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Five Percent Nutrition, LLC v. Get Fit Fast Supplements, LLC

United States District Court, M.D. Florida, Tampa Division

July 24, 2019

FIVE PERCENT NUTRITION, LLC, Plaintiff,
v.
GET FIT FAST SUPPLEMENTS, LLC, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE.

         This 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 granted.

         I. Background

         Recently, 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.).

         On May 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. at 3-4).

         One day 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).

         On June 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.

         II. Legal Standard

         Although 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).

         III. Analysis

         As a 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).

         Because 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).

         Under 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 the ...

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