United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge
the Court are Defendants' Motion to Dismiss [ECF 15] and
Plaintiff's Motion for Leave to File Sur-Reply [ECF 40].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. COLO.
L.Civ.R. 72.1(c), the motions have been referred to this
Court for a report and recommendation.
Complaint, Plaintiff alleges Defendants' sale of
PopSocket products through the website, Amazon.com, (1)
violates the Lanham Act, 15 U.S.C. § 1114 and 15 U.S.C.
§ 1125, regarding trademark infringement; (2) violates
15 U.S.C. § 1125(a)(1)(A) regarding unfair competition;
(3) violates 15 U.S.C. § 1125(a)(1)(B) regarding false
advertising; (4) constitutes common law trademark
infringement; (5) constitutes common law unfair competition;
(6) is a deceptive trade practice in violation of Colo. Rev.
Stat. § 6-1-105; and (7) tortiously interferes with
Plaintiff's contract and business relations. See
Am. Compl., ECF 15. The matters are briefed to the extent
required by law, and the Court finds that oral argument will
not assist with the adjudication of the motions. For the
reasons that follow, the Court recommends that the Honorable
Raymond P. Moore deny Defendants' motion to dismiss and
deny as moot Plaintiff's motion for leave to file
filed the present motion to dismiss on May 29, 2019.
Defendants proceed pro se in this action and titled
the motion, “Defendants['] Motion to Dismiss for
Lack of Subject Matter Jurisdiction.” ECF 15.
However, the introductory paragraph and the arguments therein
seek an order dismissing the complaint “for lack of
personal jurisdiction.” Id. at 1.
Additionally, during the scheduling conference held June 13,
2019 [ECF 29], the Court clarified with Defendants that they
intended to seek dismissal for lack of personal jurisdiction.
Furthermore, Defendants' amended reply brief states,
“The motion should be properly captioned and corrected
to read ‘Defendants [sic] Motion to Dismiss for Lack of
Personal Jurisdiction.” See Am. Reply Br., ECF
40. Thus, the motion will be analyzed pursuant to
Defendants attack the plausibility of Plaintiff's
allegations; although not specifically styled as a motion to
dismiss for failure to state a claim, Defendants'
plausibility arguments are so evident that Plaintiff inferred
from the motion a request to dismiss the complaint for
failure to state a claim and addressed Defendants'
arguments on that basis. Resp. 8, ECF 27. In light of the
Defendants' pro se status, the Court will also
construe the motion to include a request to dismiss the
complaint for failure to state a claim pursuant to
the motion to dismiss was fully briefed, Plaintiff filed the
present motion for leave to file surreply on September 4,
2019. Both motions are before the Court and will be addressed
in this Recommendation.
Statement of Facts
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in its Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(2) pursuant to OMI Holdings, Inc. v. Royal Ins.
Co., 149 F.3d 1086, 1091 (10th Cir. 1998) and under
12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
manufactures and sells grips/stands, mounts, and other
accessories for mobile devices. Am. Compl. ¶ 7, ECF 8.
Plaintiff's brand name and logos are recognized by
consumers, and its name is associated with high quality,
reliable, and durable products. Id. ¶ 12.
Plaintiff sells its products exclusively through its own
website and through a network of authorized distributors and
resellers. Id. ¶ 8. For the purpose of
protecting its respective brand, Plaintiff has registered
trademarks with the United States Patent and Trademark Office
(“PTO”). Id. ¶ 9. Through its
extensive quality control processes, Plaintiff ensures the
safety and satisfaction of customers and maintains the
integrity of its positive business reputation. Id.
¶ 8. However, the explosion of internet retail sales has
made it difficult for Plaintiff to monitor the unauthorized
sale of its products through online markets, such as
Amazon.com. Id. ¶¶ 16-18. Accordingly,
Plaintiff audits its authorized online sellers to ensure they
conform to Plaintiff's strict quality control
requirements. Id. ¶ 58. For example, to be
considered an authorized seller, the genuine products sold
are required to have a limited warranty. Id. ¶
69. Plaintiff asserts that its quality controls and the
existence of a warranty are material for consumer
satisfaction. Id. ¶¶ 73-74.
have sold Plaintiff's products through their online
marketplace on Amazon.com under the storefront names
“Planoseller 2” and “TexasDeals2.”
Id. ¶ 106. Defendants are not
authorized sellers, and the products they sell are not
subject to Plaintiff's quality control system and do not
come with a warranty. Id. ¶¶ 108-109.
However, through Amazon.com, Defendants advertise the
products they are selling as “new.” Id.
¶ 139. “New” products on Amazon.com are
required to come with the “original manufacturer's
of Plaintiff's products have submitted numerous negative
reviews on Amazon.com, and Plaintiff attributes at least some
of the negative reviews to Defendants'
sales.Id. ¶¶ 34-52. These
negative reviews have caused damage to Plaintiff's
reputation and sales. Id. ¶ 55.
Plaintiff sent multiple cease and desist letters informing
Defendants that their conduct was harming Plaintiff in
Colorado. Id. ¶¶ 143-144. Plaintiff's
attempts to resolve this matter prior to filing this suit
were unsuccessful. Id. ¶ 148.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(2)
to resolve cases on the merits requires ... authority over
the parties (personal jurisdiction), so that the court's
decision will bind them.” Gadlin v. Sybron
Int'l Corp., 222 F.3d 797, 799 (10th Cir. 2000)
(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 577 (1999)). When no evidentiary hearing is held
“the plaintiff need only make a prima facie showing
that jurisdiction exists.” Wenz v. Memery
Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); see
also Old Republic Ins. Co. v. Continental Motors, Inc.,
877 F.3d 895, 900 (10th Cir. 2017). “The plaintiff may
make this prima facie showing by demonstrating, via affidavit
or other written materials, facts that if true would support
jurisdiction over the defendant.” OMI Holdings,
Inc., 149 F.3d at 1091 (10th Cir. 1998); see also
Old Republic Ins. Co., 877 F.3d at 900.
The allegations in the complaint must be taken as true to the
extent they are uncontroverted by the defendant's
affidavits. If the parties present conflicting affidavits,
all factual disputes must be resolved in the plaintiff's
favor, and the plaintiff's prima facie showing is
sufficient notwithstanding the contrary presentation by the
moving party. However, only the well pled facts of
plaintiff's complaint, as distinguished from mere
conclusory allegations, must be accepted as true.
Wenz, 55 F.3d at 1505 (citations and internal
quotation marks omitted). “[T]o defeat a
plaintiff's prima facie showing of jurisdiction, a
defendant must present a compelling case demonstrating that
the presence of some other considerations would render
jurisdiction unreasonable.” OMI Holdings,
Inc., 149 F.3d at 1091 (citation and internal quotations
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is
to test the sufficiency of the plaintiff's complaint.
Sutton v. Utah State Sch. For the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 2008). “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.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in
the context of a motion to dismiss, means that the plaintiff
pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Twombly requires a
two-prong analysis. First, a court must identify “the
allegations in the complaint that are not entitled to the
assumption of truth, ” that is, those allegations which
are legal conclusions, bare assertions, or merely conclusory.
Id. at 679. Second, the Court must consider the
factual allegations “to determine if they plausibly
suggest an entitlement to relief.” Id. at 681.
If the allegations state a plausible claim for relief, such
claim survives the motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs have not
nudged their claims across the line from conceivable to
plausible.” S.E.C. v. Shields, 744 F.3d 633,
640 (10th Cir. 2014) (quoting Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The
nature and specificity of the allegations required to state a
plausible claim will vary based on context.” Safe
Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th
Cir. 2017) (quoting Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus,
while the Rule 12(b)(6) standard does not require that a
plaintiff establish a prima facie case in a complaint, the
elements of each alleged cause of action may help to
determine whether the plaintiff has set forth a plausible
claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
Treatment of a Pro Se Party's Filings
Defendants are proceeding without counsel, the Court must
construe the pleadings and other filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Federal courts sometimes will ignore the legal label that a
pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a
different legal category .... to create a better
correspondence between the substance of a pro se
motion's claim and its underlying legal basis.
Castro v. United States, 540 U.S. 375, 381-82