USDC IN/ND case 1:23-cv-00068-HAB-SLC document 15 filed 07/05/23 page 1 of 18

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

ROLLER READY, LLC,

Plaintiff,

v. CASE NO. 1:23-cv-00068-HAB-SLC

LA SYSTEMS, LLC d/b/a

MONKEY RUNG and
PAUL KILEY,

Defendants.

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S

COMPLAINT FOR LACK OF PERSONAL JURISDICTION
AND FAILURE TO STATE CLAIMS UPON WHICH RELIEF MAY BE GRANTED

Plaintiff brings this suit “to address business activity by Monkey Rung and [Paul] Kiley….”

(ECF 1 at ¶ 9). Yet Plaintiff pleads no facts to support this Court’s exercise of personal jurisdiction

over Monkey Rung—an Arizona limited liability company—or Paul Kiley—an individual domiciled

in Ohio. (Id. at ¶¶ 2, 3). This Court should dismiss the Complaint in its entirety, without prejudice,

because it lacks personal jurisdiction over both Defendants. Fed. R. Civ. P. 12(b)(2).

Further, Plaintiff fails to adequately plead the Counts I through IV of its Complaint because

Plaintiff either fails to plead a required element of a cause of action (Counts I and III) or fails to meet

the exacting standards of Federal Rule of Civil Procedure 9(b) (Counts II and IV). This Court should

dismiss Counts I-IV of the Complaint for failure to state a claim upon which relief can be granted.

Fed R. Civ. P. 12(b)(6).

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BACKGROUND

Plaintiff is an Indiana limited liability company that sells a paint roller cleaning product known

as the Roller Ready. (ECF 1 at ¶¶ 1, 10). Plaintiff previously entered into an agreement with two

entities called Sunway Tools Inc. and Sunway Products, Ltd. to manufacture, market, and distribute

its product. (Id. at ¶¶ 13-14). Plaintiff ended its relationship with the Sunway entities on December

31, 2021. (Id. at ¶ 16).

Plaintiff alleges that, at some point, defendant Paul Kiley was a salesman for Sunway and

learned of the Roller Ready product. (Id. at ¶ 16). According to the Complaint, “Kiley and Roller

Ready entered into [an] agreement” whereby Kiley would present Roller Ready’s product at the 2021

National Hardware Show, apparently for free and without Roller Ready’s owner present. (Id. at ¶¶

17, 19, 21). Plaintiff alleges that its product, the Roller Ready, won an award at the show, but that “all

resulting recognitions were granted to Monkey Rung and not to Roller Ready, LLC.” (Id. at ¶ 26).

According to Plaintiff, Monkey Rung and Mr. Kiley began to sell a competing product known as the

Spin PRO and continued to associate themselves with Roller Ready through the Defendants’

marketing activity, apparently using a website controlled by Hardware Retailing Magazine to drive

customers to Monkey Rung’s website. (Id. at ¶¶ 28-29, 31-32). Finally, Plaintiff alleges that Monkey

Rung at one point listed Roller Ready’s patent number on an investor’s page on Monkey Rung’s

website, that Monkey Rung and Mr. Kiley control the Roller Ready trademark on Amazon.com, and

that Monkey Rung lists that it was an award winner at the 2021 National Hardware Show on its

website. (Id. at ¶¶ 33-34, 37).

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Plaintiff filed the present Complaint on February 15, 2023,1 broadly alleging that this Court

has specific personal jurisdiction over Monkey Rung, LLC and Paul Kiley individually “because both

have engaged in targeted and ongoing business activity with Roller Ready, LLC while knowing Roller

Ready to be an Indiana Company.” (Id. at ¶ 6). Plaintiff further posits this Court has general personal

jurisdiction over each of the Defendants “because both engage in general commercial activity in

Indiana, including marketing and selling products in Indiana.” (Id. at ¶ 7).

Plaintiff also advances several theories of liability. First, Plaintiff alleges Monkey Rung and Mr.

Kiley engaged in false advertising in violation of the Lanham Act (Count I) by intentionally publishing

and distributing false, misleading, and deceptive statements of fact about Roller Ready and baiting

consumers to the Monkey Rung website. (Id. at ¶¶ 38-40). Second, Plaintiff claims that Monkey Rung

and Mr. Kiley misled the public as to the proper ownership rights of the Roller Ready product by

displaying and listing Roller Ready’s patent on the Monkey Rung website in violation of 35 U.S.C. §

292 (Count II). (Id. at ¶¶ 41-45). Third, Plaintiff alleges Monkey Rung and Mr. Kiley violated the

Indiana Deceptive Trade Practices Act [sic] (Count III) by misrepresenting their rights in the Roller

Ready product. (Id. at ¶¶ 46-49). Fourth, Plaintiff asserts a claim of unfair competition under Indiana

common law (Count IV) whereby Monkey Rung and Mr. Kiley have deceived potential consumers

and investors as to the state of the market and have restricted access to Roller Ready’s product. (Id. at

¶¶ 50-55). Finally, Plaintiff advances a claim of trademark infringement (Count V) based on Monkey

Rung and Mr. Kiley’s alleged use of Roller Ready’s trademark in their business dealings. (Id. at ¶¶ 56-

62).

1Plaintiff did not issues a summons to either Defendant until May 8, 2023 (see ECF 6), and did not perfect service on Mr.
Kiley until May 15, 2023. (ECF 7). This Motion to Dismiss is timely filed pursuant to Mr. Kiley’s Notice of Initial 28-Day
Extension of Time (ECF 10), and Monkey Rung’s waiver of service filed on June 6, 2023. (ECF 11).

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STANDARD OF REVIEW

“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) seeks dismissal of

a claim where personal jurisdiction is lacking.” 1st Source Bank v. Village of Stevensville, 905 F. Supp. 2d

898, 904 (N.D. Ind. 2012). Once a defendant moves to dismiss under Rule 12(b)(2), “the plaintiff

bears the burden of demonstrating the existence of personal jurisdiction.” Id. (quoting Purdue Research

Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)). If the Court rules on a defendant’s

motion based only on the submission of written materials, i.e. without conducting an evidentiary

hearing, the plaintiff need only make out a prima facie case of personal jurisdiction. Id. (citing GCIU—

Employer Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1023 (7th Cir. 2009)). When determining whether

a plaintiff meets its burden under this standard, the Court will resolve disputed relevant facts in the

plaintiff’s favor. Id. (citation omitted).

To state a claim under which relief may be granted, a complaint must allege “enough facts to

state a claim to relief that is plausible on its face.” Warwick v. Subway Restaurants, Inc., 949 F.3d 354, 356

(7th Cir. 2020) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

a defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

A plaintiff may not “merely parrot the statutory language of the claims they are pleading” but must

rather provide “some specific facts to ground those legal claims.” Brooks v. Ross, 578 F.3d 574, 581

(7th Cir. 2009). Further, when advancing a claim on grounds of fraud or mistake, Federal Rule of Civil

Procedure 9(b) provides that “a party must state with particularity the circumstances constituting fraud

or mistake.” Promote Innovation LLC v. Roche Diagnostics Corp., 793 F. Supp. 2d 1090, 1096 (S.D. Ind.

2011) (internal quotations and citations omitted). This “requires identification of the specific who,

what, when, where, and how of the alleged false statement.” Id.

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DISCUSSION

I. Plaintiff’s Complaint must be dismissed because this Court lacks personal jurisdiction
over each of the defendants.

Plaintiff bears the burden of establishing personal jurisdiction. Advanced Tactical Ordnance

Systems, LLC v. Real Action Paintball, Inc., 751 F.3d 796, 799 (7th Cir. 2014) (citation omitted). Yet

Plaintiff fails to plead any relevant facts that would support this Court’s exercise of personal

jurisdiction—general or specific—over either Mr. Kiley or Monkey Rung. Plaintiff states in conclusory

fashion that “Monkey Rung and Kiley … have engaged in targeted and ongoing business activity with

Roller Ready” and “both engage in general commercial activity in Indiana….” (ECF 1 at ¶¶ 6, 7).

Neither allegation is sufficient to subject the Defendants to personal jurisdiction in this Court.

Federal courts have personal jurisdiction “only so long as the defendant is subject to the

jurisdiction of a court of general jurisdiction in the state where the district court is located.” Data

Research and Handling, Inc. v. Vongphachanh, 310 F.Supp. 3d 956, 958-59 (N.D. Ind. 2018) (quoting

Northern Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014)). Indiana’s “long arm” provision

“expands personal jurisdiction to the full extent permitted by the Due Process Clause.” Id. (citation

omitted); see also Ind. T.R. 4.4(A). Thus, a court may not exercise personal jurisdiction over a party

unless such jurisdiction “comports with the limits imposed by federal due process.” Advanced Tactical,

751 F.3d at 800.

Under this standard, this Court’s exercise of personal jurisdiction over either Mr. Kiley or

Monkey Rung will arise only if each defendant has “certain minimum contacts with [Indiana] such

that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial

justice.’” Want2Scrap, LLC v. Larsen, No. 1:17-CV-443-PRC, 2018 WL 1762853, at *6 (N.D. Ind. Apr.

9, 2018) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1946)) (substitution in original). In

other words, jurisdiction is proper only if Mr. Kiley or Monkey Rung would reasonably anticipate

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being haled into court in Indiana based on each defendant’s conduct and connection with Indiana. Id.

(citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).

A court may exercise personal jurisdiction if the plaintiff shows Indiana has either “general

jurisdiction” or “specific jurisdiction” over the defendant. Id. General jurisdiction exists only “when

[a defendant’s] affiliations with the State are so ‘continuous and systematic’ as to render them essentially

at home in the forum state.” Data Research and Handling, 310 F. Supp. 3d at 959 (quoting Goodyear Dunlop

Tires Ops, S.A. v. Brown, 564 U.S. 915, 919 (2011) (emphasis in original)). For a defendant—like Mr.

Kiley—that is sued in his individual capacity, a court examines whether the individual is domiciled in

Indiana. See Vera Bradley Designs, Inc. v. Denny, No. 1:18-CV-70-TLS, 2018 WL 3633986, at *6 (N.D.

Ind. July 30, 2018) (citing Goodyear, 564 U.S. at 924).

In contrast, specific jurisdiction over an out-of-state defendant is proper where a defendant

has sufficient minimum contacts with the forum state such that the “maintenance of the suit does not

offend traditional notions of fair play and substantial justice.” Advanced Tactical, 751 F.3d at 800-01

(quoting Int’l Shoe, 326 U.S. at 316 (internal quotations omitted)). Not just any contacts will do: “The

mere fact that [a defendant’s] conduct affected plaintiffs with connections to the forum State does not

suffice to authorize jurisdiction,” the contacts must arise out of contacts the defendant himself creates

with the forum. Id., 751 F.3d at 801 (internal quotations and citations omitted); see also Vera Bradley

Designs, 2018 WL 3633986, at *6 (holding “random, fortuitous, or attenuated contacts” do not satisfy

the minimum contacts analysis). Thus, a defendant’s “suit-related” conduct must create a substantial

connection with the forum state. Id. (citations omitted).

Plaintiff’s Complaint makes neither showing for either defendant. The lack of personal

jurisdiction over each defendant will be discussed in turn.

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a. This Court does not have personal jurisdiction over Paul Kiley because Mr.
Kiley is domiciled in Ohio and has not specifically targeted Indiana with any
particular business actions.

Plaintiff alleges this Court has general jurisdiction over Mr. Kiley because he has engaged in

“commercial activity” in Indiana, including marketing and selling products in Indiana. (ECF 1 at ¶ 7).

Plaintiff further alleges this court has specific jurisdiction over Mr. Kiley because he has engaged in

“targeted and ongoing business activity” with Plaintiff while knowing Plaintiff to be an Indiana

company. (ECF 1 at ¶ 6). Neither is a proper basis for personal jurisdiction. This Court should dismiss

all claims made by Plaintiff against Mr. Kiley.

i. This Court lacks general jurisdiction over Mr. Kiley because he is

domiciled in Ohio.

Mr. Kiley is domiciled in Ohio. (Decl. of Kiley at ¶ 2, attached as Exhibit A). Mr. Kiley has

never lived or worked in Indiana. (Id. at ¶ 3). Plaintiff acknowledges as much. (ECF 1 at ¶ 3 (alleging

Mr. Kiley is “an individual who is domiciled in the State of Ohio”)). This Court has no general personal

jurisdiction over Mr. Kiley.

Whether—as Plaintiff alleges—Mr. Kiley has engaged in general commercial activity in

Indiana is not the standard for general personal jurisdiction. “[T]he paradigm forum for the existence

of general jurisdiction [over an individual] is the individual’s domicile.” Goodyear, 564 U.S. 924; see also

Vera Bradley Designs, 2018 WL 3633986, at *6 (holding “[g]eneral jurisdiction over individuals turns on

domicile.”). Thus, there can be no general jurisdiction over Mr. Kiley because he is domiciled in Ohio,

not Indiana. See Vera Bradley Designs, 2018 WL 3633986, at *6. (finding no general personal jurisdiction

over a defendant because the record indicated the defendant was domiciled in Florida).

Even still, Plaintiff pleads no facts that would show Mr. Kiley has “continuous and systematic

contacts with the State of Indiana” such that Mr. Kiley is essentially at home in this state. See

Want2Scrap, 2018 WL 1762853, at *6. Rather, Plaintiff simply alleges that Mr. Kiley has “engage[d] in

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general commercial activity in Indiana, including marketing and selling products in Indiana.” (ECF 1 at

¶ 7) (emphasis added). This conclusory legal assertion does not suffice: “general commercial activity”

falls well short of alleging Mr. Kiley is essentially at home in Indiana, and Plaintiff makes no additional

allegations of any continuous and systematic activity directed toward Indiana. And further, Mr. Kiley

has neither lived in nor been employed in Indiana. (Decl. of Kiley at ¶ 3). See Want2Scrap, 2018 WL

1762853, at *6 (finding no general personal jurisdiction over defendant that did not live or work in

Indiana, thereby lacking continuous and systematic contacts with Indiana).

This Court should reject Plaintiff’s bald claim of general personal jurisdiction.

ii. Plaintiff’s allegations regarding specific jurisdiction rest only on Mr.

Kiley’s relationship with Plaintiff, which this Court has held is
insufficient to establish minimum contacts in Indiana.

Plaintiff alleges no facts that would indicate Mr. Kiley has any purposeful contact with Indiana.

Without support, Plaintiff simply alleges Mr. Kiley has “engage[d] in targeted and ongoing business

activity with Roller Ready, LLC while knowing Roller Ready to be an Indiana company.” (ECF 1 at ¶

6).

Specific jurisdiction over an individual requires that the lawsuit “arise out of or relate to the

defendant’s contacts with the forum.” Want2Scrap, 2018 WL 1762853, at *6 (quotations and citations

omitted) (cleaned up). “[T]he plaintiff cannot be the only link between the defendant and the forum.

Rather, it is the defendant’s conduct that must form the necessary connection with the forum State

that is the basis for jurisdiction over [him].” Id., at *7 (quoting Burger King Corp. v. Rudzewicz, 471 U.S.

462, 478 (1985)); see also Advanced Tactical, 751 F.3d at 801 (“[N]ot just any contacts will do … the mere

fact that defendant’s conduct affected plaintiffs with connections to the forum State does not suffice

to authorize jurisdiction”) (internal quotations omitted), Data Research and Handling, 310 F. Supp. 3d at

967 (“A finding of specific jurisdiction is not appropriate merely because a plaintiff’s cause of action

arose out of a general relationship between the parties.”). Here, Plaintiff’s conclusory allegation that

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Mr. Kiley is subject to personal jurisdiction in Indiana based on his alleged relationship with Plaintiff

is exactly the type of allegation the Supreme Court expressly disproved of in Burger King and its

progeny. See Burger King, 471 U.S. at 478.

This Court has recently affirmed and applied the principles of Burger King in Want2Scrap, a

copyright and trademark infringement case. 2018 WL 1762853. There, the plaintiff argued personal

jurisdiction was proper over a non-resident individual, predominantly because the defendant knew

plaintiff was an Indiana citizen. Observing the defendant’s “only connection to Indiana is through

[plaintiff] and [plaintiff’s] residence in Indiana,” this Court determined that the plaintiff did not meet

its burden to show sufficient minimum contacts for any claim Id. at *9-10. Specifically, with respect

to infringement and intentional tort claims, this Court observed that although “the jurisdiction where

the injury occurred has a heavy presumption of jurisdiction … the Supreme Court made clear that the

plaintiff cannot be the only link between the defendant and the forum.” Id. at *11 (internal quotations

and citations omitted).

Here, too, Plaintiff makes broad assertions that Mr. Kiley is subject to specific personal

jurisdiction because he engaged in activity with Roller Ready, and Roller Ready is an Indiana company.

(ECF 1 at ¶ 6). Plaintiff makes no other allegations that Mr. Kiley engaged in any particular type of

targeted activity in Indiana. As this Court has already concluded in Want2Scrap, there can be no specific

personal jurisdiction here when Mr. Kiley’s only connection to Indiana is through Roller Ready’s

presence in Indiana.

Moreover, this Court’s exercise of personal jurisdiction would not comport with “fair play and

substantial justice.” See Patton Elec. Co., Inc. v. Rampart Air, Inc., 777 F. Supp. 704, 710 (N.D. Ind. 1991)

(citing Int’l Shoe, 326 U.S. 310). The following five factors are relevant: (1) the burden on the defendant

to litigate in Indiana, (2) Indiana’s interest in adjudicating the dispute, (3) Roller Ready’s interest in

obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the

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most efficient resolution of controversies, and (5) the shared interest of the states in furthering

substantive social policies. See id. (citing Burger King, 471 U.S. 462). Importantly, Plaintiff makes no

allegations that Mr. Kiley targeted Indiana in any respect. The burden on Mr. Kiley to travel to and

litigate in Indiana is high. As shown below, Plaintiff’s state law claims are meritless, and Indiana has

little interest in adjudicating Plaintiff’s remaining federal claims. There is also no apparent benefit to

litigating this matter in Indiana when Plaintiff’s only allegation that relates to Indiana is Roller Ready’s

place of incorporation and business. Such factors far outweigh Roller Ready’s interest in obtaining

convenient and effective relief.

In sum, Plaintiff has made no allegations in its Complaint that would subject Mr. Kiley to

either general or specific jurisdiction in this Court. Mr. Kiley is domiciled in Ohio and has no targeted

or substantial contacts with Indiana. Mr. Kiley’s alleged relationship with Plaintiff is not sufficient to

establish the required minimum contacts with Indiana. This Court should dismiss Plaintiff’s claims

against Mr. Kiley.

b. Similarly, this Court lacks personal jurisdiction over Monkey Rung because it
is an Arizona company and has no purposeful or significant contacts with
Indiana.

Plaintiff asserts the same, unsupported bases for personal jurisdiction over Monkey Rung as

it made against Mr. Kiley: that Monkey Rung has engaged in “general commercial activity” in Indiana,

including marketing and selling products in Indiana, (ECF 1 at ¶ 7), and that Monkey Rung engaged

in “targeted an ongoing business activity” with Plaintiff while knowing Plaintiff to be an Indiana

company. (Id. at ¶ 6). For reasons similar to those expressed above, this Court should dismiss all

claims made against Monkey Rung with prejudice.

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i. This Court has no general personal jurisdiction over Monkey Rung

because it is incorporated in Arizona, and has its principal place of
business in Arizona.

Plaintiff alleges Monkey Rung is “a limited liability company organized under the laws of

Arizona[], with its principal place of business in Prescott Valley, Arizona.” (Id. at ¶ 2). Despite

acknowledging Monkey Rung is far from “home” in Indiana, Plaintiff asserts this Court may exercise

general personal jurisdiction over Monkey Rung because it has engaged in general commercial activity

in Indiana. But, such allegations fall well short of the relevant standard.

General jurisdiction over an entity is permitted “only when a defendant’s affiliations with the

State are so continuous and systematic as to render them at home in the forum State.” Data Research and

Handling, 310 F. Supp. 3d at 961-62 (quotations omitted) (emphasis in original). “[T]he paradigm

forum for the exercise of general jurisdiction is … one in which the corporation is fairly regarded as

at home.” Goodyear, 564 U.S. at 924. An entity is “at home” in the state of its place of incorporation

and principal place of business. Id.

Monkey Rung’s principal place of business is in Surprise, Arizona, and it is incorporated as a

limited liability company in Arizona. (Decl. of Kiley at ¶ 5). Monkey Rung has not specifically targeted

Indiana or its residents with any particular advertising campaign. (Decl. of Kiley at ¶¶ 6-7). Plaintiff’s

vague assertions that Monkey Rung marketed and sold products in Indiana are not enough to establish

general personal jurisdiction. See, e.g., Elayyan v. Sol Melia, SA, 571 F. Supp. 2d 886, 900 (N.D. Ind.

2008) (“The mere fact that a state’s resident can access a defendant’s website does not subject a

nonresident defendant to general jurisdiction in that state.”).

This Court should reject Plaintiff’s conclusory allegation of general personal jurisdiction.

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ii. Nor does this Court have specific personal jurisdiction over Monkey
Rung because Monkey Rung has no relevant contacts that center on the
relations between the business, Indiana, and this litigation.

As was the case with Mr. Kiley, Plaintiff’s assertion that this Court has specific personal

jurisdiction over Monkey Rung does not show how Monkey Rung’s suit-related conduct creates any

substantial connection with Indiana. Again, merely alleging specific jurisdiction on the basis that

Monkey Rung engaged in “targeted and ongoing business activity with Roller Ready, LLC while

knowing Roller Ready to be an Indiana company” is insufficient to demonstrate requisite minimum

contacts. (ECF 1 at ¶ 6); see Advanced Tactical, 751 F.3d at 801 (finding that relevant contacts must

come from the relations among the defendant, the forum, and the litigation, not contact between

defendant and plaintiff).

The Seventh Circuit’s decision in Advanced Tactical is particularly on point. 751 F.3d 796. In

that case, plaintiff manufactured a certain type of paintball. The defendant began producing a similar

paintball product after it entered into a deal with a former manufacturer of the plaintiff’s product. The

plaintiff took umbrage with an assertion by the defendant that it had acquired the previous

manufacturer’s machinery, recipes, and materials. Despite adding a disclaimer to defendant’s statement

that it was unaffiliated with the former manufacturer, the plaintiff sued, alleging, among other things,

violations of the Lanham Act, trademark infringement, and unfair competition. 751 F.3d at 799.

The plaintiff alleged personal jurisdiction was proper because the defendant, a California

company, fulfilled several orders of the allegedly infringing products for purchasers in Indiana, knew

the plaintiff was an Indiana company and that potential harm would occur in Indiana, and sent two

misleading email blasts to Indiana residents (and all over the United States). Id. at 801. The Seventh

Circuit rejected these purported bases for specific jurisdiction on several fronts. First, the court found

that plaintiff provided no evidence connecting any statements on the defendant’s website to the

subject of the litigation, and that plaintiff provided minimal evidence of any actual sales in the forum.

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Id. Second, the court observed that, bare assertions that the defendant engaged in some sales in

Indiana—without more—would impermissibly create de facto universal jurisdiction in every state where

a defendant ships at least one item. Id. at 801-2. And, an interactive website alone is a poor basis for

minimum contacts in the state. Id. at 803. Thus the court found no basis for personal jurisdiction. Id.

at 803-04.

Here, Plaintiff makes no specific allegations that Monkey Rung has targeted Indiana. Rather,

Plaintiff suggests Monkey Rung is somehow using a third party website to drive would-be Roller Ready

customers (from no particular state) to its own website, confusing consumers (again, from no

particular state) by briefly listing Roller Ready’s patent on its website, and displaying a header that

Monkey Rung won an award at the 2021 National Hardware Show (with no other indication of what

the award was for or who it allegedly belonged to) on its website. (ECF 1 at ¶¶ 28-29, 33, 37).

Conspicuously missing from each of these allegations is any explanation of how Monkey Rung’s

alleged acts specifically relate to or create harm in Indiana. See Adv. Tactical, 751 F.3d at 801. Plaintiff

has failed to plead facts sufficient to demonstrate Monkey Rung’s necessary minimum contacts with

Indiana to support specific jurisdiction.

As did the court in Advanced Tactical, this Court should also find it lacks personal jurisdiction

over Monkey Rung and dismiss the Complaint.

II. Plaintiff fails to state multiple claims on which relief may be granted.

Even if this Court determines it has personal jurisdiction over each of the Defendants (which,

to be clear, it doesn’t), Plaintiff’s conclusory allegations fail on multiple fronts. As shown below,

Plaintiff has failed to plead with requisite particularity his claims under Count I (Lanham Act), Count

II (False Marking), Count III (Indiana Deceptive Trade Practice Act), and Count IV (Unfair

Competition). The Court should dismiss each of these claims as made against both defendants.

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a. Plaintiff has not pled any commercial advertisement or a plausible connection

between a vague award shown on Monkey Rung’s website and deception of the
public as required to state a claim under the Lanham Act (Count I).

A false advertising claim under § 1125(a) of the Lanham Act requires that Plaintiff show “(1)

the defendant made a material false statement of fact in a commercial advertisement; (2) the false

statement actually deceived or had the tendency to deceive a substantial segment of its audience; and

(3) the plaintiff has been or is likely to be inured as a result of the false statement.” Bd. of Forensic

Document Examiners, Inv. v. Am. Bar Assoc., 922 F.3d 827, 833 (7th Cir. 2019) (citation omitted). Plaintiff

may not “merely parrot the statutory language of the claims they are pleading,” Brooks, 578 F.3d at

581, with allegations such as the defendant “market[ed]” a product in Indiana. (See ECF 1 at ¶ 7).

Rather, Plaintiff must provide “some specific facts to ground those legal claims.” Brooks, 578 F.3d at

581.

Plaintiff stumbles out of the gate because he has failed to plead that Monkey Rung released

any commercial advertisements or promotions, let alone advertisements that represented Monkey

Rung’s relationship with Roller Ready. Broad allegations that “Monkey Rung continues to represent

that one of its products won the Retailer Choice Award at the National Hardware Show” and

continues to display the award on the header of the webpage are not enough. (ECF 1 at ¶ 37). The

screenshot associated with Paragraph 37 displays no affiliation with Roller Ready such that a consumer

viewing the website would have no context for the image. (Id.) And to the extent Plaintiff claims that

a list on a third-party website for Hardware Retailing Magazine showing the “2021 Retailers’ Choice

Awards” constitutes an advertisement, Monkey Rung and Mr. Kiley simply have no control over that

website, and Plaintiff has alleged no such control. (ECF 1 at ¶ 28).

And further, it is entirely unclear how any of these allegations described above would deceive

or have the tendency to deceive its target audience. Again, all domains within the control of Monkey

Rung do not state, or even hint at, any affiliation with Roller Ready.

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There are too many leaps—none of which have been plead—to connect an award designation

in the header of Monkey Rung’s website to a false advertisement scheme. This Court should dismiss

this claim against both defendants.

b. Plaintiff has failed to plead False Marking (Count II) with requisite
particularity as required by Rule 9(b) because it has failed to show the “when”
or “how” of Defendant’s alleged violation of 35 U.S.C. § 292.

Plaintiff next claims Monkey Rung and Mr. Kiley violated 35 U.S.C. § 292 by “display[ing] and

list[ing] the Roller Ready patent on the Monkey Rung website with the clear intent of communicating

to potential consumers and investors that Monkey Rung owned the patent to the Roller Ready and

had the right to sell it.” (ECF 1 at ¶ 42). This, according to Plaintiff, misled the public as to ownership

rights over the Roller Ready product, the availability of the product, and ultimately stifled sales of the

Roller Ready and bolstered sales of Monkey Rung’s own product. (Id. at ¶¶ 43-44).

The False Marking statute delineates several causes of action under which a plaintiff “who has

suffered a competitive injury as a result of a violation” of § 292 may recover damages adequate to

compensate for the injury. 35 U.S.C. § 292(b). Subsection(a) lists three scenarios under which a false

marking claim may be made, generally summarized as (1) either claiming a patent as one’s own without

consent of the patentee, or marking an unpatented article as patented, or marking a good as “patent

applied for” or “patent pending” without a patent application; and (2) engaging in any of these actions

with intent to deceive the public. 35 U.S.C. § 292(a); accord Promote Innovation, 793 F. Supp. 2d at 1093.

Plaintiff does not specify which of these scenarios are at play in this lawsuit.

Regardless, claims under the false marking statute are subject to the particularized pleading

requirements of Federal Rule of Civil Procedure 9(b). See Promote Innovation, 793 F. Supp. 2d at 1096

(citing In re BP Lubricants USA Inc., 637 F.3d 1307, 1309 (Fed. Cir. 2011)); see also Luka v. Procter and

Gamble Co., 785 F. Supp. 2d 712, 717 (E.D. Ill. 2011) (same). Under Rule 9(b), Plaintiff must “allege

sufficient underlying facts from which a court may reasonably infer that [the defendant] acted with

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the requisite state of mind.” Luka, 785 F. Supp. 2d at 717 (quotation omitted). Conclusory allegations

are insufficient, and “sprinkling a complaint with magic buzzwords and boilerplate language” will not

help Plaintiff “scale Rule 9(b)’s gatekeeping function.” Promote Innovation, 793 F. Supp. 2d at 1095.

Plaintiff must identify the specific “who, what, when, where, and how” of the alleged circumstances

constituting fraud or mistake. Id. (citing Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 (Fed.

Cir. 2009)).

Plaintiff’s pleading plainly falls short of Rule 9(b)’s requirements. Completely missing is the

“when” of the alleged act. Plaintiff generally avers that, “just recently” Roller Ready’s patent was

displayed on Monkey Rung’s website, but does not allege when such listing appeared, how long it

appeared, or—despite having first-hand knowledge of when Plaintiff objected to the website—when

it was removed. (ECF 1 at ¶ 33). Similarly, the “how” is missing. It is entirely unclear how, assuming

Plaintiff’s allegations are true, a listing on Monkey Rung’s website which has since been removed has

“stifled” any sales of the Roller Ready product, or diminished the value of Roller Ready’s patent. (See

ECF 1 at ¶¶ 44-45). Such general averments do not meet the higher burden of Rule 9(b), and Count

II of the Complaint should be dismissed for failure to state a claim. See Promote Innovation, 793 F.

Supp.2d at 1097 (dismissing False Marking claim because, based on the allegations presented, it was

just as likely the defendant made a marking error, which does not amount to any intent to deceive).

c. Plaintiff cannot bring a claim under the Indiana Deceptive Consumer Sales Act
(Count III) because it is not a consumer.

Plaintiff next asserts Defendants violated the Indiana Deceptive “Trade Practices” Act under

Indiana Code section 24-5-0.5-3. Assuming Plaintiff is referring to the Deceptive “Consumer Sales”

Act codified at 24-5-0.5 et seq., Plaintiff has failed to state a claim because it is not a consumer as

defined by the DCSA, and therefore lacks standing to bring a claim.

Under the DCSA, only consumers, or the Attorney General on behalf of consumers, may

bring an action alleging an unfair or deceptive practice. Ind. Code § 24-5-0.5-4; accord McKinney v. State,
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693 N.E.2d 65, 68 (Ind. 1998) (“The [Deceptive Consumer Sales Act] gives consumers and the

attorney general the power to sue suppliers who engage in ‘deceptive acts’”). The plain language

further requires that, in order to bring a claim, a person alleging uncured or incurable deceptive acts

may only bring an action “for the damages actually suffered as a consumer as a result of a deceptive

act….” Ind. Code § 24-5-0.5-4(a).

Setting aside that Plaintiff has not alleged any “actual damages” as required by the DCSA,

Plaintiff has not alleged it is a consumer. Plaintiff only alleges that Defendants “engaged in unfair,

abusive, and deceptive practices” that “misled the public on the availability of Roller Ready and have

prevented the marketplace from accessing the Roller Ready product.” (ECF 1 at ¶¶ 47-48). Nor is

Plaintiff the Attorney General. In other words, Plaintiff may not bring on action on behalf of the

allegedly-deceived public. The DCSA is not a viable cause of action for Plaintiff as a non-consumer.

Count III should be dismissed as to both Mr. Kiley and Monkey Rung.

d. Plaintiff’s claim of Unfair Competition (Count IV) sounds in fraud and must be
dismissed for failure to plead with the specificity required by Rule 9.

Indiana courts broadly define a claim for unfair competition as “the attempt to create

confusion concerning the source of the unfair competitor’s goods.” Buffet Crampon S.A.S. v. Schreiber

& Keilwerth, Musikinstrumente GMBH, No. 3:09-CV-347-RM, 2009 WL 3675807, at *16-17 (N.D. Ind.

Nov. 2, 2009) (quoting Felsher v. Univ. of Evansville, 755 N.E.2d 589, 598 (Ind. 2001)). While “unfair

competition” is a somewhat amorphous umbrella under which litigants may bring claims, a claim of

unfair competition that alleges a scheme to deceive customers and the public at large sounds in fraud

and must meet the particularized pleading standard for Federal Rule of Civil Procedure 9(b). Id. at *16.

And here, Plaintiff’s unfair competition claims sound in fraud because the Complaint alleges

Defendants “intentionally misrepresented” that Roller Ready was its own, and that Defendants

“deceived potential consumers and investors as to the state of the market” and “intentionally

interfered with Roller Ready’s place in the marketplace.” (ECF 1 at ¶¶ 51-54). According to this
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Cour’ts decision in Buffet Crampon, such allegations are subject to Rule 9(b)’s more specific

requirements. Id. at *17.

As with Plaintiff’s false marking claim discussed above, Rule 9 requires that Plaintiff plead the

“who, what, when, where, and how” of the alleged act. See Promote Innovation, 793 F. Supp. 2d at 1095.

Plaintiff does not allege a “when” the alleged events constituting deception took place. Nor does

Plaintiff allege “how” Defendants would have deceived the public with a webpage that no longer

exists. (See ECF 1 at ¶ 33). These claims plainly do not meet Rule 9’s exacting requirements and should

be dismissed.

CONCLUSION

Plaintiff has not shown, and cannot show, that this Court has personal jurisdiction over either

Monkey Rung, LLC or Paul Kiley. This Court should dismiss the Complaint in full because it lacks

jurisdiction over both Monkey Rung and Mr. Kiley. Fed. R. Civ. P. 12(b)(2). Alternatively, Plaintiff

has failed to plead all necessary elements of a claim in Counts I and III, and has failed to plead Counts

II and IV with requisite particularity. This Court should dismiss Counts I-IV of the Complaint as

made against each defendant for failure to state claims upon which relief may be granted. Fed. R. Civ.

P. 12(b)(6).

Dated: July 5, 2023 Respectfully submitted,

/s/ Mitchell L. Osterday____________

John R. Maley
Mitchell L. Osterday
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, IN 46204
Telephone: 317-236-1313
Facsimile: 317-231-7433
Email: [email protected]
[email protected]

Attorneys for Defendants Paul Kiley and Monkey Rung, LLC

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