United States District Court, W.D. Missouri, Western Division
STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE.
the Court is Defendant Ma Vin Dhat's Motion to Dismiss,
or, in the Alternative, Motion to Strike, or, in the
Alternative, Motion for a More Definite Statement. (Doc.
#21). For the following reasons the motion is GRANTED IN PART
and DENIED IN PART.
January 31, 2019, Defendant Ma Vin Dhat, doing business as
KDS Nail Products (“KDS”), filed a Motion to
Dismiss and Motion to Strike certain of Plaintiff Millenia
Productions, LLC's (“Millenia”) claims
against KDS and portions of Millenia's Complaint. On
March 11, 2019, this Court issued an Order granting in part
and denying in part the Motion. The Court ordered Millenia to
file an amended complaint correcting the specified
deficiencies. On March 18, 2019, Millenia timely filed its
First Amended Complaint, correcting some, but not all
deficiencies set forth in this Court's March 11 Order.
Specifically, the First Amended Complaint includes Count 4,
which was dismissed. KDS moves the Court to again dismiss
Count 4, or, in the alternative, to strike the claim from the
First Amended Complaint or, in the alternative, to order
Millenia to file a more definite statement. Additionally, KDS
moves the Court to dismiss Count 5, Millenia's common law
trademark infringement and unfair competition claim. Finally,
KDS moves to strike Millenia's requests for punitive
damages set forth in paragraph 9 of the First Amended
Complaint and paragraph 8 of its Prayer for Relief.
Dismissal for Failure to State a Claim under Fed.R.Civ.P.
complaint must include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a). A claim may be dismissed
for “failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss for failure to state a claim, “a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations omitted) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); Zink v.
Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015). “A
claim has facial plausibility when the [complainant] pleads
factual content that allows the court to draw the reasonable
inferences that the [opposing party] is liable for the
misconduct alleged.” Ash v. Anderson Merchs.,
LLC, 799 F.3d 957, 960 (8th Cir. 2015) (internal
quotations omitted) (quoting Iqbal, 556 U.S. at
678). The Court must consider all facts alleged in the
complaint as true when considering a motion to dismiss.
See Data Mfg., Inc. v. United Parcel Service, Inc.,
557 F.3d 849, 851 (8th Cir. 2009). However, allegations that
are “legal conclusions or formulaic recitation of the
elements of a cause of action . . . may properly be set
aside.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009) (internal citations omitted)
(quoting Iqbal, 556 U.S. at 677).
Striking of Immaterial and Impertinent Matter under
Rule of Civil Procedure 12(f) provides that “[t]he
court may strike from a pleading . . . any redundant,
immaterial, impertinent, or scandalous matter.”
District courts “enjoy liberal discretion under Rule
12(f).” Nationwide Ins. Co., v. Cent. Mo. Elec.
Coop., Inc., 278 F.3d 742, 748 (8th Cir. 2001).
“Despite this broad discretion however, [m]otions to
strike . . . are viewed with disfavor and are infrequently
granted.” Stanbury Law Firm v. I.R.S., 221
F.3d 1059, 1063 (8th Cir. 2000) (internal citations and
quotation marks omitted).
Unfair and Deceptive Trade Practices
argues Millenia's unfair and deceptive trade practices
claim in Count 4 should be removed from the First Amended
Complaint because this Court dismissed the claim in the March
11 Order. Millenia acknowledges the claim was dismissed and
states it included the claim in its First Amended Complaint
only because Millenia did not interpret the Court's Order
as directing Millenia to eliminate the claim from the First
Amended Complaint. Given that this claim has already been
dismissed without prejudice, KDS's motion to dismiss
Count 4 is again granted without prejudice to Millenia's
ability to seek leave of Court to amend the Complaint in the
future. Although the Court is granting the dismissal of Count
4, Millenia need not file a new Complaint.
Common Law Trademark Infringement and Unfair
argues Millenia's common law trademark infringement and
unfair competition claim in Count 5 should be dismissed
because Millenia does not specify in its First Amended
Complaint under which state's common law it is
proceeding. Millenia indicates that Missouri common law is
implicated and applies to Count 5 because the First Amended
Complaint alleges infringing conduct occurred in Missouri.
Millenia further states ...