United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER, UNITED STATES DISTRICT JUDGE
before the court is defendants Officine Nicola Galperti e
Figlio S.p.A. (“ONG”) and Galperti, Inc.'s
“Defendants”) motion to dismiss for failure to
state a claim, or, in the alternative, a motion for a more
definite statement. Dkt. 20. Plaintiffs Boltex Manufacturing
Company, L.P. (“Boltex”) and Weldbend Corporation
“Plaintiffs”) responded. Dkt. 27. Defendants
replied. Dkt. 28. Having considered the motion, response,
reply, and applicable law, the court is of the opinion that
the motion should be DENIED.
a false advertising and unfair competition case. Dkt. 1 at
1-3. All parties manufacture carbon steel
dispute centers on normalization, a heat treatment process
that changes the physical composition of carbon steel to
increase its machinability and toughness. Id. at 1,
8. The process involves additional time and resources.
Id. Thus, it is more expensive for manufacturers to
produce normalized flanges than non-normalized (or forged)
ones. Id. at 1, 8.
manufacture, market, and sell normalized flanges.
Id. at 9. Plaintiffs' normalization processes
comply with American Society of Testing and Materials
(“ASTM”) standards. Id. at 8-9. Those
standards require manufacturers to apply heat treatment to
certain types of flanges. Id. at 9. Manufacturers
can choose from several processes including normalization.
Id. However, many customers will only purchase
certain flanges if they are normalized. Id.
Plaintiffs stamp normalized flanges to indicate their
compliance with ASTM standards. Id. at 10.
Plaintiffs also indicate normalization in a Mill Test Report
(“MTR”)-an industry-standard report “used
to promote and certify a material's compliance with the
appropriate ASTM standards, applicable dimensions, and
physical and chemical specifications.” Id.
Further, Plaintiffs charge more for normalized flanges than
they do for forged ones. Id.
advertise some flanges as normalized and as meeting the the
ASTM standards. Id. at 11. Specifically, Defendants
stamp their flanges as normalized, just like Plaintiffs do.
Id. And, Defendants indicate normalization in MTRs
that accompany shipments of flanges. Id. But,
according to Plaintiffs, Defendants flanges: (1) are not
normalized; and (2) do not comply with ASTM standards.
sued Defendants for false advertising and unfair competition
in violation of the Lanham Act, 15 U.S.C. § 1125(a) as
well as common law unfair competition. Id. at 23.
Defendants move to dismiss under Rule 12(b)(6) or,
alternatively, for a more definite statement under Rule
12(e). Dkt. 20.
8(a)(2) requires that the 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). A party
against whom claims are asserted may move to dismiss those
claims when the nonmovant has failed “to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “[T]he burden is on the moving party to prove
that no legally cognizable claim for relief exists.” 5B
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 (3d ed.).
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955 (2007)). “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).”
Twombly, 550 U.S. at 555 (citations omitted). While
the allegations need not be overly detailed, a
plaintiff's pleading must still provide the grounds of
his entitlement to relief, which “requires more than
labels and conclusions, ” and “a formulaic
recitation of the elements of a cause of action will not
do.” Id.; see also Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937 (2009). “[C]onclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to
dismiss.” Blackburn v. City of Marshall, 42
F.3d 925, 931 (5th Cir. 1995). Instead, “[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
a motion to dismiss is a “context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“Ultimately, the question for a court to decide is
whether the complaint states a valid claim when viewed in the
light most favorable to the plaintiff.” NuVasive,
Inc. v. Renaissance Surgical Ctr., 853 F.Supp.2d 654,
658 (S.D. Tex. 2012).
Rule of Evidence 201(b)(2) provides: “[t]he court may
judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b)(2). Further,
“[t]he court . . . must take judicial notice if a party
requests it and the court is supplied with the necessary
information.” Fed.R.Evid. 201(c)(2). “The court
may take judicial notice at any stage of the
proceeding.” Fed.R.Evid. 201(d).
False advertising in violation of the Lanham
Lanham Act was enacted ‘to protect persons engaged in
such commerce against unfair competition.'”
Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1382-84
(5th Cir. 1996) (quoting 15 U.S.C. § 1127). To state a
prima facie case of false advertising, a plaintiff must
establish: (1) a false or misleading statement of fact about
a product; (2) such a statement either deceived, or had the
capacity to deceive a substantial segment of potential
customers; (3) the deception is material, in that it is
likely to influence the consumer's purchasing decision;
(4) the product is in interstate commerce; and (5) the
plaintiff has been or is likely to be injured as a result of
the statement at issue. Derrick Petrol. Servs. v. PLS,
Inc., Civil Action No. H-14-1520, 2017 WL 3456920, at
*1, *5(S.D. Tex. Aug. 11, 2017) (Rosenthal, J.) (internal
alterations omitted) (quoting Pizza Hut, Inc. v. Papa
John's Int'l, Inc., 227 F.3d 489, 495 (5th Cir.
obtain money damages for false advertising under § 43(a)
of the Lanham Act, the plaintiff must first demonstrate that
the advertisement was (1) literally false; or (2) likely to
mislead and confuse customers.” IQ Prods. Co. v.
Pennzoil Prods. Co., 305 F.3d 368, 375 (5th Cir. 2002).
“For a statement to be literally false, the statement
must be ‘false on its face.'”
Derrick, 2017 WL 3456920, at *5.
the statement at issue is shown to be literally false, the
court must assume that it actually mislead consumers, without
requiring any evidence of such deception from the
plaintiff.” IQ Prods., 305 F.3d at 375;
see also Pizza Hut, 227 F.3d at 497
(“plaintiff need not introduce evidence on the issue of
the impact the statements had on customers.”). However,
“if the statement is . . . misleading or ambiguous . .
. the plaintiff must demonstrate actual deception.”
IQ Prods., 305 F.3d at 375. “The
statements at issue must be a specific and measurable ...