UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

ASHER WORLDWIDE ENTERPRISES )

LLC, d/b/a, RELIABUY.COM )

)

Plaintiff, ) Cause No. 12 cv 00568

)

v. ) Judge Thomas M. Durkin

)

HOUSEWARESONLY.COM )

INCORPORATED, STUART N. RUBIN and )

MARCIA RUBIN )

Defendants. )

DEFENDANTS STUART AND MARCIA RUBIN’S MOTION TO DISMISS 

PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A 

CLAIM UNDER RULE 12(b)(6)

Defendants Stuart and Marcia Rubin, by and though their attorneys Jeffrey 

Strange & Associates, move this Court for an order dismissing the First Amended 

Complaint of plaintiff Asher Worldwide Enterprises, LLC (“AWE”) as against them 

individually for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of 

Civil Procedure.

I. Background.

At all times relevant to the case at bar, defendant Housewaresonly.com Inc. 

(“Housewaresonly.com”) was a privately held direct marketing company which, from 

June 2010, was engaged in the internet based business (housewaresonly.com ) of 

promoting and providing discount homeware and houseware products including 

appliances, bed and bath items, collectibles, electronics, game room, housewares, kitchen 

and dining products and from March 2011, commercial restaurant supplies and 

equipment (restaurantkitchewarehouse.com), to purchasers and potential customers 

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nationwide. In short, Housewaresonly.com was an online competitor to AWE’s 

“reliabuy.com”. AWE has filed a two count “First Amended Complaint” for copyright 

infringement and violations of the Lanham Act against defendant Housewaresonly.com 

and Stuart and Marcia Rubin, individually. AWE alleges that Housewaresonly.com 

infringed on AWE’s copyrighted online product descriptions “and other materials”. For 

the reasons set forth below, AWE has failed to plead the requisite “special showing” in its 

amended complaint and therefore its infringement claim against Stuart and Marcia should 

be dismissed for failure to state a cause of action under Rule 12(b)(6).

II. Legal Standard for Rule 12(b)(6) Motion to Dismiss.

In ruling on a motion to dismiss, a court must “take all of the factual allegations in 

the complaint as true” and make reasonable inferences in favor of the plaintiff. Zellner v. 

Herrick, 639 F.3d 371, 378 (7th Cir. 2011)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 

S.Ct. 1937, 1949 (2009)). To survive a motion to dismiss brought pursuant to Federal 

Rule of Civil Procedure 12(b)(6), the plaintiff must do more in the complaint than simply 

recite elements of a claim; the “complaint must contain sufficient factual matter accepted 

as true, to state a claim to relief that is plausible on its face.” Zellner, 639 F.3d at 

378(quoting Iqbal, 129 S.Ct. at 1949). (emphasis added). A claim is facially plausible 

when “the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 at 1949. A 

complaint need not set forth “detailed factual allegations” but it must plead facts that 

“raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 555, 127 S.Ct. 1955 (2007). As such, “threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 

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S.Ct. at 1949(quoting Bell Atl. Corp., 550 U.S. at 555).

III. Plaintiff fails to State a Claim Against Stuart and Marcia Rubin in Their

Individual Capacity.

As a general rule, corporate officers are not held personally liable for the 

infringement by their corporation when they are acting within the scope of their duties. 

Dangler v. Imperial March., Co., 11 F2d 945, 947 (7th Cir. 1926). The Seventh Circuit in 

the seminal Dangler case has long held that absent some “special showing,” individuals 

are not ordinarily liable for the infringement of their corporation, even where that 

infringement is committed under the officer’s general direction.1 Id. (emphasis added). 

A plaintiff must allege facts demonstrating that the defendants were motivated by some 

improper purpose or acting outside the scope of their duties to meet the “special showing” 

standard. Id. Dangler provides that for individual liability there must be involvement 

“willfully and knowingly-that is, when [the individual] personally participates in the 

manufacture or sale of the infringing article (acts other than an officer), or when he uses 

the corporation as an instrument to carry out his own willful and deliberate infringements, 

or when he knowing uses an irresponsible corporation with the purpose of avoiding 

liability-that officers are held jointly with the company.” Drink Group, Inc. v. Gulfstream 

Communications, Inc. 7 F.Supp.2d 1009,1010 (N.D.Ill.2009)(quoting Dangler, 11 F.2d at 

1947). (emphasis added). Thus, to satisfy the required “special showing” of willful and 

personal involvement, plaintiff must plead with supporting facts that an officer was 

personally involved in the infringement outside of his general duties as an officer of the 

 1 Although Dangler involved patent infringement, courts in this district have held that the same 

approach to holding officers personally liable for patent infringement should apply to trademark 

and copyright infringement. See e.g. Drink Group, Inc. v. Gulfstream Communications, Inc. 7 

F.Supp.2d 1009, n. 3 (N.D.Ill.2009)(trademark infringement); FM Industries, Inc. v. Citicorp 

Credit Services, Inc., 2007 WL 4335264 (Dec. 5, 2007)(copyright infringement).

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corporation. However, the required “special showing” is not met “when the individual 

defendant has done nothing beyond the scope of his duties as officer and the corporation 

was ‘not organized to permit the individual defendant to profit from the infringement or 

hide his personal liability under a corporate shell’ so that the alleged infringement was 

not willful.” Jones Day v. Blockshopper LLC, 2008 WL 4925644 at *5 (Nov. 13, 2008).

A. AWE’S Allegations Against Stuart and Marcia Rubin.

Even assuming the alleged conduct of the corporate defendant 

Housewaresonly.com is ultimately found to constitute illegal infringement, AWE’s First 

Amended Complaint does not contain sufficient factual allegations to satisfy the “special 

showing” required by Dangler and fails to state a plausible claim of individual liability 

against Stuart and Marcia Rubin. In the case at bar, AWE in its First Amended 

Complaint makes the following vague allegations or conclusory assertions against 

defendants Stuart and Marcia Rubin:

“7. Defendants Mr. Rubin and Ms. Rubin direct and control the operations and 

activities of RestaurantKitchenWarehouse.com and Housewaresonly.com and are 

responsible for the activities of RestaurantKitchenWarehouse.com and 

Housewaresonly.com complained of herein...

16. Through the Housewaresonly.com website, Defendants Housewaresonly.com

Mr. Rubin and Ms. Rubin have, without the authorization or permission of AWE, 

copied and duplicated many of the descriptions, product feature listings and other 

promotional materials created by AWE or on its behalf and that are the subjects of 

the copyright registrations filed by AWE....

17. The RestaurantKitchenWarehouse.com website operated by Defendants

Housewaresonly.com, Mr. Rubin and Ms. Rubin is a website accessible by and 

available to users throughout the United States including in this District. The 

RestaurantKitchenWarehouse.com website features and makes available for 

purchase various restaurant, kitchen and other appliances in direct competition 

with AWE and its Reliabuy.com site.

18. Through the RestaurantKitchenWarehouse.com website, Defendants

Housewaresonly.com, Mr. Rubin and Ms. Rubin have, without the 

authorization or permission of AWE, copied and duplicated many of the 

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descriptions, product feature listings and other promotional materials created by 

AWE or on its behalf and that are the subjects of the copyright registrations filed 

by AWE...

19. Defendants Mr. Rubin and Ms. Rubin direct and control the operations of

Defendants Housewaresonly.com, and RestaurantKitchenWarehouse.com. In 

particular, Mr. Rubin is believed to be the owner and president of Defendants 

Housewaresonly.com, and RestaurantKitchenWarehouse.com, while Ms. Rubin 

serves at least as the registered agent for Defendants Housewaresonly.com, and 

RestaurantKitchenWarehouse.com.

20. Defendant Housewaresonly.com, is the alter egos of Defendants Mr. Rubin

and Ms. Rubin and is under the direct control of Mr. Rubin and Ms. Rubin.

21. Defendants Housewaresonly.com, Mr. Rubin and Ms. Rubin have attempted 

to capitalize on Reliabuy’s long-standing reputation by using Reliabuy’s 

tradename on its website without permission.

25. Defendant Housewaresonly.com, under the direction and control of 

Defendants Mr. Rubin and Ms. Rubin, created an additional website on 

September 22, 2010 called “RestaurantKitchenWarehouse.com.” Prior to 

September, 2010, the Reliabuy.com website focused on general consumer goods. 

In September, 2010 the Reliabuy.com website was redesigned to focus 

specifically on the ‘Commercial Discount Restaurant Equipment’ niche, and the 

Metatag of the entire Reliabuy.com website was changed from “The Reliable 

Way to Shop Online” to “Discount Commercial Kitchen & Restaurant 

Equipment.” On September 22, 2010, shortly after AWE made this change to the 

Reliabuy.com website, Defendants registered a website domain entitled 

“RestaurantKitchenWarehouse.com” to address the very same Commercial 

Discount Restaurant Equipment niche and copied over two-hundred product 

descriptions created and owned by AWE and published at the Reliabuy.com 

website.” (Asher First Amended Complaint)(emphasis added).

B. AWE Fails to Plead Facts Establishing Requisite “Special Showing”

as to the Individual Defendants Stuart and Marcia Rubin.

The only concrete factual assertions contained in AWE’s allegations regarding the 

Rubins are that Stuart and Marcia Rubin are alleged officers of Housewaresonly.com and 

as such generally “direct and control” the operations of the corporate defendant. These 

allegations do not support an inference that the Rubins individually acted “other than as 

an officer” of the corporate defendant (that they “willfully and knowingly” participated in 

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the infringing conduct). In a one-sentence throwaway allegation, without absolutely any 

factual support, AWE alleges that the corporate defendant Housewaresonly.com is the 

“alter egos” of defendants Stuart and Marcia Rubin “under the direct control of Mr. and 

Mrs. Rubin”. (First Amended Complaint, ¶20). Such a conclusory allegation must be 

disregarded. To state a veil-piercing claim, plaintiffs typically are only required to satisfy 

the notice pleading standards of Rule 8(a). Flentye v. Kathrein, 485 F.Supp.2d 903, 913 

(N.D.Ill. 2007). If the Complaint “fairly alleges an entity exists as the alter ego of 

another and provides factual manifestations suggesting the existence that the two operate 

as a single entity, a motion to dismiss will be denied.” Id., see also Hann v. The Paul 

Revere Ins. Co., No. 03 C 1062, 2004 WL 557380, at *2 (N.D.Ill. Feb.17, 2004) (stating 

that if a plaintiff alleges an alter ego relationship, “dismissal of her complaint is 

unwarranted if she alleges any facts which suggest that the corporations operated as a 

single entity”). In the case at bar AWE’s complaint is devoid of even a scintilla of 

“factual manifestations” supporting an alter ego claim. Thus, in the absence of any 

factual pleading establishing the requisite “special showing”, AWE’s claim against the 

Rubins individually should be dismissed.

A dismissal of AWE’s claim against the Rubins would be in accord with similar 

cases in this district. The allegations in DEV Indus., Inc. v. Rockwell Graphic Sys., Inc., 

1992 WL 100908 (N.D.Ill. May 4, 1992), included statements that the individual 

defendants were “engaged in a complex and integrated scheme,” were “the moving, 

conscious, and dominant force behind Rockwell’s offending conduct,” and knew and/or 

encouraged the allegedly offending conduct. Id., at *3. In dismissing the individual 

defendants, the court stated that personal liability cannot be imposed upon an individual 

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merely because that person is an officer of the defendant corporation, yet that is precisely 

what the plaintiff was attempting to do. Id. The court further stated that the “verbiage” 

was “insufficiently indefinite” and “no substitute” for the identification of specific 

activity. Id. The court properly summarized plaintiff’s allegations as a “conclusion one

might reach after being apprised of the conduct in which an individual has engaged.” Id. 

Likewise, in the case at bar, AWE’s conclusory “verbiage” lacks any concrete factual 

allegation to satisfy the “special showing” requirement as set forth in Dangler.

In Jones Day v. Blockshopper LLC, 2008 WL 4925644 at *5 (Nov. 13, 2008), a 

publisher of information related to private real estate transactions was alleged to have 

used a law firm’s service mark on its website without the law firm’s authorization. The 

plaintiff law firm also sought to impose infringing liability on the individual officers of 

the website publisher. The Jones Day Court dismissed the plaintiff’s infringing claim 

against the individual defendants finding that:

“Even assuming the alleged conduct of blockshopper.com is ultimately found to 

constitute illegal infringement, the Complaint does not contain sufficient 

allegations to plausibly state a claim of individual liability against Timpone and 

Weinhaus. There are no allegations that Timpone and Weinhaus organized 

blockshopper.com for the purpose of committing infringing acts or that they 

willfully participated, directed or ordered the allegedly infringing acts here. The 

only facts alleged in the Complaint as to Timpone and Weinhaus are that 

Timpone and Weinhaus; (1) “co-founded, registered and own the internet website 

located at the domain blockshopper.com” and (2) are “now members of 

Defendant Blockshopper LLC” and, together with Blockshopper LLC, “are now 

doing business as Blockshopper.com and use the Web Site to operate that 

business.” (Complt., ¶ ¶ 20, 21.) These allegations are clearly insufficient to 

allege the special showing required to hold an individual officer liable. See The 

Drink Group, Inc. v. Gulfstream Communications, Inc., 7 F.Supp.2d 1009, 1010-

11 (N.D.Ill.1998) (allegations that individual officers were “principal of and 

“driving force behind” allegedly infringing activities of Defendant Drink 

Magazine, LLP insufficient to state a claim against officers where plaintiffs failed 

to allege any facts demonstrating wrongdoing by the individual defendants; the 

mere fact that officers incorporated the defendant magazine was “innocuous in the 

absence of allegations that, at the time of incorporation, they were motivated by 

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some improper purpose or acting outside the scope of their corporate duties.”). 

Jones Day, at *5.

Cases where dismissals of claims for individual liability for corporate infringing conduct 

hinge on a lack of any “special showing” of an individual defendant’s personal 

involvement in the wrongful infringing conduct: Free Green Can, LLC v. Green 

Recycling Enterprises, LLC, 2011 WL 5130359, at *6 (Oct. 27, 2011)(facts “do not 

suggest the type of willful conduct committed outside the scope of the individual 

Defendants’ corporate duties that is necessary for individual liability for infringement); 

Furstperson v. Iscopia Software, Inc., 2009 WL 294977, at *4(Sept. 10, 2009)(“[w]hile 

[allegations] detail the alleged personal involvement of Furst and Cline in the alleged 

wrongdoing, they do not plausibly suggest the type of willful conduct outside the scope 

of their duties that is necessary for individual liability); Sprecht v. Google, Inc., 2009 WL 

2407749, at *4(holding that allegations of personal involvement were not sufficient to 

state a claim.).

In contrast to the above cited cases, in the cases where a court has found a 

sufficient “special showing” in the pleadings, the pleadings contained none of the vague 

language or conclusory allegations found in the above cited cases. In Syscon, Inc. v. 

Vehicle Valuations Services, Inc., 274 F.Supp.2d 975 (N.D.Ill. 2003), the plaintiff alleged 

that the officer (i) personally authorized the infringement, (ii) personally directed and 

authorized the unlawful conduct, (iii) personally profited from the infringement, and (iv) 

offered for sale the copyrighted product. Id., at 976-77. The Court found the allegations 

sufficient to reveal personal participation and direction in the infringing conduct. Id. at 

977. In Peaceable Planet, Inc. v. Ty, Inc., 185 F.Supp.2d 893 (N.D.Ill.2002), plaintiff 

alleged that the officer (i) was the founder, president, and CEO and sole shareholder of 

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the corporation, (ii) was responsible for the overseeing of development, marketing and 

sales of the allegedly infringing product, (iii) personally participated in the design and 

naming of the product, (iv) directed and approved the final design, (v) approved and 

authorized the corporation’s actions, and (vi) personally promoted, offered for sale and 

sold the product. Id at 896-897. The court found that the plaintiff had sufficiently pled a 

“special showing” and that “these allegations support the inferences that Warner 

“personally participates in the manufacture or sale of the infringing article (acts other 

than as an officer), ... uses the corporation as an instrument to carry out his own willful 

and deliberate infringements, or ... knowingly uses an irresponsible corporation with the 

purpose of avoiding personal liability.” Id, at 897 (quoting Dangler, 11 F.2d at 947). On 

appeal, the Seventh Circuit held that a corporation's sole owner was “suable” where the 

plaintiff presented “some evidence that [he] may have been personally involved in the 

commission of the tort by his corporation stating that:

“we note the superficial oddity of Peaceable Planet's naming Ty Warner as a 

defendant along with Ty Inc. He is, it is true, the sole owner of Ty Inc., but unless 

a shareholder—sole, controlling, or otherwise—is shown to have been 

personally involved in the commission of the tort by his corporation, he is not 

jointly liable for the tort. However, there is some evidence that Warner may have 

been personally involved in the decision to use the name Niles on a Ty camel, and 

if so he may be (we do not say he is—it is an issue for resolution on remand) a 

joint tortfeasor and therefore suable.” ). Peaceable Planet, Inc. v. Ty, Inc.

362 F.3d 986, 994 (7th Cir. 2004). (emphasis added).

CONCLUSION

For all of the above reasons, AWE’s First Amended Complaint lacks any concrete 

allegations supporting the “special showing” required by the Seventh Circuit in Dangler. 

Thus, AWE’s First Amended Complaint should be dismissed as to the individual 

defendants Stuart and Marcia Rubin for failure to state a claim under Rule 12(b)(6).

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Respectfully submitted,

/s/ Rod Radjenovich

Rod Radjenovich

Jeffrey Strange & Associates

717 Ridge Road

Wilmette IL 60091

847-256-7377

847-256-1681

jstrangelaw@aol.com

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11

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

ASHER WORLDWIDE ENTERPRISES )

LLC, d/b/a, RELIABUY.COM )

)

Plaintiff, ) Cause No. 12 cv 00568

)

v. )

) Judge Dow

HOUSEWARESONLY.COM )

INCORPORATED, STUART N. RUBIN and )

MARCIA RUBIN )

Defendants. )

CERTIFICATE OF SERVICE AND NOTICE OF ELECTRONIC FILING

The undersigned hereby certifies that a true and correct copy of Defendants Stuart 

and Marcia Rubin’s Motion to Dismiss Plaintiff’s First Amended Complaitn for Failure 

to State a Claim Under Rule 12(b)(6) was electronically filed with the Clerk of the Court 

using the CM/ECF system, which sent notification of such filing to counsel of record on 

February 13, 2013

/s/ Rod Radjenovich

Jeffrey Strange & Associates

717 Ridge Road

Wilmette IL 60091

847-256-7377

847-256-1681

jstrangelaw@aol.com

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