United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT
matter is before the Court on consideration of Defendant Get
Fit Fast Supplements, LLC's Motion to Dismiss the
Complaint, (Doc. # 9), filed on June 10, 2019. Plaintiff Five
Percent Nutrition, LLC filed a response on June 24, 2019.
(Doc. # 13). For the reasons that follow, the Motion is
Five Percent notified Amazon.com that Get Fit was selling
counterfeit Five Percent products through its website.
See Get Fit Fast Supplements, LLC v.
Richpianauncensored.com, LLC, No. 9:19-cv-80641-DMM,
(Doc. # 1 at 11). As a result, Amazon.com removed Get
Fit's products from all search results relating to Five
Percent products. (Id.). On April 15, 2019, Get Fit
filed a complaint against Richpianauncensored.com, LLC (RPU)
in the Fifteenth Judicial Circuit in and for Palm Beach
County, Florida (the First Action). (Id. at 10-13).
In the First Action, Get Fit sought a declaratory judgment of
product authenticity from the court as well as damages
related to tortious interference. (Id.).
15, 2019, RPU removed the First Action from the Fifteenth
Judicial Circuit to the Southern District of Florida.
(Id. at 1-5). In its Notice of Removal, RPU claimed
it was a wholly owned subsidiary of Five Percent.
(Id. at 2). In addition, RPU asserted that the case
raised a federal question because determining the
authenticity of Get Fit's products would require the
court to analyze federal trademark law in relation to five
specific trademarks registered to Five Percent. (Id.
earlier - on May 14, 2019 - Five Percent filed a separate
action against Get Fit in this Court claiming trademark
counterfeiting and infringement, false advertising, and
unfair competition pursuant to the Lanham Act and the Florida
Deceptive and Unfair Trade Practices Act (FDUTPA). (Doc. # 1
at 1). In its Complaint, Five Percent claims that Get Fit has
been selling unauthorized Five Percent products through
Amazon.com and seeks injunctive relief and damages.
(Id. at 8-16). Notably, in arguing that Get
Fit's products are illegitimate, Five Percent makes
specific reference to the same trademarks mentioned in
RPU's Notice of Removal. (Id. at 3).
10, 2019, Get Fit filed this Motion to Dismiss, arguing that
Five Percent's claims are compulsory counterclaims that
should have been raised in the First Action. (Doc. # 9). Five
Percent has responded to the Motion, (Doc. # 13), and the
Motion is ripe for review.
not explicitly stated by Get Fit, the Court interprets this
Motion as a Federal Rule of Civil Procedure 12(b)(1) motion
for lack of subject matter jurisdiction. Motions to dismiss
for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) may attack jurisdiction facially or factually.
Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th
Cir. 2003). Factual attacks challenge the “existence of
subject matter jurisdiction in fact, irrespective of the
pleadings.” Scarfo v. Ginsberg, 175 F.3d 957,
960 (11th Cir. 1999)(quoting Lawrence v. Dunbar, 919
F.2d 1525, 1529 (11th Cir. 1990)). When the jurisdictional
attack is factual, the presumption of truthfulness afforded
to a plaintiff under Rule 12(b)(6) does not attach.
Scarfo, 175 F.3d at 960. Because the very power of
the Court to hear the case is at issue, the Court is free to
weigh evidence outside the four corners of the complaint.
Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 732
(11th Cir. 1982).
preliminary matter, the Court will address the law that
governs this Motion. Both Get Fit and Five Percent argue this
Motion is controlled by Federal Rule of Civil Procedure 13,
(Doc. # 9 at 3; Doc. # 13 at 2); however, the Court
disagrees. In its Motion, Get Fit relies on Beepot v.
J.P. Morgan Chase Nat'l Corp. Servs., Inc., 57
F.Supp.3d 1358, 1370 (M.D. Fla. 2014), for the principle that
“failure to bring a compulsory counterclaim in a state
court proceeding bars subsequent suit in federal court on
that claim.” (Doc. # 9 at 3). And the Beepot case cites
an additional case in support of this proposition,
Petillo v. World Savings Bank, FSB, No.
6:08-cv-1255-Orl-19GJK, 2009 WL 2178953, at *4 (M.D. Fla.
July 21, 2009).
Beepot and Petillo exclusively applied
Florida law when determining whether both state and federal
claims were compulsory counterclaims, the Court believes
Florida law governs this issue. See also Novick v. Wells
Fargo Bank, N.A., No. 16-cv-22982, 2017 WL 2464707, at
*2 (S.D. Fla. June 7, 2017)(“The Court looks to state
law to determine whether a particular claim is a compulsory
counterclaim.”), appeal dismissed, No. 17-13063-GG,
2017 WL 6943240 (11th Cir. Aug. 25, 2017).
the Florida Rules of Civil Procedure:
A pleading must state as a counterclaim any claim which at
the time of serving the pleading the pleader has against any
opposing party, provided it arises out of the transaction or
occurrence that is the subject matter of the opposing
party's claim and does not require for its adjudication