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Entu Auto Services, Inc. v. Picmyride.Biz, LLC

United States District Court, E.D. Louisiana

April 13, 2015

ENTU AUTO SERVICES, INC.,
v.
PICMYRIDE.BIZ, LLC D/B/A QUICKPICAUTO, TIMMY HENDRIX, AND AUBREY KING, SECTION:

ORDER AND REASONS

MARY ANN VIAL LEMMON, District Judge.

IT IS HEREBY ORDERED that Timmy Hendrix's Motion to Dismiss for Improper Venue (Doc. #6) is GRANTED, and this matter is TRANSFERRED to the United States District Court for the Western District of Louisiana.

BACKGROUND

This matter is before the court on a motion to dismiss for improper venue filed by defendant, Timmy Hendrix.[1] Hendrix argues that venue does not lie in the United States District Court for the Eastern District of Louisiana because none of the defendants reside in this district and none of the actions or omissions giving rise to plaintiff's cause of action occurred in the district. Hendrix contends that the proper venue is the United States District Court for the Western District of Louisiana.

Plaintiff, ENTU Auto Services, Inc., and defendants, PicMyRide.Biz, LLC d/b/a Quickpicauto, Timmy Hendrix, and Aubrey King, are competing businesses that provide online inventory management tools to automobile dealerships. ENTU has been in business since 2000, and operates in Louisiana, Texas and Mississippi. Its inventory management tools "include software solutions for inventory management, photography, automobile descriptions derived from VIN codes, market analysis tools, custom window stickers, incentive and rebate tools, and custom buyer guides."

From 2009 to 2013, ENTU worked with Hendrix, who was in the business of providing print, radio and television marketing to automobile dealerships. Hendrix would approach dealerships and offer his services along with ENTU's. In 2013, ENTU stopped working with Hendrix due to customer complaints about Hendrix. In 2014, Hendrix, along with King, formed PicMyRide.Biz, LLC, which directly competes with ENTU in providing online inventory management services to automobile dealerships.

On January 13, 2015, filed this action, along with an application for a temporary restraining order, alleging that defendants engaged in false advertising under the Lanham Act, 15 U.S.C. § 1125(a), by circulating an advertisement that contains false, misleading and deceptive statements about ENTU's pricing and performance and the capabilities of its services. ENTU alleges that in December 2014, defendants prepared an advertisement that contained false information about ENTU's services and distributed it to automobile dealerships in Louisiana. ENTU claims that "Defendants used ENTU's confidential information obtained by Hendrix to directly target ENTU's customers with the False Ad." ENTU alleges that the advertisement "purports to compare the advantages of ENTU's online inventory management services with the services of Defendant[s], " and that it includes:

1. literally false information about ENTU's pricing because it states that the subscription fee for ENTU's services is $375, when it is actually $149;
2. a literally false statement that ENTU's services do not provide the client with tools that are "usable to manage your inventory, " when ENTU does provide such tools;
3. a misleading and deceptive statement that ENTU's services involve "manual upload" of inventory information, while defendants' services provide "same day upload, " when in reality, there is no difference between the upload services offered; and,
4. a misleading and deceptive statement that ENTU's service "uses a 3rd party vendor... causing inaccuracies on almost a daily basis, " and in comparison, defendants' provide "100% accuracy with" a customer's inventory, when in reality, ENTU's system is exactly as accurate as defendants' system.

ENTU alleges that defendants' false advertisement violates the Lanham Act, 15 U.S.C. § 1125(a); violates the Louisiana Unfair Trade Practices Act ("LUTPA"), Louisiana Revised Statutes § 51:1405; constitutes fraud under Louisiana Civil Code article 1953; violates Louisiana's False Advertising law, La. Rev. Stat. § 51:411; and, violates Louisiana's Anti-Dilution Statute, La. Rev. Stat. § 51:223.1. In its complaint, ENTU seeks a preliminary and permanent injunction preventing defendants from distributing the false advertisement, or any other false advertisement, and requiring defendants to issue corrective advertising. ENTU also seeks an award of lost profits and actual damages attributable to the false advertising, treble damages, interest, costs, expenses and attorneys' fees.

ENTU filed an application for a temporary restraining order, arguing that it is warranted due to defendants' violation of the Lanham Act, 15 U.S.C. § 1125(a). ENTU seeks an injunction preventing defendants from:

1. distributing, transmitting, publishing or circulating any statement that incorrectly states or suggests ...

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