United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS (ECF NO. 4)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
before the Court is Defendants MWR Life, LLC and Jonathon
“Yoni” Ashurov's Motion to Dismiss Complaint
(“Mot., ” ECF No. 4). Also before the Court is
Plaintiff SOR Technology, LLC's Response in Opposition to
(“Opp'n, ” ECF No. 12) and Defendants'
Reply in Support of (“Reply, ” ECF No. 13) the
Motion. After reviewing the Parties' arguments and the
law, the Court GRANTS Defendants' Motion.
SOR Technology, LLC is a California limited liability company
that provides “membership and closed user group
programs around the world” with a “technology and
fulfillment service” that delivers “discounted
travel offerings and related membership services.” ECF
No. 1 (“Compl.”) ¶ 2.
MWR Life, LLC is a limited liability company doing business
in Florida that is “engaged in the sale of travel
programs.” Id. ¶ 3. Defendant Jonathon
“Yoni” Ashurov is the CEO of MWR Life and lives
and works in Florida. Id.
February 3, 2017, the Parties entered into a written
Technology and Services Agreement (the
“Agreement”). Id. ¶ 10. Under the
Agreement, Plaintiff was to create a website for Defendant
MWR Life that looked and functioned similar to
Plaintiff's own website. Id. ¶¶ 10-11.
Plaintiff also was to incorporate into the website its
proprietary software, which included a reservation system and
credit card payment capability. Id. Plaintiff
alleges it “invested substantial time, skill[, ] and
resources into the creation of [its own] website, which . . .
provided the template for [Defendant] MWR's . . .
website.” Id. ¶ 12.
alleges that sometime in August of 2018, it discovered that
Defendant MWR Life had “reproduced, distributed, and/or
otherwise copied a substantial portion of the copyrighted
elements of [its] [w]ebsite . . . without [its] authorization
. . . .” Id. ¶ 15. Plaintiff further
alleges Defendant MWR Life owes it $86, 383.47 for the
development of the website and that the payment is overdue in
breach of the Agreement. Id. ¶ 38-39.
September 6, 2018, Plaintiff sent a notice to Defendants
requesting mediation. Id. ¶ 13. Under the
Agreement, the Parties are required to “attempt to
resolve [any] dispute in good faith through mediation”
before filing a lawsuit. Id. Plaintiff alleges that
it requested Defendants agree on a date and specific mediator
multiple times, but Defendants “refus[ed] to cooperate
in good faith with [Plaintiff] to resolve any dispute through
sued Defendants on October 12, 2018, bringing claims for (1)
copyright infringement under 17 U.S.C. §§ 106, 501;
(2) trade dress infringement under 15 U.S.C. § 1125(a);
(3) aiding and abetting copyright and trade dress
infringement; (4) breach of contract for non-payment; and (5)
breach of contract for failure of obligations under the
Agreement. See generally Id. Defendants then filed
the instant Motion. See generally Mot.
Rule of Civil Procedure 12(b)(6) permits a party to raise by
motion the defense that the complaint “fail[s] to state
a claim upon which relief can be granted, ” generally
referred to as a motion to dismiss. The Court evaluates
whether a complaint states a cognizable legal theory and
sufficient facts in light of Federal Rule of Civil Procedure
8(a), which requires a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Although Rule 8 “does not require
‘detailed factual allegations,' . . . it [does]
demand more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). In other words, “a plaintiff's obligation
to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)). A complaint will not suffice “if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 557).
survive a motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570);
see also Fed. R. Civ. P. 12(b)(6). A claim is
facially plausible when the facts pled “allow the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 677 (citing Twombly, 550 U.S. at 556). That is
not to say that the claim must be probable, but there must be
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. Facts
“‘merely consistent with' a defendant's
liability” fall short of a plausible entitlement to
relief. Id. (quoting Twombly, 550 U.S. at
557). Further, the Court need not accept as true “legal
conclusions” contained in the complaint. Id.
This review requires context-specific analysis involving the
Court's “judicial experience and common
sense.” Id. at 678.
argue the Court must dismiss Plaintiff's Complaint for
several reasons, including failure to mediate before filing
suit as required under the Parties' Agreement. Mot. at
7-12. The Court addresses this issue first and concludes
that, because Plaintiff failed to satisfy the contractual