Order Granting in Part Defendant's Motion to Dismiss [Doc. 119]

JENNIFER A. DORSEY, District Judge.

Plaintiff LT International Ltd. ("LT") was given leave to amend its complaint for the second time to more adequately allege facts consistent with Rule 9(b)'s particularity standard. Doc. 112. LT filed an amended complaint, and defendant Shuffle Master, Inc. now moves to dismiss it and alternatively asks for summary judgment, arguing that LT's allegations still fall short of Rule 9's particularity requirement. Doc. 119. Even assuming arguendo that LT has standing to bring this claim, it has twice failed to allege its Lanham Act claim with requisite particularity, and I dismiss the claim. Having dismissed LT's only federal claim, I also decline to exercise supplemental jurisdiction over LT's non-federal claims, and I thus dismiss this case in its entirety.

Background

The relevant background and procedural history of this action is described in my prior order, Doc. 112, and incorporated here by reference. I also incorporate by reference the legal standards of review and conclusions from Doc. 112, specifically my conclusions that LT's Lanham Act claim for false advertising is "grounded in fraud" such that it triggers the heightened pleading standard in Rule 9(b). Doc. 112 at 4-6. I note that, in my prior order, I concluded that, although LT had not explicitly alleged fraud, it had alleged misrepresentation, which is widely considered to be a "species" of fraud subject to Rule 9(b) scrutiny. Doc. 112. As a result, any fraud-based allegations required LT to "identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false."1 This increased detail is required "to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong."2 I then found, after applying the standard from Vess v. Chiba-Geigy Corp. USA3 to LT's Lanham Act claim, that LT had not sufficiently pled its fraud-based allegations and that its remaining non-fraud-based allegations did not state a plausible claim for relief under Rule 8(a). Doc. 112 at 7-9.

Near the end of my order permitting leave to amend, I cautioned LT that it should "err on the side of being overly inclusive and descriptive with the how, what, and why, because the Court is unlikely to permit amendment beyond the opportunity that is being offered by this order absent truly extraordinary circumstances. Considering that discovery has been completed, the Court can perceive no obstacle to comprehensive factual inclusion except the true lack of a cognizable claim for relief." Doc. 112 at 17.

Discussion

LT's Third Amended Complaint continues to allege 15 U.S.C. § 1125(a)(1)(B) of the Lanham Act as the sole basis for federal recovery. Doc. 115 at 8. This provision provides liability for false advertising, which requires a plaintiff to establish: (1) a false statement of fact was made by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products.4 It is theoretically possible to allege a false advertising claim without triggering Rule 9(b) because intent or scienter is not explicitly required.5

1. LT's new allegations are grounded in fraud.

Shuffle Master moves to dismiss because, inter alia, LT's new Lanham Act allegations still fail to meet the particularity standard under Rule 9(b). Doc. 119.6 LT's new complaint excises all references to "misrepresentation" and now claims that Shuffle Master merely made a series of "false" statements relating to both LT's services and its company in general. See Doc. 115. But a finding that allegations are subject to Rule 9(b) is not a matter of adding "magic words"; instead, "[f]raud can be averred . . . by alleging facts that necessarily constitute fraud (even if the word `fraud' is not used)."7

When read in context, LT's allegations imply an intent to deceive—i.e., fraud. Each of LT's allegations is set against a backdrop that Shuffle Master "has systematically been unfairly competing with the LT Game Group in gaming markets throughout the world through the use of threats, disparagement of the LT Game brand and its products, and direct and indirect interference with Plaintiff's business deals and prospective deals." Doc. 115 at 3 (emphasis added). Nowhere in the newly amended complaint does LT allege that any of Shuffle Master's conduct was negligent or otherwise lacked an intent to deceive; indeed, its allegations plainly suggest the opposite. See id. at 7 (alleging that Shuffle Master's statements regarding patent infringement were "baseless and made in bad faith."); id. (alleging that Shuffle Master's CEO sent a series of emails to an industry representative indicating that Shuffle Master could not be a member of an association that would admit an unethical business like LT as a member). LT's allegations of a "uniform pattern of conduct," when taken as a whole, are clearly "grounded in fraud," and Rule 9(b) requirements apply to all false statement allegations.

Moreover, LT's Lanham Act allegations are limited to those allegations in the complaint where allegedly false statements were made. LT alleges that "Defendant has made false statements about Plaintiff's brand and its products to members of the gaming community, including but not limited to statements that LT Game Group products and Plaintiff's sale of the LTMG in the U.S. infringes Defendant's patents, the LTMG cannot be sold outside of Macau, the LT Game Group bribed Macau judges, and the LT Game Group is an unethical company. . . . Defendant's false statements have deceived Plaintiff's current and prospective customers and materially influenced their purchasing decisions and constitute unfair competition under 15 U.S.C. § 1125(a)(1)(B) of the federal Lanham Act." Doc. 115 at 8 (emphasis added).

LT's Lanham Act claim is grounded in fraud and limited in scope to Shuffle Master's false statements, I consider only the allegations of false statements when analyzing this claim. I thus employ the same method as I did in my prior order: isolating the fraud-based allegations under Rule 9(b), and then considering whether any properly pled allegations, when conjoined with the well-pled non-fraud allegations, give rise to a plausible Lanham Act claim.

2. None of LT's fraud-based allegations meet the particularity standard.

LT alleges that "After the 2012 G2E Asia, [LT Game marketing and sales executive Linyi] Feng met with Jeff Voyles. . . . During the meeting, Voyles told Feng that while he was on a flight from Macau on or about May 24, 2012, he witnessed Defendant making false statements to Plaintiff's prospective customers, business affiliates, and members of the gaming community that the LT Game Group has bribed judges in Macau and engaged in other unlawful activities." Doc. 115 at 6. LT similarly alleges that "On July 4, 2013, Feng attended a meeting in the Philippines with Melco Crown (Philippines) Resort Corp. . . . Vice Presidents Lisa Evans and Gary Hann verbally, in person, told Feng that a representative of SHFL told her that the LTMG could not be sold outside of Macau." Doc. 115 at 7. These allegations do not satisfy the particularity standard because neither allegation indicates who made the statement, instead referring only to "Defendant" and "a representative of Shuffle Master." Discovery should have uncovered the name of the Shuffle Master agent or employee who made the statements to Voyles, Evans, and Hann; and LT's failure to reflect this specific information in the complaint suggests it lacks this key information and prevents me from considering them under Vess. I thus disregard these allegations in evaluating whether LT has pled a Lanham Act claim.

LT also alleges that "Following the 2012 G2E Asia, SHFL contacted Jeff Harris, Vice President of Casino Operations at Commerce Casino in California, and told him that the LTMG was infringing its U.S. patent. Because of SHFL's false allegations of patent infringement, Commerce Casino was fearful of potential litigation and required Plaintiff to provide financial assurances and satisfy unusually burdensome insurance and indemnification demands." Doc. 115 at 6. Later, LT alleges that "Plaintiff's sales representative, Bryan Jenkins, learned from Hakan Dagtas, Chief Gaming Operating Officer at Genting Group's Resort World Manila, that a representative of SHFL told him that the LTMG cannot be sold outside of Macau." Doc. 115 at 7. Neither of these allegations satisfies the particularity standard because the first allegation only points to sometime after the 2012 G2E, and the second has no time-frame at all. Secondarily, they continue to fail to identify the person responsible for these alleged communications. These allegations are thus disregarded under Vess.

LT also alleges that "In June 2012, Feng met with Michael Patterson, Barona Casino's Vice President of Table Games, on the casino floor at Barona Casino in San Diego, California. During that meeting, Patterson expressed concern over the events at the 2012 G2E Asia and told Feng that LT Game Group is infringing on SHFL's U.S. intellectual property rights, and that Plaintiff's sale of the LTMG in the U.S. infringes SHFL's intellectual property rights." Doc. 115 at 6-7. The problem with this allegation is that there is no indication how Patterson came to know that LT was allegedly infringing on Shuffle's property rights—and thus it is not clear if LT made any statement to this effect. This allegation will also be disregarded.

Finally, LT alleges that "On June 11, 2012, SHFL CEO Gavin Isaacs sent a series of emails to Association of Gaming Equipment Manufacturers Executive Director, Marcus Prater. In the emails, Isaacs called LT Game "an unethical company" and informed Prater that "LT Game cannot join" AGEM because SHFL "could not be a members of an association who would have such low standards would allow such an unethical company to be a member." Doc. 115 at 7. Although apparently intended to be pled as a fraud allegation, this statement that Shuffle Master is "unethical"—in context of the entire email exchange between Isaacs and Prater8—Isaacs's statement is plainly opinion, not "a statement of fact capable of being proved false" and thus is mere opinion, and not actionable for purposes of the Lanham Act.9

In sum, none of the allegations attempting to set out a false statement either satisfied Rule 9(b)'s particularity standard or describes actions that can be redressed cognizable under the Lanham Act. All must be excluded for purposes of assessing LT's Lanham Act claim.

B. LT's remaining allegations do not establish a plausible claim for relief.

LT's remaining allegations do not set forth a plausible claim for relief because the plain language of LT's Lanham Act charge relies entirely on defendant's false statements to make out its claim. While LT also alleges that its "prospective deals and contracts have been negatively impacted in terms of bargaining power, opportunity, scope of commitments, terms, and value as a result of Defendant's statements and actions," this particular allegation is not specifically alleged to be "unfair competition." See Doc. 115 at 8. Therefore, LT's contentions that Shuffle executives attempted to "strong arm" LT's participation in a shared patent pool, or its allegations that it used its influence to get LT to drop its injunction at the G2E trade show (for which no allegations of false statements were made), or any other "actions" or "statements" which were not false, are not within those applicable to LT's Lanham Act claim.

In sum, and despite explicit instructions and two opportunities to amend its complaint to include the facts gleaned from discovery, LT fails to adequately allege a Lanham Act claim. Shuffle's motion to dismiss LT's Lanham Act claim is granted.

C. The court declines to retain supplemental jurisdiction over LT's remaining claims.

Shuffle Master additionally argues that if LT's Lanham Act claim is dismissed, I lack original jurisdiction over LT's Nevada- and Macao-based claims and should dismiss them. Doc. 118 at 20. In response, LT contends that I should exercise my discretion to hear these supplemental claims, in part because the parties have been litigating this case for a considerable amount of time, and because LT's complaint contains allegations under Macao law, in which neither I nor a state court has particular expertise. Doc. 127 at 21-22.

Federal jurisdiction in this case is premised on the pendency of a federal question: LT's Lanham Act claim.10 Supplemental jurisdiction is a doctrine of discretion, not of right.11 A federal district court may decline to exercise supplemental jurisdiction over a state law claim if "(1) the claim raises a novel or complex issue of State law; (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c). The decision whether to decline to exercise supplemental jurisdiction under Section 1367(c) should be informed by the values of economy, convenience, fairness, and comity.12

Economy, convenience, fairness, and comity compel me to decline to continue to exercise supplemental jurisdiction over plaintiff's remaining claims under 28 U.S.C. § 1367(c). The dismissal of LT's Lanham Act claim leaves it with only Nevada state law claims and a claim under Macao law. "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims."13 Although LT suggests that I should retain jurisdiction given the relatively long pendency of this case in federal court, I note that the delays are of LT's own making—as it was LT who failed to adequately plead its claims—not once, but twice—necessitating these full rounds of dismissal motion practice. Accordingly, I decline to retain supplemental jurisdiction over plaintiff's remaining claims, dismiss this case under 28 U.S.C. § 1367(c), and thus deny the remainder of the motion to dismiss as moot.

Conclusion

Accordingly, based upon the foregoing reasons and with good cause appearing and no reason for delay,

It is HEREBY ORDERED that Shuffle Master, Inc.'s Motion to Dismiss [Doc. 119] is GRANTED in part and DENIED WITHOUT PREJUDICE in part:

LT Game's Lanham Act claim is DISMISSED;

I decline to exercise supplemental jurisdiction over all remaining claims pursuant to 28 U.S.C. § 1367, and I dismiss these claims, subject to re-filing in the appropriate court of general jurisdiction. The Clerk of Court is instructed to close this case.