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Davidson v. Maraj - Motion to Dismiss II

Davidson v. Maraj - Motion to Dismiss II

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Published by slburstein
Davidson v. Maraj - Motion to Dismiss II
Davidson v. Maraj - Motion to Dismiss II

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Published by: slburstein on Jul 24, 2014
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08/20/2014

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
TERRENCE DAVIDSON, Plaintiff, vs. ONIKA MARAJ, an individual, and PINK PERSONALITY, LLC, a Delaware limited liability company, Defendants. Case No. 1:14-CV-00507-RLV
DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT UNDER FED. R. CIV. P. 12(b)(6), OR FOR A MORE DEFINITE STATEMENT UNDER FED. R. CIV. P. 12(e), IF ANY CLAIM SURVIVES THIS MOTION TO DISMISS
COME NOW Defendants Onika Maraj and Pink Personality, LLC (“Pink”) (collectively, the “Defendants”) and hereby submit Defendants’ Motion to Dismiss The Complaint Under Fed. R. Civ. P. 12(b)(6), Or For A More Definite Statement Under Fed. R. Civ. P 12(e), If Any Claim Survives This Motion To Dismiss (the “Motion to Dismiss”). As set forth in Defendants’ Memorandum Of Law In Support Of The Motion to Dismiss filed herewith, the Court should dismiss the claims asserted
Case 1:14-cv-00507-RLV Document 19 Filed 07/22/14 Page 1 of 6
 
against Defendants under Fed. R. Civ. P. 12(b)(6) for at least the following reasons:
 
Plaintiff’s alleged wig designs are not “novel” and thus cannot support any cause of action based on any unauthorized use;
 
Count I (Quantum Meruit), Count II (Unjust Enrichment), and Count III (Promissory Estoppel) do not state any contract-related claim because (a) Plaintiff has not alleged any benefits or services conferred on Defendants for which he was not paid; (b) equity does not require any payment be made to Plaintiff; (c) Plaintiff has not alleged that Pink promised him anything; and (c) Plaintiff has not pled any enforceable promise.
 
Count IV (Violation of the Georgia Fair Business Practices Act) does not state a claim because (a) the statute does not allow non-consumers to challenge the conduct of competitors; and (b) Plaintiff cannot plausibly allege he relied on any misrepresentation  purportedly made by Defendants;
 
Count V (Trade Dress Infringement Under The Lanham Act) and Count VI (Violation Of The Georgia Deceptive Trade Practices Act) do not state any claim because Plaintiff has not adequately 2
Case 1:14-cv-00507-RLV Document 19 Filed 07/22/14 Page 2 of 6
 
 pled that his alleged wig designs are distinctive and, accordingly, they are not eligible for trade dress protection; and
 
Count VII (Litigation Expenses) does not state a claim because no independent claim exists under Ga. Code Ann. § 13-6-11. If the Amended Complaint is not dismissed in its entirety, Plaintiff should  provide Defendants a more definite statement under Rule 12(e) to identify the conduct pertaining to each defendant. For each of the foregoing reasons, Defendants respectfully request that the Court GRANT their Motion to Dismiss. This 22
nd 
 day of July, 2014. Respectfully submitted, JONATHAN D. DAVIS, P.C. By: /s/ Jonathan D. Davis Jonathan D. Davis, Esq. (admitted
 pro hac vice
) 10 Rockefeller Plaza, Suite 1015  New York, New York 10020 212.687.5464 (tel) 212.557.0565 (fax)  jdd@jddavispc.com -and- 3
Case 1:14-cv-00507-RLV Document 19 Filed 07/22/14 Page 3 of 6

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