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Tovey v. Stadler & Co., Inc.

United States District Court, S.D. Indiana, Terre Haute Division

February 4, 2015

PAT TOVEY, Plaintiff,
v.
STADLER & CO., INC., Defendant.

ENTRY ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

WILLIAM T. LAWRENCE, District Judge.

This cause is before the Court on the Defendant's motion to dismiss (Dkt. No. 23) and the Plaintiff's motion for leave to file an amended complaint (Dkt. No. 42). The Plaintiff's motion is fully briefed, and the Court, being duly advised, GRANTS the motion for leave to file an amended complaint, for the reasons set forth below. In light of this ruling, the Court construes the Defendant's motion to dismiss as against Plaintiff's amended complaint. That motion is also fully briefed, and the Court, being duly advised, DENIES the motion to dismiss, for the reasons set forth below.

I. MOTION TO AMEND

The Plaintiff, Pat Tovey, moves the Court for leave to file an amended complaint to add Andrew Stadler ("Andrew"), the Chief Executive Officer and President of Defendant Stadler & Co., Inc. ("Stadler"), as a defendant in this case. According to Tovey, Andrew "personally directed and participated in the acts which constitute the basis of [P]laintiff's claims for the tort of defamation and trade disparagement under the Lanham Act." Tovey's Mot. at ΒΆ 2. Thus, Tovey argues that Andrew is personally liable to him. In response, Stadler argues that

the issue... is whether Andrew Stadler, when he "directed and participated" in the production of the television commercials at issue, was acting within the scope of his employment as the president and CEO of Stadler & Co. If he was, he cannot be individually liable for the claims raised by Plaintiff. If he was not, and exceeded the scope of his authority, then Stadler cannot be held vicariously liable for the individual torts of Andrew Stadler that were beyond the scope of his duties and president and CEO.... Plaintiff cannot have it both ways.

Stadler's Resp. at 3-4.

It is much too early to determine whether Andrew is personally liable to Tovey. Thus, Stadler's arguments are premature and not appropriate at this stage.

The case management plan provided that all motions for leave to amend pleadings and/or join additional parties were to be filed on or before December 19, 2014. Dkt. No. 18 at 3. Tovey met this deadline. Finding no other justification for denying Tovey's motion, such as undue delay, bad faith, unfair surprise, or prejudice, the Court GRANTS Tovey's motion to amend. The Clerk is instructed to docket Tovey's amended complaint (found at Dkt. No. 42-1) as of the date of this Entry.

II. MOTION TO DISMISS

A. Standard

In reviewing a Federal Rule of Civil Procedure 12(b)(6) motion, the Court "must accept all well pled facts as true and draw all permissible inferences in favor of the plaintiff." Agnew v. National Collegiate Athletic Ass'n, 638 F.3d 328, 334 (7th Cir. 2012). For a claim to survive a motion to dismiss for failure to state a claim, it must provide the defendant with "fair notice of what the... claim is and the grounds upon which it rests." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (omission in original). A complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Agnew, 638 F.3d at 334 (citations omitted). A complaint's factual allegations are plausible if they "raise the right to relief above the speculative level." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 556 (2007).

B. Plaintiff's Allegations

Tovey is employed full-time as a tax preparer for Wabash Tax Service, Inc. ("Wabash") in Terre Haute, Indiana. Tovey has worked as a tax preparer for Wabash for approximately twenty years. For the past ten years, Tovey has used the nickname "Pat the Tax Man" in his tax preparation business.

Stadler also provides tax preparation services to customers in Terre Haute. Stadler and its employees are direct competitors of Wabash and Tovey.

Beginning in January 2014, and continuing through April 2014, Stadler ran the following commercial on the Time Warner Cable systems in and around Terre Haute:

(Commercial opens with a man holding a pipe and looking at a sink.)
Man: (screams as water is spayed in his face from broken plumbing)
Actor portraying "Pat the Tax Man": Wow, this is going to cost a lot of money to repair. But the good news is you can use your ...

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