The opinion of the court was delivered by: Sitarski, M.J.
Currently pending before the Court is a Motion to Dismiss Counterclaims filed by Plaintiff NTP Marble, Inc. t/a Colonial Marble & Granite. For the following reasons, the motion will be GRANTED IN PART and DENIED IN PART.
On December 4, 2009, Plaintiff NTP Marble, Inc., t/a Colonial Marble & Granite ("Colonial") initiated this lawsuit by filing a Complaint against Doe Defendants, alleging violations of the Lanham Act, 15 U.S.C. § 1051 et. seq., and defamation in connection with statements published online. Through discovery (including a Third Party Subpoena served on Google, Inc.), Plaintiff learned the identities of several parties to this lawsuit.
On July 21, 2010, Plaintiff Colonial filed an Amended Complaint, naming AAA Hellenic Marble, Inc. ("Hellenic"), Nicholas Alexiadas and Jessica Alexiadas as defendants. On April 26, 2011, Plaintiff Colonial filed a Second Amended Complaint, dropping Jessica Alexiadas as a defendant and naming Richard Moser as a defendant. The Second Amended Complaint alleges Lanham Act violations of false advertising and false designation of origin (15 U.S.C. § 1125) and defamation against Defendants Hellenic, Nicholas Alexiadas and Richard Moser.
On May 9, 2011, Defendants Hellenic and Nicholas Alexiadas filed their Answer to the Second Amended Complaint, along with a Cross-claim against Defendant Richard Moser and four Counterclaims against Plaintiff Colonial. Hellenic alone filled a Counterclaim for violation of Section 1125 of the Lanham Act (15 U.S.C. § 1125); Hellenic and Nicholas Alexiadas both filed a Counterclaim for defamation; and Nicholas Alexiadas alone filed two Counterclaims for intentional infliction of emotional distress and negligent infliction of emotional distress.
This matter was initially assigned to District Court Judge Juan R. Sanchez. On May 12, 2011, the parties consented to the exercise of jurisdiction by a United States Magistrate Judge under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 and the matter was referred to me. (Doc.No. 57)
On May 20, 2011, Plaintiff Colonial filed the present Motion to Dismiss Counterclaims of Defendants Hellenic and Nicholas Alexiadas. (Doc. No. 60). On June 6, 2011, Defendants Hellenic and Nicholas Alexiadas filed a Response in Opposition to Plaintiff's Motion to Dismiss Counterclaims (Doc. No. 65); on June 15, 2011, Plaintiff Colonial filed a Reply in Further Support of Motion to Dismiss Counterclaims (Doc. No. 71); and on June 20, 2011, Defendants Hellenic and Nicholas Alexiadas filed a Sur Reply to Plaintiff's Reply in Further Support of Motion to Dismiss Counterclaims (Doc. Nos. 73 and 74).*fn1
In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court must "accept all factual allegations as true, construe the [counterclaim] in the light most favorable to the [non-moving party], and determine whether, under any reasonable reading of the [counterclaim], the [non-moving party] may be entitled to relief." Fowler v. UMPC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)) (internal quotations omitted). Courts are not bound, however, to accept as true legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). "Generally, in ruling on a motion to dismiss, a district court relies on the complaint, attached exhibits, and matters of public record." Sands v. McCormick,502 F.3d 263, 268 (3d Cir. 2007) (citing Pension Benefit Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
"To survive a motion to dismiss, a [counterclaim] must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[This] plausibility standard is not . . . a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotations omitted). Under this standard, the court assesses the "well-pleaded, nonconclusory factual allegation[s] [of the defendant's counterclaim] . . . to determine" whether it states a plausible claim for relief. Iqbal, 129 S.Ct. at 1950.
A. COUNTERCLAIM COUNT I - VIOLATION OF THE LANHAM ACT
Count I of Defendant Hellenic's Counterclaim is based on false advertising under the Lanham Act. Section 43(a)(1)(B) of the ...