United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Buckeye International, Inc., sells floor finishing products,
including Gym Bond, a bonding agent that is supposed to help
a clear topcoat adhere to a previously finished gymnasium
floor. Defendant Schmidt Custom Floors, Inc., used Gym Bond
on the floors of several sports facilities, but the floors
had problems with peeling. Schmidt was unhappy with
Buckeye's response, so Schmidt turned to social media and
email to voice complaints about Gym Bond and Buckeye. Buckeye
contends that the peeling was caused by Schmidt's faulty
preparation of the floor surface, and that Schmidt's
complaints are false and damaging to Buckeye's
Buckeye turns to this court for relief, with claims against
Schmidt for false advertising under the Lanham Act,
defamation, injurious falsehood, tortious interference with
business relationships, tortious interference with a
contract, injury to business, and declaratory judgment.
Schmidt asserts counterclaims for breach of contract and
breach of warranty.
before the court is Buckeye's motion for a preliminary
injunction that would prohibit Schmidt from making future
false statements and require Schmidt to, among other things,
take down its social media postings about Buckeye, retract
and correct the complaining emails, and publish corrective
advertising. Dkt. 7.
court will deny the motion for preliminary injunction for
several reasons. Buckeye's motion relies solely on its
false advertisement claim under the Lanham Act, which would
require Buckeye to show that Schmidt's statements were
made “in commercial advertising or promotion.” 15
U.S.C. § 1125(a)(1)(B). A customer's complaints
about a supplier's products and services, even if posted
on social media, are not statements made in commercial
advertising or promotion. And Schmidt has voluntarily removed
its social media postings, which leaves its direct
communications to its own customers and the trade
association. At this point, the parties sharply and genuinely
dispute the cause of the floor problems, and it would be
inappropriate for the court to curtail Schmidt's
complaints about Buckeye's product.
court begins with an evidentiary issue. Buckeye moves to
strike the proposed findings of fact and affidavits Schmidt
filed in opposition to Buckeye's motion for a preliminary
injunction. Dkt. 29. This court's procedures for
obtaining injunctive relief authorize an opposing party to
file a response to the movant's proposed findings of
fact; they do not authorize the opposing party to file its
own proposed findings of fact, as Schmidt did
here.Buckeye will have no opportunity to respond
to Schmidt's proposed findings of fact, so the court will
not consider Schmidt's proposed findings in this order.
See Bernatello's Pizza, Inc. v. Hansen Foods,
LLC, 173 F.Supp.3d 790, 794 (W.D. Wis. 2016).
the affidavits filed by Schmidt, Buckeye contends that
portions of Jason Heiman's affidavit and the entirety of
Roy Reichow's affidavit are inadmissible. The court will
not strike either affidavit. Reichow's affidavit would
not suffice as a full-blown expert report under Federal Rule
of Civil Procedure 26(a)(2)(B), but it is adequate as part of
a response to a motion for preliminary injunction. The court
is not persuaded that Heiman's affidavit includes
significant information for which he does not have an
adequate foundation of personal knowledge (except paragraph
37). The statements that Buckeye contends are hearsay were
made by Buckeye's employee or agent, Fred Werth, so those
statements would be admissible as party admissions under
Federal Rule of Evidence 801(d)(2)(D).
following facts are undisputed unless otherwise noted.
sells janitorial products and floor finishing products.
Schmidt is a flooring installer and refinisher. Schmidt buys
Buckeye products through San-A-Care, Inc., Buckeye's
exclusive distributor for the Milwaukee area. Buckeye and
Schmidt do not compete, but some of Schmidt's customers
also purchase Buckeye janitorial products through San-A-Care.
Bond is designed to facilitate the bonding of a clear topcoat
to a previously finished hardwood sports court, such as a
basketball court or gymnasium. Schmidt used Gym Bond when it
installed the floors of sports facilities at various schools
and universities, but the topcoat eventually peeled off, and
Schmidt's customers complained to Schmidt. Schmidt in
turn complained to Buckeye and the National Wood Flooring
Association. Dkt. 10-1, at 16- 18. Buckeye initially agreed
to pay to refinish some of the peeling floors while it
investigated the cause of the peeling. Although the parties
cooperated at first, ultimately Buckeye and Schmidt both
denied fault and blamed the other for the peeling.
contends that Buckeye cut off communication about the peeling
problem and refused to make good on its promises to pay for
remediation on floors that Schmidt had refinished using Gym
parties agree that Schmidt complained about Gym Bond and
Buckeye on social media and directly to Schmidt customers and
trade associations. ...