Motion To Dismiss Guidry Trademark Infringement Claim

Case 2:15-cv-06714-MVL-MBN Document 8 Filed 02/22/16 Page 1 of 2
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA
RONALD GUIDRY
Plaintiff
VERSUS
LOUISIANA LIGHTNING, LLC,
FARM FRESH FOOD SUPPLIERS, INC.
AND MATTHEW D. DUFOUR
Defendants
CIVIL ACTION
NO. 15-6714
SECTION S (5)
MOTION TO DISMISS IN PART, TO STRIKE IN PART,

AND, ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT
NOW INTO COURT, through undersigned counsel, come defendants, Louisiana
Lightning, LLC, Farm Fresh Food Suppliers, Inc., and Matthew D. Dufour (collectively,
Defendants), and, pursuant to Fed. R. Civ. P. 12(b), move to dismiss certain claims filed against
them by plaintiff, Ronald Guidry (Plaintiff) for failure to state a claim upon which relief may be
granted. Defendants also move to strike certain particular allegations made by Plaintiff per Fed.
R. Civ. P. 12(f). Finally, additionally and in the alternative to their requests to dismiss and to
strike, Defendants request a more definite statement from Plaintiff of his claims, per Fed. R. Civ.
P. 12(e), all for the reasons more fully set forth in the attached memorandum.
WHEREFORE, Defendants pray that the Court enter an order consistent with this motion
and for any and all such other and further relief as this Court may deem just and proper.
Case 2:15-cv-06714-MVL-MBN Document 8 Filed 02/22/16 Page 2 of 2
Respectfully Submitted:
/s/ Brad E. Harrigan___________________
LUGENBUHL, WHEATON, PECK,
RANKIN & HUBBARD
Brad E. Harrigan (La. Bar No. 29592) (T.A.)
Daniel B. Centner (La. Bar No. 33055)
Erin R. Rosenberg (La. Bar No. 34422)
601 Poydras Street, Suite 2775
New Orleans, Louisiana 70130
Telephone: (504) 568-1990
Fax: (504) 310-9195
ATTORNEYS FOR DEFENDANTS
LOUISIANA LIGHTNING, LLC, FARM
FRESH FOOD SUPPLIERS, INC. AND
MATTHEW D. DUFOUR
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of February, 2016, a copy of the foregoing was served
upon all known counsel of record via the Courts CM/ECF filing system.
/s/ Brad E. Harrigan___________________

Case 2:15-cv-06714-MVL-MBN Document 8-2 Filed 02/22/16 Page 1 of 2

RONALD GUIDRY
Plaintiff
CIVIL ACTION
VERSUS
NO. 15-6714

Defendants
SECTION S (5)
NOTICE OF SUBMISSION
PLEASE TAKE NOTICE that Defendants Motion to Dismiss in Part, to Strike in Part,
and, Alternatively, for a More Definite Statement shall be submitted for decision to the Honorable
Mary Ann Vial Lemmon, United States District Court for the Eastern District of Louisiana, 500
Poydras Street, New Orleans, Louisiana, on Wednesday, March 16, 2016 at 10:00 a.m.
/s/ Brad E. Harrigan___________________
RANKIN & HUBBARD
Telephone: (504) 568-1990
Fax: (504) 310-9195
MATTHEW D. DUFOUR
/s/ Brad E. Harrigan___________________


RONALD GUIDRY
Plaintiff
CIVIL ACTION
VERSUS
NO. 15-6714

Defendants
SECTION S (5)
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS IN PART, TO STRIKE

IN PART, AND, ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT
Defendants, Louisiana Lightning, LLC, Farm Fresh Food Suppliers, Inc., and Matthew D.
Dufour (collectively, Defendants), hereby file this Memorandum in Support of their Motion to
Dismiss in Part, to Strike in Part, and, Alternatively, for a More Definite Statement, in response to
the claims filed against them by plaintiff, Ronald Guidry (Plaintiff or Guidry), for the reasons
more fully set forth below.
FACTUAL BACKGROUND
This case involves Guidrys improper attempt to manipulate federal and state intellectual
property laws to wage an unwarranted attack on Defendants. Defendant Louisiana Lightning, LLC
(LL) manufactures, markets, and sells white whiskey under the brand name Louisiana
Lightning. LL began selling its whiskey in commerce using the Louisiana Lightning mark in
October 2013 and has done so continuously through the present date. Neither defendant Farm
Fresh Food Suppliers, Inc.1 (Farm Fresh) nor defendant Matthew D. Dufour2 (Dufour), in his
personal capacity, manufactures, markets, or sells Louisiana Lightning-brand whiskey.
Farm Fresh is a Louisiana corporation that processes and distributes pickled snacks. Farm Fresh
is an entirely separate legal entity from LL and has been in operation since 1933.
2
Matthew Dufour is the current managing member of LL.
1
On or about August 30, 2013, LL submitted an application to register its trademark with
the United States Patent and Trademark Office (the USPTO). On March 5, 2014, after the
USPTO Trademark Examiner assigned to the application searched the Offices database of
registered and pending marks and [] found no conflicting marks that would bar registration, the
USPTO allowed LLs trademark application to proceed to publication. On July 23, 2014, Guidry
filed a Notice of Opposition to LLs application. Thereafter, Guidry and LL litigated the matter
before the Trademark Trial and Appeal Board (the TTAB) for approximately eighteen (18)
months before Guidry abruptly filed this action. Despite the fact that LL had already filed for
summary judgment, the TTAB suspended the opposition proceeding pending the disposition of
the instant lawsuit.
Guidry filed this action on December 11, 2015. In his petition (the Complaint) [Rec.
Doc. 1], Guidry raises a variety of allegations against Defendants all arising from the same general
set of facts: Guidry, apparently (and unbeknownst to Defendants), played professional baseball in
New York approximately forty (40) years ago. At some point during Guidrys professional
baseball career, he received the nickname Louisiana Lightning. Although Guidry has not played
professional baseball in decades, he still autographs baseballs and other sports memorabilia using
either his proper name, the nickname Louisiana Lightning, or another nickname by which he
was more commonly known, Gator. And so, in 2008, Guidry registered a service mark for
Louisiana Lightning, giving him rights to use the mark in connection with promoting the goods
and/or services of others through the issuance of product endorsements.3 To be clear, Guidrys
service mark does not allow him to use the mark in branding goods, but instead merely to indicate
his service of endorsing or promoting goods and/or services of others. Nevertheless, Guidry now
Ex. 1 to Pl.s Compl.

2
insists that his service mark gives him exclusive rights over the Louisiana Lighting brand-name
with respect to all services and all goods, even LLs branded whiskey.
The allegations in Guidrys Complaint are conclusory, formulaic, and vague, and fail to
properly state several of his claims. Additionally, by his own allegations, Guidry purposefully
delayed bringing this action for at least eighteen (18) months, if not longer. Guidrys Complaint
is therefore deficient. Accordingly, Defendants move to dismiss several of Guidrys claims, to
strike certain allegations, and for a more definite statement, as more fully set forth below.
SUMMARY OF THE ARGUMENT
Defendants submit that various claims, and certain particular allegations, in Guidrys
Complaint are insufficient and improper. Based on these deficiencies, Defendants request that:
(1) all of Guidrys claims against Dufour and Farm Fresh and his unjust enrichment claim against
LL be dismissed; (2) that the particular factual allegations pertaining to the elements of
tarnishment, injury to business reputation, fame, and the availability of enhanced damages under
LUTPA be stricken; and (3) that this Court order Guidry to provide a more definite statement of
his Third, Fourth, Fifth, Sixth, and Seventh Claims for Relief.
LAW AND ARGUMENT
I.
MOTION TO DISMISS
A.
Rule 12(b)(6) Standard
Defendants first move to dismiss several of Guidrys claims for failure to state a claim
under Rule 12(b)(6). A motion filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure challenges the sufficiency of the plaintiffs allegations. Langley v. Sunbelt Rentals,
Inc., No. 11-2115, 2012 WL 2194132, at *1 (W.D. La. June 13, 2012). In ruling on a motion to
dismiss under Rule 12(b)(6), a courts analysis is generally constrained to the complaint,
documents attached to the complaint, and documents attached to the motion that are central to
plaintiffs claims. Lone Star Fund V, LP v. Barclays Bank Public Ltd., 594 F.3d 383, 387 (5th
Cir. 2010)).
In evaluating a motion to dismiss under Rule 12(b)(6), [f]actual allegations must be
enough to raise a right to relief above the speculative level. Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Under Twombly,
the court follows a two-step approach to decide a Rule 12(b)(6) motion. First, the court must
identify those pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth. Yanosky v. St. Tammany Par. Sch. Bd., No. 08-5047, 2010 WL 1254586,
at *1 (E.D. La. Mar. 24, 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). The plaintiffs
legal conclusions must be supported by factual allegations, and [t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice. Iqbal,
556 U.S. at 679.
Only once the court has identified the well-pleaded factual allegations should the court
assume their veracity and then decide whether those allegations plausibly give rise to an
entitlement to relief. Id. at 664. This is a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense. Yanosky, 2010 WL 1254586, at *1
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Twombly and Iqbal mandate that a
plaintiffs complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face, rather than simply conceivable. See Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570).
To state a plausible claim, a plaintiff must provide the grounds of his entitle[ment] to
relief, which requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and
citation omitted). 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 663. It follows that where 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. Gonzalez, 577 F.3d at 603 (citing Iqbal, 556
U.S. at 678) (internal quotation marks omitted); see also Cuvillier v. Sullivan, 503 F.3d 397, 401
(5th Cir. 2007) ([W]hen the allegations in a complaint, however true, could not raise a claim of
entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum
expenditure of time and money by the parties and the court.) (quoting Twombly, 550 U.S. at
558); Graft v. Mason, No. 08-4820, 2009 WL 799973, at *2 (E.D. La. Mar. 19, 2009) (same).
B.
Claims Subject to Dismissal
Defendants submit that both of Guidrys claims against Dufour (for trademark
infringement and cybersquatting), both of his claims against Farm Fresh (also for trademark
infringement and cybersquatting), and his unjust enrichment claim against LL are all improperly
alleged and should be dismissed.
1. The Trademark Infringement Claim against Dufour Should be Dismissed
First, Guidry fails to state a claim for federal trademark infringement against Dufour, as
the Complaint lacks sufficient factual allegations against Dufour personally. The purpose of
trademark law is to protect consumers from confusion about a product's source and, relatedly, to
protect trademark-owners investment in the goodwill associated with their marks. ICEE Distribs.
Inc. v. J & J Snack Foods Corp., 445 F.3d 841, 846 (5th Cir. 2006). The Lanham Act, 32(1),
provides a private cause of action for trademark infringement for:
use in commerce [of] any reproduction, counterfeit, copy, or colorable imitation of

a registered mark in connection with the sale, offering for sale, distribution, or
advertising of any goods or services on or in connection with which such use is
likely to cause confusion, mistake, or to deceive.
15 U.S.C. 1114(a)(1)(A). The Fifth Circuit has fashioned a two-part test for federal trademark
infringement: First, the plaintiff must establish ownership in a legally protectible mark, and
second . . . show infringement by demonstrating a likelihood of confusion. Amazing Spaces, Inc.
v. Metro Mini Storage, 608 F.3d 225, 235-36 (5th Cir. 2010).
Here, the only factual allegations directed at Dufour personally are that he is the
Owner/Founder of LL, that he is the Manager of Farm Fresh, and that he was listed as the
administrative contact for Farm Fresh when it registered the www.louisianalightning.com
domain name.4 Thats it. This falls seriously short of stating a claim for federal trademark
infringement against Dufour. Put simply, there is no justification for Dufour being named
personally in this suit.
In reality, Guidrys efforts against Dufour are misplaced. Guidry does not (and cannot
reasonably) allege that Dufour personally used the Louisiana Lightning mark in commerce. See
15 U.S.C. 1114(a)(1)(A) (listing use in commerce as the first element of trademark
infringement); see also Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir.
2008) (describing five elements of trademark infringement). Instead, Guidry apparently believes
that because he alleges that Dufour is the Owner/Founder of LL and the Manager of Farm
Fresh, then, ispo facto, Dufour must be personally liable for trademark infringement. That is not
what the law provides.
Pl.s Compl. 5.
6
Moreover, Louisiana law is well settled that a company principal, such as Dufour, is not
personally liable for activities conducted by entities in which he owns stock or a membership
interest.5 La. Rev. Stat. Ann. 12:1320 (Except as otherwise specifically set forth in this Chapter,
no member, manager, employee, or agent of a limited liability company is liable in such capacity
for a debt, obligation, or liability of the limited liability company.); see also La. Rev. Stat. Ann.
12:1-622 (A shareholder of a corporation is not personally liable for the acts or debts of the
corporation.). This is a key benefit of registering a limited liability company, and it applies in
full force in the trademark infringement context.
Ultimately, Guidry makes no allegations showing Dufours personal liability for trademark
infringement. Accordingly, the claim against him should be dismissed.
2. The Trademark Infringement Claim against Farm Fresh Should be Dismissed
For similar reasons, the trademark infringement claim against Farm Fresh should also be
dismissed. Guidry identifies no actions taken by Farm Fresh specifically that support a claim for
trademark infringement. His only factual allegation against Farm Fresh that it registered the
www.louisianalightning.com domain name6 does not establish trademark infringement. See 15
U.S.C. 1114(a)(1)(A); Am. Rice, 518 F.3d at 329. Accordingly, the infringement claim against
Farm Fresh should be dismissed.
3. The Cybersquatting Claim against Dufour Should be Dismissed
Next, Guidry also fails to state a claim against Dufour under the federal anti-cybersquatting
statute, 15 U.S.C. 1125(d). Section 1125(d), entitled cyberpiracy prevention, creates a private
Besides failing to assert any actions taken by Dufour personally, Guidry also fails to identify any
grounds for piercing the corporate/limited liability veil. Instead, Guidrys allegations focus on the
conduct of LL as a corporate entity.
6
Pl.s Compl. 4.
7
cause of action where a person registers, traffics in, or uses a domain name with a bad faith
intent to profit from anothers registered mark, where in the case of a mark that is distinctive at
the time of registration of the domain name, is identical or confusingly similar to that mark or in
the case of a famous mark that is famous at the time of registration of the domain name, is identical
or confusingly similar to or dilutive of that mark. 15 U.S.C. 1125(d)(1)(A).
a. The Claim is Barred by 15 U.S.C. 1125(d)(1)(D)
Although the anti-cybersquatting statute creates a cause of action for the unauthorized
registration, trafficking in, or use of a protected domain name, relief is only available against
certain actors. Notably, under section 1125(d)(1)(D), a person may be held liable for registering,
trafficking in, or using a domain name only if that person is the domain name registrant or that
registrant's authorized licensee.
Here, there is no allegation that Dufour is the registrant of the www.louisianalightning.com
domain name, or that he is the registrants authorized licensee. See 15 U.S.C. 1125(d)(1)(D).
To the contrary, Plaintiff specifically alleges that Farm Fresh is listed as the registrant of the
domain name.7 The only allegation against Dufour in connection with this claim is that he is the
administrative contact on behalf of Farm Fresh.8 By the express terms of section 1125(d)(1)(D),
that does not support a claim against Dufour. The cybersquatting claim against him therefore fails.
b. The Claim is Barred by the Statute of Limitations
The cybersquatting claim against Dufour also fails on its face for a second reason: it is
time-barred. The anti-cybersquatting statute, 15 U.S.C. 1125(d), is part of the Lanham Act,
which is silent as to the applicable statute of limitations. Where there is need of a statute of
7
8
Pl.s Compl. 4.
Pl.s Compl. 5.
8
limitation in a suit based on the Federal Lanham Act, courts will look to the relevant forum state
statute which best effectuates the federal policy at issue. 6 McCarthy on Trademarks and Unfair
Competition 31:23 (2011); see also Curtis v. Benson, 959 F. Supp. 348, 353 (E.D. La. 1997).
The closest Louisiana state-law analog to the Lanham Act is the Louisiana Unfair Trade Practices
and Consumer Protection Act (LUTPA), La. Rev. Stat. Ann. 51:1401, et seq. See, e.g.,
Checkpoint Fluidic Sys. Intl, Ltd. v. Guccione, 888 F. Supp. 2d 780, 790 (E.D. La. 2012) (finding
LUTPA to be the most analogous Louisiana statute of limitations for [plaintiffs] Lanham Act
claims). LUTPA imposes a one-year prescriptive period, commencing from the time of the
transaction or act which gave rise to the claim under LUTPA. La. Rev. Stat. Ann. 51:1409(E).
Accordingly, a one-year statute of limitations applies to Lanham Act claims. Checkpoint, 888 F.
Supp. 2d at 790.
As previously noted, Guidrys only allegation against Dufour with respect to the
cybersquatting claim is that he was listed as the administrative contact for the
www.louisianalightning.com domain name when it was registered by Farm Fresh.9 This discrete
act, by Guidrys own allegations, occurred in or about August 2012.10 But Guidry did not
institute this action until December 2015, over three (3) years later. Because Guidry delayed
bringing this action for over three (3) years after the domain name was registered, his
cybersquatting claim against Dufour is prescribed, and must be dismissed.
4. The Cybersquatting Claim against Farm Fresh Should be Dismissed
For the same reasons, the cybersquatting claim against Farm Fresh likewise fails. Guidrys
only allegation against Farm Fresh in connection with this claim is that it is listed as the registrant
Pl.s Compl. 5.
Pl.s Compl. 29.
10
for the domain name.11 Again, Guidry alleges that the domain name was registered in or about
August 2012.12 Guidry cannot now, over three (3) years later, sue Farm Fresh for this isolated
action. Guidrys cybersquatting claim against Farm Fresh, just like his claim against Dufour, is
clearly prescribed. It should therefore be dismissed.
5. The Unjust Enrichment Claim against LL Should be Dismissed
Guidry also fails to state a claim for unjust enrichment against LL. Louisiana Civil Code
article 2298 provides a claim for unjust enrichment where [a] person has been enriched without
cause at the expense of another person. However, article 2298 explicitly provides that the unjust
enrichment claim is subsidiary and shall not be available if the law provides another remedy for
the impoverishment or declares a contrary rule.
Both the Louisiana Supreme Court and this Court have held that where a plaintiff has other
remedies at law potentially available, his claim for unjust enrichment should be dismissed.
Conerly Corp. v. Regions Bank, No. 08-813, 2008 U.S. Dist. LEXIS 94674, at *25, 2008 WL
4975080 (E.D. La. Nov. 20, 2008) (citing Baker v. Maclay Props. Co., 648 So. 2d 888 (La. 1995)).
The merit of plaintiff[s] other claims is irrelevant. It is not the success or failure of other causes
of action, but rather the existence of other causes of action, that determine whether unjust
enrichment can be applied. Id. at *25-26 (quoting Garber v. Badon & Ranier, 981 So. 2d 92, 100
(La. Ct. App. 2008)). Instead, unjust enrichment is a remedy of last resort under Louisiana law
and is only applicable to fill a gap in the law where no express remedy is provided. Id. at *26
(internal quotation marks and citation omitted) (granting motion to dismiss unjust enrichment
claim).
11
12
Pl.s Compl. 4.
Pl.s Compl. 29.
10
Because Guidry raises various other claims against LL, he necessarily cannot state a claim
for unjust enrichment. Guidry has various other remedies available at law, and so, the subsidiary
remedy of unjust enrichment is not applicable. See La. Civ. Code art. 2298. The unjust enrichment
claim therefore must be dismissed.
II.
MOTION TO STRIKE
A. Rule 12(f) Standard
In addition to requesting that several of Guidrys claims be dismissed in their entirety per
Rule 12(b)(6), Defendants also request that certain particular allegations within Guidrys claims
be stricken per Rule 12(f). Federal Rule of Civil Procedure 12(f) allows the court to strike from a
pleading any redundant, immaterial, impertinent, or scandalous matter. Defendants submit that
several of Guidrys particular factual allegations are inappropriate and should be stricken, as
follows:
B. Allegations That Should be Stricken
1. Improper Allegations of Tarnishment / Injury to Business Reputation
First, Guidrys allegations of tarnishment or injury to business reputation, in the context of
his federal and state dilution claims, respectively, are improper and should be stricken. Guidrys
Fourth Claim for Relief (Against LL) alleges Dilution by Tarnishment under 15 U.S.C.
1125(c).13 To allege dilution by tarnishment, there must be some allegation that LLs use harms
the reputation of Guidrys mark. 15 U.S.C. 1125(c)(2)(C). But Guidrys Complaint is entirely
devoid of any specific allegations establishing the reputation of Guidrys service mark (as opposed
to Guidry himself) or how that mark is tarnished by LLs use. Instead, Guidrys allegations are
formulaic and conclusory. Accordingly, his allegation of tarnishment should be stricken.
13
Pl.s Compl. p. 12.

11
Similarly, Guidrys Seventh Claim for Relief (also against LL) alleges Louisiana
Trademark / Trade Name Dilution and Injury to Business Reputation under La. Rev. Stat. Ann.
51:223.1.14 One of the elements for relief under section 223.1 is likelihood of injury to business
reputation. Just as Guidry fails to allege tarnishment, he likewise fails to allege any injury to the
reputation of his service mark. Again, not a single factual allegation shows any harm to Guidrys
service mark. Accordingly, this allegation should likewise be stricken.
2. Improper Allegations Regarding Fame
Second, Guidrys factual allegations regarding fame are also improper and should be
stricken. Guidry fails to properly allege fame in connection with both of his federal dilution claims.
Guidry raises two claims for dilution under 15 U.S.C. 1125(c): his Third Claim for Relief
(Against LL) Dilution by Blurring; and his Fourth Claim for Relief (Against LL) Dilution by
Tarnishment.15 Both types of dilution provide protection for famous marks. See 15 U.S.C.
1125(c)(2). The statute specifically defines fame, providing that a mark is famous if it is widely
recognized by the general consuming public of the United States as a designation of source of the
goods or services of the marks owner. 15 U.S.C. 1125(c)(2)(A). Within both of his federal
dilution claims, Guidry insists that his Louisiana Lightning Trademark and name are famous.
These allegations are incorrect and immaterial and should be stricken.
As an initial matter, Guidry has no trademark or trade name rights in Louisiana Lightning.
As explained infra, Guidry, by his own admission, holds only a service mark for promoting the
goods and/or services of others through the issuance of product endorsements.16 Accordingly,
Guidrys allegation that he has a famous Louisiana Lightning Trademark is false on the face of
14
Pl.s Compl. p. 15.

Pl.s Compl. pp. 11-13.
16
Ex. 1 to Pl.s Compl.
15
12
the pleadings and must be stricken. Additionally and more importantly, Guidry fails to make a
single factual allegation anywhere in his Complaint supporting the conclusion that his mark is
famous among the general consuming public throughout the country, as a designation of the source
of his product endorsement services. Guidry may allege fame in New York, or among baseball
fans, but there is no factual allegation showing fame among the general consuming public of the
United States. Further, in all of his assorted allegations, Guidry alleges only that he is famous,
and not that his services as a product endorser (and thus, his mark) have any fame whatsoever.17
Defendants submit that Guidrys failure to appreciate this distinction is fatal to his claims.
Guidrys current allegations regarding the element of fame are irrelevant and improper, and should
be stricken from his Complaint.
3. Improper Allegations Regarding Enhanced Damages for LUTPA Violation
against an Elder Person
Additionally, Guidrys allegation that enhanced damages18 are available under LUTPA
for a violation against an elder person is also incorrect and should be stricken. First and foremost,
LUTPA only allows the Louisiana Attorney General to seek enhanced penalties for violations
against an elder person in connection with the public enforcement of LUTPA. See La. Rev. Stat.
Ann 51:1416 (explaining that the attorney general may seek civil penalties, payable to the
treasurer, in connection with the enforcement of LUTPA); 51:1407(C) (discussing additional
17
The closest that Guidry comes to alleging fame of the mark is the conclusory allegation that his
service mark has become widely recognized among the consuming public of the United States as
a trusted source of product and services endorsements and promotions. See Pl.s Compl. p. 6.
As noted, however, Guidry fails to allege any factual support for this conclusion. In fact, Guidry
fails to allege any product endorsements (particularly in the past three years), conflates his personal
fame with that of his nickname, and fails to even allege any indication that his service mark is
famous for endorsing the goods and services of others.
18
Although Guidry represents that he is entitled to enhanced damages in his Complaint, Pl.s
Compl. 82, 83, he appears to be referencing the enhanced penalties provided for in La. Rev.
Stat. Ann. 51:1407(C).
13
civil penalties for LUTPA violations against elder persons). The limited, private right of action
created by section 1409, on which Guidrys LUTPA claim is premised, provides for no such
enhanced penalties.
Accordingly, enhanced penalties are unavailable in this case and any
allegation regarding the same is impertinent. See Fed. R. Civ. P. 12(f).

Furthermore, by Guidrys own admission, for the majority if not all of the relevant time
period, Guidry was not an elder person as defined by LUPTA. Under LUTPA, an elder person
means any person sixty-five years of age or older. La. Rev. Stat. Ann. 51:1402(5). Notably,
on the face of his Complaint, Guidry alleges that he only just recently turned 65 in August of 2015,
more than two (2) years after LL started using the Louisiana Lightning brand in connection with
its whiskey, and over a year after Guidry filed his Notice of Opposition to LLs application with
the USPTO. Because Guidry became an elderly person after the alleged unfair conduct, and,
more importantly, because section 51:1407(C) only applies to public enforcement by the attorney
general, no enhanced penalties are available to Guidry. Guidrys allegations regarding the matter
should therefore be stricken.
III.
MOTION FOR A MORE DEFINITE STATEMENT

A. Rule 12(e) Standard
Finally, because Guidrys allegations are so vague, conclusory, and even irrelevant,
Defendants request that he be ordered to provide a more definite statement of his claims. Per
Federal Rule of Civil Procedure 12(e), [a] party may move for a more definite statement of a
pleading where that pleading is so vague or ambiguous that the party cannot reasonably prepare
a response. Defendants submit that they are, at least, entitled to a more definite statement of
Guidrys claims, as follows:
14
B. Claims that Should be Made More Definite

1. Third Claim for Relief (against LL) Dilution by Blurring
In addition to their request that certain portions (that is, the improper allegations of fame)
of the dilution by blurring claim be stricken, Defendants also request that Guidry be ordered to
provide a more definite statement of this overall claim against LL. Defendants submits that
Guidrys allegations of blurring are wholly formulaic and conclusory and provide no notice of the
factual basis on which Guidry intends to rely in presenting this claim. Specifically, Defendants
request that Guidry provide more specific factual allegations regarding how LLs branded whiskey
blurs Guidrys product endorsement service mark, how Guidry has been damaged, and how
Guidrys product endorsement service mark is famous.
2. Fourth Claim for Relief (against LL) Dilution by Tarnishment
In addition to their request that certain portions (that is, the improper allegations of fame)
of the dilution by tarnishment claim be stricken, Defendants also request that Guidry be ordered
to provide a more definite statement of this overall claim against LL. Defendants submit that
Guidrys allegations of tarnishment are wholly formulaic and conclusory and provide Defendants
with no notice of the factual basis on which Guidry intends to rely in presenting this claim.
Specifically, Defendants request that Guidry provide more specific factual allegations regarding
how LLs branded whiskey tarnishes Guidrys product endorsement service mark, how Guidry has
been damaged, and how Guidrys product endorsement service mark is famous.
3. Fifth Claim for Relief (all claims) Cybersquatting
In addition and alternatively to their request that the cybersquatting claims against Dufour
and Farm Fresh be dismissed, Defendants request that Guidry be ordered to provide a more definite
statement of all of the cybersquatting claims. Defendants submit that Guidrys allegations of
15
cybersquatting are insufficient, formulaic, and conclusory, and provide Defendants with no notice
of the factual basis on which Guidry intends to rely in presenting these claims. Specifically,
Defendants would have Guidry provide more specific factual allegations regarding how or why
Guidry believes Defendants acted with a bad faith intent to profit off of Guidrys product
endorsement
service
mark
when
they
allegedly
registered
and/or
used
the
www.louisianalightning.com domain name.

4. Sixth Claim for Relief (against LL) Violation of LUTPA
Defendants also request that this Court order Guidry to provide a more definite statement
of his LUTPA claim against LL, specifically regarding the statutes requirement that Guidry must
have suffered an ascertainable loss. In order to properly state a LUTPA violation, a plaintiff
must identify some ascertainable loss of money or movable property, corporeal or incorporeal
that he suffered as a result of the use or employment by another person of an unfair or deceptive
method, act, or practice. La. Rev. Stat. 51:1409(A). Guidry fails to identify any ascertainable
loss in his Complaint. His threadbare recital that he suffered actual damages is insufficient.19
Accordingly, Defendants request that Guidry be ordered to provide a more definite statement of
this element of his LUTPA claim.
5. Seventh Claim for Relief (against LL) Trademark/Trade Name Dilution and
Injury to Business Reputation
Last, Defendants request that this Court, in addition to striking certain portions of the statelaw dilution claim, order Guidry to provide a more definite statement of this overall claim against
LL. Defendants submit that Guidrys allegations of tarnishment and injury to business reputation
are wholly formulaic and conclusory and provide Defendants with no notice of the factual basis
19
Pl.s Compl. 81.

16
on which Guidry intends to rely in presenting this claim. Specifically, Defendants request that
Guidry provide more specific factual allegations regarding how LLs branded whiskey dilutes or
injures Guidrys product endorsement service mark, how Guidry has been damaged, and how that
damage is irreparable.20
Accordingly, additionally and alternatively to the other relief requested above, Defendants
respectfully request that Guidry be ordered to provide a more definite statement of his claims set
forth above, so that Defendants may be on proper notice and able to respond to the same.
CONCLUSION
Guidrys allegations against Defendants are nothing more than formulaic legal conclusions
devoid of any pertinent factual support. The facts presented by Guidry are often irrelevant and, in
some instances, even directly foreclose the relief he seeks. For these reasons, all as set forth more
fully above, Defendants respectfully request that this Court dismiss Guidrys insufficiently alleged
claims, strike his improper allegations, and order that he provide a more definite statement.
20
Guidrys allegation in the context of this claim that he has been irreparably harmed in an
incalculable amount, Pl.s Compl. 89, is particularly specious considering that he repeatedly
claims actual, quantifiable damages based on the exact same conduct of LL. Pl.s Compl. 44,
45, 54, 81, 83 and 7, 10 of Prayer for Relief.
17
/s/ Brad E. Harrigan___________________
RANKIN & HUBBARD
Telephone: (504) 568-1990
Fax: (504) 310-9195
MATTHEW D. DUFOUR
/s/ Brad E. Harrigan___________________

18

RONALD GUIDRY
Plaintiff
CIVIL ACTION
VERSUS
NO. 15-6714

Defendant
SECTION S (5)
ORDER
Considering the foregoing Motion to Dismiss in Part, To Strike in Part and Alternatively
for a More Definite Statement filed by Louisiana Lightning, LLC, Farm Fresh Food Suppliers, Inc.
and Matthew D. Dufour;
IT IS HEREBY ORDERED that the Motion to Dismiss in Part, To Strike in Part and
Alternatively for a More Definite Statement filed by Louisiana Lightning, LLC, Farm Fresh Food
Suppliers, Inc. and Matthew D. Dufour is granted.
New Orleans, Louisiana this ___ day of _______________, 2016.
________________________________________________
UNITED STATES DISTRICT COURT JUDGE

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Case 2:15-cv-06714-MVL-MBN Document 8 Filed 02/22/16 Page 1 of 2

UNITED STATES DISTRICT COURT

MOTION TO DISMISS IN PART, TO STRIKE IN PART,

Case 2:15-cv-06714-MVL-MBN Document 8 Filed 02/22/16 Page 2 of 2

/s/ Brad E. Harrigan___________________

Case 2:15-cv-06714-MVL-MBN Document 8-2 Filed 02/22/16 Page 1 of 2

UNITED STATES DISTRICT COURT

LOUISIANA LIGHTNING, LLC,

Case 2:15-cv-06714-MVL-MBN Document 8-2 Filed 02/22/16 Page 2 of 2

/s/ Brad E. Harrigan___________________

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 1 of 18

UNITED STATES DISTRICT COURT

LOUISIANA LIGHTNING, LLC,

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS IN PART, TO STRIKE

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 2 of 18

Ex. 1 to Pl.s Compl.

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 3 of 18

Rule 12(b)(6) Standard

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 4 of 18

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 5 of 18

Claims Subject to Dismissal

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 6 of 18

use in commerce [of] any reproduction, counterfeit, copy, or colorable imitation of

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 7 of 18

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 8 of 18

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 9 of 18

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 10 of 18

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 11 of 18

Pl.s Compl. p. 12.

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 12 of 18

Pl.s Compl. p. 15.

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 13 of 18

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 14 of 18

Accordingly, enhanced penalties are unavailable in this case and any

allegation regarding the same is impertinent. See Fed. R. Civ. P. 12(f).

MOTION FOR A MORE DEFINITE STATEMENT

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 15 of 18

B. Claims that Should be Made More Definite

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 16 of 18

www.louisianalightning.com domain name.

Pl.s Compl. 81.

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 17 of 18

Case 2:15-cv-06714-MVL-MBN Document 8-1 Filed 02/22/16 Page 18 of 18

/s/ Brad E. Harrigan___________________

Case 2:15-cv-06714-MVL-MBN Document 8-3 Filed 02/22/16 Page 1 of 1

UNITED STATES DISTRICT COURT

LOUISIANA LIGHTNING, LLC,

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