United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION TO DISMISS
RICHARD L. YOUNG, Chief District Judge.
Plaintiff, Wounded Warrior Project, Inc. ("WWP"), a nonprofit, is suing fellow nonprofit, Help Indiana Vets, Inc. ("HIVI") and its founder, Dean M. Graham (collectively "Defendants") for a post on HIVI's website. Specifically, WWP brings a claim for false advertising under the Lanham Act, 15 U.S.C. 1125(a)(1)(b), and five claims under Indiana law. Defendants, acting pro se, move to dismiss the complaint for three reasons: (1) no personal jurisdiction, (2) improper venue, and (3) failure to state a claim. For the reasons set forth below, the court DENIES the motion, but ORDERS the case transferred to the United States District Court for the Northern District of Indiana.
Wounded Warrior Project, Inc. is a nonprofit founded to provide comfort items to service members injured in combat post-September 11, 2001. (Complaint ¶ 7, Filing No. 1, at ECF p. 2-3). WWP's "mission is to raise awareness and enlist the public's aid for the needs of injured service members; to help injured service members assist each other; and to provide unique programs and services which are specifically tailored to meet the needs of injured service members." ( Id. at ¶ 8, Filing No. 1, at ECF p. 3). WWP has 427 employees at 15 office locations throughout the United States and in Germany. ( Id. at ¶ 9, Filing No. 1, at ECF p. 3).
Graham, a veteran of the U.S. military, was injured in the line of duty in Iraq. (Declaration of Dean Graham ("Graham Dec.") ¶ 1, Filing No. 26-1). Upon his return to the United States, Graham founded and serves as president of Help Indiana Vets, Inc. ( Id. ¶ 2, Filing No. 26-1). He operates HIVI out of his home in Columbia City, Indiana. ( Id., Filing No. 26-1). HIVI receives donor support in order to offer financial assistance to Indiana veterans. (Complaint ¶ 34, Filing No. 1, at ECF p. 13).
WWP alleges that, in or around November 2013, Defendants published false and misleading statements of fact about WWP on the HIVI website in a post titled "Wounded Warrior Project is a Fraud." ( Id. at ¶ 35, Filing No. 1, at ECF p. 13-14; see also Complaint Exhibit A ("Exhibit A"), Filing No. 1-1). In addition, this post prompted visitors to comment on the post and answer four questions. ( Id. at ¶ 36, Filing No. 1, at ECF p. 14). While this post was displayed on the website, a PayPal link was to the right of the post. ( Id. at ¶ 38, Filing No. 1, at ECF p. 14; see also Exhibit A, Filing No. 1-1).
Furthermore, on July 20, 2013, Graham sent an email to numerous government entities, government officials, and media outlets which contained additional allegations that WWP is a fraud. ( Id. at ¶ 39, Filing No. 1, at ECF p. 15-16; see also Complaint Exhibit B, Filing No. 1-2). WWP alleges these statements are false and misleading.
According to WWP, numerous WWP supporters were deceived by the comments posted by Graham and HIVI. ( Id. at ¶ 41, Filing No. 1, at ECF p. 17-19; see also Exhibit A, Filing No. 1-1). In addition, the allegations have been reposted on social media forums. ( Id. at ¶ 42, Filing No. 1, at ECF p. 19-20; see also Complaint Exhibit C, Filing No. 1-3). Further, WWP alleges that the statements "have caused a number of WWP supporters to cancel their ongoing donations to WWP." ( Id. at ¶ 43, Filing No. 1, at ECF p. 20; see also Complaint Exhibit D).
As a result, WWP brought the present lawsuit alleging: (1) false advertising under the Lanham Act; (2) criminal deception; (3) defamation; (4) unfair competition; (5) tortious interference with business relationships, and (6) unjust enrichment. WWP seeks treble damages, attorneys' fees, and an injunction. Defendants move to dismiss the claim for improper venue, lack of jurisdiction, and failure to state a claim. The court will deal with each in turn.
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue. When considering a motion to dismiss under Rule 12(b)(3), the plaintiff bears the burden of establishing proper venue. See Faur v. Sirius Intern. Ins. Corp., 391 F.Supp.2d 650, 657 (N.D. Ill. 2005); see also Bremen v. Zapata Off Shore Co., 407 U.S. 1, 18 (1972); Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182, 1184 (7th Cir. 1969). The court must take all allegations in the complaint as true, draw all reasonable inferences in favor of the plaintiff, and may consider matters outside the complaint without converting the motion to one for summary judgment. Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 809-810 (7th Cir. 2011).
A. Improper Venue
Defendants argue that venue is improper in the Southern District of Indiana the ("Southern District"), and would rather be proper in the Northern District of Indiana (the "Northern District"). In support, Graham states that he lives in Columbia City, Indiana, located in the Northern District and operates HIVI out of that home. (Graham Dec. ¶ 2, Filing No. 26-1). In addition, Graham states that all of the postings and activity contained in the complaint occurred in Columbia City, Indiana. ( Id. at ...