Clever Covers, Inc. v. Storm Guard, Inc.

Full title: CLEVER COVERS, INC., d/b/a STORM STOPPERS, a Florida corporation…

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

Date published: Sep 19, 2006

Case No. 8:06-CV-1062-T-27MAP (M.D. Fla. Sep. 19, 2006)

Opinion

Case No. 8:06-CV-1062-T-27MAP.

September 19, 2006

ORDER

JAMES WHITTEMORE, District Judge

BEFORE THE COURT is the Report and Recommendation submitted by Magistrate Judge Pizzo recommending that Plaintiff's Motion to Dismiss Defendants' Counterclaim (Dkt. 16) be granted (Dkt. 20). Defendant has filed objections to the Report and Recommendation (Dkt. 21), and Plaintiff has filed a response (Dkt. 22).

As set forth more fully in the Magistrate Judge's opinion, the Court declines to recognize a "groundless litigation" theory under Florida's tort of unfair competition. While it is true that courts have at times altered the traditional elements of unfair competition to fit a case,¹ Defendants' novel claim is untenable. A claim that is wholly premised on the frivolity of actions currently being adjudicated improperly presupposes the outcomes of these actions. Such a claim is therefore incapable of meeting the standards of notice pleading — as Defendants' vague allegations aptly demonstrate. To the extent Defendants wish to argue that Plaintiff's claim is frivolous, Defendants may pursue a Rule 11 motion for sanctions.²

1 See CBS, Inc. v. Garrod, 622 F. Supp. 532, 536 (M.D.Fla. 1985) (adopting elements of a claim for unfair competition based on record piracy and noting that "palming off" would not be required where a defendant actually misappropriated a plaintiff's property); see also Mfg. Res. Corp. v. Greenlee Tool Co., 693 F.2d 1037, 1040 (11^th Cir. 1982) (noting that tortious interference is a tort "included within unfair competition" and applying the elements of tortious interference).

2 Defendants have not filed a motion to dismiss any of Plaintiff's claims.

After careful consideration of the Report and Recommendation, Defendants' objections, and Plaintiff's response, in conjunction with an independent examination of the file, the Court is of the opinion that the Report and Recommendation should be adopted, confirmed, and approved in all respects. Accordingly, it is

ORDERED AND ADJUDGED that

1) The Report and Recommendation (Dkt. 20) is adopted, confirmed, and approved in all respects and is made a part of this order for all purposes, including appellate review.

2) Plaintiff's Motion to Dismiss Defendants' Counterclaim (Dkt. 16) is GRANTED.