United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court are Plaintiff/Counter-Defendant Valerie's
House, Inc.'s Motion for Judgment on the Pleadings
(Doc. 25), Defendant/Counter-Plaintiff Avow Hospice,
Inc.'s response (Doc. 26), and Valerie's
House's reply (Doc. 31).
a trademark dispute between two not-for-profit corporations
that provide bereavement support services to children and
families who have lost loved ones. Valerie's House began
using the VALERIE'S HOUSE mark to promote its services in
and around Fort Myers, Florida in 2014. Avow Hospice has
provided palliative care and bereavement support services in
nearby Collier County for over thirty years. In 2016, the
parties discussed a deal for Valerie's House to provide
services at Avow's hospice facility, but talks broke down
when Avow declined to sign a Memorandum of Understanding
presented by Valerie's House. Then in 2018, Avow received
funds from philanthropist Janet Cohen to renovate a house
into a “home base” for Avow's children's
grief and bereavement services. At Cohen's request, Avow
named the building “Aunt Janet's House.” Avow
opened Aunt Janet's House in June 2019, and Valerie's
House sued Avow for damages and injunctive relief. Avow filed
counterclaims for declaratory judgment and unfair
competition. Valerie's House now seeks dismissal of those
counterclaims under Federal Rule of Civil Procedure
standard for granting a Rule 12(c) motion on the
pleadings is identical to that of a Rule 12(b)(6)
motion to dismiss. Equal Emp't Opportunity Comm'n
v. Austal USA, LLC, 389 F.Supp.3d 1015, 1018 (S.D. Ala.
2019). The court accepts as true all material allegations in
the nonmovant's pleading and views those facts in the
light most favorable to the nonmovant. Id.
“Judgment on the pleadings is appropriate when no
material facts are in dispute and the movant is entitled to
judgment as a matter of law.” Washington v.
Rivera, 939 F.3d 1239, 1242 (11th Cir. 2019).
first counterclaim seeks a declaration that its “use of
the AUNT JANET'S HOUSE mark does not infringe any
trademark or other right held by” Valerie's House.
(Doc. 11 at 13). Under both federal and Florida
state law, courts have discretion in deciding whether to
exercise jurisdiction over declaratory judgment claims.
Knights Armament Co. v. Optical Sys. Tech., Inc.,
568 F.Supp.2d 1369, 1374 (M.D. Fla. 2008).
Avow's declaratory judgment claim is extraneous because
Plaintiff's trademark claims will decide the rights Avow
seeks to adjudicate. The Court thus declines to hear it.
Avow claims that Valerie's House violated the Florida
Deceptive and Unfair Trade Practices Act (FDUTPA) by making
false trademark infringement claims to gain a business
advantage. A FDUTPA claim has three elements: “(1) a
deceptive act or unfair practice; (2) causation; and (3)
actual damages.” Dolphin LLC v. WCI Cmtys.,
Inc., 715 F.3d 1243, 1250 (11th Cir. 2013).
Valerie's House attacks the first element, arguing that
Avow failed to allege a deceptive act or unfair practice.
“deceptive act” under the FDUTPA is “a
representation, omission, or practice that is likely to
mislead the consumer acting reasonably in the circumstances,
to the consumer's detriment.” Zlotnick v.
Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir.
2007) (quoting PNR, Inc. v. Beacon Prop. Mgmt.,
Inc., 842 So.2d 773, 777 (Fla. 2003)). The only hint of
deception in Avow's counterclaim is an allegation that
the Memorandum of Understanding proposed by Valerie's
House was “factually inaccurate.” But Avow does
not claim that the inaccuracies were communicated to any
consumers. Avow has not alleged a “deceptive act”
under the FDUTPA.
practice is “unfair” under the FDUTPA if is
“offends established public policy and is immoral,
unethical, oppressive, unscrupulous or substantially
injurious to consumers.” Hetrick v. Ideal Image
Dev. Corp., 372 Fed.Appx. 985, 992 (11th Cir. 2010)
(quoting PNR, 842 So.2d at 777). Even construing the
counterclaim as liberally as possible, the only act Avow
alleges that might be injurious is Valerie's House filing
this case. Plaintiff's conduct before this suit was
innocuous. The problem for Avow is that Florida's
litigation privilege affords absolute immunity to acts
“occurring during the course of a judicial
proceeding.” Echecarria, McCalla, Raymer, Barrett
& Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007).
“The litigation privilege applies across the board to
actions in Florida, both to common-law causes of action,
those initiated pursuant to a statute, or of some other
origin.” Id. Avow has not alleged an
actionable “unfair practice.”
at the end of its Response, Avow requests leave to file an
amended counterclaim if the Court finds its pleading
insufficient. The Court will not grant leave to amend at this
time. First, the deadline to amend pleadings has passed.
Second, by tacking the request onto the end of its Response,
Avow circumvented Local Rule 3.01(g), which requires counsel
to confer in good faith before requesting relief. Third, an
amendment appears futile. Avow's only grievance with
Valerie's House seems to be the filing of this case,
which is protected by the litigation privilege.
it is now
Valerie's House, Inc.'s Motion for Judgment on the
Pleadings (Doc. 25) is GRANTED.
Avow Hospice, Inc.'s Counterclaim is