United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
FISH, SENIOR UNITED STATES DISTRICT JUDGE
the court is the motion of the defendant, Omnitrition
International, Inc. (“Omnitrition”), to dismiss
the claims of the plaintiffs, I Love Omni, LLC
(“ILO”) and Heidi Whitehair
(“Whitehair”), pursuant to Fed R. Civ. P.
12(b)(6) (docket entry 29). For the reasons stated below, the
defendant's motion is granted.
court provided a detailed factual background of this case in
its memorandum opinion and order dated March 17, 2017
(“Order”) (docket entry 26).
plaintiffs filed their original complaint on August 18, 2016.
Original Complaint (“Complaint”) (docket entry
1). Whitehair sued Omnitrition for breach of contract,
violation of the Texas Theft Liability Act
(“TTLA”), business disparagement, tortious
interference with business relationships, and violation of
the Lanham Act. Id. at 8-12. ILO sued Omnitrition
for breach of contract, violation of the TTLA, tortious
interference with business relationships, and violating the
Lanham Act. Id. The plaintiffs also sought a
declaratory judgment concerning five provisions of the
contract. Id. at 7-8.
filed a motion to dismiss the plaintiffs' claims on
October 28, 2016. See Defendant's Motion to
Dismiss (docket entry 9). The court dismissed the
plaintiffs' claims for declaratory judgment, TTLA
violations, business disparagement, tortious interference
with business relationships, and Lanham Act violations.
See Order at 10-17. The court denied the
defendant's motion to dismiss the breach of contract
claim. Id. at 11-12. The court gave the plaintiffs
leave to amend their complaint to cure their pleading
defects. Id. at 18.
plaintiffs timely filed an amended complaint on March 31,
2017. See Plaintiffs' First Amended Complaint
(“Amended Complaint”) (docket entry 27). In the
amended complaint, the plaintiffs assert claims against
Omnitrition for breach of contract, business disparagement,
tortious interference with business relationships, and Lanham
Act violations. See id. The plaintiffs dropped their
declaratory judgment and TTLA claims. See id.
response, Omnitrition filed the instant motion pursuant to
Federal Rule of Civil Procedure 12(b)(6) to dismiss the
business disparagement, tortious interference, and Lanham Act
claims. See Defendant's Motion to Dismiss First
Amended Complaint (“Motion”) (docket entry 29).
The plaintiffs then filed a timely response, which was
followed by Omnitrition's timely reply. See
Plaintiffs' Response to Defendant's Motion to Dismiss
First Amended Complaint (“Plaintiffs'
Response”) (docket entry 33); Defendant's Reply to
Plaintiff's Response to Defendant's Motion to Dismiss
First Amended Complaint (“Reply”) (docket entry
39). The motion is now ripe for decision.
Rule 12(b)(6) Motion to Dismiss
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead ‘enough facts to state a claim to relief that is
plausible on its face.'” In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Bell Atlantic Corporation v. Twombly, 550
U.S. 544, 570 (2007)), cert. denied, 552 U.S. 1182
(2008). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formalistic recitation of the elements of
a cause of action will not do.” Twombly, 550
U.S. at 555 (internal quotation marks, brackets, and
citations omitted). “Factual allegations must be enough
to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” In re Katrina
Canal, 495 F.3d at 205 (quoting Twombly, 550
U.S. at 555) (internal quotation marks omitted). “The
court accepts all well-pleaded facts as true, viewing them in
the light most favorable to the plaintiff.”
Id. (quoting Martin K. Eby Construction Company,
Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467
(5th Cir. 2004)) (internal quotation marks omitted).
Supreme Court has prescribed a “two-pronged
approach” to determine whether a complaint fails to
state a claim under Rule 12(b)(6). See Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). The court must
“begin by identifying the pleadings that, because they
are no more than conclusions, are not entitled to the
assumption of truth.” Id. at 679. The court
should then assume the veracity of any well-pleaded
allegations and “determine whether they plausibly give
rise to an entitlement of relief.” Id. The
plausibility principle does not convert the Rule 8(a)(2)
notice pleading standard to a “probability requirement,
” but “a sheer possibility that a defendant has
acted unlawfully” will not defeat a motion to dismiss.
Id. at 678. The plaintiff must “plead
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. “[W]here 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.'” Id. at 679
(alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)). The
court, drawing on its judicial experience and common sense,
must undertake the “context-specific task” of
determining whether the plaintiffs' allegations
“nudge” their claims against Omnitrition
“across the line from conceivable to plausible.”
See id. at 679, 683.
Whitehair's Business Disparagement Claim
general elements of a claim for business disparagement are:
(1) publication by the defendant of the disparaging words;
(2) falsity; (3) malice; (4) lack of privilege; and (5)
special damages. Forbes Inc. v. Granada Biosciences,
Inc., 124 S.W.3d 167, 170 (Tex. 2003); 67 Tex. Jur. 3d
Slander of Title § 4 (2015). “The tort is part of
the body of law concerned with the subject of interference
with commercial or economic relations.” Hurlbut v.
Gulf Atlantic Life Insurance Company, 749 S.W.2d 762,
766 (Tex. 1987). The Restatement identifies the tort by the
name “injurious falsehood” and notes its
application “in cases ...