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Express Companies, Inc. v. Lifeguard Medical Solutions

September 1, 2010

EXPRESS COMPANIES, INC., DBA AMERICAN EHS/AMERICAN CPR, DBA FIRST-AID PRODUCT.COM, AEDGRANT.COM, PLAINTIFF,
v.
LIFEGUARD MEDICAL SOLUTIONS, LLC, DBA LIFEGUARDMED.COM, AEDSUPPLYSTORE.COM, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the "Rule 12(b)(6) Motion to Dismiss and Rule 12(f) Motion to Strike Plaintiff's [First Amended] Complaint" ("Motion to Dismiss"). (Doc. # 17).

I. Background

On January 22, 2010, Plaintiff Express Companies, Inc., dba American EHS/American CPR, dba First-Aid-Product.com, Aedgrant.com ("Express"), initiated this action by filing a Complaint in this Court alleging a federal law claim for copyright infringement and thirteen state law claims against Defendant Lifeguard Medical Solutions, LLC, dba Lifeguardmed.com, Aedsupplystore.com ("Lifeguard"), Harvard Reynolds, Chet Frist and Shirley Cantrell. (Doc. # 1).

On May 21, 2010, all defendants filed a motion to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. # 3), and the three individual defendants filed motions to dismiss for improper venue and lack of personal jurisdiction (Doc. # 4, 5). On June 11, 2010, Plaintiff filed a First Amended Complaint, which names Lifeguard as the sole Defendant. (Doc. # 11).

A. Allegations of the First Amended Complaint

"Plaintiff Express is a corporation ... engaged in the business of offering products and services including CPR training classes and other safety training classes; ... first aid products; ... [and] automatic external defibrillators (AEDs) including a grant program for qualifying entities...." Id. ¶ 9. "Defendant Lifeguard is a distributor of products and services including automatic external defibrillators (AEDs) and CPR Training Courses, and products related thereto." Id. ¶ 17.

During "mid-2006" or thereafter, Plaintiff Express entered into an agreement with Defendant Lifeguard in which "Express would sell products provided by Lifeguard, who would then deliver the products directly to the purchaser. Many products were sold to Express customers without Medical Direction materials, and in such instances, Lifeguard was barred by agreement from providing any Lifeguard Medical Direction or marketing materials to the purchaser." Id. ¶ 19. As part of the written agreement between the parties, Defendant Lifeguard executed a document entitled "Confidentiality of Proprietary Information" which stated in pertinent part:

Any attempt to compete with Express Companies, Inc. by conducting business directly with a Client, Instructors, vendors, affiliates, employees, subdistributors or assigns that were originally contacted through Express Companies, Inc., or has been identified as a current or previous Client, Instructor, vendor, affiliate, employee, sub-distributors or assign will not be permitted and will be subject to legal action. This is considered dishonest, unethical and unprofessional behavior and will not be tolerated.

Id. ¶ 20. In late-May 2008, Harvard Reynolds, a member, manager or principal of Defendant Lifeguard, "signed a document reasserting Lifeguard's obligations under the 'Confidentiality of Proprietary Information' agreement." Id. ¶ 21.

Since the 2006 agreement between the parties, Defendant "Lifeguard sent its marketing materials to as many as 600 of Express clients, interfering with Express' opportunity to sell training courses to these parties." Id. ¶ 24. "[A]s a result, many of Express' clients engaged Lifeguard for CPR Training classes and related training classes rather than Express, ... in contravention of Lifeguard's agreement with Express." Id. ¶ 25.

On July 2, 2009, Lifeguard filed suit against Express in Tennessee state court "for recovery of $50,009.88 claimed to be owed by Express to Lifeguard." Id. ¶ 27.

In August 2009, Express posted "advertisements for Prestan brand CPR manikins at its ebay.com store 'americancpr.'" Id. ¶ 29. The product descriptions in the advertisements included "original text created by Express." Id. ¶ 30. "Shortly thereafter, Lifeguard posted advertisements for the same and similar Prestan brand products as Express at Lifeguard's ebay.com store 'aed-supply.' ... Lifeguard included in its ads Express' original text...." Id. ¶¶ 31-32. "On October 14, 2009, Express filed the document 'Prestan Description for Ebay' for copyright registration with the United States Copyright Office." Id. ¶ 34. "Lifeguard has, and continues to infringe on Express' copyrighted work, and specifically the work 'Prestan Description for Ebay.'" Id. ¶ 35.

"Lifeguard had bypassed Express to purchase directly from Prestan Products.... Lifeguard, represented by ... principal Harvard Reynolds, was first introduced to the Prestan product line at Express' offices in Encinitas, California in May of 2008." Id. ¶ 36. "Lifeguard circumvented the purchasing chain by ordering products directly through Prestan in contravention of its agreement with Express. Lifeguard continues to purchase directly from Prestan in circumvention of this agreement, and directly competes with Express selling these products to the public, cutting Express out of its contractual share...." Id.

"Beginning about September, 2008, defendant Lifeguard has interfered with Express' business relationships with (1) Philips, the company that manufacturers the AEDs for which Lifeguard was Express' distributor, and (2) One Beat CPR, Express' current distributor of Philips AEDs." Id. ¶ 38. "Prior to September, 2008, Express was in talks with Philips to become a direct distributor of Philips products, rather than purchase the products through a distributor." Id. ¶ 39. "On about September 9, 2008, Philips halted negotiations regarding direct ...


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