Defendants' Motion To Dismiss

Case 3:23-cv-00060-MPB-MJD Document 12 Filed 06/07/23 Page 1 of 35 PageID #: 155
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
HEALTHSMART FOODS, INC., ) CASE NO. 3:23-cv-00060

)
Plaintiff(s), )
)
v. )
)
BETH PORTER and )
SWEET NOTHINGS, INC., )
)
Defendant(s). )
DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL

PROCEDURE 12(b)(2) AND 12(b)(6)
I. INTRODUCTION
With this action, Plaintiff HealthSmart Foods, Inc. (“HealthSmart”) seeks relief: (1)
against parties for whom there is no personal jurisdiction; (2) under state and federal anti-dilution
laws without alleging the most fundamental elements; and (3) based on dozens of alleged state
law that are improperly combined into a single claim for relief. Defendants Sweet Nothings, Inc.
(“Sweet Nothings”) and Beth Porter (“Porter”) (collectively, “Defendants”) now bring this
Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6).
The crux of HealthSmart’s case relates to a line of “diet” candy it sells under the brand
name “Sweet Nothings” (“HealthSmart’s Candy” or “the Candy”). Based on the allegations in
the Complaint, HealthSmart offers flavors reminiscent of candy bars, like “Caramel Pecan” and
“Caramel Crispies.” The packaging utilized by HealthSmart—and set forth in the Complaint—
contains pictures of chocolate-covered candies. HealthSmart claims that its Candy is “reduced
fat” and “reduced calorie,” and it touts the fact that it utilizes a synthetic fat called “Epogee.”
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HealthSmart does not advertise any products as containing organic ingredients; it does not
advertise its products as “no sugar added” or “plant-based”; nor does it claim that its products are
made from whole foods. The packaging pictured in the Complaint indicates that there are 7-14
pieces of the Candy per box.
Sweet Nothings, on the other hand, sells all-natural, organic snacks. Sweet Nothings has
a newer product line called “Nut Butter Bites,” which is at issue in this case. Nut Butter Bites
include natural flavors like Apple Cinnamon, Chocolate Peanut Butter (made from real cacao)
and Oatmeal Raisin. The packaging advertises “No sugar added” and “Plant-Based.” All of the
ingredients are listed on the front of the packaging. The Chocolate Peanut Butter Bites, for
instance, contain six total ingredients: organic dates, organic peanut butter, organic oats, organic
cacao, organic flax and sea salt. Sweet Nothings does not claim that Nut Butter are “diet”
snacks. Nor is there any suggestion that they are “reduced calorie” or “reduced fat.” There are
two pieces per package of Nut Butter Bites.
Despite the apparent differences between Nut Butter Bites and HealthSmart’s Candy in
terms of packaging, ingredients, marketing, and target consumer demographics, HealthSmart
brings this action for trademark infringement. HealthSmart alleges that it has a registered
trademark for: “candy; chocolate confections; baked goods, namely, bakery squares, cupcakes,
and cakes.” The Complaint, though, does not allege that any consumer has ever suggested that
Nut Butter Bites constitute a “candy,” “chocolate confection,” or “baked good.” Nor does the
Complaint allege that any actual consumer has been confused that Nut Butter Bites are sold by
HealthSmart. And HealthSmart does not allege that it has actually sold “baked goods, namely,
bakery squares, cupcakes, and cakes” at any time since it was granted a registered mark.
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To compensate for the fundamental deficiencies in its case, HealthSmart filed a
complaint that overreaches in virtually every respect.
As an initial matter, HealthSmart sued both Sweet Nothings and Porter—both residents
of California—in Indiana. The Court should grant this Motion on personal jurisdiction grounds
under Rule 12(b)(2). The Complaint fails to contain any facts from which this Court could find
general jurisdiction over Defendants—by no stretch of the imagination do Defendants have
“continuous and systematic” contacts with Indiana. As for specific jurisdiction, Sweet Nothings
concedes it has minimum contacts with Indiana based on several thousand dollars of online sales
(the standard for minimum contacts in a Seventh Circuit trademark action is decidedly low).
Under well-settled law, though, this Court would also need to find that personal jurisdiction
would not “offend traditional notions of fair play and substantial justice.”
Porter has no individual contacts with Indiana whatsoever. And Sweet Nothings’
contacts are, in fact, minimal. Indeed, Sweet Nothings’ lifetime sales of Nut Butter directly to
Indiana consumers amounts to just $6,921.25, representing 0.39% of the company’s total
revenue for that product line (i.e., well under 1% of Nut Butter Bite revenue). The factors used
to analyze “fair play and substantial justice” weigh heavily in favor of finding a lack of personal
jurisdiction.
Perhaps the most important factor in this case pertains to the “interstate judicial system's
interest in obtaining the most efficient resolution of controversies.” This factor is designed to
ensure that parties aren’t litigating in more courts than necessary. Here, Porter filed a lawsuit
against HealthSmart for consumer fraud in California. In that case, Porter alleges that
HealthSmart has undertaken a campaign of deception with respect to its Candy, including the
fact that HealthSmart misrepresents the Candy’s health benefits, serving size, calories, relative
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fat content, and that it is “good for any diet.” HealthSmart also seems to have simply
disregarded the FDA Guidelines for nutritional labels, which are designed to protect consumers.
Indeed, that case alleges that HealthSmart’s very use of the term “Sweet Nothings” is
misleading.
The California case pre-dates this action. HealthSmart knew about the California case
when it decided to sue Defendants in Indiana. There will be substantial overlap in these two
cases as to witnesses, documents, theories, factual allegations, defenses, and legal contentions.
For judicial efficiency and to ensure consistent rulings, this Court should dismiss the Complaint
and require Defendants to re-file in California. All claims among these parties can and should be
decided in a single action.
If this Court does not dismiss on personal jurisdiction grounds, Defendants respectfully
request that the court do so under Rule 12(b)(6). The claims against Porter in her individual
capacity fail as a matter of law. The Complaint contains only conclusory allegations as to
Porter’s involvement. HealthSmart fails to allege any facts that would create individual
liability—indeed, HealthSmart’s argument is undermined by the very cases it cites in the
Complaint.
In addition, HealthSmart’s Third and Sixth Claims for Relief fail to state a claim. Those
claims are brought under federal and state anti-dilution laws. To state a dilution claim,
HealthSmart needs to allege facts sufficient to show that its mark is both “famous” and
“distinctive.” HealthSmart has not even attempted to meet that standard. Nor could it. Dilution
laws seek to protect marks that are “household names” recognizable by the “general consuming
public.” According to HealthSmart, it has sold $169,000 of its Candy in 2022. And it has spent
an average of $25,000 per year to market it. These figures are miles away from companies found
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to be “famous” under state and federal dilution laws. HealthSmart does not even set forth the
number of consumers who have purchased its products, where they reside, or whether
HealthSmart has made “exclusive use” of its mark. As a matter of law, HealthSmart fails to
allege any facts from which this Court could find the Candy is “famous.”
The Fourth and Sixth Claims for Relief are for “State Law Unfair and Deceptive Business
Practices” and “State Trademark Dilution and Injury to Business Reputation,” respectively.
These claims invoke a smorgasbord of laws. The Fourth Claim for Relief is purportedly
predicated on 14 different state laws. And the Sixth Claim for Relief is purportedly predicated
on 38 different state laws. These claims violate the Federal Rules of Civil Procedure and well-
settled common law requirements concerning proper pleadings. Defendants are unable to answer
these claims because they lump together laws that present unique elements and defenses.
In addition, HealthSmart has not alleged facts suggesting it is entitled to relief under
these state laws in the first instance. HealthSmart does not allege that it sold products in these
specific states or that consumers in those states have somehow been harmed. As a result,
HealthSmart lacks standing to bring these state law claims. And Defendants have no notice of
what they are being accused of. This pleading deficiency is not merely academic. With respect
to each state cited in the Complaint, HealthSmart cites to a lengthy range of statutory provisions,
leaving Defendants to guess what exactly is at issue. This Court should dismiss the Fourth and
Sixth Claims for Relief. To the extent HealthSmart believes it is entitled to relief under various
states’ laws, it must allege each as a separate cause of action with sufficient facts to state a claim.
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II. STATEMENT OF FACTS
A. Allegations in the Complaint
1. HealthSmart’s Registered Mark
The Complaint alleges that HealthSmart uses the mark SWEET NOTHINGS and that it
obtained a federal trademark registration, Reg. No. 5,306,700, with the U.S. Patent and
Trademark Office on October 10, 2017. (Dkt. 1 at 7 ¶ 23.) The mark covers goods identified as:
“Candy; chocolate confections; baked goods, namely, bakery squares, cupcakes, and cakes.”
(Id.) The Complaint alleges that HealthSmart sells “candy” and “chocolate confections,” but it
does not allege that HealthSmart has sold “baked goods, namely, bakery squares, cupcakes, and
cakes” at any time. (See e.g., id. at 9 ¶ 27.)
2. HealthSmart’s Candy
The Complaint pertains to a line of “diet” candies that HealthSmart markets as “health
food snacks.” (Id. at 1-2.) HealthSmart sells candy flavors that include “Caramel and Cream,”
“Cookies N Cream,” and “Chocolate Covered Caramels.” (Id. at 9 ¶ 27.) These candies are
advertised as good for “restricted diets,” (id. at 7 ¶ 22) “great for all diets” (id. at 10-11, ¶ 33),
and they purport to have “reduced fat” and “reduced calories.” (Id. at 20 ¶ 66.)
3. Sweet Nothings’ Registered Mark
Sweet Nothings sells organic, all-natural snacks. (See, e.g., id. at 17, ¶¶ 59-60.) On
November 15, 2018, Porter applied for a trademark with the US Patent and Trademark Office
(serial no. 88,195,615). (Id. at 11 ¶ 35, and at 44 (Exh. 3 thereto).)
The PTO initially denied the application because the trademark definition proposed by
Porter was found to be overbroad. The PTO analyzed the likelihood of confusion merely “based
on the description of the goods and/or services stated in the application and registration at issue,
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not on extrinsic evidence of actual use.” (Id. at 52 (Exh. 4 thereto).) In doing so, the PTO
concluded that Sweet Nothings’ proposed description of its frozen smoothies could theoretically
overlap with the HealthSmart’s registered trademark. (Id.) The PTO stated that “because
applicant’s goods are identified broadly, they are presumed to encompasses all goods of the type
described, including registrant’s more narrow goods.” (Id.) Based on the overlapping
descriptions, the PTO concluded that “applicant’s and registrant’s goods are legally identical.”
(Id.)
Porter then narrowed her description of the goods in the trademark application to exclude
the precise language found in HealthSmart’s trademark:
Whole fruit-based, frozen, non-dairy, no added sugar, superfood-rich snack foods

in the nature of prepared snacks consisting primarily of fruit, and also containing
nuts, seeds or both nuts and seeds; none of the foregoing comprising or including
candy, chocolate confections, bakery squares, cupcakes, or cakes.
(Id. at 59 (Exh. 5 thereto).) Porter also corrected the application to reflect that the goods would
be sold under International Class 29, which applies to fruit and vegetable-based foods. (Id.) In
responding to the PTO’s initial rejection of the application, Porter pointed out that, among other
things, the distinctiveness of HealthSmart’s “Sweet Nothings” is weak. A brief internet search
yielded over a dozen different businesses using “Sweet Nothings” in connection with their
chocolates, candies, or other desserts. (Id. at 70 (Exh. 6 thereto).)
Based on the modifications to the application, the PTO granted registration on July 30,
2019 and published Porter’s mark in the Official Gazette. (Id. at 15, ¶ 50.) Porter assigned the
trademark to Sweet Nothings, effective January 18, 2019. (Id. at 99-102 (Exh. 10 thereto).)
Nut Butter Bites were not mentioned or contemplated in Sweet Nothings’ application,
correspondence with the PTO, or registration. The Complaint does not allege when Sweet
Nothings began selling Nut Butter Bites. The earliest mention of Sweet Nothings selling Nut
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Butter Bites in the Complaint is November 11, 2022 (years after the PTO granted the trademark
registration). (Id. at 22, ¶ 68.)
4. HealthSmart’s Allegations Against Defendants
The Complaint alleges that Sweet Nothings’ line of Nut Butter Bites infringes on
HealthSmart’s registered trademark. Specifically, HealthSmart claims that Nut Butter Bites
constitute a “candy” or “chocolate confection.” (Id. at 3 ¶ 4.)
The Complaint alleges that Nut Butter Bites are sold in the same channels as
HealthSmart’s line of chocolate candies. (Id. at 18 ¶ 63.) But HealthSmart does not identify any
retailers that sell both product lines. With respect to online sales, HealthSmart identifies one
company that offers both products—Amazon. (Id. at 19-20 ¶¶ 65-66.) But the Complaint does
not identify which divisions within Amazon market sells each of the products or what percentage
of each companies’ products are sold through Amazon.
The Complaint generally alleges there has been confusion in the marketplace. (Id. at 4 ¶
10, 19 at ¶ 66.). In support, HealthSmart alleges that both product lines are snacks and that there
are some overlapping ingredients. (Id. at 17 ¶ 60.) HealthSmart does not allege that the markets
for each of these product lines have a meaningful overlap in terms of consumer demographics or
geographic sales. The Complaint does not allege that the products are comparable in terms of
price, nutritional content, packaging, or branding. Nor does HealthSmart identify how many
other businesses have also registered the mark “Sweet Nothings,” and in particular those that use
this mark in connection with desserts, snacks, or other food-based products.
HealthSmart filed this lawsuit against not only Sweet Nothings, but also against its co-
founder, Beth Porter. The Complaint defines “Defendants” to include Sweet Nothings and
Porter. HealthSmart then alleges, “on information and belief,” that “Defendants” sell Sweet
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Nothings to consumers in Indiana; “Defendants” regularly transact business in Indiana; and that
“Defendants” have established contacts in Indiana. (Id. at 17 ¶ 20.) There are no specific facts
offered to support these allegations as to either Porter or Sweet Nothings.
The Complaint contains a total of seven sentences concerning Porter’s individual
liability. (Id. at 23-24 ¶¶ 80-83.) Specifically, HealthSmart alleges that Porter applied for the
Sweet Nothings mark in her name. (Id. at 24 ¶ 81.) It further alleges, again on information and
belief, that Porter “created or directed” Sweet Nothings’ marketing and branding. (Id. at 24 ¶83.)
B. Procedural History1
Porter filed a lawsuit against HealthSmart on April 6, 2023 in San Mateo Superior Court,
California. (Procel Decl., ¶1 & Exh. A (“California Complaint”).) HealthSmart has not yet
responded to the California Complaint. It is not clear at this time whether HealthSmart will
remove the action to federal court in the Northern District of California (that issue should be
resolved by the time this motion is heard).
The California Complaint alleges that HealthSmart: (1) has falsely claimed that its Candy
is “all-natural” and “great for all diets”; (2) has replaced naturally-occurring sugars with
synthetic sweeteners that do not promote weight loss and that have been shown to increase the
risk of diabetes and cardiovascular disease; (3) has replaced naturally occurring fats with
synthetic fats that are not digestible by the human body; (4) misrepresents the Candy as having
“reduced fat” or “reduced calories”; (5) egregiously violates FDA guidelines concerning
1
The Court is restricted to the four corners of the pleadings—including any exhibits attached
thereto—when resolving Defendants’ motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). However,
the Court may consider evidence extrinsic to the pleadings when ruling on Defendants’ motion to
dismiss for lack of personal jurisdiction under Rule 12(b)(2). Intermatic, Inc. v. Taymac Corp.,
815 F. Supp. 290, 292 (S.D. Ind. 1993). The evidence referenced herein is relevant to the
personal jurisdiction arguments below (as well as the Motion for Change of Venue filed
concurrently herewith).
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nutritional labels; and (6) manipulates the serving size on the packaging of the Candy to give the
impression that it has substantially less fat and sugar than is actually the case. (Procel Decl., ¶3 &
Exh. A at 2-3 ¶¶ 1-10.)
Presumably in response to the complaint filed by Sweet Nothings, HealthSmart decided
to file this case one week later on April 13, 2023.
Defendants met and conferred by letter before filing this Motion. (Procel Decl., ¶5 &
Exh. B and C.) HealthSmart refused to withdraw or amend any of the allegations at issue. (Id.)
III. LEGAL STANDARDS
A defendant may move to dismiss a complaint based on a lack of personal jurisdiction.
Fed. R. Civ. P. 12(b)(2). “[O]nce the defendant moves to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden
of demonstrating the existence of jurisdiction.” Purdue Rsch. Found. v. Sanofi-Synthelabo, S.A.,
338 F.3d 773, 782 (7th Cir. 2003); Rogers v. City of Hobart, Indiana, 996 F.3d 812, 818 (7th Cir.
2021).
Rule 12(b)(6) provides for dismissal of a complaint when a plaintiff fails to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Supreme Court in Twombly
abrogated the rule that “a complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th
Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Post-Twombly, to survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Twombly, 550 U.S. at 555). A claim
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is facially plausible when a plaintiff pleads factual content that permits a court to reasonably
infer that the defendant is liable for the alleged misconduct. Id.
A court is "not bound to accept as true a legal conclusion couched as a factual allegation."
Id. “While legal conclusions can provide the complaint's framework, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 664. A plaintiff must therefore provide “more than labels
and conclusions,” or “a formulaic recitation of the elements of a cause of action” to survive a
motion to dismiss. Twombly, 550 U.S. at 556. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.
IV. ARGUMENT
A. The Complaint Should Be Dismissed For Lack of Personal Jurisdiction
To establish personal jurisdiction, HealthSmart has the burden to show that Defendants
“should reasonably anticipate being subject to the jurisdiction of an Indiana court.” Wallace v.
Herron, 778 F. 2d 391, 393–94 (7th Cir. 1985). A defendant may not be sued in a foreign
jurisdiction where it lacks sufficient contacts—the Due Process Clause “does not contemplate
that a state may make binding a judgment in personam against an individual or corporate
defendant with which the state has no contacts, ties, or relations.” Id.
1. Sweet Nothings Is Not Subject to Personal Jurisdiction in Indiana
a. There Is No Basis to Find General Jurisdiction As To Sweet

Nothings
General jurisdiction allows a defendant to be sued in the forum regardless of the subject
matter of the litigation. Purdue Rsch. Found., 338 F.3d at 787. The constitutional requirement for
general jurisdiction is “considerably more stringent” than that required for specific jurisdiction.
Id. General jurisdiction is only found where a corporation's “affiliations with the State are so
continuous and systematic as to render it essentially at home in the forum State.” Daimler AG v.
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Bauman, 571 U.S. 117, 139 (2014) (holding that Daimler was not subject to general jurisdiction
in California even though it had subsidiary that operated in forum). General jurisdiction will only
be found where the defendant’s contacts in the forum state “are present to such a degree that it
would be fundamentally fair to require it to answer in an Indiana court in any litigation arising
out of any transaction or occurrence taking place anywhere in the world." Purdue, 338 F.3d at
787 (emphasis in original).
HealthSmart alleges, “on information and belief,” that “Defendants regularly transact and
conduct business within the State of Indiana; and/or [] Defendants have otherwise made or
established contacts within the State of Indiana sufficient to permit the exercise of personal
jurisdiction.” (Dkt. 1 at 20.) These conclusory allegations are not supported by any actual facts
and should not be considered. See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (“[I]n
considering the plaintiff's factual allegations, courts should not accept as adequate abstract
recitations of the elements of a cause of action or conclusory legal statements.”).
The Complaint is devoid of any factual allegations suggesting “systematic contacts” with
Indiana such that Sweet Nothings would be “at home” in Indiana. Sweet Nothings’ contacts with
Indiana are minimal at best. Sweet Nothings does not do business with Indiana companies and its
principal place of business is in California, not Indiana. This is insufficient to subject Sweet
Nothings to general jurisdiction in Indiana. See e.g., Helicopteros Nacionales de Colombia, S.A.
v. Hall, 466 U.S. 408, 416, (1984) (reversing Texas Supreme Court and finding lack of general
jurisdiction even though defendant traveled to Texas on multiple occasions, accepted checks
drawn on Texas bank, and purchased helicopters and equipment from Texas manufacturer).
With respect to the specific issue of sales, the Complaint alleges, in conclusory terms,
that Sweet Nothings sells Nut Butter Bites in Indiana. (Dkt. 1 at 7, ¶ 20.) But general jurisdiction
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will not be found unless sales in forum state are “substantial.” Richter v. INSTAR Enterprises
Int'l, Inc., 594 F. Supp. 2d 1000, 1007 (N.D. Ill. 2009). “Where a defendant's sales in a state
represent both a small percentage of a defendant's total sales and a small volume of sales overall,
its contact with the forum state cannot be said to be substantial.” Id.
Sweet Nothings has sold a total of $14,119 in all products directly to Indiana consumers
at any time. This represents just 0.24% (less than one-quarter of one percent) of the company's
total sales. These figures are insufficient to confer general jurisdiction. See e.g., Tate & Lyle
Sucralose, Inc. v. Hebei Sukeri Sci. & Tech. Co., 2006 WL 3391421, at *4 (C.D. Ill. Nov. 22,
2006) (holding that in-state sales of $19,000 was insufficient to find general jurisdiction);
Berndorf Belt Sys., Inc. v. Harwood Rubber Prod., Inc., No. 01 C 2202, 2001 WL 800090, at *1
(N.D. Ill. July 13, 2001) (holding that in-state sales of $120,000 generated by 110 different
transactions was insufficient to find general jurisdiction); Ranza v. Nike, Inc., 793 F.3d 1059,
1070 (9th Cir. 2015) (finding of general jurisdiction was not appropriate even though defendant
“sends employees and products into Oregon and engages in commercial transactions there”—
"business activity is not so pervasive as to render it ‘essentially at home’ in Oregon.”).
b. This Court Should Find That Specific Jurisdiction is Lacking

As To Sweet Nothings
i. Sweet Nothings Concedes It Has Minimum Contacts

With Indiana
There is a low bar to find minimum contacts in a trademark action in the Seventh Circuit.
See Curry v. Revolution Lab'ys, LLC, 949 F.3d 385, 399 (7th Cir. 2020) (finding minimum
contacts in trademark action where defendant had 767 sales to Illinois residents; Illinois was
among “ship-to” options on website; and Illinois consumers received e-mail receipt listing
Illinois shipping address); NBA Properties, Inc. v. HANWJH, 46 F.4th 614, 624 (7th Cir. 2022)
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(finding minimum contacts in trademark infringement action where retailer shipped one
allegedly infringing product to Illinois consumer).
Although there are grounds to distinguish Curry and NBA Properties, Sweet Nothings
concedes minimum contacts for purposes of this motion. That said, the contacts are in fact
minimum. Sweet Nothings does not sell goods to directly Indiana retailers. (Porter Decl., ¶13.) It
does not have contracts with Indiana retailers. (Id. ¶13) It does not have a registered agent for
service of process in Indiana. (Id.) Aside from this case, it has never litigated in Indiana. (Id. ¶13)
Sweet Nothings sells goods primarily to distributors, none of which are based in Indiana.
(Id., ¶ 14) Some of these distributors may then sell Nut Butter Bites to Indiana retailers. (Id.,
¶14.) This, though, does not count against Sweet Nothings in the minimum contacts analysis. See
Walden v. Fiore, 571 U.S. 277, 291, 134 S. Ct. 1115, 1126, 188 L. Ed. 2d 12 (2014) (holding
that “it is the defendant, not the plaintiff or third parties, who must create contacts with the forum
State.”). Nor is it meaningful if Sweet Nothings knows its distributors will sell to Indiana
residents. Walden, 134 S. Ct. at 1124-1125 (holding it was insufficient to allege that defendants
knew their conduct would have an effect on residents of forum state).
The fact that HealthSmart is based in Indiana and allegedly sustained damage there is
immaterial. See Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d
796, 799 (7th Cir. 2014) (rejecting argument in trademark infringement action that there were
sufficient minimum contacts because defendant knew plaintiff was an Indiana resident and was
allegedly harmed there); Walden, 134 S. Ct. at 1115, 1126 (reversing circuit court and finding
lack of personal jurisdiction even though plaintiff allegedly sustained harm in the forum state:
“The proper question is not where the plaintiff experienced a particular injury or effect but
whether the defendant's conduct connects him to the forum in a meaningful way.”)
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The only Sweet Nothings product line HealthSmart alleges infringes its trademark is the
Nut Butter Bites. Sweet Nothings’ sales of Nut Butter Bites in Indiana are negligible. Sweet
Nothings began selling Nut Butter Bites in 2021. Sweet Nothings’ lifetime sales of Nut Butter
Bites to Indiana consumers from its website total $4,083, representing less than 0.05%, or
1/2000th, of its total gross revenue, and less than 0.25%, or 1/400th, of its total gross revenue
from that product. (Porter Decl., ¶11.) Including Amazon sales tacks on an additional $2,838.25.
(Porter Decl., ¶12.) Thus, total online sales of Nut Butter Bites to Indiana residents are
$6,921.50. This represents 0.083%, or 1/1,200th, of total gross revenue for the company, and
0.39%, or less than 1/250th, of Nut Butter Bite gross revenue. (Porter Decl., ¶12.) In terms of
number of customers, Sweet Nothings has sold Nut Butter bites to about 125 Indiana residents
from its website, and another 75 or so from Amazon. (Porter Decl., ¶¶ 8, 9.)
At most, Sweet Nothings has a website that permits Indiana residents (among others) to
order goods; it has one remote employee who happens to work remotely from Indiana; and it has
a very small number of sales to Indiana consumers. (Porter Decl., ¶6.)
Based on Curry and NBA Properties, this is likely sufficient to find minimum contacts in
a trademark infringement action, but by a razon thin margin.
ii. Personal Jurisdiction Would Offend “Fair Play and

Substantial Justice”2
If the plaintiff satisfies the minimum contacts test, the court must then find that the
maintenance of the suit does not “offend traditional notions of fair play and substantial justice.”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 286 (1980). The relevant factors
include: (1) the inconvenience to the defendant; (2) the forum State's interest in adjudicating the
2
The arguments set forth in Defendants’ Motion to Transfer Venue, filed concurrently herewith,
substantially overlap with the “fair play and substantial justice” argument in this Motion.
Defendants incorporate by reference those arguments herein.
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dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate
judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the
shared interest of the several States in furthering fundamental substantive social policies. Rogers
v. City of Hobart, Indiana, 996 F.3d 812, 819 (7th Cir. 2021). “[T]he weaker the plaintiff's
showing on minimum contacts, the less a defendant need show in terms of unreasonableness to
defeat jurisdiction.” Trujillo v. Williams, 465 F.3d 1210, 1221 (10th Cir. 2006).
Based on the factors below, it would offend fair play and substantial justice if
HealthSmart is permitted to force Defendants to defend this action in Indiana. Most importantly,
HealthSmart should not be permitted to move forward with piecemeal litigation. HealthSmart
would not be prejudiced if the Court dismisses this action, with the understanding that
HealthSmart could re-file the claims in a cross-complaint in either California state court or in the
Northern District of California (if HealthSmart decides to remove). Defendants are not aware of
any issues pertaining to the statute of limitations or laches that would disadvantage HealthSmart
if it re-filed in California.
(a) The Inconvenience to the Defendant
Sweet Nothings is based in California. Its witnesses are located in California. Its
documents are located in California. Its attorneys are located in California. Sweet Nothings has
never litigated in Indiana (or anywhere else for that matter other than the two cases involving
HealthSmart). This factor weighs in favor of a finding that personal jurisdiction would offend
traditional notions of “fair play and substantial justice.”
(b) Indiana’s Interest in Adjudicating the Dispute
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Indiana lacks a strong interest in adjudicating this dispute. The relative impact of the
alleged misconduct on Indiana consumers is minimal. Sweet Nothings has sold less than $7,000
of Nut Butter Bites to about 200 Indiana consumers. (Porter Decl., ¶10.) As noted above, this
amounts to less than one-tenth of one percent of Sweet Nothing’s sales. (Porter Decl., ¶11.)
Notably, HealthSmart has filed claims seeking relief under California state law. The
Fourth and Sixth Claims for Relief seek, among other things, relief under California Business &
Professions Code section 17200 et seq. and section 14247. (Dkt 1 at 30, ¶ 109; 32 at ¶ 119.)
Sweet Nothings has sold over 33 times more Nut Butter Bites in California than in Indiana.
(Porter Decl., ¶15.) California has a substantially greater interest in resolving the trademark
infringement claims alleged by HealthSmart.
Moreover, other than invoking the Lanham Act, a federal law with nationwide
application, HealthSmart has alleged violations of more than three dozen state laws. (Dkt. 1 at
30, 32-33, ¶¶ 109, 119.) See Kuhn Knight, Inc. v. VMC Enterprises, Inc., 464 F. Supp. 2d 806,
814 (W.D. Wis. 2006) (“[T]he fact that foreign law governs this dispute is a factor that weighs
against the exercise of personal jurisdiction.”). Indiana’s interest both in terms of applying the
law and protecting its consumers is not substantial in absolute or relative terms.
(c) Plaintiff's Interest in Obtaining Convenient and

Effective Relief
HealthSmart served Defendants with a cease-and-desist letter on November 11, 2022.
(Procel Decl., Exh. ¶ 7.) HealthSmart, though, did not file the Complaint until April 13, 2023.
In the interim, the parties sporadically engaged in discussions about the case, including
settlement discussions. (Id.) When HealthSmart ultimately filed the Complaint, it only did so
after it learned that Sweet Nothings filed the California Case that alleges claims for fraud and
unfair business practices. (Id.)
17
HealthSmart obviously has an interest in obtaining convenient and effective relief. But
HealthSmart cannot argue it would be prejudiced if required to re-file its claims in the pending
California proceeding. Any delay going forward would be less than the delay that has already
occurred.
Additionally, HealthSmart has previously litigated in California and cannot argue that it
would be prejudiced if required to do so again. HealthSmart was sued in Superior Court of
California in Alameda County3 on March 6, 2018. (Procel Decl., ¶ 8 & Exh. E.) In that case,
Plaintiff Environmental Research Center, Inc. (“ERC”), a non-profit, alleged that HealthSmart
was selling eight different products that contained known carcinogens and contaminants like lead
and cadmium in violation of California’s Proposition 65. (Procel Decl., ¶ 9 & Exh. E.)
HealthSmart retained counsel located in San Francisco, California. (Id. at 1.) Based on
the docket, HealthSmart answered the complaint on April 30, 2018 and appeared in the action.
(Procel Decl., ¶ 10 .)
The parties ultimately settled the case pursuant to a Stipulated Consent Judgment. (Procel
Decl., 8 & Exh. E). In the Consent Judgment, HealthSmart stipulated that California had
personal jurisdiction and that venue in Alameda County was proper. (Id. at 3, ¶ 2.) HealthSmart
agreed to a permanent injunction in California that prohibits it from selling products that contain
excessive levels of certain contaminants. (Id. at 4-6, ¶ 3.) HealthSmart also agreed to attach a
warning to California consumers on its packaging and advertising. (Id. at 6-7, ¶ 3.2.) And
HealthSmart agreed to pay the Office of Environmental Health Hazard Assessment a civil
penalty pursuant to California law. (Id. at 9, ¶ 4.2.)
3
Alameda County is adjacent to San Mateo County, where Porter’s case against HealthSmart has
been filed. Both counties are within the territory of the District Court for the Northern District of
California.
18
Notably, HealthSmart stipulated that the California Superior Court would retain
jurisdiction over the matter and that the plaintiff could file motions to enforce the judgment in
that court if necessary. (Id., at 12, ¶ 6.1; id. at 16, ¶ 16.) And HealthSmart agreed that the
Consent Judgment would be interpreted under California law. (Id. at 14, ¶ 10.)
Based on this Consent Judgment, HealthSmart’s Candy currently reflects a warning to
consumers under California’s Proposition 65 on its packaging and in its written advertising.
(Procel Decl., ¶ 11 & Exh. F.)
HealthSmart is apparently willing to put a California-mandated warning on its products
sold throughout the country. It is therefore hard to argue that HealthSmart needs to litigate this
trademark dispute with California defendants in Indiana, particularly when it will already be
defending a related suit in California.
(d) Interstate Judicial System's Interest
HealthSmart filed this action in Indiana knowing there was an earlier filed case in
California between the same parties. HealthSmart opted to multiply the number of cases when it
could have simply filed a cross-complaint. This is a waste of judicial resources, particularly since
there will be a substantial number of overlapping issues involved in the two lawsuits.
California state courts have concurrent jurisdiction with federal courts over trademark
cases involving the Lanham Act. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 378, 132 S. Ct.
740, 748, 181 L. Ed. 2d 881 (2012) (“[T]here is a deeply rooted presumption in favor of
concurrent state court jurisdiction, rebuttable if Congress affirmatively ousts the state courts of
jurisdiction over a particular federal claim.”) (quotations omitted); 28 U.S.C.A. §
1338(a) (granting federal question jurisdiction over trademark claims, but not making such
jurisdiction exclusively in the federal courts); Berlitz Sch. of Languages of Am., Inc. v. Everest
19
House, 619 F.2d 211, 216 (2d Cir. 1980) (holding that state and federal courts have concurrent
jurisdiction over Lanham Act claims).
The fact that HealthSmart decided to file this case across the country from another
pending action between the same parties distinguishes this case from others that have found “fair
play and substantial justice.” The need to reduce the multiplicity of lawsuits may be dispositive
in and of itself as to this issue. See e.g., OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149
F.3d 1086, 1097 (10th Cir. 1998) (reversing district court order and finding that personal
jurisdiction offended notions of “fair play and substantial justice”—plaintiff could have filed suit
in forum that would have reduced multiplicity of lawsuits, even though court found defendants
had minimum contacts with forum); TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d
1282, 1296 (10th Cir. 2007) (despite finding minimum contacts, affirming grant of motion to
dismiss where “litigating the action in Kansas would serve only to create piecemeal litigation
and perhaps even contrary judgments.”) (emphasis in original).
(e) The shared interest of the several States
This factor does not apply. As noted above, courts in California have just as much of an
interest in furthering the policies underlying the Lanham Act as those in Indiana. And
HealthSmart’s complaint seeks relief under the laws of almost every state, not just Indiana.
2. Porter Is Not Subject To Personal Jurisdiction In Indiana
a. There Are No Facts That Would Support A Finding of General

Jurisdiction as to Porter
Porter’s contacts with Indiana are substantially more attenuated than Sweet Nothings’.
She has never been to Indiana. (Porter Decl., ¶16.) She does no business in her individual
capacity in Indiana. (Id.) She owns no real estate there. (Id.) She has no personal ties to Indiana
20
whatsoever. (Id.) There is no basis to find that she has “continuous and systematic” contacts that
are so significant that she would be “at home” in Indiana. See Daimler, 571 U.S. at 139.
b. There Is No Basis To Find Specific Jurisdiction as to Porter
i. HealthSmart Cannot Show Minimum Contacts as to

Porter
The Seventh Circuit holds that personal jurisdiction over owners is not appropriate as
long as the corporate form is observed:
[T]he primary purpose of the corporate form is to prevent a company’s owners,

whether they are persons or other corporations, from being liable for the activities
of the company. Where corporate formalities have been observed, a company’s
owners reasonably expect that they cannot be held liable for the faults of the
company. Thus, such owners do not reasonably anticipate being hailed into a
foreign forum to defend against liability for the errors of the corporation.
Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F. 3d 934, 944
(7th Cir. 2000).
To find specific jurisdiction, the lawsuit must arise out of or relate to the defendant’s
contacts with the forum. Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco
Cnty., 582 U.S. 255, 262 (2017). “Jurisdiction is proper where the contacts proximately result
from actions by the defendant himself that create a substantial connection with the forum State.”
Id. (emphasis in original and internal quotations omitted); Wallace, 778 F.2d at 393–94.
Porter has no contacts with Indiana in her individual capacity. (Porter Decl., ¶ 16.)
Nevertheless, HealthSmart attempts to create personal jurisdiction by alleging a series of either
innocuous or conclusory facts. HealthSmart alleges that Porter is the co-founder of Sweet
Nothings. (Dkt. 1 at 23, ¶ 80.) This allegation is entirely unrelated to Indiana and is immaterial
to this argument.
21
HealthSmart correctly claims that the Sweet Nothings mark was originally registered in
Porter’s name. Porter registered the mark in her name before the company was incorporated
under the name “Sweet Nothings.” (Porter Decl., ¶ 17.) Defendants had always intended to
assign the mark to Sweet Nothings, but, due to an attorney oversight, that assignment did not
occur until much later. (Id.) The delay in assigning the mark, though, has no bearing on Porter’s
individual liability on or personal jurisdiction. The question is whether Porter may be sued in
Indiana for trademark infringement. At no time has Porter sold any products at issue in this case
in Indiana in her individual capacity. (Id. ¶ 18) From day one through today, Nut Butter Bites
have only been sold under the mark “Sweet Nothings” (the Company). (Id. ¶17) The issue of
who originally applied to register the mark is a red herring. The registration of the mark has no
relationship to Indiana.
HealthSmart also alleges that Porter, in her individual capacity, “sells the Infringing
Goods and various other snacks and food products.” (Dkt 1 at 23 ¶ 80.) That allegation is false.
Porter has never sold the goods at issue in her individual capacity, nor has she ever sold anything
in Indiana. (Porter Decl., ¶ 18.)
Similarly, HealthSmart alleges, “on information and belief,” that “Porter created or
directed the creation of the Company’s branding, website, and marketing, including Company’s
use of the Mark. Porter is responsible (directly or indirectly) for adding and updating the content
found on the Company’s website.” (Dkt 1 at 24 ¶ 83.) None of the foregoing is true. Porter did
not create the website, nor does she manage its content. (Porter Decl., ¶ 19.) She also does not
manage the products’ branding. (Id.) Porter reviews the Sweet Nothings website once per year
with Sweet Nothings’ executives and gives minor feedback. (Id.) The allegations in the
Complaint—based on information and belief—are simply false.
22
ii. Personal Jurisdiction Would Offend Notions of “Fair
Play and Substantial Justice”
The analysis of “fair play and substantial justice” is the same for Porter as for Sweet
Nothings, with one critical distinction. The burden and inconvenience to Porter would be even
greater if this case proceeds in Indiana. Porter has never been to Indiana. She lives in California,
where she raises her two children. (Porter Decl., ¶ 20.) As a named party, Porter will need to
attend hearings and a trial in person. Forcing Porter to litigate a trademark infringement action in
Indiana would not be reasonable under the circumstances.
B. HealthSmart Fails To State A Claim Against Porter As A Matter of Law
In an apparent attempt to preempt a motion to dismiss, HealthSmart cites to case law in
the Complaint on the issue of individual liability. (Dkt. 1 at 24-26, ¶¶ 84-91.) Those cases are
unavailing. And the conclusory allegations of wrongdoing against Porter are insufficient to
withstand a motion to dismiss.
HealthSmart correctly cites to Seventh Circuit precedent for the proposition that there
must be a “special showing” to hold an officer or owner liable for the alleged infringement of the
corporation. (Dkt 1 at 24, ¶ 84) (citing Dangler v. Imperial Mach. Co., 11 F.2d 945, 947 (7th Cir.
1926).) Dangler squarely holds that the circumstances in which an officer may be held liable are
narrow:
It is when the officer acts willfully and knowingly—that is, when he personally
participates in the manufacture or sale of the infringing article (acts other than as
an officer), or when he uses the corporation as an instrument to carry out his own
willful and deliberate infringements, or when he knowingly uses an irresponsible
corporation with the purpose of avoiding personal liability—that officers are held
jointly with the company.
Id. at 947 (numbering added).
23
To state a claim against Porter, HealthSmart must allege facts, not mere “labels and
conclusions,” Twombly, 550 U.S. at 556, that satisfy one of the above Dangler factors: (1)
participating in manufacture or sale “other than as an officer,” (2) using the corporation for her
“own willful and deliberate infringements,” or (3) “us[ing] an irresponsible corporation with the
purpose of avoiding personal alibility. HealthSmart fails to do so.
The threadbare allegations in the Complaint bear no resemblance to those found in the
cases cited by HealthSmart. (Dkt 1 at 24, ¶ 85) (citing 4SEMO.com Inc. v. S. Illinois Storm
Shelters, Inc., 939 F.3d 905, 912 (7th Cir. 2019); Dwyer Instruments, Inc. v. Sensocon, Inc., 873
F. Supp. 2d 1015, 1023 (N.D. Ind. 2012).)
In 4SEMO, the court found that the defendant maintained no corporate documents, failed
to observe the corporate form, “the businesses were proprietorships, not truly independent
corporate entities,” and that the individuals participated in a civil conspiracy. See 4SEMO, 873 F.
Supp. 2d at 913. None of those facts are alleged here.
HealthSmart also claims that the defendant in Dwyer was found liable in his individual
capacity for trademark infringement. (Dkt 1 25, ¶ 88.) That is not correct. The Dwyer court
merely denied summary judgment and held there was a triable issue of fact. Dwyer, 873 F. Supp.
2d at 1044. The court held that the defendant had mischaracterized the complaint by assuming it
only pertained to an alter ego theory. (Id. at 1021). Based on the failure to address the actual
theories alleged in the complaint, and the detailed facts supporting those theories, the court
denied summary judgment. (Id.) Specifically, the complaint alleged that the defendant worked
for the plaintiff for eight years selling brand pressure gauges known as “Dwyer Magnehelic”;
that the defendant started a competing company within three weeks of resigning; that he sent
emails soliciting a manufacturer in China to create a product “that was identical to the Dwyer
24
Magnehelic”; that within the next year he was selling an identical product stamped with his own
company name rather than “Magnehelic”; and that he contacted Dwyer’s customers directly to
sell them the identical competing product. (Id.)
If anything, the foregoing cases highlight the defects in the Complaint filed by
HealthSmart. The Complaint does not allege any of the crucial facts on which the Dwyer or
4SEMO courts relied. There is no allegation by HealthSmart that Sweet Nothings failed to
observe the corporate form or that Sweet Nothings is not a legitimate company. HealthSmart
does not allege that Porter is a former employee of HealthSmart or that she had unique
knowledge of HealthSmart’s business; that she set out to or did create an identical competing
product; or that she has reached out to any of HealthSmart’s customers at any time. These are
facts that would permit a plaintiff to pursue infringement against a corporate officer individually.
Instead, HealthSmart attempts to squeak by with the allegation, “on information and
belief,” that Porter “created or directed the creation of the Company’s branding, website, and
marketing, including Company’s use of the Mark.” (Dkt. 1 at 24 ¶ 83.) HealthSmart cannot state
a claim based on a conclusory allegation that Porter “create or directed” the use of the mark. This
does not remotely satisfy the legal standard set forth in Dangler—cited in the Complaint—that
Porter must have acted “other than as an officer” or used “the corporation as an instrument to
carry out [her] own willful and deliberate infringements.” The allegation that Porter directed
Sweet Nothings’ marketing is nothing other than an officer acting on behalf of the company. (It
is also empirically false. (Porter Decl., ¶ 19.)
C. The Third Claim for Relief (Federal Trademark Dilution) Fails As A

Matter of Law Because Plaintiff’s Mark Is Not “Famous”
“Dilution” is the “lessening of the capacity” of a mark “to identify and distinguish goods
or services.” 15 U.S.C. § 1127. A dilution claim requires the plaintiff’s mark to be both
25
“famous” and “distinctive.” See 15 U.S.C. 1125(c). To be famous, the mark must be “widely
recognized by the general consuming public of the United States as a designation of source of the
goods or services of the mark's owner.” 15 U.S.C. 1125(c)(2)(A). This occurs when a mark has
become a “household name.” Kibler v. Hall, 843 F.3d 1068, 1083 (6th Cir. 2016) (affirming
grant of summary judgment as to dilution claim on ground that plaintiff’s evidence “clearly falls
short of the high threshold for fame under the Lanham Act.”). The element of fame “is the key
ingredient” of a dilution claim. Savin Corp. v. Savin Grp., 391 F.3d 439, 449 (2d Cir. 2004).
Examples of marks courts have found sufficiently famous are “Nike, Pepsi, Nissan, Audi,
Hershey's [and] Victoria's Secret”–brands with a “significant international presence,” and
“market dominance.” Maker’s Mark Distillery, Inc. v. Diageo North America, Inc., 703 F. Supp.
2d 671, 698-699 (W.D. Ky. 2010). “Niche fame” is not sufficient. Id. at 699.
The factors used to determine whether a mark is famous include: (1) the duration, extent,
and geographic reach of advertising and publicity of the mark, whether advertised or publicized
by the owner or third parties; (2) the amount, volume, and geographic extent of sales of goods or
services offered under the mark; (3) the extent of actual recognition of the mark; and (4) whether
the mark was registered. 15 U.S.C. § 1125(a)(c)(A).
The Complaint conspicuously omits any assertion that HealthSmart’s “Sweet Nothings”
mark is famous. Moreover, the Complaint is devoid of any factual allegations that could support
of finding of fame. HealthSmart alleges that it “is currently, and for years has been, one of the
country’s leading manufacturers of delicious, healthy snack foods that cater to restricted diets
and lifestyles.” (Dkt 1 at 7, ¶ 22.) That assertion is entirely conclusory. Luv N' Care, Ltd. v.
Regent Baby Prod. Corp., 841 F. Supp. 2d 753, 757 (S.D.N.Y. 2012) (dismissing federal dilution
claim, in part, on ground that plaintiff relied on conclusory allegation that its “products are
26
among the most popular and well known products in their industry, and their line of products is
famous throughout the country and world.”). Moreover, the above assertion does not pertain to
the actual products at issue in this case. HealthSmart cannot state a claim for dilution of its
Candy by pointing to its business as a whole (which encompasses far more than its Sweet
Nothings product line). See Id. (rejecting dilution allegations that refers “generally to ‘goods
under their trademarks’ as a whole, not the ‘amount, volume, and geographic extent of sales of
goods or services offered under the’ marks in suit.”).
There are no concrete allegations as to the duration, extent, and geographic reach of
HealthSmart’s advertising. There are no concrete allegations as to the actual recognition of the
mark. HealthSmart fails to allege the total number of customers who have purchased
HealthSmart’s Candy. There is no allegation concerning the total number of units sold.
HealthSmart has alleged a couple of facts relating to its sales and advertising budget. The
Complaint alleges that HealthSmart’s Candy generated revenue of $169,000 in 2022. (Dkt 1 at
10, ¶ 32.) And HealthSmart claims to have spent $150,000 in total to market the Sweet Nothings
brand since it introduced this product line in 2017 (i.e., $25,000 per year on average). (Dkt. 1 at
9, ¶ 29.) These are the figures of a fledgling startup or a small family business, not a “famous”
brand that is “widely recognized by the general consuming public.” Cf. Savin Corp., 391 F.3d at
450 (holding that mark had “sufficient” indicators of fame to withstand summary judgment
where plaintiff spent more than $20 million on advertising in single year and had annual revenue
of $675 million); compare Fortres Grand Corp. v. Warner Bros. Ent. Inc., 763 F.3d 696, 705
(7th Cir. 2014) (holding that “Clean Slate” trademark on desktop management software was not
famous and therefore owner was not entitled to relief on dilution theory as a matter of law).
27
HealthSmart does not allege that it had exclusive use of the mark at any time. In contrast,
famous marks frequently have exclusive use for decades. See Intermatic Inc. v. Toeppen, 947 F.
Supp. 1227, 1239 (N.D. Ill. 1996) (exclusive use for 50 years); Toys “R” Us, Inc. v. Akkaoui, 40
U.S.P.Q.2d 1836, 1838, 1996 WL 772709 (N.D. Cal.1996) (exclusive use for 36 years and
extensive advertising); American Express Co. v. CFK, Inc., 947 F. Supp. 310, 316
(E.D.Mich.1996) (exclusive worldwide use for 20 years, millions expended on advertising).
At most, HealthSmart has been using its mark for a mere six years, i.e., since its initial
trademark application in 2017. (Dkt 1 1at 7 ¶ 23.) And even during this span, HealthSmart does
not allege that its use is exclusive (obviously Sweet Nothings has a registered mark with the
same name). And the exhibits attached to the Complaint demonstrate that numerous purveyors
of chocolates and candies, among others, have been using the “Sweet Nothings” mark. (Dkt. 1 at
70 (Exh. 6 thereto).)
The Complaint is devoid of any allegation that the mark is “famous.” Nor does
HealthSmart allege any facts from which that may be inferred. HealthSmart’s failure to allege
this element renders the Third Claim for Relief defective as a matter of law. And given that the
Complaint affirmatively alleges that its Sweet Nothings products have revenue figures and an
advertising budget that are nowhere close to what would make a showing of fame, this claim
should be dismissed with prejudice.
D. This Court Should Dismiss HealthSmart’s Fourth Claim for Relief

(State Law Unfair and Deceptive Business Practices)
HealthSmart filed a single claim for relief that purportedly alleges violations of at least 14
different state laws, including (1) California, (2) Colorado, (3) Delaware, (4) Georgia, (5)
Hawaii, (6) Illinois, (7) Indiana, (8), Maine, (9) Minnesota, (10), Nebraska, (11) New Mexico,
28
(12) New York, (13) Ohio and (14) Oklahoma. (Dkt. 1 at 30 ¶ 109.) This Frankenstein monster
of a claim fails as a matter of law.
A complaint alleging a claim for relief must include “a short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2). Moreover, “[a] party
must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances.” Fed. R. Civ. P. 10(b). “If doing so would promote clarity, each
claim founded on a separate transaction or occurrence—and each defense other than a denial—
must be stated in a separate count or defense.” Id. “[I]n order to withstand a motion to dismiss,
a complaint must allege the operative facts upon which each claim is based.” Kyle v. Morton
High School, 144 F.3d 448, 454-55 (7th Cir. 1998) (quotations omitted); Lucien v. Preiner, 967
F.2d 1166, 1168 (7th Cir. 1992).
“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often
disparagingly referred to as shotgun pleadings.” Weiland v. Palm Beach Cnty. Sheriff's Off., 792
F.3d 1313, 1320 (11th Cir. 2015) (quotations omitted). A complaint is an impermissible
“shotgun pleading” when it “commits the sin of not separating into a different count each cause
of action or claim for relief.” Id. at 1323.
Courts have repeatedly criticized complaints that improperly lumped numerous theories
or claims for relief under a single cause of action. See, e.g., Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 955, 980, 984 (11th Cir. 2008) (trial court should have dismissed complaint
containing “untold causes of action, all bunched together in one count contrary to the
requirements of Federal Rules of Civil Procedure 10(b)”).
Even where a complaint sets forth a general theory of liability, if it impermissibly lumps
multiple claims together, it will still be dismissed. See, e.g., Toth v. Antonacci, 788 F. App'x 688,
29
693 (11th Cir. 2019) (affirming dismissal of complaint, even though it “enumerates the legal
rights of which Toth was allegedly deprived and which principles each defendant allegedly
violated, [where] it does not separate his claims by cause of action, draw any clear lines between
the legal and factual bases for his claims, or set forth the elements of any of his claims.”).
Shotgun pleadings are not merely a technical violation:
The unacceptable consequences of shotgun pleading are many. First, and perhaps
foremost, shotgun pleading inexorably broadens the scope of discovery . . . .
Second, . . . shotgun pleadings, if tolerated by the court, lessen the time and
resources the court has available to reach and dispose of the cases and litigants
waiting to be heard. . . . Third, shotgun pleadings wreak havoc on appellate court
dockets. . . . Fourth, the mischief shotgun pleadings [] undermines the public's
respect for the courts—the ability of the courts to process efficiently,
economically, and fairly the business placed before them.
Davis, 516 F.3d at 981-83; see Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77
F.3d 364 (11th Cir. 1996) (“Experience teaches that, unless cases are pled clearly and precisely,
issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable,
the litigants suffer, and society loses confidence in the court's ability to administer justice.”
1. The Fourth Claim for Relief Is An Improper Shotgun Pleading
The Complaint alleges a violation of the unfair competition law of no less than 14
different states. (Dkt 1 at 30 ¶ 109.) Actually, the Complaint does not even confine itself to its
list of 14 jurisdictions. It alleges that Defendants have acted “in violation of the unfair and
deceptive trade practices statutes of several states, including” those listed. (Id.) (emphasis
added)). In other words, the Complaint leaves open the possibility that HealthSmart is seeking
relief under the laws of all 50 states.
This is a quintessential a “shotgun” pleading that should be dismissed as a matter of law,
See Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir. 1996) (decrying as
“‘shotgun’ notice pleading complaint that was “framed in complete disregard of the principle
30
that separate, discrete causes of action should be plead in separate counts”; “Nowhere in count
one do the Cesniks set forth any of the elements of these separate causes of action or the facts
underpinning them. Rather, a reader of the pleading must discern these things for himself.”);
Novak v. Cobb Cnty. Kennestone Hosp. Auth., 74 F.3d 1173, 1775 & n.5 (11th Cir. 1996) (“The
pleading is a quintessential ‘shotgun pleading’ . . . count one assert[s] several discrete causes of
action.”); Kole v. Vill. of Norridge, 941 F. Supp. 2d 933, 942 (N.D. Ill. 2013) (dismissing
complaint for violating Rules 8 and 10(b) where it “lumps together four or five different
constitutional amendments with little explanation of how Defendants allegedly violated each
amendment.”); Three D Departments, Inc. v. K Mart Corp., 670 F. Supp. 1404, 1408-09 (N.D.
Ill. 1987) (dismissing cause of action where complaint alleged three separate theories in a single
claim); Nemitz v. Cunny, 221 F. Supp. 571, 575 (N.D. Ill. 1963) (“different causes of action
based on different legal theories, even though based on essentially identical facts, should be
alleged in separate counts.”).
2. HealthSmart Fails To Allege Standing
The Complaint must allege facts to show that HealthSmart has a claim pursuant to the
laws of the 14 states identified. HealthSmart fails to satisfy its pleading obligation. HealthSmart
has not alleged that it sustained harm in any of the 14 states identified in the Complaint. There is
no allegation that HealthSmart purchased Nut Butter Bites while located in any of the 14 states.
HealthSmart does not allege it has employees or agents in any of the 14 states who were
somehow harmed under the state laws set forth in the Complaint. And the Complaint fails to
even allege that any consumers were harmed in those states. The Court and Defendants are left to
guess how and why HealthSmart is entitled to any relief under these state laws. HealthSmart
cannot state a claim under these state laws without alleging its standing to bring the claim in the
31
first instance. See e.g., Collins v. Athens Orthopedic Clinic, 849 S.E. 2d 213, 217 (Ga. App.
2020) (affirming dismissal of claim Unfair and Deceptive Trade Practices Act in Georgia where
plaintiff failed to allege statutory standing).
3. HealthSmart Cannot Cure the Defects By Incorporating All

Allegations By Reference
Plaintiff purports to incorporate all preceding paragraph as to each claim for relief. (See
Dkt 1 at 27, ¶ 92; 28, ¶ 97; 29, ¶ 102; 30, ¶ 107; 31, ¶ 111; 32 ¶ 116.) Plaintiff cannot argue that
these fatal defects described above are solved by incorporating the more than 100 paragraphs of
allegations that precede these causes of action. Such boilerplate incorporation is itself
impermissible shotgun pleading. See Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273,
1279 (11th Cir. 2006) (“The complaint at issue in this case is the proverbial shotgun pleading.
Shotgun pleadings are those that incorporate every antecedent allegation by reference into each
subsequent claim for relief”); CustomGuide v. CareerBuilder, LLC, 813 F. Supp. 2d 990, 1001
(N.D. Ill. 2011) (holding that plaintiff engaged in improper “shotgun pleading” where “each
count incorporate[s] by reference all preceding paragraphs and counts of the complaint
notwithstanding that many of the facts alleged [are] not material to the claim, or cause of action,
appearing in a count's heading.”) (quotation omitted).
4. The State Laws Invoked Present Unique Issues That Cannot Be

Lumped Together
The numerous state laws cited by HealthSmart may include unique elements or be subject
to unique defenses. For example, HealthSmart invokes the protections of Cal. Bus. & Prof. Code
§ 17200 et seq. (Dkt. 1 at 30 ¶ 109.) But those laws requires that the plaintiff “has lost money or
property as a result of the unfair competition.” Cal. Bus. & Prof. Code § 17204. In other words,
only restitution, not damages, is available. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.
32
4th 1134, 1144 (2003). HealthSmart has alleged harm, but it has not alleged that it has paid
money or transferred property to Defendants. By contrast, under the Delaware law HealthSmart
cites, damages are available, and there is no requirement of alleging money paid or property lost.
See Del. Code Ann. tit. 6, § 2533 (West). Defendants cannot answer the Complaint as it is
currently constituted—with all of the state laws lumped together in one claim for relief.
Under New Mexico law, the plaintiff must allege and prove that they purchased the
goods in question. See Vigil v. Taintor, 472 P.3d 1220, 1229-31 (N.M. App. 2019) (applying
NM.M. Stat. Ann. §§ 57-12-2(D) and 57-12-3). But under Colorado law, the plaintiff need not be
a purchaser of the goods. See NetQuote, Inc. v. Byrd, 504 F. Supp. 2d 1126, 1135 (D. Colo.
2007) (applying Colo. Rev. Stat. § 6–1–113).
And unlike any of the other 14 states listed in this cause of action, New Mexico embeds
within its Unfair Trade Practices Act a substantive right of a party to a private action to demand
mediation within 30 days of services of the summons. See N.M. Stat. Ann. § 57-12-10(F). There
are serious questions as to whether a federal court would be required to apply this provision
under Erie; whether Defendants can (or must) make such a demand on the New Mexico part of
this 14-state cause of action; and whether that demand would apply to the cause of action as it
relates to the other 13 states.
This is precisely the problem with lumping in the laws of over a dozen states in a single
cause of action. HealthSmart’s Complaint includes no explanation as to why HealthSmart has
chosen to invoke the law of numerous states. A guessing game is the opposite of the “notice
pleading” that the Federal Rules of Civil Procedure envision.
33
E. This Court Should Dismiss the Sixth Claim for Relief (State Trademark
Dilution and Injury to Business Reputation)
1. HealthSmart Has Not Alleged That Its Mark Is “Famous”
The state dilution laws identified in the Sixth Claim for Relief, for the most part, mirror
the federal standard. See, e.g., Ind. Code Ann. § 24-2-1-13.5. For the reasons set forth in Part
II.C., supra, HealthSmart has not—and cannot—allege that it satisfies the fame element of the
state laws at issue. These claims therefore fail as a matter of law and the Sixth Claim for Relief
should be dismissed with prejudice.
2. The Claim Involves Impermissible Shotgun Pleading
Like the Fourth Claim for Relief, the Sixth Claim for Relief also purports to seek relief
based on numerous states’ laws. This shotgun pleading is impermissible. HealthSmart alleges
that Defendants have acted “in violation of several state anti-dilution laws.” (Dkt. 1 at 32, ¶ 119.)
By “several,” HealthSmart means no less than 38 different state laws. (Id.) Again, the Complaint
does not allege what Defendants did in any particular jurisdiction. It does not allege facts that
would establish HealthSmart’s standing to assert claims based on each of these states’ laws. And
it does not state facts showing that elements of each of these states’ laws have been met.
V. CONCLUSION
HealthSmart has failed to establish personal jurisdiction over either Sweet Nothings or
Porter. As such, the entire Complaint should be dismissed under Federal Rule of Civil Procedure
12(b)(2).
Alternatively, if the Court denies this Motion on personal jurisdiction grounds, the Court
should dismiss all claims against Defendant Porter under Rule 12(b)(6) for failure to state facts
that would establish her liability in her individual capacity. At a minimum, it should dismiss the
Third, Fourth, and Sixth Claims for relief under Rule 12(b)(6) for failure to state a claim.
34
Dated: June 7, 2023 Respectfully submitted,
/s/ Brian Procel _______________________

Brian Procel (CA Bar No. 218657) (pro hac vice)
Martin Pritikin (CA Bar No. 210845) (pro hac vice)
PROCEL LAW, PC
401 Wilshire Boulevard, 12th Floor
Santa Monica, California 90401
424-788-4538
brian@procel-law.com
marty@procel-law.com
Counsel for Defendants Beth Porter

and Sweet Nothings, Inc.
35

Defendants' Motion To Dismiss

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Case 3:23-cv-00060-MPB-MJD Document 12 Filed 06/07/23 Page 1 of 35 PageID #: 155

UNITED STATES DISTRICT COURT

HEALTHSMART FOODS, INC., ) CASE NO. 3:23-cv-00060

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL

pieces of the Candy per box.

two pieces per package of Nut Butter Bites.

terms of packaging, ingredients, marketing, and target consumer demographics, HealthSmart

To compensate for the fundamental deficiencies in its case, HealthSmart filed a

complaint that overreaches in virtually every respect.

general jurisdiction over Defendants—by no stretch of the imagination do Defendants have

decided in a single action.

liability—indeed, HealthSmart’s argument is undermined by the very cases it cites in the

II. STATEMENT OF FACTS

A. Allegations in the Complaint

1. HealthSmart’s Registered Mark

cakes” at any time. (See e.g., id. at 9 ¶ 27.)

3. Sweet Nothings’ Registered Mark

(serial no. 88,195,615). (Id. at 11 ¶ 35, and at 44 (Exh. 3 thereto).)

the precise language found in HealthSmart’s trademark:

Whole fruit-based, frozen, non-dairy, no added sugar, superfood-rich snack foods

chocolates, candies, or other desserts. (Id. at 70 (Exh. 6 thereto).)

registration). (Id. at 22, ¶ 68.)

4. HealthSmart’s Allegations Against Defendants

constitute a “candy” or “chocolate confection.” (Id. at 3 ¶ 4.)

of each companies’ products are sold through Amazon.

this mark in connection with desserts, snacks, or other food-based products.

offered to support these allegations as to either Porter or Sweet Nothings.

The Complaint contains a total of seven sentences concerning Porter’s individual

resolved by the time this motion is heard).

Exh. A at 2-3 ¶¶ 1-10.)

Presumably in response to the complaint filed by Sweet Nothings, HealthSmart decided

to file this case one week later on April 13, 2023.

III. LEGAL STANDARDS

A defendant may move to dismiss a complaint based on a lack of personal jurisdiction.

of demonstrating the existence of jurisdiction.” Purdue Rsch. Found. v. Sanofi-Synthelabo, S.A.,

Post-Twombly, to survive a motion to dismiss under Rule 12(b)(6), “a complaint must

and conclusions,” or “a formulaic recitation of the elements of a cause of action” to survive a

action, supported by mere conclusory statements, do not suffice.” Id.

A. The Complaint Should Be Dismissed For Lack of Personal Jurisdiction

1. Sweet Nothings Is Not Subject to Personal Jurisdiction in Indiana

a. There Is No Basis to Find General Jurisdiction As To Sweet

787 (emphasis in original).

recitations of the elements of a cause of action or conclusory legal statements.”).

"business activity is not so pervasive as to render it ‘essentially at home’ in Oregon.”).

b. This Court Should Find That Specific Jurisdiction is Lacking

i. Sweet Nothings Concedes It Has Minimum Contacts

allegedly infringing product to Illinois consumer).

knew their conduct would have an effect on residents of forum state).

a very small number of sales to Indiana consumers. (Porter Decl., ¶6.)

a trademark infringement action, but by a razon thin margin.

ii. Personal Jurisdiction Would Offend “Fair Play and

(a) The Inconvenience to the Defendant

traditional notions of “fair play and substantial justice.”

(b) Indiana’s Interest in Adjudicating the Dispute

infringement claims alleged by HealthSmart.

(c) Plaintiff's Interest in Obtaining Convenient and

HealthSmart served Defendants with a cease-and-desist letter on November 11, 2022.

unfair business practices. (Id.)

would be prejudiced if required to do so again. HealthSmart was sued in Superior Court of

penalty pursuant to California law. (Id. at 9, ¶ 4.2.)

Based on this Consent Judgment, HealthSmart’s Candy currently reflects a warning to

(Procel Decl., ¶ 11 & Exh. F.)