United States District Court 

for the 

Southern District of Florida 

ExxonMobil Corporation, Plaintiff,

v. 

The Individuals and Business 

Entities Identified on Schedule “A”, 

Defendants.

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Civil Action No. 22-22696-Civ-Scola 

Order Denying Motion to Dismiss 

This matter is before the Court on the motion to dismiss the amended 

complaint (Mot., ECF No. 60) filed by Defendants Carlo Ribera, 7500 

Enterprises LLC (“7500”), and Everlast Lubricants, LLC (“Everlast,” and 

collectively, the “Responding Defendants”). The Plaintiff, Exxon Mobil 

Corporation (“Exxon”), responded in opposition. (Resp., ECF No. 65.) The 

Responding Defendants timely replied. (Reply, ECF No. 73.) The Court has 

carefully considered the motion, the parties’ arguments, the record, and the 

governing law. For the reasons stated below, the Court denies the motion. 

(ECF No. 60.) 

1. Background 

The Plaintiff filed suit in August of 2022, alleging that the Responding 

Defendants, as well as Defendants Jose Martinez and AMV Enterprises, Inc. 

(“AMV,” and collectively, the “Defendants”), were collectively selling counterfeit 

Mobil-branded lubricating oil. (Compl., ¶ 25, ECF No. 1.) Exxon simultaneously 

moved for a temporary restraining order (“TRO”) against the Defendants, which 

the Court granted. (ECF Nos. 7, 10, sealed.) Shortly thereafter, the Court held a 

hearing on Exxon’s motion for a preliminary injunction against the Defendants. 

Counsel for Mr. Ribera, AMV, 7500, and Everlast was present at the hearing, 

and agreed to the entry of a preliminary injunction with some modifications to 

the terms of the original TRO. (Trans of Proceedings, ECF No. 32; Prelim. Inj., 

ECF No. 39.) The preliminary injunction—again, agreed to by the Responding 

Defendants and Defendant AMV—remains in effect. 

After the entry of the agreed-upon preliminary injunction, all of the 

Defendants moved to dismiss the complaint for failure to state a claim upon 

which relief could be granted. (Mots. to Dismiss, ECF Nos. 45, 49.) The 

Defendants’ arguments primarily focused on the fact that the original 

complaint did not identify the Defendants by name, because Exxon had 

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identified the Defendants in a sealed filing and moved, ex parte, for a TRO

based upon those sealed filings. Because of this procedural reality, Exxon

moved for permission to amend the initial complaint in response to the motions

to dismiss. (ECF No. 53.) The Court granted leave to amend, and Exxon filed an

amended complaint that identified each of the Defendants. (Am. Compl., ECF

No. 55.)

In the amended complaint, Exxon brings eight counts against the

Defendants, with each claim being asserted against all of the Defendants:

federal trademark infringement under the Lanham Act (Count I), false

designation of origin under the Lanham Act (Count II), federal trademark

counterfeiting under the Lanham Act (Count III), federal trademark dilution

under the Lanham Act (Count IV), unfair competition under Florida statutory

and common law (Count V), dilution under Florida statutory law (Count VI),

unjust enrichment under Florida common law (Count VII), and violation of the

Florida Deceptive and Unfair Trade Practices Act (Count VIII). (Am. Compl.

¶¶ 58-90.)

In support of those claims for relief, Exxon alleges that the Defendants

collectively acted to offer counterfeit Mobil-branded oils for sale, particularly

relating to NASCAR events located in the Caribbean. (Id. ¶¶ 32, 36-41.) Exxon

also attaches several invoices and purchase orders relating to the sale of the

allegedly counterfeit oils to the amended complaint. (Id. Exs. C-G.)

More specifically, Exxon alleges that each of the corporate entity

Defendants had a role in the overall scheme, and that the individual

Defendants controlled the corporate entities in achieving the ends of the

scheme. Defendant AMV (which does not join the current motion to dismiss)

allegedly sold counterfeit Mobil oil to NASCAR Auto Service EIRL in the

Dominican Republic, and otherwise offered counterfeit Mobil oil for sale on its

website. (Id. ¶¶ 34-41.) Separately, Exxon alleges that “Defendant 7500

Enterprises offered for sale to Importadora De Gomas La Mega SRL (“La Mega”),

another Dominican Republic company, Everlast branded products.” (Id. ¶ 43.)

The shipment of those Everlast products, however, allegedly contained Mobilbranded oil that has been seized by the Dominican government. (Id. ¶ 44.)

Exxon pleads that those Mobil-branded oils, too, will “likely” be proven

counterfeit over the course of further investigation. (Id.)

Finally, Exxon pleads that Mr. Ribera and Mr. Martinez “are the past and

present controlling forces behind the sale of the Counterfeit Products.” (Id.

¶ 54.) More specifically, Exxon alleges that Mr. Ribera “was NASCAR’s contact

at least for and in connection with the August 2021 invoice,” which was for

AMV’s sale of counterfeit Mobil oils. (Id. ¶¶ 41, 56.) Exxon further claims that

“Defendants Martinez and Ribera, using their own personal contacts,

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personally acquired the Counterfeit Products, negotiated their sale to NASCAR,

and facilitated, either directly or by instruction to AMV’s, 7500 Enterprises’,

and/or Everlast’s employees, the sale, exportation, and delivery of the

Counterfeit Products to NASCAR and La Mega.” (Id. ¶ 57.)

Now, the Responding Defendants move to dismiss the amended

complaint, arguing that Exxon has impermissibly lumped all of the Defendants

together in the amended complaint and failed to plead sufficient facts to state

claims for relief against Defendants Ribera, 7500, and Everlast. (Mot. at 1-2.)

Exxon responds that it has provided sufficient facts to support its claims in its

filings supporting its motion for the TRO and preliminary injunction, and that

it has pleaded sufficient allegations in the amended complaint to support its

claims against the Responding Defendants. (Resp. at 1-2, 4-6.)

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as

true, construing them in the light most favorable to the plaintiff. Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does

not require detailed factual allegations, but it demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quotation omitted). A plaintiff must articulate “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007).

“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.” Iqbal, 556 U.S. at 678. “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. Thus, a pleading that offers mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” will not survive

dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous

departure from the hyper-technical, code-pleading regime of a prior era, but it

does not unlock the doors of discovery for a plaintiff armed with nothing more

than conclusions.” Iqbal, 556 U.S. at 679.

Yet, where the allegations “possess enough heft” to suggest a plausible

entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. “[T]he

standard ‘simply calls for enough fact to raise a reasonable expectation that

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discovery will reveal evidence’ of the required element.” Rivell v. Private Health

Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008). “And, of course, a wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof 

of those facts is improbable, and ‘that a recovery is very remote and unlikely.’” 

Twombly, 550 U.S. at 556. 

3. Analysis 

The Court finds that Exxon has pleaded sufficient factual allegations 

against each of the Responding Defendants in the amended complaint to 

satisfy Federal Rule of Civil Procedure 8’s requirements. Indeed, the amended 

complaint’s specific factual allegations against Mr. Ribera, 7500, and Everlast 

are more than sufficient to establish that Exxon’s claims are plausible.1 

The Responding Defendants make this clear in their own motion, where 

they identify that Paragraphs 44 and 57 of the amended complaint support 

Exxon’s claims against them. (Mot. at 4.) The Responding Defendants focus 

their arguments on the contents of the invoices Exxon attaches to the amended 

complaint as exhibits, but they spend little time or effort attempting to explain 

why the actual allegations in Paragraphs 44 and 57 are insufficient on their 

own to establish that Exxon has a plausible claim for relief (other than to 

argue, incorrectly, that the allegations are conclusory). (Id.) Exxon’s allegations 

in Paragraphs 44 and 57, however, would be sufficient to support Exxon’s 

claims even without the attached exhibits. And the Court has identified 

additional factual allegations in Paragraphs 43 and 56 of the amended 

complaint that support Exxon’s claims against the Responding Defendants. 

To summarize, Exxon has alleged that Defendants Ribera and Martinez 

exercised their control over Defendants AMV, 7500, and Everlast to ship 

counterfeit Mobil-branded lubricating oil to the Dominican Republic on 

multiple occasions. (Am. Compl. ¶¶ 34-44, 54-57.) On some of those occasions, 

the counterfeit oils came from Defendant AMV. (Id. ¶¶ 34-41.) On at least one 

of those occasions, the counterfeit oils came from Defendants 7500 and 

Everlast. (Id. ¶¶ 43-44.) And, on at least one of those occasions, Defendant 

Ribera was the point of contact for the sale of the counterfeit oils. (Id. ¶ 56.) 

The Court is at a loss to determine how these allegations could not be 

sufficient, if proven true, to support Exxon’s claims against the Responding 

Defendants. See, e.g., Y.Z.Y., Inc. v. Azmere USA Inc., No. 13-20229-CIV, 2013 

WL 12096354, at *2 (S.D. Fla. Oct. 17, 2013) (Moreno, J.) (finding allegations 

1 The Court cannot consider Exxon’s factual support submitted in support of its motion for a 

TRO on a motion to dismiss. Instead, the Court confines its analysis to the four corners of

Exxon’s amended complaint and the attached exhibits. See Day v. Taylor, 400 F.3d 1272,

1275-76 (11th Cir. 2005). 

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against individual defendant sufficient under the Lanham Act where the 

individual defendant “actively participated in the ‘purchase, marketing, sale, 

and distribution of the counterfeit products’ and ‘supervised and directed the 

infringing activity’” by the corporate defendant).2 

Additionally, because Exxon pleads specific factual allegations relating to 

each of the Responding Defendants’ involvement in the overall scheme in the 

amended complaint, the Responding Defendants’ concerns about the “lumping 

together” of all the Defendants in the counts for relief falls flat. (Mot. at 6-9); 

Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 

1249, 1274-75 (11th Cir. 2019). It is not impermissible for a plaintiff to plead 

all counts against all Defendants, so long as the Plaintiff pleads sufficient 

factual allegations supporting its claims for relief against each Defendants. 

Indeed, “the gist of the problem with group pleading . . . is the failure to give 

fair notice to each named defendant of the claims against it.” Quality Auto, 917 

F.3d at 1274. The amended complaint gives each of the Responding 

Defendants fair notice of the claims against them. (Am. Compl. ¶¶ 34-44, 54-

57.) Therefore, it does not impermissibly lump together the Defendants, and it 

is not a shotgun pleading. Quality Auto, 917 F.3d at 1274-76. 

Finally, the amended complaint sufficiently pleads a claim for unjust 

enrichment against Defendant Ribera. Exxon specifically pleaded multiple 

benefits that it conferred on all of the Defendants through their use of the 

Mobil mark in their scheme: Exxon’s “long-established rights” to the Mobil 

brand name, its investments in the Mobil name, and the goodwill established 

over significant time in the Mobil name. (Am. Compl. ¶¶ 81-82.) Those benefits 

have been found to be sufficient to support claims for unjust enrichment. 

Valoro, LLC v. Valero Energy Corp., No. 14-21694-CIV, 2014 WL 3920035, at *4 

(S.D. Fla. Aug. 11, 2014) (Moreno, J.).3 Because Exxon’s allegations apply to all 

2 The Responding Defendants do not argue that Exxon fails to state a claim for each of the

individual counts Exxon brings, except for its claim for unjust enrichment against Defendant

Ribera, which the Court addresses separately. Rather, they challenge the sufficiency of the

general factual allegations and whether those allegations support Defendants Ribera, 7500,

and Everlast’s alleged role in the overall counterfeiting scheme. Accordingly, the Court does not

address whether Exxon’s allegations are sufficient to support each individual claim for relief. 

3 As the Court observed in Valero: 

Valero set forth in detail the benefits conferred upon Plaintiffs by alleging Valero's longestablished rights in the Valero marks and Valero's significant investments in

establishing and promoting its marks through investment of time, money and effort in

promoting the goods and services offered under the marks. Valero further alleged how

Plaintiffs' use of the Valoro designations enable Plaintiffs to “to trade on and receive the

benefit of goodwill built up at great labor and expense over many years by Valero, and

to gain acceptance for its business, products, and services not solely on their own

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of the Defendants acting in concert, and Defendant Ribera is alleged to have 

acted for Defendant AMV in particular, those allegations suffice as to a benefit 

conferred upon Mr. Ribera. Id.; (Am. Compl. ¶ 56.) 

In short, then, Exxon’s amended complaint is well-pleaded. The Court 

does not find the Responding Defendants’ arguments to be well-taken, 

especially considering Exxon’s decision to amend the original complaint in 

response to the first motions to dismiss. The Responding Defendants are aware 

of Exxon’s claims against them, and they are more than capable of responding 

to the specific allegations Exxon makes against each of them in the amended 

complaint. Those factual allegations “possess enough heft” to suggest that 

Exxon is plausibly entitled to relief on all of its claims against each of the 

Defendants. See Twombly, 550 U.S. at 557. Accordingly, the Court denies the 

motion to dismiss. 

4. Conclusion 

For the reasons stated above, the Court denies Defendants Carlo Ribera, 

7500 Enterprises LLC, and Everlast Lubricants, LLC’s motion to dismiss the 

amended complaint. (ECF No. 60.) 

Done and ordered in Miami, Florida, on February 16, 2023. 

 

 ____________________________ 

 Robert N. Scola, Jr. 

 United States District Judge 

merits, but on the reputation and goodwill of Valero and its products and services.”

Finally, Valero explains, “Valoro has been and continues to be unjustly enriched at

Valero's expense” by its use of the Valoro designations.

Id. 

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