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SOR Technology, LLC v. MWR Life, LLC

United States District Court, S.D. California

August 28, 2019

MWR LIFE, LLC; YONI ASHUROV; and DOES 1-10, Defendants.



         Presently 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.


         Plaintiff 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.

         Defendant 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.

         On 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.

         Plaintiff 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.

         On 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 mediation.” Id.

         Plaintiff 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.


         Federal 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         To 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.


         Defendants 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 ...

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