Motion to Dismiss Guidry Trademark Infringement Claim

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RONALD GUIDRY CIVIL ACTIONPlaintiff

VERSUS NO. 15-6714

LOUISIANA LIGHTNING, LLC,FARM FRESH FOOD SUPPLIERS, INC. SECTION S (5)AND MATTHEW D. DUFOUR

Defendants

MOTION TO DISMISS IN PART, TO STRIKE IN PART,AND, ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT

NOW INTO COURT, through undersigned counsel, come defendants, Louisiana

Lightning, LLC, Farm Fresh Food Suppliers, Inc., and Matthew D. Dufour (collectively,

“Defendants”), and, pursuant to Fed. R. Civ. P. 12(b), move to dismiss certain claims filed against

them by plaintiff, Ronald Guidry (“Plaintiff”) for failure to state a claim upon which relief may be

granted. Defendants also move to strike certain particular allegations made by Plaintiff per Fed.

R. Civ. P. 12(f). Finally, additionally and in the alternative to their requests to dismiss and to

strike, Defendants request a more definite statement from Plaintiff of his claims, per Fed. R. Civ.

P. 12(e), all for the reasons more fully set forth in the attached memorandum.

WHEREFORE, Defendants pray that the Court enter an order consistent with this motion

and for any and all such other and further relief as this Court may deem just and proper.

Case 2:15-cv-06714-MVL-MBN Document 8 Filed 02/22/16 Page 1 of 2

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Respectfully Submitted:

/s/ Brad E. Harrigan___________________LUGENBUHL, WHEATON, PECK,RANKIN & HUBBARDBrad E. Harrigan (La. Bar No. 29592) (T.A.)Daniel B. Centner (La. Bar No. 33055)Erin R. Rosenberg (La. Bar No. 34422)601 Poydras Street, Suite 2775New Orleans, Louisiana 70130Telephone: (504) 568-1990Fax: (504) 310-9195

ATTORNEYS FOR DEFENDANTSLOUISIANA LIGHTNING, LLC, FARMFRESH FOOD SUPPLIERS, INC. ANDMATTHEW D. DUFOUR

CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of February, 2016, a copy of the foregoing was servedupon all known counsel of record via the Court’s CM/ECF filing system.

/s/ Brad E. Harrigan___________________Brad E. Harrigan (La. Bar No. 29592) (T.A.)

Case 2:15-cv-06714-MVL-MBN Document 8 Filed 02/22/16 Page 2 of 2

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA


VERSUS NO. 15-6714


Defendants

NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that Defendants’ Motion to Dismiss in Part, to Strike in Part,

and, Alternatively, for a More Definite Statement shall be submitted for decision to the Honorable

Mary Ann Vial Lemmon, United States District Court for the Eastern District of Louisiana, 500

Poydras Street, New Orleans, Louisiana, on Wednesday, March 16, 2016 at 10:00 a.m.


/s/ Brad E. Harrigan___________________LUGENBUHL, WHEATON, PECK,RANKIN & HUBBARDBrad E. Harrigan (La. Bar No. 29592) (T.A.)Erin R. Rosenberg (La. Bar No. 34422)Daniel B. Centner (La. Bar No. 33055)601 Poydras Street, Suite 2775New Orleans, Louisiana 70130Telephone: (504) 568-1990Fax: (504) 310-9195


Case 2:15-cv-06714-MVL-MBN Document 8-2 Filed 02/22/16 Page 1 of 2

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I hereby certify that on this 22nd day of February, 2016, a copy of the foregoing was served

upon all known counsel of record via the Court’s CM/ECF filing system.



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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA


VERSUS NO. 15-6714


Defendants

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS IN PART, TO STRIKEIN PART, AND, ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT

Defendants, Louisiana Lightning, LLC, Farm Fresh Food Suppliers, Inc., and Matthew D.

Dufour (collectively, “Defendants”), hereby file this Memorandum in Support of their Motion to

Dismiss in Part, to Strike in Part, and, Alternatively, for a More Definite Statement, in response to

the claims filed against them by plaintiff, Ronald Guidry (“Plaintiff” or “Guidry”), for the reasons

more fully set forth below.

FACTUAL BACKGROUND

This case involves Guidry’s improper attempt to manipulate federal and state intellectual

property laws to wage an unwarranted attack on Defendants. Defendant Louisiana Lightning, LLC

(“LL”) manufactures, markets, and sells white whiskey under the brand name “Louisiana

Lightning.” LL began selling its whiskey in commerce using the “Louisiana Lightning” mark in

October 2013 and has done so continuously through the present date. Neither defendant Farm

Fresh Food Suppliers, Inc.1 (“Farm Fresh”) nor defendant Matthew D. Dufour2 (“Dufour”), in his

personal capacity, manufactures, markets, or sells Louisiana Lightning-brand whiskey.

1 Farm Fresh is a Louisiana corporation that processes and distributes pickled snacks. Farm Freshis an entirely separate legal entity from LL and has been in operation since 1933.2 Matthew Dufour is the current managing member of LL.


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On or about August 30, 2013, LL submitted an application to register its trademark with

the United States Patent and Trademark Office (the “USPTO”). On March 5, 2014, after the

USPTO Trademark Examiner assigned to the application “searched the Office’s database of

registered and pending marks and [] found no conflicting marks that would bar registration,” the

USPTO allowed LL’s trademark application to proceed to publication. On July 23, 2014, Guidry

filed a Notice of Opposition to LL’s application. Thereafter, Guidry and LL litigated the matter

before the Trademark Trial and Appeal Board (the “TTAB”) for approximately eighteen (18)

months before Guidry abruptly filed this action. Despite the fact that LL had already filed for

summary judgment, the TTAB suspended the opposition proceeding pending the disposition of

the instant lawsuit.

Guidry filed this action on December 11, 2015. In his petition (the “Complaint”) [Rec.

Doc. 1], Guidry raises a variety of allegations against Defendants all arising from the same general

set of facts: Guidry, apparently (and unbeknownst to Defendants), played professional baseball in

New York approximately forty (40) years ago. At some point during Guidry’s professional

baseball career, he received the nickname “Louisiana Lightning.” Although Guidry has not played

professional baseball in decades, he still autographs baseballs and other sports memorabilia using

either his proper name, the nickname “Louisiana Lightning,” or another nickname by which he

was more commonly known, “Gator.” And so, in 2008, Guidry registered a service mark for

“Louisiana Lightning,” giving him rights to use the mark in connection with “promoting the goods

and/or services of others through the issuance of product endorsements.”3 To be clear, Guidry’s

service mark does not allow him to use the mark in branding goods, but instead merely to indicate

his service of endorsing or promoting goods and/or services of others. Nevertheless, Guidry now

3 Ex. 1 to Pl.’s Compl.


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insists that his service mark gives him exclusive rights over the “Louisiana Lighting” brand-name

with respect to all services and all goods, even LL’s branded whiskey.

The allegations in Guidry’s Complaint are conclusory, formulaic, and vague, and fail to

properly state several of his claims. Additionally, by his own allegations, Guidry purposefully

delayed bringing this action for at least eighteen (18) months, if not longer. Guidry’s Complaint

is therefore deficient. Accordingly, Defendants move to dismiss several of Guidry’s claims, to

strike certain allegations, and for a more definite statement, as more fully set forth below.

SUMMARY OF THE ARGUMENT

Defendants submit that various claims, and certain particular allegations, in Guidry’s

Complaint are insufficient and improper. Based on these deficiencies, Defendants request that:

(1) all of Guidry’s claims against Dufour and Farm Fresh and his unjust enrichment claim against

LL be dismissed; (2) that the particular factual allegations pertaining to the elements of

tarnishment, injury to business reputation, fame, and the availability of enhanced damages under

LUTPA be stricken; and (3) that this Court order Guidry to provide a more definite statement of

his Third, Fourth, Fifth, Sixth, and Seventh Claims for Relief.

LAW AND ARGUMENT

I. MOTION TO DISMISS

A. Rule 12(b)(6) Standard

Defendants first move to dismiss several of Guidry’s claims for failure to state a claim

under Rule 12(b)(6). A motion filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure challenges the sufficiency of the plaintiff’s allegations. Langley v. Sunbelt Rentals,

Inc., No. 11-2115, 2012 WL 2194132, at *1 (W.D. La. June 13, 2012). In ruling on a motion to

dismiss under Rule 12(b)(6), a court’s analysis is generally constrained to the complaint,


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documents attached to the complaint, and documents attached to the motion that are central to

plaintiff’s claims. Lone Star Fund V, LP v. Barclays Bank Public Ltd., 594 F.3d 383, 387 (5th

Cir. 2010)).

In evaluating a motion to dismiss under Rule 12(b)(6), “[f]actual allegations must be

enough to raise a right to relief above the speculative level.” Gonzalez v. Kay, 577 F.3d 600, 603

(5th Cir. 2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Under Twombly,

the court follows a two-step approach to decide a Rule 12(b)(6) motion. First, the court “must

identify those pleadings that, ‘because they are no more than conclusions, are not entitled to the

assumption of truth.’” Yanosky v. St. Tammany Par. Sch. Bd., No. 08-5047, 2010 WL 1254586,

at *1 (E.D. La. Mar. 24, 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). The plaintiff’s

legal conclusions “must be supported by factual allegations,” and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 679.

Only once the court has identified the well-pleaded factual allegations should the court

“assume their veracity” and then decide whether those allegations “plausibly give rise to an

entitlement to relief.” Id. at 664. “This is a ‘context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.’” Yanosky, 2010 WL 1254586, at *1

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Twombly and Iqbal mandate that a

plaintiff’s complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face,’” rather than simply “conceivable.” See Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570).

To state a plausible claim, a plaintiff must “provide the grounds of his entitle[ment] to

relief,” which “requires more than labels and conclusions, and a formulaic recitation of the


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elements of a cause of action.” Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and

citation 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.” Iqbal, 556 U.S. at 663. “It follows that where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has

not show[n] – that the pleader is entitled to relief.” Gonzalez, 577 F.3d at 603 (citing Iqbal, 556

U.S. at 678) (internal quotation marks omitted); see also Cuvillier v. Sullivan, 503 F.3d 397, 401

(5th Cir. 2007) (“[W]hen the allegations in a complaint, however true, could not raise a claim of

entitlement to relief, ‘this basic deficiency should . . . be exposed at the point of minimum

expenditure of time and money by the parties and the court.’”) (quoting Twombly, 550 U.S. at

558); Graft v. Mason, No. 08-4820, 2009 WL 799973, at *2 (E.D. La. Mar. 19, 2009) (same).

B. Claims Subject to Dismissal

Defendants submit that both of Guidry’s claims against Dufour (for trademark

infringement and cybersquatting), both of his claims against Farm Fresh (also for trademark

infringement and cybersquatting), and his unjust enrichment claim against LL are all improperly

alleged and should be dismissed.

1. The Trademark Infringement Claim against Dufour Should be Dismissed

First, Guidry fails to state a claim for federal trademark infringement against Dufour, as

the Complaint lacks sufficient factual allegations against Dufour personally. The purpose of

trademark law is to protect consumers “from confusion about a product's source and, relatedly, to

protect trademark-owners’ investment in the goodwill associated with their marks.” ICEE Distribs.

Inc. v. J & J Snack Foods Corp., 445 F.3d 841, 846 (5th Cir. 2006). The Lanham Act, § 32(1),

provides a private cause of action for trademark infringement for:


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use in commerce [of] any reproduction, counterfeit, copy, or colorable imitation ofa registered mark in connection with the sale, offering for sale, distribution, oradvertising of any goods or services on or in connection with which such use islikely to cause confusion, mistake, or to deceive.

15 U.S.C. § 1114(a)(1)(A). The Fifth Circuit has fashioned a two-part test for federal trademark

infringement: First, the plaintiff must “establish ownership in a legally protectible mark, and

second . . . show infringement by demonstrating a likelihood of confusion.” Amazing Spaces, Inc.

v. Metro Mini Storage, 608 F.3d 225, 235-36 (5th Cir. 2010).

Here, the only factual allegations directed at Dufour personally are that he is the

“Owner/Founder” of LL, that he is the “Manager” of Farm Fresh, and that he was listed as the

“administrative contact” for Farm Fresh when it registered the www.louisianalightning.com

domain name.4 That’s it. This falls seriously short of stating a claim for federal trademark

infringement against Dufour. Put simply, there is no justification for Dufour being named

personally in this suit.

In reality, Guidry’s efforts against Dufour are misplaced. Guidry does not (and cannot

reasonably) allege that Dufour personally used the “Louisiana Lightning” mark in commerce. See

15 U.S.C. § 1114(a)(1)(A) (listing “use in commerce” as the first element of trademark

infringement); see also Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir.

2008) (describing five elements of trademark infringement). Instead, Guidry apparently believes

that because he alleges that Dufour is the “Owner/Founder” of LL and the “Manager” of Farm

Fresh, then, ispo facto, Dufour must be personally liable for trademark infringement. That is not

what the law provides.

4 Pl.’s Compl. ¶ 5.


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Moreover, Louisiana law is well settled that a company principal, such as Dufour, is not

personally liable for activities conducted by entities in which he owns stock or a membership

interest.5 La. Rev. Stat. Ann. § 12:1320 (“Except as otherwise specifically set forth in this Chapter,

no member, manager, employee, or agent of a limited liability company is liable in such capacity

for a debt, obligation, or liability of the limited liability company.”); see also La. Rev. Stat. Ann.

§ 12:1-622 (“A shareholder of a corporation is not personally liable for the acts or debts of the

corporation.”). This is a key benefit of registering a limited liability company, and it applies in

full force in the trademark infringement context.

Ultimately, Guidry makes no allegations showing Dufour’s personal liability for trademark

infringement. Accordingly, the claim against him should be dismissed.

2. The Trademark Infringement Claim against Farm Fresh Should be Dismissed

For similar reasons, the trademark infringement claim against Farm Fresh should also be

dismissed. Guidry identifies no actions taken by Farm Fresh specifically that support a claim for

trademark infringement. His only factual allegation against Farm Fresh – that it registered the

www.louisianalightning.com domain name6 – does not establish trademark infringement. See 15

U.S.C. § 1114(a)(1)(A); Am. Rice, 518 F.3d at 329. Accordingly, the infringement claim against

Farm Fresh should be dismissed.

3. The Cybersquatting Claim against Dufour Should be Dismissed

Next, Guidry also fails to state a claim against Dufour under the federal anti-cybersquatting

statute, 15 U.S.C. § 1125(d). Section 1125(d), entitled “cyberpiracy prevention,” creates a private

5 Besides failing to assert any actions taken by Dufour personally, Guidry also fails to identify anygrounds for piercing the corporate/limited liability veil. Instead, Guidry’s allegations focus on theconduct of LL as a corporate entity.6 Pl.’s Compl. ¶ 4.


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cause of action where a person “registers, traffics in, or uses a domain name” with a “bad faith

intent to profit” from another’s registered mark, where “in the case of a mark that is distinctive at

the time of registration of the domain name, is identical or confusingly similar to that mark” or “in

the case of a famous mark that is famous at the time of registration of the domain name, is identical

or confusingly similar to or dilutive of that mark.” 15 U.S.C. § 1125(d)(1)(A).

a. The Claim is Barred by 15 U.S.C. § 1125(d)(1)(D)

Although the anti-cybersquatting statute creates a cause of action for the unauthorized

registration, trafficking in, or use of a protected domain name, relief is only available against

certain actors. Notably, under section 1125(d)(1)(D), a person may be held liable for registering,

trafficking in, or using a domain name only “if that person is the domain name registrant or that

registrant's authorized licensee.”

Here, there is no allegation that Dufour is the registrant of the www.louisianalightning.com

domain name, or that he is the registrant’s authorized licensee. See 15 U.S.C. § 1125(d)(1)(D).

To the contrary, Plaintiff specifically alleges that Farm Fresh “is listed as the registrant” of the

domain name.7 The only allegation against Dufour in connection with this claim is that he is the

“administrative contact” on behalf of Farm Fresh.8 By the express terms of section 1125(d)(1)(D),

that does not support a claim against Dufour. The cybersquatting claim against him therefore fails.

b. The Claim is Barred by the Statute of Limitations

The cybersquatting claim against Dufour also fails on its face for a second reason: it is

time-barred. The anti-cybersquatting statute, 15 U.S.C. § 1125(d), is part of the Lanham Act,

which is silent as to the applicable statute of limitations. “Where there is need of a statute of

7 Pl.’s Compl. ¶ 4.8 Pl.’s Compl. ¶ 5.


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limitation in a suit based on the Federal Lanham Act, courts will look to the relevant forum state

statute which best effectuates the federal policy at issue.” 6 McCarthy on Trademarks and Unfair

Competition § 31:23 (2011); see also Curtis v. Benson, 959 F. Supp. 348, 353 (E.D. La. 1997).

The closest Louisiana state-law analog to the Lanham Act is the Louisiana Unfair Trade Practices

and Consumer Protection Act (“LUTPA”), La. Rev. Stat. Ann. § 51:1401, et seq. See, e.g.,

Checkpoint Fluidic Sys. Int’l, Ltd. v. Guccione, 888 F. Supp. 2d 780, 790 (E.D. La. 2012) (finding

“LUTPA to be the most analogous Louisiana statute of limitations for [plaintiff’s] Lanham Act

claims”). LUTPA imposes a one-year prescriptive period, commencing “from the time of the

transaction or act which gave rise” to the claim under LUTPA. La. Rev. Stat. Ann. § 51:1409(E).

Accordingly, a one-year statute of limitations applies to Lanham Act claims. Checkpoint, 888 F.

Supp. 2d at 790.

As previously noted, Guidry’s only allegation against Dufour with respect to the

cybersquatting claim is that he was listed as the “administrative contact” for the

www.louisianalightning.com domain name when it was registered by Farm Fresh.9 This discrete

act, by Guidry’s own allegations, occurred “in or about August 2012.”10 But Guidry did not

institute this action until December 2015, over three (3) years later. Because Guidry delayed

bringing this action for over three (3) years after the domain name was registered, his

cybersquatting claim against Dufour is prescribed, and must be dismissed.

4. The Cybersquatting Claim against Farm Fresh Should be Dismissed

For the same reasons, the cybersquatting claim against Farm Fresh likewise fails. Guidry’s

only allegation against Farm Fresh in connection with this claim is that it “is listed as the registrant”



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for the domain name.11 Again, Guidry alleges that the domain name was registered “in or about

August 2012.”12 Guidry cannot now, over three (3) years later, sue Farm Fresh for this isolated

action. Guidry’s cybersquatting claim against Farm Fresh, just like his claim against Dufour, is

clearly prescribed. It should therefore be dismissed.

5. The Unjust Enrichment Claim against LL Should be Dismissed

Guidry also fails to state a claim for unjust enrichment against LL. Louisiana Civil Code

article 2298 provides a claim for unjust enrichment where “[a] person has been enriched without

cause at the expense of another person.” However, article 2298 explicitly provides that the unjust

enrichment claim “is subsidiary and shall not be available if the law provides another remedy for

the impoverishment or declares a contrary rule.”

Both the Louisiana Supreme Court and this Court have held that where a plaintiff has other

remedies at law potentially available, his claim for unjust enrichment should be dismissed.

Conerly Corp. v. Regions Bank, No. 08-813, 2008 U.S. Dist. LEXIS 94674, at *25, 2008 WL

4975080 (E.D. La. Nov. 20, 2008) (citing Baker v. Maclay Props. Co., 648 So. 2d 888 (La. 1995)).

“The merit of plaintiff[’s] other claims is irrelevant. ‘It is not the success or failure of other causes

of action, but rather the existence of other causes of action, that determine whether unjust

enrichment can be applied.’” Id. at *25-26 (quoting Garber v. Badon & Ranier, 981 So. 2d 92, 100

(La. Ct. App. 2008)). Instead, “unjust enrichment is a remedy of last resort under Louisiana law

and is only applicable to fill a gap in the law where no express remedy is provided.” Id. at *26

(internal quotation marks and citation omitted) (granting motion to dismiss unjust enrichment

claim).



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Because Guidry raises various other claims against LL, he necessarily cannot state a claim

for unjust enrichment. Guidry has various other remedies available at law, and so, the subsidiary

remedy of unjust enrichment is not applicable. See La. Civ. Code art. 2298. The unjust enrichment

claim therefore must be dismissed.

II. MOTION TO STRIKE

A. Rule 12(f) Standard

In addition to requesting that several of Guidry’s claims be dismissed in their entirety per

Rule 12(b)(6), Defendants also request that certain particular allegations within Guidry’s claims

be stricken per Rule 12(f). Federal Rule of Civil Procedure 12(f) allows the court to strike from a

pleading “any redundant, immaterial, impertinent, or scandalous matter.” Defendants submit that

several of Guidry’s particular factual allegations are inappropriate and should be stricken, as

follows:

B. Allegations That Should be Stricken

1. Improper Allegations of Tarnishment / Injury to Business Reputation

First, Guidry’s allegations of tarnishment or injury to business reputation, in the context of

his federal and state dilution claims, respectively, are improper and should be stricken. Guidry’s

Fourth Claim for Relief (Against LL) alleges Dilution by Tarnishment under 15 U.S.C. §

1125(c).13 To allege dilution by tarnishment, there must be some allegation that LL’s use “harms

the reputation” of Guidry’s mark. 15 U.S.C. § 1125(c)(2)(C). But Guidry’s Complaint is entirely

devoid of any specific allegations establishing the reputation of Guidry’s service mark (as opposed

to Guidry himself) or how that mark is “tarnished” by LL’s use. Instead, Guidry’s allegations are

formulaic and conclusory. Accordingly, his allegation of tarnishment should be stricken.

13 Pl.’s Compl. p. 12.


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Similarly, Guidry’s Seventh Claim for Relief (also against LL) alleges Louisiana

Trademark / Trade Name Dilution and Injury to Business Reputation under La. Rev. Stat. Ann. §

51:223.1.14 One of the elements for relief under section 223.1 is “likelihood of injury to business

reputation.” Just as Guidry fails to allege tarnishment, he likewise fails to allege any injury to the

reputation of his service mark. Again, not a single factual allegation shows any harm to Guidry’s

service mark. Accordingly, this allegation should likewise be stricken.

2. Improper Allegations Regarding Fame

Second, Guidry’s factual allegations regarding fame are also improper and should be

stricken. Guidry fails to properly allege fame in connection with both of his federal dilution claims.

Guidry raises two claims for dilution under 15 U.S.C. § 1125(c): his Third Claim for Relief

(Against LL) – Dilution by Blurring; and his Fourth Claim for Relief (Against LL) – Dilution by

Tarnishment.15 Both types of dilution provide protection for famous marks. See 15 U.S.C. §

1125(c)(2). The statute specifically defines fame, providing that “a mark is famous if it is widely

recognized by the general consuming public of the United States as a designation of source of the

goods or services of the mark’s owner.” 15 U.S.C. § 1125(c)(2)(A). Within both of his federal

dilution claims, Guidry insists that his “Louisiana Lightning Trademark and name are famous.”

These allegations are incorrect and immaterial and should be stricken.

As an initial matter, Guidry has no trademark or trade name rights in Louisiana Lightning.

As explained infra, Guidry, by his own admission, holds only a service mark for “promoting the

goods and/or services of others through the issuance of product endorsements.”16 Accordingly,

Guidry’s allegation that he has a famous “Louisiana Lightning Trademark” is false on the face of

14 Pl.’s Compl. p. 15.15 Pl.’s Compl. pp. 11-13.16 Ex. 1 to Pl.’s Compl.


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the pleadings and must be stricken. Additionally and more importantly, Guidry fails to make a

single factual allegation anywhere in his Complaint supporting the conclusion that his mark is

famous among the general consuming public throughout the country, as a designation of the source

of his product endorsement services. Guidry may allege fame in New York, or among baseball

fans, but there is no factual allegation showing fame among the “general consuming public of the

United States.” Further, in all of his assorted allegations, Guidry alleges only that he is famous,

and not that his services as a product endorser (and thus, his mark) have any fame whatsoever.17

Defendants submit that Guidry’s failure to appreciate this distinction is fatal to his claims.

Guidry’s current allegations regarding the element of fame are irrelevant and improper, and should

be stricken from his Complaint.

3. Improper Allegations Regarding Enhanced Damages for LUTPA Violationagainst an “Elder Person”

Additionally, Guidry’s allegation that enhanced “damages”18 are available under LUTPA

for a violation against an elder person is also incorrect and should be stricken. First and foremost,

LUTPA only allows the Louisiana Attorney General to seek enhanced penalties for violations

against an elder person in connection with the public enforcement of LUTPA. See La. Rev. Stat.

Ann § 51:1416 (explaining that the attorney general may seek civil penalties, payable to the

treasurer, in connection with the enforcement of LUTPA); § 51:1407(C) (discussing “additional

17 The closest that Guidry comes to alleging fame of the mark is the conclusory allegation that hisservice mark has “become widely recognized among the consuming public of the United States asa trusted source of product and services endorsements and promotions.” See Pl.’s Compl. p. 6.As noted, however, Guidry fails to allege any factual support for this conclusion. In fact, Guidryfails to allege any product endorsements (particularly in the past three years), conflates his personalfame with that of his nickname, and fails to even allege any indication that his service mark isfamous for endorsing the goods and services of others.18 Although Guidry represents that he is entitled to enhanced “damages” in his Complaint, Pl.’sCompl. ¶¶ 82, 83, he appears to be referencing the enhanced penalties provided for in La. Rev.Stat. Ann. § 51:1407(C).


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civil penalties” for LUTPA violations against elder persons). The limited, private right of action

created by section 1409, on which Guidry’s LUTPA claim is premised, provides for no such

enhanced penalties. Accordingly, enhanced penalties are unavailable in this case and any

allegation regarding the same is impertinent. See Fed. R. Civ. P. 12(f).

Furthermore, by Guidry’s own admission, for the majority if not all of the relevant time

period, Guidry was not an “elder person” as defined by LUPTA. Under LUTPA, an “elder person”

means any person sixty-five years of age or older.” La. Rev. Stat. Ann. § 51:1402(5). Notably,

on the face of his Complaint, Guidry alleges that he only just recently turned 65 in August of 2015,

more than two (2) years after LL started using the “Louisiana Lightning” brand in connection with

its whiskey, and over a year after Guidry filed his Notice of Opposition to LL’s application with

the USPTO. Because Guidry became an “elderly person” after the alleged unfair conduct, and,

more importantly, because section 51:1407(C) only applies to public enforcement by the attorney

general, no enhanced penalties are available to Guidry. Guidry’s allegations regarding the matter

should therefore be stricken.

III. MOTION FOR A MORE DEFINITE STATEMENT

A. Rule 12(e) Standard

Finally, because Guidry’s allegations are so vague, conclusory, and even irrelevant,

Defendants request that he be ordered to provide a more definite statement of his claims. Per

Federal Rule of Civil Procedure 12(e), “[a] party may move for a more definite statement of a

pleading” where that pleading “is so vague or ambiguous that the party cannot reasonably prepare

a response.” Defendants submit that they are, at least, entitled to a more definite statement of

Guidry’s claims, as follows:


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B. Claims that Should be Made More Definite

1. Third Claim for Relief (against LL) –Dilution by Blurring

In addition to their request that certain portions (that is, the improper allegations of fame)

of the dilution by blurring claim be stricken, Defendants also request that Guidry be ordered to

provide a more definite statement of this overall claim against LL. Defendants submits that

Guidry’s allegations of blurring are wholly formulaic and conclusory and provide no notice of the

factual basis on which Guidry intends to rely in presenting this claim. Specifically, Defendants

request that Guidry provide more specific factual allegations regarding how LL’s branded whiskey

blurs Guidry’s product endorsement service mark, how Guidry has been damaged, and how

Guidry’s product endorsement service mark is famous.

2. Fourth Claim for Relief (against LL) –Dilution by Tarnishment

In addition to their request that certain portions (that is, the improper allegations of fame)

of the dilution by tarnishment claim be stricken, Defendants also request that Guidry be ordered

to provide a more definite statement of this overall claim against LL. Defendants submit that

Guidry’s allegations of tarnishment are wholly formulaic and conclusory and provide Defendants

with no notice of the factual basis on which Guidry intends to rely in presenting this claim.

Specifically, Defendants request that Guidry provide more specific factual allegations regarding

how LL’s branded whiskey tarnishes Guidry’s product endorsement service mark, how Guidry has

been damaged, and how Guidry’s product endorsement service mark is famous.

3. Fifth Claim for Relief (all claims) – Cybersquatting

In addition and alternatively to their request that the cybersquatting claims against Dufour

and Farm Fresh be dismissed, Defendants request that Guidry be ordered to provide a more definite

statement of all of the cybersquatting claims. Defendants submit that Guidry’s allegations of


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cybersquatting are insufficient, formulaic, and conclusory, and provide Defendants with no notice

of the factual basis on which Guidry intends to rely in presenting these claims. Specifically,

Defendants would have Guidry provide more specific factual allegations regarding how or why

Guidry believes Defendants acted with a bad faith intent to profit off of Guidry’s product

endorsement service mark when they allegedly registered and/or used the

www.louisianalightning.com domain name.

4. Sixth Claim for Relief (against LL) – Violation of LUTPA

Defendants also request that this Court order Guidry to provide a more definite statement

of his LUTPA claim against LL, specifically regarding the statute’s requirement that Guidry must

have suffered an “ascertainable loss.” In order to properly state a LUTPA violation, a plaintiff

must identify some “ascertainable loss of money or movable property, corporeal or incorporeal”

that he suffered “as a result of the use or employment by another person of an unfair or deceptive

method, act, or practice.” La. Rev. Stat. § 51:1409(A). Guidry fails to identify any ascertainable

loss in his Complaint. His threadbare recital that he suffered “actual damages” is insufficient.19

Accordingly, Defendants request that Guidry be ordered to provide a more definite statement of

this element of his LUTPA claim.

5. Seventh Claim for Relief (against LL) – Trademark/Trade Name Dilution andInjury to Business Reputation

Last, Defendants request that this Court, in addition to striking certain portions of the state-

law dilution claim, order Guidry to provide a more definite statement of this overall claim against

LL. Defendants submit that Guidry’s allegations of tarnishment and injury to business reputation

are wholly formulaic and conclusory and provide Defendants with no notice of the factual basis

19 Pl.’s Compl. ¶ 81.


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on which Guidry intends to rely in presenting this claim. Specifically, Defendants request that

Guidry provide more specific factual allegations regarding how LL’s branded whiskey dilutes or

injures Guidry’s product endorsement service mark, how Guidry has been damaged, and how that

damage is irreparable.20

Accordingly, additionally and alternatively to the other relief requested above, Defendants

respectfully request that Guidry be ordered to provide a more definite statement of his claims set

forth above, so that Defendants may be on proper notice and able to respond to the same.

CONCLUSION

Guidry’s allegations against Defendants are nothing more than formulaic legal conclusions

devoid of any pertinent factual support. The facts presented by Guidry are often irrelevant and, in

some instances, even directly foreclose the relief he seeks. For these reasons, all as set forth more

fully above, Defendants respectfully request that this Court dismiss Guidry’s insufficiently alleged

claims, strike his improper allegations, and order that he provide a more definite statement.

20 Guidry’s allegation in the context of this claim that he has been “irreparably” harmed in an“incalculable amount,” Pl.’s Compl. ¶ 89, is particularly specious considering that he repeatedlyclaims actual, quantifiable damages based on the exact same conduct of LL. Pl.’s Compl. ¶¶ 44,45, 54, 81, 83 and ¶¶ 7, 10 of Prayer for Relief.


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/s/ Brad E. Harrigan___________________LUGENBUHL, WHEATON, PECK,RANKIN & HUBBARDBrad E. Harrigan (La. Bar No. 29592) (T.A.)Daniel B. Centner (La. Bar No. 33055)Erin R. Rosenberg (La. Bar No. 34422)601 Poydras Street, Suite 2775New Orleans, Louisiana 70130Telephone: (504) 568-1990Fax: (504) 310-9195



I hereby certify that on this 22nd day of February, 2016, a copy of the foregoing was served

upon all known counsel of record via the Court’s CM/ECF filing system.



1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA


VERSUS NO. 15-6714


Defendant

ORDER

Considering the foregoing Motion to Dismiss in Part, To Strike in Part and Alternatively

for a More Definite Statement filed by Louisiana Lightning, LLC, Farm Fresh Food Suppliers, Inc.

and Matthew D. Dufour;

IT IS HEREBY ORDERED that the Motion to Dismiss in Part, To Strike in Part and

Alternatively for a More Definite Statement filed by Louisiana Lightning, LLC, Farm Fresh Food

Suppliers, Inc. and Matthew D. Dufour is granted.

New Orleans, Louisiana this ___ day of _______________, 2016.

________________________________________________UNITED STATES DISTRICT COURT JUDGE


Documents

Motion to Dismiss Guidry Trademark Infringement Claim