Not a Lexis Advance subscriber? Try it out for free.

Valerie's House, Inc. v. Avow Hospice, Inc.

United States District Court for the Middle District of Florida, Fort Myers Division

December 27, 2019, Decided; December 30, 2019, Filed

Case No.: 2:19-cv-409-FtM-38NPM



Before the Court are Plaintiff/Counter-Defendant Valerie's House, Inc.'s Motion for Judgment on the Pleadings (Doc. 25), Defendant/Counter-Plaintiff Avow Hospice, Inc.'s response (Doc. 26), and Valerie's House's reply (Doc. 31).

This is a trademark dispute between two not-for-profit corporations that provide bereavement support services to children and families who have lost loved ones. Valerie's House began using the VALERIE'S HOUSE mark to promote its services in and around Fort Myers, Florida in 2014. Avow Hospice has provided palliative care and bereavement support services in nearby Collier County for over thirty years. In 2016, the parties discussed a deal for Valerie's House to provide services [*2]  at Avow's hospice facility, but talks broke down when Avow declined to sign a Memorandum of Understanding presented by Valerie's House. Then in 2018, Avow received funds from philanthropist Janet Cohen to renovate a house into a "home base" for Avow's children's grief and bereavement services. At Cohen's request, Avow named the building "Aunt Janet's House." Avow opened Aunt Janet's House in June 2019, and Valerie's House sued Avow for damages and injunctive relief. Avow filed counterclaims for declaratory judgment and unfair competition. Valerie's House now seeks dismissal of those counterclaims under Federal Rule of Civil Procedure 12(c).

The standard for granting a Rule 12(c) motion on the pleadings is identical to that of a Rule 12(b)(6) motion to dismiss. Equal Emp't Opportunity Comm'n v. Austal USA, LLC, 389 F. Supp. 3d 1015, 1018 (S.D. Ala. 2019). The court accepts as true all material allegations in the nonmovant's pleading and views those facts in the light most favorable to the nonmovant. Id. "Judgment on the pleadings is appropriate when no material facts are in dispute and the movant is entitled to judgment as a matter of law." Washington v. Rivera, 939 F.3d 1239, 1242 (11th Cir. 2019).

Avow's first counterclaim seeks a declaration that its "use of the AUNT JANET'S HOUSE mark does not infringe any trademark or other right held by" Valerie's House. (Doc. 11 at 13). Under both federal [*3]  and Florida state law, courts have discretion in deciding whether to exercise jurisdiction over declaratory judgment claims. Knights Armament Co. v. Optical Sys. Tech., Inc., 568 F. Supp. 2d 1369, 1374 (M.D. Fla. 2008). Avow's declaratory judgment claim is extraneous because Plaintiff's trademark claims will decide the rights Avow seeks to adjudicate. The Court thus declines to hear it.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

2019 U.S. Dist. LEXIS 222330 *; 2019 U.S.P.Q.2D (BNA) 496328; 2019 WL 7293596

VALERIE'S HOUSE, INC., Plaintiff, v. AVOW HOSPICE, INC., Defendant.


counterclaim, deceptive, unfair, consumers, trademark, Hospice, bereavement, declaratory, nonmovant, infringe