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1800 Get Thin v. Hiltzik

1800 Get Thin v. Hiltzik

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Published by Eric Goldman

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Published by: Eric Goldman on Jul 31, 2011
Copyright:Attribution Non-commercial


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 UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIAWESTERN DIVISION1800 GET THIN, LLCPlaintiff, v.Michael Hiltzik, an individual; LosAngeles Times Communications, LLC;Stuart Pfeifer; etc., et al.,Defendants._______________________________))))))))))))CASE NO. CV11-00505 ODW (PJWx)ORDER GRANTING WITHPREJUDICE DEFENDANTS’MOTION TO DISMISS PURSUANTTO RULE 12(b)(6) [5, 17, 18]
On April 25, 2011, Defendants, Michael Hiltzik, Los Angeles TimesCommunications, LLC, and Stuart Pfeifer, filed a Motion to Dismiss pursuant to FederalRule of Civil Procedure 12(b)(6). (Dkt. No. 5.) In response, 1 800 GET THIN, LLC,(“Plaintiff”) filed an Opposition on May 2, 2011, and Defendants countered by filingtheir Reply on May 9, 2011. (Dkt. Nos. 12, 14.) Having considered the papers filed insupport of and in opposition to the instant Motion, the Court deems the matter appropriatefor decision without oral argument.
Fed. R. Civ. P. 78; L.R. 7-15. For the followingreasons, the Court GRANTS Defendants’ request.
Case 2:11-cv-00505-ODW -E Document 27 Filed 07/25/11 Page 1 of 7 Page ID #:1153
 Plaintiff, 1800 GET THIN, operates a marketing service that operates the toll freenumber “1800 GET THIN” to individuals seeking to lose weight. (FAC ¶ 2.) Individualswho call this number receive a free seminar about the Lap Band surgical procedure.(FAC ¶ 2.) Currently, Plaintiff is in the process of registering its trademark “1 800 GETTHIN.” (FAC ¶ 2.)Plaintiff alleges that Defendant, the Los Angeles Times, has published sevennegative articles about Plaintiff’s business and posted those articles on its website,latimes.com. (FAC ¶¶ 38, 39.) The authors of these articles were Defendant’semployees, Defendant Michael Hiltzik and Defendant Stuart Pfeiffer. (FAC ¶¶ 38, 39.)Plaintiff alleges that Mr. Hiltzik is of questionable character and that he was motivatedto write the articles because of a personal vendetta he has against Plaintiff. (FAC ¶¶ 43-60.) Moreover, Plaintiff alleges that the Los Angeles Times was motivated to publish thearticles because it receives advertising fees from Plaintiff’s competitors. (Opp’n
at 6.)One such article was a December 19, 2010 piece written by Defendant Hiltzik whichreads in part:“Renteria’s death may finally prompt California’s medicalregulators to take a close look at the weight loss surgeriesmarketed by an outfit called Top Surgeons through the 1 800 GETTHIN number . . . The Medical Board of California informedRenteria’s family [on] July 27 that it was reviewing the medicalcare she had received from Dr. Atul Madan, who is identified bythe coroner as her surgeon at a Beverly Hills clinic connected tothe billboard campaign.”(FAC ¶¶ 79, 80.) Plaintiff does not allege that the article contains any patently falseinformation, rather Plaintiff alleges that the article will mislead readers into believing thatPlaintiff is a provider of medical services and was responsible for the harm suffered topatients such as Mr. Renteria. (FAC ¶ 90; Opp’n at 5.)As a result of these articles, Plaintiff alleges it has suffered a loss of sales. (FAC ¶ 92.) In response, Plaintiff filed a Complaint against Defendants on January 18, 2011.(Dkt. No. 1.) On March 31, 2011, Plaintiff amended its Complaint to name parties, whoin response to the articles, posted comments on the latimes.com website which Plaintiff 
Case 2:11-cv-00505-ODW -E Document 27 Filed 07/25/11 Page 2 of 7 Page ID #:1154
Defendants who posted their comments on the latimes.com website are known exclusively bytheir screen names. (FAC ¶ 41.) One such Defendant, whose screen name is “Adrian_Dallas,” wrotein response to an article: “And I don’t want to be inundated in the months and years to come by theinevitable sad little lawsuits of those fleeced by the clearly (almost?) criminal con-men who own 1-800-GET-THIN. (FAC ¶ 104.) Plaintiff alleges that this Defendant has falsely equated Plaintiff’s businesswith being a provider of medical services. (FAC ¶ 108.)3
construed as being false or misleading.
(Dkt. No. 4.) Plaintiff’s alleges a Lanham Actviolation against Defendants arguing the articles and comments have diminished thegoodwill of the “1800 GET THIN” trademark. (Opp’n at 2.)
III. Legal Standard
“To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), acomplaint generally must satisfy only the minimal notice pleading requirements of Rule8(a)(2).”
Porter v. Jones
, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires “ashort and plain statement of the claim showing that the pleader is entitled to relief.Fed.R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its “[f]actual allegationsmust be enough to raise a right to relief above the speculative level.”
 Bell Atlantic Corp.v. Twombly
, 550 U.S. 544, 555 (2007). Mere “labels and conclusions” or a “formulaicrecitation of the elements of a cause of action will not do.”
. Rather, to overcome a12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, tostate a claim to relief that is plausible on its face.”
 Ashcroft v. Igbal
, 129 S.Ct. 1937,1949 (2009) (internal quotations omitted). “The plausibility standard is not akin to aprobability requirement, but it asks for more than a sheer possibility that a defendant hasacted unlawfully. Where a complaint pleads facts that are merely consistent with adefendant’s liability, it stops short of the line between possibility and plausibility of entitlement of relief.”
. (citation and quotations omitted).
Plaintiff brings a cause of action against Defendants for violation of 15 U.S.C. §1125 of the Lanham Act. Specifically, Plaintiff cites violations of 15 U.S.C. §§
Case 2:11-cv-00505-ODW -E Document 27 Filed 07/25/11 Page 3 of 7 Page ID #:1155

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