United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA, District Judge.
This is a trademark infringement action. Plaintiff Engineered Arresting Systems Corporation (ESCO) manufactures, distributes, and sells aircraft arresting systems for military and commercial aircraft. ESCO filed this action against various defendants alleging trademark infringement, false designation of origin, and false advertising under the Lanham Act, and common law unfair competition and trademark infringement, in connection with a United States Air Force solicitation seeking bids for a Polish Air Force contract. (Doc. 39).
Defendants SCAMA AB, Harald hagen, Atech, Inc., and Philip hagen filed a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), failure to state a claim under Rule 12(b)(6), and failure to state fraud with particularity under Rule 9(b). (Doc. 23). For the reasons discussed below, the Court DENIES defendants' motion to dismiss.
I. STANDARD OF REVIEW
To survive a motion to dismiss for lack of personal jurisdiction, ESCO need only "present enough evidence to withstand a motion for a directed verdict." Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006). A motion for a directed verdict must be denied where "there is substantial evidence opposed to the motion such that reasonable people, in the exercise of impartial judgment, might reach differing conclusions." Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). The Court must construe all reasonable inferences in favor of the non-moving party. Stubbs, 447 F.3d at 1360.
Rule 12(b)(6) enables a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Pursuant to Rule 8(a)(2), a complaint must contain, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the requirement of Fed.R.Civ.P. 8(a)(2), a complaint need not contain detailed factual allegations, ' but rather only enough facts to state a claim to relief that is plausible on its face.'" Maledy v. City of Enterprise, 2012 WL 1028176, at *1 (M.D. Ala. Mar. 26, 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). "Specific facts are not necessary; the statement needs only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).
In deciding a Rule 12(b)(6) motion to dismiss, a court must view the allegations in a complaint in the light most favorable to the non-moving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). A court must accept well-pled facts as true. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).
II. FACTUAL AND PROCEDURAL HISTORY
Engineered Arresting Systems Corporation (ESCO) is a Delaware company engaged in the business of manufacturing, distributing, and selling aircraft arresting systems for military and commercial aircraft. (Doc. 39, ¶ 5). ESCO has a trademark for its PORTARREST aircraft arresting system. (Doc. 39-1). Defendant SCAMA AB is a Swedish company that manufactures arresting systems. (Doc. 39, ¶ 12). Defendant Harald hagen, a resident of Sweden, is President of SCAMA. (Doc. 39, ¶ 13). SCAMA is the sole owner of defendant Atech, an Alabama corporation. (Doc. 39, ¶¶ 6, 37). Defendant Philip hagen, the son of Harald hagen, is the President and Secretary of Atech. (Doc. 39, ¶ 10).
On October 23, 2012, the United States Air Force, through the Foreign Military Sales Program, placed an official solicitation for products for the Polish Air Force. (Doc. 39, ¶ 30). The solicitation included "two (2) BAK-12 Above Grade Fixed Hook Cable Systems, " "one (1) PORTARREST-IV/BAK-12 Mobile' Hook Cable System, " and certain spare parts for the "PORTARREST-IV/BAK-12 Mobile' Hook Cable System." (Doc. 39-2, pp. 4-6). Because federal acquisition regulations prohibit soliciting brand name products without justification and approval, the Air Force also published a Brand Name Justification. (Doc. 39, ¶ 32). The Brand Name Justification stated: "This brand name is required because the Polish government specifically requested the BAK-12 Aircraft Arresting System in the LOA (PL-D-GAL) with the U.S. government. It is therefore in the best interests of the Government to limit offers to procure the BAK-12 only." (Doc. 39-3, p. 3).
ESCO submitted a proposal in response to the Air Force Solicitation. (Doc. 39, ¶ 34). Atech also submitted a proposal and a letter of intent stating that if the Air Force selected its bid, the team fulfilling the contract would consist of Atech, SCAMA, and two other entities. (Doc. 39, ¶ 36). The proposal also stated that SCAMA would acquire an ownership interest in Atech, that SCAMA had inspected Atech and its facilities, and that SCAMA's processes, product assurance methodologies, and other business practices would be used in fulfilling the contract. (Doc. 39, ¶¶ 37-39).
The Air Force awarded the Polish Air Force contract ("PAF contract") to Atech. (Doc. 39, ¶ 45). ESCO alleges that defendants used ESCO's trademarks in an intentional attempt to mislead the USAF into believing that the defendants could provide ESCO's brand name systems. (Doc. 39, ¶ 44). ESCO also alleges that when the USAF awarded the contract to the defendants, the USAF was confused and incorrectly believed it was getting ESCO's PORTARREST brand and BAK-12 brand systems. (Doc. 39, ¶ 49). Finally, ESCO alleges liability on the part ...