     Case: 18-11553      Document: 00515049862         Page: 1    Date Filed: 07/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                    No. 18-11553                        July 25, 2019
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
STEVE ELIAS, also known as Steve Wainshtok, doing business as Magic
Locksmith,

              Plaintiff - Appellant

v.

ELIRAN PILO,

              Defendant - Appellee




                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:18-CV-586


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       Steve Elias operates a locksmithing business under the name Magic
Locksmith. He alleges that Eliran Pilo was unjustly enriched at his expense
when Pilo began offering locksmithing services through the website
magiclocksmith.net. The district court dismissed Elias’s complaint for failure
to state a claim. We affirm.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                         No. 18-11553
                                                I.
       Steve Elias has operated a licensed locksmithing business known as
Magic Locksmith in Los Angeles, California since November 2004. He alleges
that he has amassed common law rights to the mark Magic Locksmith through
his continuous use of the mark to register and market his business and provide
locksmithing services. Pertinent to this appeal, in February 2008 Elias created
a website with the domain name magiclockandkey.com. Elias has prominently
displayed the Magic Locksmith mark on this website.
       Elias alleges that, in August 2016, Eliran Pilo, a Texas resident,
registered and began using the domain magiclocksmith.net. He claims that
Pilo’s use of a domain name identical to his mark to offer locksmithing services
over the internet is likely to cause confusion. Elias points to three negative
reviews on his Yelp 1 page from customers who claimed to have been deceived
as evidence that Pilo’s use of the domain has created actual confusion. Each
review alleged that the technician who arrived charged higher prices than
stated in the website. One of those reviews listed the magiclocksmith.net
domain, calling the site “a fraud” and a “hoax.”
       On January 5, 2017, Elias filed an arbitration claim against “Magic
Locksmith” 2 concerning the magiclocksmith.net domain. Elias alleged that the
domain name was confusingly similar to his Magic Locksmith mark; that
Magic Locksmith did not have any right or legitimate interest in the
magiclocksmith.net domain; and that Magic Locksmith registered the domain
in bad faith. Magic Locksmith did not respond and therefore the arbitration
panel decided the case on the basis of Elias’s complaint, accepting his



       1   Yelp is a website which allows individuals to post reviews of businesses.
       2In the arbitration proceeding, Magic Locksmith refers to the business Pilo allegedly
operated rather than Elias’s business or his mark.

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                                  No. 18-11553
reasonable allegations and inferences as true, and found in his favor. On
February 16, 2017, the panel ordered that the domain magiclocksmith.net be
transferred to Elias.
      Elias alleges that he discovered Pilos’s identity after uncovering a
telephone number traced to him in the registration information of
magiclocksmith.net. While Elias discovered Pilos’s identity on January 10,
2017, five days after filing the arbitration claim, Pilos was never named as a
party in the arbitration and did not participate in the proceedings.
      Elias initially commenced this action in Texas state court. Pilo removed
the case to federal court, at which point Elias filed an amended complaint. The
amended complaint stated five causes of action: theft of property, conversion
of property, trespass to personal property, unjust enrichment, and trade secret
misappropriation. Pilo moved to dismiss for failure to state a claim. See Fed.
R. Civ. P. 12(b)(6). The district court granted Pilo’s motion and dismissed
Elias’s claims with prejudice. Elias timely appealed.
                                        II.
      We review de novo a district court’s dismissal of a complaint for failure
to state a claim. Rios v. City of Del Rio, 444 F.3d 417, 420 (5th Cir. 2006). To
state a claim for relief, a pleading must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Id. (citing
Twombly, 550 U.S. at 556).


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                                       No. 18-11553
                                             III.
       On appeal, Elias advances only one argument: that he sufficiently pled
a claim of unjust enrichment. This is the only claim which Elias has preserved
for review. He has waived his claims for theft of property, conversion of
property, trespass to personal property, and trade secret misappropriation.
See Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008).
       For the purposes of this appeal, we will assume that unjust enrichment
is an independent cause of action under Texas law. 3 “A party may recover
under the unjust enrichment theory when one person has obtained a benefit
from another by fraud, duress, or the taking of an undue advantage.”
Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992).
       Elias’s unjust enrichment theory can be summed up as follows. Piro set
up a domain, magiclocksmith.net, that was confusingly similar to Elias’s Magic
Locksmith mark, in which he had common law rights.                        According to the
arbitrator’s    findings,     which     Elias       attached   to   his    complaint,     the
magiclocksmith.net domain was registered in bad faith. Pilo’s bad faith in
setting up the magiclocksmith.net domain constituted undue advantage. By



       3   Courts of appeals in Texas appear split on whether unjust enrichment is an
independent cause of action. Compare Freeman v. Harleton Oil & Gas, Inc., 528 S.W.3d 708,
742 (Tex. App.-Texarkana 2017) (treating unjust enrichment as an independent cause of
action), and Pepi Corp. v. Galliford, 254 S.W.3d 457, 460 (Tex. App.-Houston 2007) (“Unjust
enrichment is an independent cause of action.”), with Spellmann v. Love, 534 S.W.3d 685,
693 (Tex. App.-Corpus Christi-Edinburg 2017) (“[C]ause of action for unjust enrichment . . .
fails as a matter of law because it is not an independent cause of action.”), and R.M. Dudley
Const. Co., Inc. v. Dawson, 258 S.W.3d 694, 703 (Tex. App.-Waco 2008) (“Unjust enrichment,
itself, is not an independent cause of action.”). Although the Texas Supreme Court has
referred to a “cause of action” or “claims” of unjust enrichment, it appears to have not yet
resolved whether unjust enrichment is an independent cause of action or a “theory of liability
that a plaintiff can pursue through several equitable causes of action.” Hancock v. Chicago
Title Ins. Co., 635 F.Supp.2d 539, 560 (N.D. Tex. 2009); see Fortune Prod. Co. v. Conoco, Inc.,
52 S.W.3d 671, 683 (Tex. 2000) (“Unjust enrichment claims are based on quasi-contract);
HECI Exploration Co. v. Neel, 982 S.W.2d 881, 891 (Tex. 1998) (“The third cause of action
. . . was unjust enrichment.”). We need not resolve this issue today.

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                                    No. 18-11553
using the confusingly similar domain name, Pilo wrongfully deprived Elias of
business without compensation. And, according to the Yelp reviews included
in Elias’s complaint, customers were overcharged when they procured
locksmithing services through magiclocksmith.net. But Elias does not allege
that he suffered a specific loss.
      Elias has failed to state a claim for unjust enrichment. Although Elias
has alleged that Pilo wrongfully used his mark and overcharged customers who
procured locksmith services from magiclocksmith.net, he has not alleged that
he was deprived of or is entitled to any of the compensation Pilo received from
the website. We cannot infer, from the facts alleged in the complaint, that
customers who used magiclocksmith.net would have instead purchased their
locksmithing services from Elias (especially when Elias is in California and
Pilo in Texas). Also absent are any allegations, except for the findings of an
arbitrator in an uncontested proceeding, that Pilo was aware of Elias’s mark
when he created the magiclocksmith.net domain. The Texas Supreme Court
has cautioned that “[u]njust enrichment is not a proper remedy merely because
it ‘might appear expedient or generally fair that some recompense be afforded
for an unfortunate loss’ to the claimant.” Heldenfels Bros., 832 S.W.2d at 42
(quoting Austin v. Duval, 735 S.W.2d 647, 649 (Tex. App.-Austin 1987)). While
it may be completely inappropriate that Pilo’s domain was similar to Elias’s
mark, and regrettable that Pilo’s misuse of the mark resulted in unwarranted
negative reviews on Elias’s Yelp page, Elias has failed to cite any authority
suggesting that unjust enrichment is a proper remedy in this situation. Put
concisely, the complaint fails to plausibly state that Pilo “has obtained a benefit
from” Elias. Heldenfels Bros., 832 S.W.2d at 41. The judgment of the district
court is therefore
                                                                      AFFIRMED.


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