Case 3:19-cv-01823-B Document 13 Filed 09/13/19 Page 1 of 26 PageID 118

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

ASGAARD FUNDING LLC d.b.a. THE
AASGAARD COMPANY,

Plaintiff,
CIVIL ACTION NO.:
v. 3:19‐cv‐01823‐B

REYNOLDSSTRONG LLC d.b.a. Barbell JURY TRIAL DEMANDED
Logic and Barbell Logic Online
Coaching,

Defendant.
DEFENDANT’S MOTION TO DISMISS AND BRIEF IN SUPPORT THEREOF

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TABLE OF CONTENTS
I. FACTS ................................................................................................................................................................... 1
A. GENERAL DESCRIPTION OF THE ACTION .................................................................................. 1
B. THE AASGAARD COMPANY IS THE ASSUMED NAME OF A TEXAS GENERAL
PARTNERSHIP FORMERLY CONSISTING OF LON KILGORE AND MARK RIPPETOE AND
NOW MARK RIPPETOE AND STEPHANI BRADFORD .......................................................................... 3
C. PLAINTIFF DOES NOT OWN THE COPYRIGHT OR TRADEMARK REGISTRATIONS
ASSERTED IN THE COMPLAINT ................................................................................................................... 4
D. THE PLAINTIFF’S MUDDLED ALLEGATIONS CONCERNING ALLEGED
UNREGISTERED TRADEMARKS THAT IT ALSO DOES NOT OWN OR USE ARE REALLY
JUST PRODUCTS OR SERVICES FALLING WITHIN THE GOODS AND SERVICES
DESCRIPTIONS OF THE REGISTERED TRADEMARKS THAT IT DOES NOT OWN ................... 5
E. THE PLAINTIFF IS NOT A PARTY TO THE LICENSE AGREEMENT ................................... 6
II. LAW AND ARGUMENT .................................................................................................................................. 7
A. THE PLAINTIFF LACKS STANDING AND THIS COURT LACKS SUBJECT MATTER TO
ADJUDICATE THIS DISPUTE. .......................................................................................................................... 7
1. THE STANDARD ON A MOTION TO DISMISS PURSUANT TO FED. R. CIV. P.
12(B)(1) .............................................................................................................................................................. 7
2. THE PLAINTIFF LACKS STANDING TO ASSERT A BREACH OF CONTRACT CLAIM
BECAUSE IT IS NOT IN PRIVITY OF CONTRACT WITH THE DEFENDANT AND IS NOT
AN INTENDED BENEFICIARY TO THE ALLEGED LICENSE AGREEMENT. ............................. 8
3. THE PLAINTIFF LACKS STANDING TO ASSERT CLAIMS OF TRADEMARK
INFRINGEMENT AND DILUTION. ....................................................................................................... .…9
4. THE PLAINTIFF’S ALLEGED LANHAM ACT CLAIM FOR UNFAIR COMPETITION
IN VIOLATION OF 15 U.S.C. § 1125(A) FAILS BECAUSE PLAINTIFF LACKS STANDING.10
B. THE STANDARD ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ..... 12
1. COUNT I TO THE COMPLAINT FAILS BECAUSE PLAINTIFF DOES NOT OWN ANY
OF THE TRADEMARKS ALLEGED. ........................................................................................................ 12
2. COUNT II TO THE COMPLAINT FAILS BECAUSE PLAINTIFF DOES NOT OWN ANY
OF THE TRADEMARKS ALLEGED. ........................................................................................................ 13
3. COUNT III TO THE COMPLAINT FAILS BECAUSE PLAINTIFF DOES NOT OWN
ANY OF THE TRADEMARKS ALLEGED. .............................................................................................. 14
4. THE PLAINTIFF’S CLAIM FOR AN ALLEGED VIOLATION OF THE TEXAS
DECEPTIVE PRACTICES ACT MUST BE DISMISSED BECAUSE THE COMPLAINT
CONTAINS NO ALLEGATIONS THAT THE PLAINTIFF IS A CONSUMER PURCHASING
ANY GOODS FROM THE DEFENDANT. ................................................................................................ 15
5. THE PLAINTIFF’S CLAIM FOR BREACH OF CONTRACT MUST BE DISMISSED
BECAUSE PLAINTIFF FAILS TO PLEAD THE ELEMENTS OF A BREACH OF CONTRACT
ACTION. ............................................................................................................................................................ 16

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C. COUNTS I AND III MUST BE DISMISSED PURSUANT TO FED. R. CIV. P. 12(B)(7) FOR
A FAILURE TO JOIN NECESSARY PARTIES. ............................................................................................ 17
D. CERTAIN PORTIONS OF THE COMPLAINT CONCERNING COMPROMISE
NEGOTIATIONS ARE DUE TO BE STRICKEN ........................................................................................ 19
III. CONCLUSION .............................................................................................................................................. 19

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TABLE OF AUTHORITIES

Cases
All. for Good Gov’t v. Coal. for Better Gov’t, 901 F.3d 498, 505 (5th Cir. 2018).............................. 12
Allan v. Nersesova, 307 S.W.3d 564, 571 (Tex.App.‐Dallas 2010) ......................................................... 9
Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir. 2008) ................................. 12
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .......................... 12
Association of Co‐op. Members, Inc. v. Farmland Industries, Inc., 684 F.2d 1134, 1143 (5th
Cir.1982) ............................................................................................................................................................... 18
Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 900 (Tex. 2011) ............... 9
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)
.................................................................................................................................................................................. 12
Brewer v. Suzuki Motor of Am., Inc., No. 4:15‐CV‐197, 2015 WL 4433046, at *2 (S.D. Tex. July
17, 2015) ................................................................................................................................................................. 3
Clark v. Tarrant County, Tex., 798 F.2d 736, 741 (5th Cir. 1986) ........................................................... 8
Cobb v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006 ............................................................................... 7
Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex.App.2004) .................................................................... 16
Escamilla v. M2 Technology, Inc., 536 Fed. Appx. 417, 421 (5th Cir. July 16, 2013) ................... 18
Fidelity Nat. Title Co. v. Law Title Ins. Co., Inc., 2005 WL 1126899, *5‐*6 (N.D.Ill.2005) ..... 2, 19
Flu Shots of Texas, Ltd. v. Lopez, 2014 WL 1327706 at *5 (N.D. Tex.) ....................................... 10, 18
Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011) ........................................................................... 3
Geary v. Motel Properties, Inc., No. 1:06‐CV‐225‐JDT‐WTL, 2006 WL 1344015, at *1 (S.D. Ind.
May 16, 2006) ................................................................................................................................................ 2, 19
Gomez v. Niemann & Hayer, L.L.P., 2016 WL 3562148 (W.D. Tex.) ....................................................... 3
Hurd v. BAC Home Loans Servicing, LP, 880 F. Supp. 2d 747, 765 (N.D. Tex. 2012) ................... 15
Inclusive Communities Project, Inc. v. United States Dep’t of Treasury, No. 3:14‐CV‐3013‐D,
2019 WL 459643, at *3 (N.D. Tex. Feb. 6, 2019)................................................................................ 7, 8
IQ Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368, 375 (5th Cir. 2002) ............................................ 13
Kasberg v. Conaco, LLC, 360 F. Supp.3d 1026, fn. 2 (S.D. Cal. 2018) .................................................... 4
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673 (1994) .................... 7
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129‐130, 134 S.Ct. 1377,
1388‐1389 (2014) ............................................................................................................................................... 8
Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009)............................................................................... 8
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ... 10
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144,
119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999) ................................................................................................. 9
Multimin USA, Inc. v. Walco Int’l, Inc., 2007 WL 1686511 at *2 (N.D. Tex. 2007) .............. 3, 7, 10
Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir.2007) ................................................................. 3
North American Deer Registry, Inc. v. DNA Solutions, Inc., 2017 WL 2402579 at *5 (E.D. Tex.
2017) ...................................................................................................................................................................... 13
Pak’s Trading Europe B.V. v. Target, 2018 WL 8333362 at *3 (C.D. Cal.) ........................................... 4
Pollett v. Aurora Loan Services, 455 Fed. Appx. 413, 415 (5th Cir. 2011) ...................................... 15
Rodriguez v. Gold & Silver Buyers, Inc., No. 4:12–CV–1831, 2013 WL 5372529, at *3 (S.D.Tex.
Sept.24, 2013) ....................................................................................................................................................... 3
Smith Int’l., Inc. v. Egle Group, LLC, 490 F.3d 380, 387 (5th Cir.2007) ............................................. 16

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Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) ............................................... 7
TGI Friday’s, Inc. v. Great Nw. Rest., Inc., 652 F. Supp.2d 763, 767 (N.D. Tex. 2009) .................. 12
Thanco Prods. and Imports, Inc. v. Kontos, 2009 WL 540963 at *1 (S.D. Tex.) ................................ 3
The Supreme Court of Ohio Board of Professional Conduct, 2016 WL 4268979, at *1 ............. 2
Trading Technologies Intern., Inc. v. BCG Partners, Inc., 2011 WL 3946581 at *2 (N.D. Ill.) ..... 2,
19
Tyler v. Citi‐Residential Lending Inc., 812 F. Supp. 2d 784, 787 (N.D. Tex. 2011) ........................ 16
United Neurology, P.A. v. Hartford Lloyd’s Ins. Co., 101 F. Supp. 3d 584, 591–92 (S.D. Tex.),
aff’d, 624 F. App’x 225 (5th Cir. 2015) ........................................................................................................ 8
Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 671 (5th Cir. 2000) ........................ 14
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) ......................................................................... 8
Statutes
Tex. Bus. & Com. Code Ann. § 71.101 ............................................................................................................... 4
Tex. Bus. & Com. Code Ann. § 71.202 ............................................................................................................... 4
Tex. Bus. & Comm. Code § 17.44 (a) .............................................................................................................. 15
Tex. Bus. & Comm. Code § 17.45(4) ............................................................................................................... 15
Tex. Bus. & Comm. Code § 17.46 ..................................................................................................................... 16
Rules
FED. R. CIV. P. 12(b)(1) .............................................................................................................................................. 7
FED. R. CIV. P. 12(b)(6) ........................................................................................................................................... 12
FED. R. CIV. P. 12(b)(7) .......................................................................................................................................... 17
FED. R. CIV. P. 12(f) .................................................................................................................................................. 19
FED. R. CIV. P. 12(g) ................................................................................................................................................. 19
FED. R. CIV. P. 19 ....................................................................................................................................................... 17
FED. R. EVID. 408 ......................................................................................................................................................... 2
Ohio Rules of Professional Conduct, Rule 1.9(b) ........................................................................................ 2
Ohio Rules of Professional Conduct, Rule 4.2, Comment 7 ..................................................................... 2

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MOTION AND BRIEF IN SUPPORT

COMES NOW Defendant, REYNOLDSSTRONG LLC, by and through its undersigned

counsel and, pursuant to FED. R. CIV. P. 12(b)(1), 12(b)(6), 12(b)(7), and 12(f), respectfully

moves this Honorable Court to dismiss this action and in support thereof states as follows:

I. FACTS

A. GENERAL DESCRIPTION OF THE ACTION

On July 30, 2019, the Plaintiff, Asgaard Funding LLC, an alleged strength and fitness

content creator and product producer, filed the instant action against ReynoldsStrong LLC, a

strength and fitness content creator and an online personal training service. See Dkt. 1. As

the Plaintiff erroneously contends, the claims and causes of action arise chiefly from alleged

breaches of an alleged License Agreement for the use of a domain name

www.startingstrengthonlinecoaching.com and certain trademark registrations for the name

STARTING STRENGTH. See generally id. The Plaintiff attached what it contends is a true and

accurate copy of the governing License Agreement (the “License Agreement”) to the

Complaint as Exhibit A. See Dkt. 1‐2. Said breaches, as wrongly contended by the Plaintiff,

arise from alleged past due royalty payments and what the Plaintiff contends is infringement

of its alleged trademarks for STARTING STRENGTH after it terminated the License

Agreement.

To that end, the Plaintiff alleges five erroneous claims and causes of action: (1)

Trademark Infringement pursuant to 15 U.S.C. § 1114; (2) Unfair Competition pursuant to

15 U.S.C. 1125(a); (3) Trademark Dilution in violation of 15 U.S.C. § 11125(c); (4) a violation

of Texas’ Deceptive Trade Practices Act; and (5) Breach of Contract. See Dkt. 1 at pp. 42‐51.

However, the fifty‐two (52) page Complaint, is replete with improper references to

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settlement communications [Dkt. 1 at pp. 34‐37]1 and a two (2) page play‐by‐play account

by Attorney Brodie M. Butland2 [Dkt. 1‐9 at pp. 1‐3] of how alleged internal communications

of the undersigned’s Client3 have “come to [his] attention” and are, in his personal

contention, not true. However, in its Complaint, the Plaintiff overlooks a few key facts.

1 FED. R. EVID. 408 prohibits evidence concerning the conduct or statements made
during compromise negotiations about a claim to prove or disprove the validity or
amount of a disputed claim. Such statements are also precluded in pleadings and are
subject to be stricken pursuant to FED. R. CIV. P. 12(f). See Trading Technologies
Intern., Inc. v. BCG Partners, Inc., 2011 WL 3946581 at *2 (N.D. Ill.) (striking
settlement communications from complaint); Geary v. Motel Properties, Inc., No.
1:06-CV-225-JDT-WTL, 2006 WL 1344015, at *1 (S.D. Ind.) (striking settlement
communications from complaint); Fidelity Nat. Title Co. v. Law Title Ins. Co., Inc.,
2005 WL 1126899, *5-*6 (N.D.Ill.) (striking settlement communications from
complaint).

2Attorney Brodie M. Butland is an Ohio licensed attorney with the law firm of
Porter, Wright, Morris & Arthur, LLP out of its Cleveland, Ohio office.

3 At present, the undersigned has not confirmed whether Mr. Butland is

communicating with ReynoldsStrong’s current personnel, but observes that the
undersigned counsel have not authorized Mr. Butland to communicate with
ReynoldsStrong’s personnel concerning this matter and that The Ohio Rules of
Professional Conduct proscribe communications with current employees that: “1)
supervise, direct, or regularly consult with the corporation’s lawyer concerning the
subject of the representation; 2) have the authority to obligate the corporation with
respect to the matter; and 3) employees whose act[s] or omission[s] in connection with
the matter may be imputed to the organization for purposes of civil or criminal
liability.” The Supreme Court of Ohio Board of Professional Conduct, 2016 WL
4268979, at *1 (internal quotations omitted). See also Ohio Rules of Professional
Conduct, Rule 4.2, Comment 7. After all, Mr. Butland has made unauthorized
communications with ReynoldsStrong’s personnel before [Dkt. 1-10 at p. 3 (carbon
copying settlement communications to ReynoldsStrong personnel, ostensibly
believing that they had settlement authority or to disrupt ReynoldsStrong’s
business)] and been cautioned against communicating with persons that are
represented by counsel by the undersigned [Dkt. 1-10 at p. 2]. Mr. Butland’s liberties
in this regard may be a result of a conflict of interest arising from his previous
representation of the Defendant, as recently as 2018, from whom he did not obtain
informed consent before representing Plaintiff. See Ohio Rules of Professional
Conduct, Rule 1.9(b). Mr. Butland’s improprieties in this regard are the subject of
the forthcoming Defendant’s Motion to Disqualify the Plaintiff ’s Counsel.
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B. THE AASGAARD COMPANY IS THE ASSUMED NAME OF A TEXAS GENERAL

PARTNERSHIP FORMERLY CONSISTING OF LON KILGORE AND MARK RIPPETOE
AND NOW MARK RIPPETOE AND STEPHANI BRADFORD

“The Aasgaard Company” was the assumed name of a Texas general partnership

consisting of two individuals, Mark Rippetoe and Lon Kilgore, from March 3, 2005 until

March 3, 2015. See Appendix in Support of Defendant’s Motion to Dismiss and Brief in

Support (“App.”) at 1‐24 (a true and accurate copy of the Wichita County, Texas Assumed

Name Records). The Aasgaard Company is now, and has been since April 1, 2015, the

assumed name of a Texas general partnership consisting of individuals Mark Rippetoe and

Stephani Bradford. See App. 3‐4.5 Importantly, the current Assumed Name Certificate [App.

3‐4] specifically states that Mark Rippetoe and Stef Bradford “are the owner(s) of the

4 Extrinsic evidence may be reviewed by the Court for a dismissal based on FED.
R. CIV. P. 12(b)(1). Multimin USA, Inc. v. Walco Int’l, Inc., 2007 WL 1686511 at *2
(N.D. Tex.). In addition, “[i]n considering a motion to dismiss under Rule 12(b)(6),
the Court may take judicial notice of facts ‘determined from sources whose accuracy
cannot reasonably be questioned.’” Brewer v. Suzuki Motor of Am., Inc., No. 4:15-CV-
197, 2015 WL 4433046, at *2 (S.D. Tex.) (citing FED. R. EVID. 201(b)(2)). “These
include * * * ‘matters of public record,’” Id. (citing Norris v. Hearst Trust, 500 F.3d
454, 461 n. 9 (5th Cir. 2007); Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011)
(letter from the Food and Drug Administration); and Rodriguez v. Gold & Silver
Buyers, Inc., No. 4:12–CV–1831, 2013 WL 5372529, at *3 (S.D.Tex.) (corporate filings
with the Texas Secretary of State)). “Taking judicial notice of public records ‘directly
relevant to the issue at hand’ is proper in a Rule 12(b)(6) review and does not
transform the motion into one for summary judgment.” Id. (citing Funk 631 F.3d at
780). The assumed name certificate from Wichita County, Texas is a matter of public
record and cannot reasonably be questioned by the Plaintiff. In addition, certificates
of assumed name from Texas government entities have been judicially noticed before.
See Gomez v. Niemann & Hayer, L.L.P., 2016 WL 3562148 (W.D. Tex.) (noticing
Certificate of Assumed Name with the Texas Secretary of State) and Thanco Prods.
and Imports, Inc. v. Kontos, 2009 WL 540963 at *1 (S.D. Tex.) (Certificate of Assumed
Name from Stokes County).

5 This document may be judicially noticed pursuant to Gomez and Thanco.

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business * * * and there is/are no ownership(s) in said business other than [Mark Rippetoe

and Stef Bradford.” See id. (emphasis added). Asgaard Funding LLC is conspicuously missing

from the Assumed Name Certificate. See id. Consequently, the Aasgaard Company, a Texas

Partnership (referred to hereinafter as the “The Aasgaard Company”) is not the assumed

name of the Plaintiff, Asgaard Funding LLC.6

C. PLAINTIFF DOES NOT OWN THE COPYRIGHT OR TRADEMARK REGISTRATIONS

ASSERTED IN THE COMPLAINT

Asgaard Funding LLC does not own any of the copyrights it pled it does. The Aasgaard

Company owns the asserted intellectual property. See App. 5‐8 (true and accurate printouts

from the Public Catalog of the United States Copyright Office for SS:BBT and SS:BBT 3rd

Edition).7 Nor is it true that Asgaard Funding LLC “has registered several trademarks” with

the United States Patent and Trademark Office (“USPTO”) as it erroneously alleges. See Dkt.

1 at ¶1. Trademark Registration Nos. 4072828 (the “‘828 Registration”), 4263376 (the “‘376

Registration”), 5190583 (the “‘583 Registration”), and 5801678 (the “‘678 Registration”) list

“The Aasgaard Company (Texas Partnership)” as the owner of these trademarks. See App. 9‐

6 Nor could it be under Texas Law. “A * * * limited liability company * * * must

file a certificate [for an assumed name] if the entity: (1) regularly conducts business
or renders professional services in this state under an assumed name; or (2) is
required by law to use an assumed name in this state to conduct business or render
professional services.” Tex. Bus. & Com. Code Ann. § 71.101. It is a crime to conduct
business in Texas under an assumed name and intentionally violate the Assumed
Business or Professional Name Act. Tex. Bus. & Com. Code Ann. § 71.202.

7 In addition to being a public record that cannot be reasonably questioned by the

Plaintiff, see Brewer, other learned jurisdictions have taken judicial notice of
printouts from the United States Copyright Catalog. See Kasberg v. Conaco, LLC,
360 F. Supp.3d 1026 n. 2 (S.D. Cal. 2018) and Pak’s Trading Europe B.V. v. Target,
2018 WL 8333362, at *3 (C.D. Cal.)

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138 (true and accurate copies of the registration certificates obtained from the USPTO

document retrieval system). Trademark Registration No. 4357670 (the “‘670 Registration”)

lists “The Aasgaard Company (United States Individual)” as the owner. See id. There are no

assignments recorded with the USPTO for the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations.

See App. 14‐23 (USPTO TSDR records for the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations).

D. THE PLAINTIFF’S MUDDLED ALLEGATIONS CONCERNING ALLEGED

UNREGISTERED TRADEMARKS THAT IT ALSO DOES NOT OWN OR USE ARE
REALLY JUST PRODUCTS OR SERVICES FALLING WITHIN THE GOODS AND
SERVICES DESCRIPTIONS OF THE REGISTERED TRADEMARKS THAT IT DOES
NOT OWN

The Plaintiff’s allegations concerning the alleged “variety of other trademarks” [Dkt 1. ¶

28 and ¶ 34] that it claims are muddled because it is unclear whether the Plaintiff is claiming

that these “variety of other trademarks” are actually common law trademarks or whether

the Plaintiff is merely describing what products or services it has allegedly applied the ‘828,

‘376, ‘583, ‘678, and ‘670 Registrations to.9 In other words, are the alleged “variety of

trademarks” trademarks or merely other uses of the alleged STARTING STRENGTH

trademark? However, because these described products and services appear to fall within

the goods and services descriptions of the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations and

8In addition to being public records that cannot be reasonably questioned by the
Plaintiff, see Brewer, the Northern District of Texas has judicially noticed United
States Patent and Trademark Office registration records under FED. R. EVID. 201.

9The Defendant does not concede that these alleged “variety of other trademarks”
are actually trademarks at all, but, for purposes of this Motion, takes the allegation
as true. The Defendant reserves the right to contest these trademarks to the extent
that the Plaintiff actually contends that they are trademarks in and of themselves
and not examples of use for the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations.

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based on the Plaintiff’s placement of the ™ symbol prior to the generic term in each of these

alleged “variety of other trademarks” it appears that the latter is the intended.

Even if it were the former, the Plaintiff does own or use any of the alleged “variety of

other trademarks” [Dkt 1. ¶ 28 and ¶ 34] that it claims (and provides links in the Complaint

to the websites that supply these alleged uses). This is so because they either appear on The

Aasgaard Company’s websites which denote ownership by The Aasgaard Company’s

copyright notice at the bottom of the webpage in the case of Starting Strength™ Camps [App.

24‐26], Starting Strength™ Coach Development Program [App. 27‐32], Starting Strength™

Coaches [App. 33], Starting Strength™ Gyms [App. 34‐38], Starting Strength™ Seminars [App.

39‐42], Starting Strength™ Online Coaching [App. 43‐44], or on third party websites that

cross‐link or reference The Aasgaard Company’s websites or alleged unregistered

trademarks as in the case of Starting Strength™ Power Racks, Starting Strength™ Weight

Benches, Starting Strength™ Weight Trees, Starting Strength™ Barbells, or bear a similar font

to the title on The Aasgaard Company’s website as is the case with Starting Strength™ Weight

Belts. See App. 45‐56.

E. THE PLAINTIFF IS NOT A PARTY TO THE LICENSE AGREEMENT

Finally, the License Agreement attached to the Complaint [see Dkt. 1‐2] is an alleged

agreement between “The Aasgaard Company, a Texas Partnership” (emphasis added) and

ReynoldsStrong LLC. It is not an agreement between the Plaintiff, Asgaard Funding LLC, and

the Defendant, ReynoldsStrong LLC. See id. There is no language demonstrating that the

Plaintiff is an intended beneficiary of the License Agreement. See id. There is no writing

alleged that modifies this License Agreement to substitute the Plaintiff for The Aasgaard

Company. See id.

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Simply put, Asgaard Funding LLC appears to be an absolute stranger to the intellectual

property and license agreement it alleged in the Complaint. The Complaint is therefore

fatally flawed because, as further discussed below, the Plaintiff a) lacks an interest in the

‘828, ‘376, ‘583, ‘678, and ‘670 Registrations, b) has not used the alleged “variety of other

trademarks” it contends it owns or uses, c) is not a party to a contract, and d) never alleged

that it was a consumer of any of the Defendant’s products. As a result of these flaws, Plaintiff

cannot meet the elements of its asserted and erroneous claims and causes of action, and

further, lacks standing to assert a claim or cause of action. Consequently, for this and the

reasons more fully set forth below, this Honorable Court should dismiss this action.

II. LAW AND ARGUMENT

A. THE PLAINTIFF LACKS STANDING AND THIS COURT LACKS SUBJECT MATTER
TO ADJUDICATE THIS DISPUTE

1. THE STANDARD ON A MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(1)

A party may file a motion to dismiss for lack of subject matter jurisdiction pursuant to

FED. R. CIV. P. 12(b)(1). “Federal courts are courts of limited jurisdiction, and absent

jurisdiction conferred by statute, lack the power to adjudicate claims.” Inclusive Communities

Project, Inc. v. United States Dep’t of Treasury, No. 3:14‐CV‐3013‐D, 2019 WL 459643, at *3

(N.D. Tex.) (citing Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998)). “It is

well settled that “the issue of standing is one of subject matter jurisdiction.” Id. (citing Cobb

v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006). A cause of action is presumed to lie outside

of a federal court’s limited jurisdiction, and the burden of establishing the contrary lies on

the party asserting jurisdiction. Multimin USA, Inc. v. Walco Int’l, Inc., 2007 WL 1686511, at

*2 (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994)). When making

a ruling on a motion to dismiss for want of jurisdiction, the court is authorized to consider

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evidence beyond the complaint and to make appropriate factual determinations. Id. (citing

Clark v. Tarrant County, Tex., 798 F.2d 736, 741 (5th Cir. 1986) and Williamson v. Tucker, 645

F.2d 404, 413 (5th Cir. 1981)).

“The doctrine of standing addresses the question of who may properly bring suit in

federal court, and ‘is an essential and unchanging part of the case‐or‐controversy

requirement of Article III.’” Inclusive Communities Project, Inc. v. United States Dept. of

Treasury, 2019 WL 459643, at *3 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). “To establish standing, a plaintiff must meet both constitutional and prudential

requirements.” Id. (citation omitted).

For constitutional standing, a Plaintiff must establish three elements: “(1) injury‐in‐fact

that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link

between the injury and the defendant’s actions; and (3) a likelihood that the injury will likely

be redressed by a favorable decision.” Id. (citing Little v. KPMG LLP, 575 F.3d 533, 540 (5th

Cir. 2009)). To have prudential standing for a violation of 15 U.S.C. § 1125(a), one must be

able to satisfy the “zone‐of‐interests” test, Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 129‐130 (2014), and there must be proximate causality. Id. at 132‐134. To

come within the zone of interests for a claim under 15 U.S.C. § 1125(a), “a plaintiff must allege

an injury to a commercial interest in reputation or sales.” Id. at 131‐132. Proximate causality

requires economic or reputational injury that flows directly from the harm. See id.

2. THE PLAINTIFF LACKS STANDING TO ASSERT A BREACH OF CONTRACT CLAIM

BECAUSE IT IS NOT IN PRIVITY OF CONTRACT WITH THE DEFENDANT AND IS NOT
AN INTENDED BENEFICIARY TO THE ALLEGED LICENSE AGREEMENT

“Whether a party has standing to pursue a [breach of contract] claim is a question of law.”

United Neurology, P.A. v. Hartford Lloyd’s Ins. Co., 101 F. Supp. 3d 584, 591–92 (S.D. Tex.),

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aff’d, 624 F. App’x 225 (5th Cir. 2015) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922,

928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 (1999)). “To establish standing to sue for a

breach of contract, ‘the plaintiff must either be in privity of contract with the defendant or

be a third‐party beneficiary entitled to enforce the contract.” Id. (citing Allan v. Nersesova,

307 S.W.3d 564, 571 (Tex.App.‐Dallas 2010). “The intention to contract or confer a direct

benefit to a third party must be clearly and fully spelled out or enforcement by the third party

must be denied.” Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 900

(Tex. 2011).

Here, the License Agreement plainly shows that the Plaintiff is not a party to it. See Dkt.

1‐2. It is not in privity of contract with the Defendant. See id. It is not a third‐party beneficiary

because the License Agreement contains no stated intention or conferral of benefits to the

Plaintiff. See id. There are no allegations in the Complaint that the Plaintiff assigned the

License Agreement to the Plaintiff or otherwise modified it to substitute the Plaintiff for The

Aasgaard Company (a Texas general partnership) in a signed writing in accordance with the

License Agreement. See Dkt. 1‐2 at § 17 (“None of the terms of this Agreement can be waived

or modified except by an agreement in writing signed by both parties.”). Because it is neither

in privity of contract with the Defendant nor is it an intended beneficiary to the License

Agreement, the Plaintiff does not have standing and this claim should be dismissed.

3. THE PLAINTIFF LACKS STANDING TO ASSERT CLAIMS OF TRADEMARK

INFRINGEMENT AND DILUTION

The Plaintiff is neither the registrant, owner, nor assignee of the ‘828, ‘376, ‘583, ‘678,

and ‘670 Registrations. In Multimin, the Northern District of Texas dismissed the Plaintiff’s

trademark infringement and dilution claims pursuant 15 U.S.C. § 1114 (limiting civil actions

to registrants) and § 1125(c) (limiting civil actions to owners) because the plaintiff there

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was not the owner, registrant, or assignee of the trademark in suit. Multimin at *4. See also

Flu Shots of Texas, Ltd. v. Lopez, 2014 WL 1327706, at *5 (N.D. Tex.) (dismissing trademark

infringement claims because the Plaintiff was neither the registrant, owner, nor assignee of

the trademark‐in‐suit).

Here, the registrant and owner of the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations is The

Aasgaard Company [see App. 9‐13], a Texas general partnership consisting of Stephani

Bradford and Mark Rippetoe [see App. 1‐2]. The ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations

have not been assigned. See App. 14‐23. It is not the owner of an alleged “variety of other

trademarks.” Because the Plaintiff does not own the ‘828, ‘376, ‘583, ‘678, and ‘670

Registrations or the “variety of other trademarks,” it cannot be said that it has suffered any

injury‐in‐fact for any alleged infringement or dilution. Injury‐in‐fact requires an invasion of

a legally protected interest. See Lujan, 504 U.S. at 561 (further refining what constitutes

injury‐in‐fact). The Plaintiff does not have a legally protected interest in someone else’s

property and has not plead any grounds to support that it does. Thus, because the Plaintiff is

not the owner, registrant, or assignee of any of the alleged trademarks‐in‐suit, it

consequently has not suffered any injury‐in‐fact, lacks standing, and this Court should

dismiss Counts I and III to the Complaint.

4. THE PLAINTIFF’S ALLEGED LANHAM ACT CLAIM FOR UNFAIR COMPETITION IN

VIOLATION OF 15 U.S.C. § 1125(A) FAILS BECAUSE PLAINTIFF LACKS STANDING

Here the Plaintiff lacks both constitutional and prudential standing. As to constitutional

standing, again, the Plaintiff has not suffered any injury‐in‐fact. The Aasgaard Company has

allegedly been wronged because it, and not the Plaintiff, owns the ‘828, ‘376, ‘583, ‘678, and

‘670 Registrations and the “variety of other trademarks” alleged. There are no allegations in

the Complaint that these trademarks have been registered, assigned, or licensed to the

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Plaintiff. See Dkt. 1. Therefore, even assuming that the allegations of harm were true (they

are not), the Plaintiff could not have suffered any injury‐in‐fact, and thus, lacks constitutional

standing.

The Plaintiff also lacks prudential standing. The only allegation of injury for this claim

has been that the Plaintiff suffered due to the Defendant’s alleged infringement of the ‘828,

‘376, ‘583, ‘678, and ‘670 Registrations or the “variety of other trademarks” the Plaintiff

allegedly owns. Dkt. 1 at ¶¶ 184‐193. The Plaintiff is neither the registrant, owner, licensee

nor assignee of any of these trademarks. There are no allegations in the Complaint that the

Plaintiff is the assignee or licensee of any of these trademarks. The USPTO records do not

show that the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations were registered or assigned to

the Plaintiff. There are no allegations in the Complaint that the Plaintiff has a license to use

The Aasgaard Company’s ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations or the “variety of other

trademarks.”

Consequently, the Plaintiff does not come within the zone of interests protected by 15

U.S.C. § 1125(a). That is because it has no commercial interest in the reputation or sales of

the marks or in allegedly infringing acts committed against another person’s (The Aasgaard

Company’s) trademarks, namely, the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations or any of

the “variety of other trademarks” vaguely asserted in the Complaint. Because the Plaintiff

has no commercial interest, it cannot have been injured by any alleged acts of the Defendant.

Therefore, because the Plaintiff lacks constitutional and prudential standing, this Court

should dismiss this Count to the Complaint.

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B. THE STANDARD ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

FED. R. CIV. P. 12(b)(6) permits a defendant to file a motion to dismiss a complaint for a

failure to state a claim. To survive such a motion, 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) (citation omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. While it is true that, in reviewing a

complaint, “the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions [,t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Id.; Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (“labels and conclusions” or “formulaic recitation of the

elements of a cause of action” are insufficient). “A ‘naked assertion’ without factual

enhancement is insufficient.” Id. at 557. “[W]here the well‐pleaded facts do not permit the

court to infer more than the mere possibility of misconduct,” the complaint is subject to

dismissal. Iqbal, 556 U.S. at 679.

1. COUNT I TO THE COMPLAINT FAILS BECAUSE PLAINTIFF DOES NOT OWN ANY OF THE
TRADEMARKS ALLEGED

The Plaintiff’s claim for trademark infringement pursuant to 15 U.S.C. § 1114 fails for

substantially the same reason that it does not have standing. “To prevail on a claim of federal

trademark infringement under the Lanham Act, 15 U.S.C. § 1051, et seq., a plaintiff must show

(1) ownership of a legally protectable mark and (2) a likelihood of confusion created by an

infringing mark.” All. for Good Gov’t v. Coal. for Better Gov’t, 901 F.3d 498, 505 (5th Cir. 2018).

See also TGI Friday’s, Inc. v. Great Nw. Rest., Inc., 652 F. Supp.2d 763, 767 (N.D. Tex. 2009)

(citing Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir. 2008)).

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Here, the Plaintiff does not have any ownership in the ‘828, ‘376, ‘583, ‘678, and ‘670

Registrations. See App. 9‐13. Those registrations are in the name of The Aasgaard Company.

See App. 3‐4. The Aasgaard Company is not a party to this lawsuit. See Dkt. 1. The USPTO

records do not show that these registrations were assigned and there are no allegations in

the Complaint that they were assigned. See App. 14‐23. There are no allegations in the

Complaint that the Plaintiff is the successor in interest to The Aasgaard Company. See Dkt. 1.

Thus, because the Plaintiff does not own the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations, it

cannot maintain an action for infringement of those registrations. Therefore, this Court

should dismiss Count I to the Complaint.

2. COUNT II TO THE COMPLAINT FAILS BECAUSE PLAINTIFF DOES NOT OWN ANY OF
THE TRADEMARKS ALLEGED

The Plaintiff’s unfair competition claim pursuant to 15 U.S.C. § 1125(a) also fails for the

same reasons that the Plaintiff lacks standing. “To establish a claim for false designation of

origin or unfair competition under the Lanham Act a plaintiff must prove: (1) A false or

misleading statement of fact about a product; (2) Such statement either deceived or had the

capacity to deceive a substantial segment of potential consumers; (3) The deception was

material, in that it is likely to influence the consumer’s purchasing decision; (4) The product

is in interstate commerce; and (5) The plaintiff has been or is likely to be injured as a result

of the statement at issue.” North American Deer Registry, Inc. v. DNA Solutions, Inc., 2017 WL

2402579, at *5 (E.D. Tex.) (citing IQ Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368, 375 (5th

Cir. 2002)).

Here, again, the Plaintiff has not alleged any injury sufficient to satisfy the fifth element

to this claim. As has been set forth above, the Plaintiff is not the owner, registrant, or assignee

of the ‘828, ‘376, ‘583, ‘678, and ‘670 Registrations. It does not own or use any of the “variety

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of other trademarks” and there are no allegations that it has been assigned or licensed them.

Further, the claim is insufficiently pled because Plaintiff has not included enough specificity

for Defendant to be sure what in the Plaintiff’s asserted “variety of other trademarks” is

protectible and has been infringed. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (“‘To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’”) (quoting Twombly, 550 U.S. at

570). The insufficiency of Plaintiff’s pleading leaves Defendant unable to adequately

comprehend or defend against the allegations raised in the Complaint. Given these

shortcomings, the Complaint cannot withstand a motion to dismiss, and must, indeed, be

dismissed.

3. COUNT III TO THE COMPLAINT FAILS BECAUSE PLAINTIFF DOES NOT OWN ANY OF
THE TRADEMARKS ALLEGED

For substantially the same reasons the Plaintiff lacks standing, it cannot succeed on its

trademark dilution claim pursuant to 15 U.S.C. § 1125(c). To prevail on a claim of trademark

dilution, a plaintiff must prove that: (1) its mark is famous and distinctive; and (2) that the

defendant adopted its mark after owner’s mark had become famous and distinctive; and (3)

that the defendant caused dilution of the owner’s mark. Westchester Media v. PRL USA

Holdings, Inc., 214 F.3d 658, 671 (5th Cir. 2000). Thus, to prevail on a claim of trademark

dilution, one must necessarily own the marks that it claims are being diluted.

Again, the Plaintiff is not the registrant, owner, assignee, or licensee of the ‘828, ‘376,

‘583, ‘678, and ‘670 Registrations or the “variety of other trademarks.” These trademarks

are owned by The Aasgaard Company. Therefore, for the same reasons it does not have

standing, the Plaintiff cannot satisfy the elements for a claim of trademark dilution.

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4. THE PLAINTIFF’S CLAIM FOR AN ALLEGED VIOLATION OF THE TEXAS DECEPTIVE

PRACTICES ACT MUST BE DISMISSED BECAUSE THE COMPLAINT CONTAINS NO
ALLEGATIONS THAT THE PLAINTIFF IS A CONSUMER PURCHASING ANY GOODS
FROM THE DEFENDANT

In order to have a claim or cause of action under the Texas Deceptive Practices Act as

cited by the Plaintiff, Tex. Bus. & Comm. Code § 17.46, one must be a “consumer.” Tex. Bus.

& Comm. Code § 17.44(a) provides, in pertinent part, that the subchapter covering the

Plaintiff’s alleged cause of action is “to protect consumers against false, misleading, and

deceptive business practices * * *.” A “consumer” is “an individual, partnership, corporation,

this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease,

any goods or services, except that the term does not include a business consumer that has

assets of $25 million or more, or that is owned or controlled by a corporation or entity with

assets of $25 million or more.” See Tex. Bus. & Comm. Code § 17.45(4). To be sure, “[t]he

elements of a cause of action under the Texas Deceptive Trade Practices Act (“DTPA”) are:

‘(1) the plaintiff is a consumer, (2) the defendant engaged in false, misleading or deceptive

acts, and (3) these acts constituted a producing cause of the consumer’s damages.’” Hurd v.

BAC Home Loans Servicing, LP, 880 F. Supp. 2d 747, 765 (N.D. Tex. 2012) (citations omitted)

“To qualify as a consumer, ‘a person must have sought or acquired goods or services by

purchase or lease’ and ‘the goods and services purchased or leased must form the basis of

the complaint.’” Id. (citation omitted). Where the plaintiff fails to sufficiently allege facts to

suggest a plausible ground for relief as to each element of a DTPA claim, then dismissal

pursuant to FED. R. CIV. P. 12(b)(6) is warranted. See Pollett v. Aurora Loan Services, 455 Fed.

Appx. 413, 415 (5th Cir. 2011).

Here, there are no allegations in the Complaint that the Plaintiff sought or acquired or

leased any goods or services from the Defendant. See Dkt. 1. Consequently, there are no

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allegations in the Complaint that the Plaintiff is a consumer. See Dkt. 1. The License

Agreement is not a lease of goods or services and, even if it were, would be a provision of

goods and services to the Defendant, making it, not the Plaintiff, a consumer. Therefore,

because the Plaintiff has not alleged that it is a consumer, or that it has even credibly acquired

or leased any goods or services from the Defendant, this claim is infirmed, and this Court

should dismiss this Count.

5. THE PLAINTIFF’S CLAIM FOR BREACH OF CONTRACT MUST BE DISMISSED

BECAUSE PLAINTIFF FAILS TO PLEAD THE ELEMENTS OF A BREACH OF CONTRACT
ACTION

“Under Texas law, ‘[t]he essential elements of a breach of contract action are: (1) the

existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)

breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result

of the breach.’” Tyler v. Citi‐Residential Lending Inc., 812 F. Supp. 2d 784, 787 (N.D. Tex. 2011)

(citing Smith Int’l., Inc. v. Egle Group, LLC, 490 F.3d 380, 387 (5th Cir.2007)). “The elements

of written and oral contracts are identical and must be present for the formation of a valid

and binding contract.” Id. (citing Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex.App.2004)).

“The following elements are required for the formation of a contract: 1) an offer; 2)

acceptance in strict compliance with the terms of the offer; 3) a meeting of the minds; 4) each

party’s consent to the terms; and 5) execution and delivery of the contract with the intent

that it be mutual and binding.” Id. (citing Critchfield).

Here, the Plaintiff alleges a breach of contract claim in Count V to the Complaint. See Dkt.

1 at pp. 49‐51. That breach of contract claim is premised upon alleged breaches of the alleged

License Agreement. However, as has been more fully set forth above, the Plaintiff here is an

absolute stranger to the License Agreement. There are no allegations in the Complaint that

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this alleged license agreement was assigned, transferred, or otherwise given by The

Aasgaard Company, a Texas partnership, to the Plaintiff. See Dkt. 1. There are no allegations

that the alleged license agreement was modified by a writing substituting the Plaintiff for

The Aasgaard Company. See id. There are no allegations in the Complaint, nor are there any

allegations that the alleged license agreement was entered into for the benefit of the Plaintiff

as an intended beneficiary. See id.

Thus, as pled, the Plaintiff cannot claim that a valid contract between the Plaintiff and the

Defendant or even damages to the Plaintiff arising from any breach. These are essential

elements of a breach of contract action as set forth in Tyler. Consequently, there is insufficient

factual matter pled to state a plausible claim of relief for breach of contract on the face of the

Complaint as required under Iqbal. Thus, this Court should dismiss this Count.

C. COUNTS I AND III MUST BE DISMISSED PURSUANT TO FED. R. CIV. P. 12(B)(7)

FOR A FAILURE TO JOIN NECESSARY PARTIES

A defendant may file a motion to dismiss for a failure to join a necessary an indispensable

party pursuant to FED. R. CIV. P. 12(b)(7) and FED. R. CIV. P. 19, which provides that:

A person who is subject to service of process and whose joinder will not
deprive the court of subject‐matter jurisdiction must be joined as a party if:

(A) in that person’s absence, the court cannot accord complete relief among
existing parties; or

(B) that person claims an interest relating to the subject of the action and is
so situated that disposing of the action in the person’s absence may:

(i) as a practical matter impair or impede the person’s ability to protect the
interest; or

(ii) leave an existing party subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations because of the interest.

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Here, The Aasgaard Company has not been joined. As has been set forth above, The

Aasgaard Company owns the 828, ‘376, ‘583, ‘678, and ‘670 Registrations. There is no

assignment of these registrations to the Plaintiff. The Aasgaard Company, and not the

Plaintiff, appears to use the “variety of other trademarks.” Consequently, if this Court were

to render a judgment in favor of the Defendant, The Aasgaard Company may try to file suit

against the Defendant, and leave it subject to a substantial risk of incurring an inconsistent

obligation in the event that The Aasgaard Company would win the second and subsequent

suit.

Both the Northern District of Texas and the Court of Appeals for the Fifth Circuit have

determined that the owners of a trademark for claims under the Lanham Act are necessary

and indispensable parties under Fed. R. Civ. P. 19. See Flu Shots, 2014 WL 1327706 at *7. See

also Escamilla v. M2 Technology, Inc., 536 Fed. Appx. 417, 421 (5th Cir. July 16, 2013)

(dismissing section 43(a) Lanham Act case brought by sole shareholder of corporate owner,

since corporate owner of trademark was indispensable party to Lanham Act § 43(a) case)

and Association of Co‐op. Members, Inc. v. Farmland Industries, Inc., 684 F.2d 1134, 1143 (5th

Cir.1982) (trademark owner or licensor of mark that is subject of infringement action is

usually treated as necessary and indispensable party since “a judgment for the alleged

infringer, whether based on a finding that the licensed mark is not a valid trademark or that

the defendant’s mark does not infringe it, may prejudice the owner’s rights in his own mark”

and “[a] judgment for the plaintiff‐licensee could result in double obligations for the

defendant, should the licensor subsequently sue.”). Therefore, because the Plaintiff has failed

to join a necessary an indispensable party to this litigation, this Court should dismiss these

claims against the Defendant.

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D. CERTAIN PORTIONS OF THE COMPLAINT CONCERNING COMPROMISE

NEGOTIATIONS ARE DUE TO BE STRICKEN

As set forth at Footnote 1, supra, FED. R. EVID. 408 prohibits evidence concerning the

conduct or statements made during compromise negotiations about a claim to prove or

disprove the validity or amount of a disputed claim. Those statements in pleadings are

subject to be stricken pursuant to FED. R. CIV. P. 12(f), see Trading Technologies, Geary, and

Fidelity Nat., which, is permissibly joined under a Motion to Strike pursuant to FED. R. CIV. P.

12(g), which provides that “[a] motion under [Rule 12] may be joined with any other motion

allowed by this rule.”

Here, the complaint contains several impermissible compromise negotiations that are

due to be stricken. Particularly, the Plaintiff specifically cites the following communications

running afoul of the rules: Dkt 1‐4 at pp. 1‐2 and Dkt. 1 at ¶ 96 (offering a resolution to the

dispute); Dkt 1‐5 at pp. 3‐4 and Dkt. 1 at ¶¶ 98 and 99 (offering a resolution to the dispute);

Dkt. 1 at ¶ 103 (conduct concerning a resolution to the dispute); Dkt. 1‐6 at ¶¶ 105‐107

(offering a resolution to the dispute); Dkt. 1 at ¶¶ 111‐113 and Dkt. 1‐7 (concerning

mechanics of implementing a resolution to the dispute); Dkt. 1‐9 (offering a resolution to the

dispute) and Dkt. 1 at ¶¶ 138‐146, 148‐150 (Counsel’s description of compromise

negotiations); Dkt. 1‐10 (concerning the resolution of the disputes); and Dkt. 1‐11

(concerning the mechanisms of resolving a dispute). Consequently, the Defendant requests

that these allegations and Exhibits be stricken.

III. CONCLUSION

WHEREFORE, for the reasons more fully set forth above, the Defendant respectfully

requests that this Court dismiss each and every one of the claims and causes of action lodged

against it and strike the improper references in violation of the Rules, award it its costs,

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expenses, reasonable attorney fees, and any other and further relief that this Court deems

just, necessary, and equitable under the circumstances.

Respectfully Submitted,

DUNLAP, BENNETT & LUDWIG

s/ David R. Keesling
David R. Keesling, OBA No. 17881
Destyn Stallings, OBA No. 31718
(admission forthcoming)
6660 South Sheridan Road, Suite 250
Tulsa, Oklahoma 74103
Telephone: (918) 998‐9350
Facsimile: (918) 998‐9360
dkeesling@dbllawyers.com
dstallings@dbllawyers.com

Mary Witzel (pro hac vice forthcoming)
199 Church Street, SE
Leesburg, Virginia 20175
Telephone: (703)777‐7319
Facsimile: (703)777‐3656
mwitzel@dbllawyers.com

Geoffrey M. Dureska (pro hac vice
forthcoming)
1870 The Exchange, SE, Suite 200
Atlanta, Georgia 30339
gdureska@dbllawyers.com
Telephone: (404) 692‐5953
Facsimile: (404) 596‐5283

Attorneys for Defendant ReynoldsStrong
LLC d.b.a Barbell Logic and Barbell Logic
Online Coaching

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CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of September, 2019, a true and correct copy of the

foregoing DEFENDANT’S MOTION TO DISMISS AND BRIEF IN SUPPORT THEREOF was

transmitted to the following parties through the CM/ECF system and via first class mail:

Joe B. Steimel
LAW OFFICES OF JOE B. STEIMEL P.C.
900 Eighth Street, Suite 401
P.O. Box 779
Wichita Falls, Texas 76307
joebsteimel@gmail.com

Brodie M. Butland
PORTER WRIGHT MORRIS & ARTHUR LLP
950 Main Avenue, Suite 500
Cleveland, Ohio 44113
bbutland@porterwright.com



s/ David R. Keesling ________________
David R. Keesling

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