United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant Vital
Pharmaceuticals Incorporated's (“VPX” or
“Defendant”) Motion to Dismiss, ECF No.  (the
“Motion”). The Court has carefully considered the
Motion, all opposing and supporting submissions, including
Plaintiff ThermoLife International LLC's
(“ThermoLife” or “Plaintiff”)
Response, ECF No. , and VPX's Reply, ECF No. ,
the record in this case and the applicable law, and is
otherwise fully advised. For the reasons that follow, the
Motion is granted in part.
dispute in this case involves amino acid-nitrate compounds
and compositions in dietary supplements. ThermoLife was
founded in 1998 to provide dietary supplements, and holds
numerous patents related to the development and use of
ingredients in dietary supplements and food products.
ThermoLife also licenses patents related to compounds used in
dietary supplements. VPX distributes dietary supplements
across the United States. One of the products licensed and
sold by ThermoLife is a patented creatine nitrate used in
dietary supplements meant to promote muscle mass. The
creatine nitrate supplied by ThermoLife is included in many
top-selling dietary supplements. According to ThermoLife, VPX
has attacked ThermoLife's creatine nitrate in its own
advertising, including false and misleading statements about
VPX's “Super Creatine” because products
including ThermoLife's creatine nitrate compete directly
with VPX's products.
result of VPX's alleged false and misleading statements,
ThermoLife asserts three claims in its Complaint: Count 1:
Violation of Section 43(a) of the Lanham Act, 15 U.S.C.
§ 1125(a); Count 2: Common Law Unfair Competition; and
Count 3: A Declaratory Judgment that a press release
ThermoLife made regarding a VPX patent is not defamatory.
See generally ECF No.  (“Complaint”).
In the Motion, VPX seeks dismissal of the Complaint for lack
of statutory standing and failure to state a claim under Rule
of the Federal Rules requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Although a complaint “does not need detailed
factual allegations, ” it must provide “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2)'s pleading standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). In the same vein, a complaint may not
rest on “‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. These elements are required to survive a motion brought
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
which requests dismissal for failure to state a claim upon
which relief can be granted.
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. Miccosukee Tribe of Indians of
Fla. v. S. Everglades Restoration Alliance, 304 F.3d
1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co.
v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353
(S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as
true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir.
2006). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative
explanations,' which suggest lawful conduct rather than
the unlawful conduct the plaintiff would ask the court to
infer.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal,
556 U.S. at 682).
Motion, VPX first argues that ThermoLife lacks statutory
standing to assert its Lanham Act claim. Courts have referred
to this requirement as “prudential” standing.
However, the Supreme Court has since clarified that the
relevant inquiry is whether “this particular class of
persons has a right to sue under the substantive
statute.” Lexmark Int'l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 127 (2014) (citation
omitted). As such, in addition to satisfying the
constitutional requirement of standing, a plaintiff must also
satisfy the requirements of statutory standing. Bank of
Am. Corp. v. City of Miami, Fla., 137 S.Ct. 1296, 1302
test for determining whether a plaintiff has statutory
standing under the Lanham Act requires a determination of
whether a plaintiff's interests “fall within the
zone of interests protected by the law invoked” and
whether the injuries suffered were “proximately caused
by violations of the statute. Lexmark Int'l,
Inc., 572 U.S. at 129, 132.
[T]o come within the zone of interests in a suit for false
advertising under § 1125(a), a plaintiff must allege an
injury to a commercial interest in reputation or sales. A
consumer who is hoodwinked into purchasing a disappointing
product may well have an injury-in-fact cognizable under
Article III, but he cannot invoke the protection of the
Lanham Act . . . . Even a business misled by a supplier into
purchasing an inferior product is, like consumers generally,
not under the Act's aegis.
Id. at 131-32. In addition, “a plaintiff suing
under § 1125(a) ordinarily must show economic or
reputational injury flowing directly from the deception
wrought by the defendant's advertising; and that that
occurs when deception of consumers causes them to withhold
trade from the plaintiff.” Id. at 133.
argues that Thermolife lacks statutory standing because the
Complaint fails to plausibly allege an injury within the zone
of interests protected by the Lanham Act, including injury to
profits or reputation, as Thermolife does not deal in any
goods or interact with the consuming public and therefore has
no sales or goodwill to damage. VPX argues further that
Thermolife fails to ...