
Where a defendant moves to dismiss a suit for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing that jurisdiction is proper. Boschetto v. Hansing,
C. Rule 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
Nonetheless, the Court need not accept as true allegations contradicted by judicially noticeable facts, and the “[C]ourt may look beyond the plaintiffs complaint to matters of public record” without converting the Rule 12(b)(6) motion into one for summary judgment. Shaw v. Hahn,
D. Leave to Amend
If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “should be freely granted when justice so requires,” bearing in mind that “the underlying purpose of Rule 15 ... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith,
III. DISCUSSION
Plaintiff Luxul alleges claims against Defendant NectarLux individually, and against Defendants NectarLux, Keeney, and JKeeney Consulting collectively. Against all Defendants, Plaintiff avers that Defendants falsely designated the origin of Luxul tube lamps and engaged in false advertising under the Lanham Act, 15 U.S.C. § 1125; engaged in unfair competition under California Business & Professions Code § 17200; engaged in false advertising under California Business & Professions Code § 17500; and infringed Plaintiffs copyrights under 17 U.S.C. § 104. See generally FAC (claims 1, 2, 5, 6, 7). Plaintiff further alleges claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and account stated against Defendant NectarLux. See FAC (claims 3, 4, 8).
In their motion to dismiss, Defendants contend that: (1) Plaintiff lacks standing under Article III; (2) Plaintiff lacks standing to assert claims under the Lanham Act; (3) the Lanham Act claims fail as a matter of law; (4) Plaintiff lacks standing under California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”); (5) the UCL claim fails as a
The Court begins by addressing Defendants’ threshold argument that Plaintiff lacks standing to pursue this action' under Article III.
A. Article III Standing
Defendants argue that Plaintiff has failed to allege an injury-in-fact, as required to satisfy the “case or controversy” requirement of Article III of the United States Constitution. See Clapper v. Amnesty Int’l USA — U.S. -,
In the instant case, Plaintiff has sufficiently alleged an injury-in-fact for Article III standing purposes to survive a motion to dismiss. Plaintiff alleges the existence of an enforceable contract between itself and Defendant NectarLux. FAC ¶ 46. NectarLux allegedly breached the contract by altering Luxul products to bear the name “Nectar,” displaying Luxul images without permission and/or altering those images to misrepresent their source, misrepresenting Luxul technology and products as belonging to Defendants, and selling or offering to sell Luxul products to customers by “misappropriating the Luxul name and logo in order to profit from the sale directly.” Id. ¶ 48. NectarLux also allegedly falsely represented that Plaintiff had legal issues, and approached Luxul customers with third-party products. Id. ¶¶ 50-51. While there was apparently no contract with Defendants Keeney and JKeeney Consulting, Plaintiff alleges that Defendants collectively engaged in the aforementioned wrongful conduct. As a result of Nectar Lux’s alleged breaches, and Defendants’ actions, Plaintiff incurred monetary damages in the form of lost customers and sales revenue, and damage to its reputation and brand. Id. ¶ 52. Plaintiff further alleges that NectarLux owes Plaintiff $19,285.27 for invoices and pur- . chase orders issued by Luxul. See id. ¶ 94.
The Court therefore concludes that Plaintiff has therefore alleged the invasion of a legal right that has resulted in an actual concrete injury: lost customers, sales revenue, and outstanding funds owed. At the motion to dismiss stage, these allegations are sufficient to show Plaintiff has suffered an injury-in-fact as called for by Article Ill’s “case or controversy” requirement. See Friends of the Earth, 528 UN at 198,
B. Lanham Act Claims
The Court now turns to Plaintiffs Lan-ham Act claims for false designation of origin and false advertising. Defendants contest whether Plaintiff has adequately alleged standing under the Lanham Act or cognizable Lanham Act claims.
1. Standing
Defendants argue that Plaintiff lacks standing under the Lanham Act because Plaintiff cannot show commercial injury and because Defendants are not competitors. Plaintiff alleges claims under both the “false designation of origin” prong of § 43 of the Lanham Act and the “false advertising” prong of § 43 of the Lanham Act. See 15 U.S.C. § 1125(a).
“[Djifferent causes of action alleged pursuant to the different subsections of 15 U.S.C. § 1125(a) have different standing requirements.” Jack Russell Terrier Network of N. Cal. v. Am. Kennel Club, Inc.,
As to the false designation of origin claim, Plaintiff alleges that Defendants’ misrepresentations regarding the source of the LED tube lamps resulted in harm to the distinctiveness of Plaintiffs product, brand, goodwill, and reputation. FAC ¶¶ 37, 70. Plaintiff also alleges that Nec-tarLux replaced “Luxul” with “Nectar” on the actual goods themselves.
Defendants also appear to contend that Plaintiff lacks standing to bring either the false designation of origin or false advertising claims because Defendants are marketing consultants, and the parties are therefore not competitors. Mot. at 13. However, under the false association prong, the parties need not be direct competitors for a plaintiff to have standing. See Am. Kennel Club,
In support of their argument, Defendants also rely on Marvellous Day Elec. Co. v. Holiday Bright Lights, Inc.,
2. False Designation of Origin and False Advertising Claims
Defendants contend that Plaintiffs false designation of origin claim must be dismissed as a matter of law because Plaintiff fails to allege that Defendants removed Plaintiffs trademark from an actual product and that Defendants then sold the product. Mot. at 14.
To establish a claim for either trademark infringement or false designation of origin under § 43(a)(1)(A), 15 U.S.C. § 1125(a)(1)(A), a plaintiff must prove that the defendant (1) used in commerce (2) any word, false designation of origin, false or misleading description, or representation of fact, which (3) is likely to cause confusion or mistake, or to deceive, as to sponsorship, affiliation, or the origin of the goods or services in question. See Freecycle Network, Inc. v. Oey,
Defendants do not address whether Plaintiff has alleged the elements of a false designation of origin claim, but instead characterize Plaintiffs claim as a “reverse passing off’ claim. “Reverse passing off’ occurs when a defendant “misrepresents someone else’s goods or services as his [or her] own.” Dastar Corp. v. Twentieth Century Fox Film Corp.,
Moreover, Plaintiff also alleges that Defendants’ alteration of the images of Luxul LED tube lamps to read “Nectar” instead of “Luxul” is likely to cause confusion or to deceive as to the affiliation of Luxul products with NectarLux and the origin of the LED tube lamps. FAC ¶¶ 36, 37. While these allegations do not fall neatly within a traditional reverse passing off claim, Plaintiff has pled a plausible claim that potential purchasers of LED tube lamps may be deceived by Nectar’s misbranding of Luxul products. Plaintiff further alleges that this confusion negatively affects the goodwill and value of Luxul’s brand. Defendants again challenge the truthfulness of Plaintiffs factual allegations regarding confusion, but at the motion to dismiss stage, the Court construes Plaintiffs allegations in the most favorable light. See Manzarek,
Defendants also argue that their voluntary cessation of their marketing activities defeats Plaintiff’s likelihood of confusion argument, and cite Think Computer Corp. v. Dwolla, Inc., No. 13-cv-02054-EJD,
Defendants further contend that Plaintiff’s false designation of origin claim is preempted and barred under federal copyright law. In Dastar, the United States Supreme Court held that a plaintiff may not use the Lanham Act to circumvent federal copyright and patent law.
Here, Defendants’ reliance on Dastar is misplaced. The gravamen of Plaintiffs claim as to the digital image alteration is that Defendants’ marketing materials falsely designate Defendants as the source of the LED tube lamps for sale, instead of Plaintiff. Plaintiff contends that Defendants’ use of marketing materials that have replaced “Luxul” with ■ “Nectar,” falsely designates the origin of the goods pictured, the LED tube lamps, such that it is likely to cause consumer confusion. Defendants contend that they are the “origin” of the marketing materials. However, the “good” at issue is the LED tube lamp pictured in the marketing materials, not the marketing materials themselves. Plaintiff does not allege consumer confusion as to the origin of the marketing materials, but rather the origin of the LED tube lamps. Unlike in Dastar, where the defendant independently created a tangible good to sell and was therefore the “origin” of the “good” being sold, here Defendants do not and cannot contend that they are the “origin” of the LED tube lamps.
Moreover, to the extent Defendants rely on Dastar and the Ninth Circuit’s decision in Sybersound Records, Inc. v. UAV Corp.,
With regards to Plaintiffs false advertising claim under § 43(a), Defendants argue that Plaintiff has failed to allege the elements of a false advertising claim. A claim for false advertising under § 43 requires that a plaintiff show that (1) a statement made in an advertisement is false or misleading; (2) that “it actually deceives or has the tendency to deceive a substantial segment of its audience”; (3) that it is “likely to influence purchasing decisions”; and (4) that the “plaintiff has been or is likely to be injured by the false advertisement.” TrafficSchool.com,
In sum, the Court denies Defendants’ motion to dismiss Plaintiffs false designation of origin claim. The Court grants Defendants’ motion to dismiss Plaintiffs false advertising claim.
C. UCL and FAL Claims
Plaintiff alleges that Defendants violated California Business & Professions Code § 17200 by engaging in “unlawful and/or unfair” business practices. More specifically, Plaintiff contends that Defendants acted wrongfully by rebranding Luxul LED tube lamps as “Nectar” products and wrongfully representing to third-parties that Luxul’s business and products were affected by false legal issues.
Defendant makes two arguments: (1) that Plaintiff has failed to allege “lost money or property” as required to show standing under the UCL; and (2) that Plaintiff has failed to adequately plead either an unlawful or unfair UCL claim. The Court addresses each argument below.
1. UCL and FAL Standing
The UCL broadly prohibits “any unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. In order to have standing to bring a claim under the UCL or FAL, a plaintiff must demonstrate that she “suffered injury in fact and [ ] lost money or property as a result of the unfair competition.” Cal. Bus. & Prof. Code § 17204; Kwikset Corp. v. Superior Court,
Instead, Defendants argue that if a “private plaintiff has no claim for restitution ... it lacks standing” under the UCL. Mot. at 17 (citing Walker v. Geico Gen. Ins. Co.,
2. Unlawful and Unfair UCL Claims
California’s UCL provides a cause of action for business practices that are (1) unlawful, (2) unfair, or (3) fraudulent. . Cal. Bus. & Prof. Code § 17200. The UCL’s coverage is “sweeping,” and its standard for wrongful business conduct “intentionally broad.” In re First Alliance Mortg. Co.,
The Court finds that Plaintiff has sufficiently alleged a UCL claim under the unlawful prong. Defendants’ argument assumes that Plaintiff is unable to allege a Lanham Act claim. As the Court has denied Defendants’ motion to dismiss with respect to Plaintiffs false designation of origin claim, Plaintiff has sufficiently alleged a UCL claim. See Celr-Tech,
The Court similarly concludes that Plaintiff has alleged a UCL claim under the unfair prong. Plaintiff alleges that Defendant “wrongfully and unfairly represented to third parties that Luxul’s business and/or products are affected by legal issues that do not exist.” FAC ¶42. More specifically, Plaintiff avers that Defendants made representations to actual and potential customers, including a “potential customer in California,” regarding an alleged patent action against Luxul in Taiwan. Id. ¶ 29. Under the “sweeping” coverage of the UCL, a practice does not need to be unlawful to be unfair. See In re First Alliance Mortg. Co.,
In sum, the Court concludes that Plaintiff has adequately alleged UCL claims under both the unfair and unlawful prongs.
D. Copyright Claims
Plaintiff alleges that Defendants created unauthorized derivative works based on Plaintiffs copyrighted images. Defendants raise two' arguments: (1) that statutory damages are unavailable as a matter of law; and (2) that Plaintiff has failed to allege a plausible copyright infringement claim.
Defendants are correct that Plaintiff has pled facts precluding statutory damages under 17 U.S.C. § 504. Under
Defendants further argue that Plaintiff has failed to allege actual damages. To state a claim for copyright infringement, a plaintiff must allege “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tele. Serv. Co.,
In sum, the Court concludes that while Plaintiff has pled itself out of a statutory damages claim, Plaintiff has sufficiently alleged a claim for copyright infringement.
E. Breach of Contract
Plaintiff alleges breach of contract and breach of implied covenant of good faith and fair dealing claims against Defendant NectarLux. NectarLux contests whether Plaintiff has sufficiently alleged damages and a material breach of the agreement between NectarLux and Plaintiff.
Under California law, to state a claim for breach of contract a plaintiff must plead “the contract, plaintiffs’ performance (or excuse for nonperformance), defendant’s breach, and damage to plaintiff therefrom.” Gautier v. General Tel. Co.,
In the instant case, Plaintiff alleges the existence of a valid, written contract. FAC ¶ 13. According to Plaintiff, Nectar-Lux breached the Agreement by altering Luxul’s product to bear the name “Nectar” without permission, misrepresenting Luxul technology as developed, manufactured, and branded by NectarLux, misusing confidential information Plaintiff disclosed to NectarLux to poach a potential customer, and approaching Plaintiffs customers with offers to sell third-party products. FAC ¶¶ 29, 33, 48-50; Opp. at 12-13. As a result of these alleged breaches, Plaintiff avers that that Plaintiff lost potential sales and customers and damage to the value of its brand. FAC ¶¶ 28-29, 52. Plaintiff further alleges that it is entitled to attorney’s fees pursuant to a provision of the Agreement. Id. ¶ 53. Defendant Nectar-Lux again contests the veracity of Plaintiffs allegations, including whether Nec-tarLux marketed to Plaintiffs customers. These factual disputes are not relevant in determining whether Plaintiff has alleged sufficient facts to establish plausible claims for breach of contract and the implied covenant of good faith and fair dealing. Taking Plaintiffs factual allegations as true, the Court concludes that Plaintiff has adequately alleged claims for breach of contract and breach of the implied covenant of good faith and fair dealing. See Manzarek,
F. Account Stated
Plaintiffs final claim against Defendant NectarLux is for a claim for account stated. “An account stated is an agreement, based on prior transactions between the parties, that the items of an account are true and that the balance struck is due and owing.” Maggio, Inc. v. Neal,
NectarLux offers a single sentence of argument that Plaintiffs claim for account stated should be dismissed because the FAC “does not contain any of the requisite allegations necessary.” Mot. at 21. Plaintiff alleges that “[d]uring their business relationship, NectarLux placed orders for LED lighting tubes with Luxul. Luxul issued purchase orders and invoices ... [and] shipped the LED lighting tubes to NectarLux for distribution.” FAC ¶ 93. Plaintiff further alleges that NectarLux has received the invoices and purchase orders but has failed to satisfy or otherwise object to the outstanding invoices and pay amounts due to Luxul in the amount of $19,285.27. Id. ¶¶ 94-95. In light of De
The Court therefore denies Defendant NectarLux’s motion to dismiss Plaintiffs account stated claim.
G. Personal Jurisdiction over Defendants Keeney and JKeeney Consulting
Defendants Keeney and JKeeney Consulting move to dismiss Plaintiffs claims against them under Rule 12(b)(2). Keeney and JKeeney Consulting contend that Plaintiff has failed to allege sufficient facts supporting this Court’s exercise of personal jurisdiction. Defendant JKeeney Consulting is a Florida corporation with a principal place of business in Pennsylvania, and Keeney is a resident of Pennsylvania.
To determine the propriety of asserting personal jurisdiction over a nonresident defendant, the Court examines whether such jurisdiction is permitted by the applicable state’s long-arm statute and comports with the demands of federal due process. Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements, Ltd.,
A court may exercise either general or specific jurisdiction over a nonresident defendant. Ziegler v. Indian River Cnty.,
Plaintiff does not claim that the Court has general jurisdiction over Defendants Keeney and JKeeney Consulting; rather, Plaintiff argues only for specific jurisdiction. To determine whether a defendant’s contacts with the forum state are sufficient to establish specific jurisdiction, the Ninth Circuit employs a three-part test:
(1) The non-resident defendant must purposefully direct his [or her] activities or consummate some transaction with the forum or resident thereof; or perform some act by which he [or she] purposefully avails him [or her]self of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.
Schwarzenegger,
1. Purposeful Availment/Purposeful Direction
The first prong is satisfied by either purposeful availment or purposeful direction. Brayton Purcell,
The Ninth Circuit evaluates purposeful direction using the three-part “Calder-effects” test. See Schwarzenegger,
In the instant case, the “intentional act” element is satisfied as Plaintiff alleges that Defendants Keeney and JKee-ney Consulting committed an intentional act when they used Plaintiffs copyrighted works on their Linkedln profiles. FAC ¶¶ 19-26, 86. Second, Plaintiff has sufficiently alleged “individualized targeting” to satisfy the requirement “express aiming” requirement. Defendants are correct that “[i]t is beyond dispute in this circuit that maintenance of a passive website alone cannot satisfy the express aiming prong.” Brayton Purcell,
Defendants cite Boschetto and Cybersell, Inc. v. Cybersell, Inc.,
2. Arising Out of or Relating to Forum-Related Activities
The second prong of the test for specific jurisdiction requires that “the claim asserted in the litigation arises out of the defendant’s forum related activities.” Panavision Int’l,
3. Reasonableness
Finally, the Court must consider whether it is reasonable to exercise personal jurisdiction over Defendants. An otherwise valid exercise of specific jurisdiction is presumed reasonable, unless defendants “ ‘present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.’” Ballard v. Savage,
H. Venue
As an aside, Defendants Keeney and JKeeney Consulting assert that venue in this judicial District is improper.
The venue of suits for infringement of copyright is not determined by the general provision governing suits in the federal district courts. See 28 U.S.C. § 1400(a); Lumiere v. Mae Edna Wilder, Inc.,
Here, the Court has concluded that it may properly exercise personal jurisdiction over Defendants Keeney and JKeeney Consulting. Defendants, offer no additional reason why venue would be improper besides their allegation that personal jurisdiction is improper. The Court therefore denies Defendants’ motion to dismiss for improper venue.
IV. CONCLUSION
For the reasons stated above, the Court grants in part and denies in part Defendants’ motion to dismiss. The Court dismisses without prejudice Plaintiffs claim for false advertising under § 43 of the Lanham Act, as Plaintiff may be able to allege facts supporting its claim. See Lopez,
In all other respects, the Court denies Defendants’ motion to dismiss.
IT IS SO ORDERED.
Notes
. As Plaintiff's FAC references the terms of the Agreement between Plaintiff and Defendant NectarLux, the Court considers the actual Agreement as submitted by Defendants. See Panino v. FHP, Inc.,
. Defendants submitted a declaration from Adam Lilien, President of NectarLux, LLC, asserting that NectarLux does not "design or manufacture” light bulbs and that NectarLux "has never sold a 'NectarLux’ light bulb.” However, the Court does not consider this evidence because this is a motion to dismiss, not a motion for summary judgment. See North Star Int’l v. Arizona Corp. Com'n,
. Plaintiff argues for the first time in its opposition that Defendants' digital alteration of the
. Defendants have submitted a screenshot showing that Plaintiff’s Marketing Director, Bisigani, “liked” Keeney’s Linkedln profile page. See ECF No. 21, Exh. B. The Court concludes that Exhibit B may appropriately be considered on a motion to dismiss as Plaintiff attached a portion of Keeney’s Link-edln profile page as an exhibit to the FAC. See, e.g., Ramanujam v. Reunion Mortg., Inc.,