MPC Containment Sys., Ltd. v. Moreland, No. 05 C 6973, 2006 WL 2331148 (N.D. Ill. Aug. 10, 2006) (Aspen, J.).
Judge Aspen granted defendants’ Rule 12(b)(6) motion to dismiss plaintiff’s Lanham Act unfair competition claim for failure to meet the Rule 9(b) heightened pleading requirements. Plaintiff’s bare allegation that the individual defendants made misrepresentations to a single customer did not satisfy Rule 9(b)’s heightened pleading requirements.
Plaintiff failed to allege when the misrepresentations were made, alleging only that they were made during the individual defendants’s employment with plaintiff, a period of at least twenty years. The Court also held that plaintiff failed to allege that the communications were “commercial advertising or promotion,” as required by the Lanham Act § 43(a)(1)(B), because plaintiff never stated how the misrepresentations were communicated. Finally, the Court warned in a footnote that “allegations based ‘on information and belief’ generally do not satisfy the particularity requirements of Rule 9(b).”