United States District Court, W.D. Washington, Seattle
April 9, 2015
ROSEMARY HIBBLER, Plaintiff,
VINCENT SEWELL, et al., Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS AND DISMISSING STATE LAW CLAIMS WITHOUT PREJUDICE
MARSHA J. PECHMAN, District Judge.
THIS MATTER comes before the Court on Defendants Vincent Sewell, Patricia SewelI, and Amelia Williams' Motion to Dismiss Plaintiff Rosemary Hibbler's claims against them with prejudice. (Dkt. No. 11.) Having reviewed the motion, and noted the absence of any opposition, the Court GRANTS Defendants' Motion to Dismiss as to Ms. Hibbler's federal trademark infringement claim. The Court declines to exercise jurisdiction over Ms. Hibbler's remaining state Iaw claims against the moving Defendants and DISMISSES these claims without preiudice. The Court ORDERS Ms Nibbler to show cause in writing within ten (10) days of the date of entry of this Order why the Court should not also dismiss her claims against Defendant Kenneth Moultry.
Plaintiff Rosemary Nibbler filed this lawsuit against Defendants Vincent Sewell, Patricia Sewell, Amelia Williams, and Kenneth Moultry on December 29, 2014. (Dkt. No. 1.) Ms. Nibbler asserts the following claims against all of the Defendants: (1) federal trademark infringement; (2) state law trademark infringement; (3) state law trademark dilution; (4) violations of the Washington Consumer Protection Act (RCW 19.86.020); (5) slander and libel (RCW 9.58); and (6) blacklisting (RCW 49.44.010). (Dkt. No. 5 at 3.)
Defendants Vincent Sewell, Patricia Sewell, and Amelia Williams move to dismiss Ms. Hibbler's amended complaint on the grounds that Ms. Hibbler fails to state a claim upon which relief can be granted. (Dkt. No. 11.) Defendant Kenneth Moultry has not joined in the motion. Ms Hibbler has not filed an opposition to the motion. Under Local Rule CR 7(b)(2), "... if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has merit." The Court construes Ms. Hibbler's failure to respond as an admission that Defendants' motion has merit.
A. Legal Standard
The Federal Rules require a plaintiff to plead "a short and plain statement of the claim showing that [she] 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 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, 556 U.S. at 678 (citing Twombly, 550 U.S. at 545) (further noting that plausibility lies somewhere between allegations that are "merely consistent" with liability and a "probability requirement"). In determining plausibility, the Court accepts all facts in the complaint as true. Barker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009). The Court need not accept as true any legal conclusions put forth by the plaintiff. Iqbal, 556 U.S. at 678.
B. Federal Trademark Infringement Claim
Defendants contend Ms Nibbler fails to state a federal trademark infringement claim because she does not own the mark "Sober Solutions" and because she fails to allege facts that show Defendants' use of the "Sober Solutions" mark is likely to lead to consumer confusion. (Dkt. No. 11 at 13-14.)
To prevail on a trademark infringement claim under the Lanham Act, a plaintiff must show: (1) that she has a protected ownership interest in the mark; and (2) that an alleged infringer's use of a competing mark is likely to cause consumer confusion. See Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014).
Ms. Hibbler fails to allege facts that show Defendants' use of the "Sober Solutions" mark is likely to cause consumer confusion. Indeed, Ms. Hibbler does no more than allege, in a cursory fashion, that "Defendants' infringing use of Sober Solutions name and marks in connection with the Blacklisting and slander scheme is likely to cause, and has caused, confusion mistake or deception as to the affiliation, connection or association of the schemes with Sober Solutions..." (Dkt. No. 5 at 6.) These allegations are insufficient. Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.") Likewise, even Ms Hibbler's allegations that Defendants are making use of a mark that is identical to a mark she rightfully owns are insufficient to show a likelihood of consumer confusion. Trademark infringement occurs when an infringer uses a substantially identical mark for similar goods. Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1454 (9th Cir.1991). Ms. Nibbler has alleged no facts from which the Court can infer it is plausible that the goods and/or services offered by Defendants are similar to the goods and/or services that Ms. Hibbler promotes or offers under the "Sober Solutions" mark. Accordingly, the Court GRANTS Defendants' Motion to Dismiss as to Ms. Hibbler's federal trademark infringement claim. Because Ms Hibbler has already amended her complaint once and because the Court finds further amendment would be futile, the dismissal is with prejudice.
C. State Law Claims
Ms Nibbler alleges the following state law claims against the moving Defendants: (1) state law trademark infringement; (2) state law trademark dilution; (3) violations of the Washington Consumer Protection Act (RCW 19.86.020); (4) slander and libel (RCW 9.58); and (5) blacklisting (RCW 49.44.010). (Dkt. No. 5 at 3.)
A federal court may assume supplemental jurisdiction over all other claims that are so related to claims in the action within the original jurisdiction so that they form part of the same race, or controversy. 28 U.S.C. § 1367. A federal court may decline to exercise this supplemental jurisdiction if: (1) the daim raises a novel or complex issue of state law; (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Id.
The Court has dismissed Ms. Hibbler's federal claim against the moving Defendants. The Court declines to exercise jurisdiction over Ms. Hibbler's state law claims against the moving Defendants and DISMISSES these claims without prejudice. The Court advises Ms. Hibbler that a dismissal "without prejudice" means that Ms. Hibbler may refile her state law claims against the moving Defendants in state court as long as the statute of limitations has not expired.
D. Defendant Kenneth Moultry
Defendant Kenneth Moultry has not joined in Defendants' Motion to Dismiss. A court may on its own motion dismiss an action as to a non-moving defendant where such defendant is in a position similar to that of the moving defendant, or where claims against the moving and non-moving defendants are integrally related. See Silverton v. Dep't of Treasury, 664 F.2d 1341, 1345 (9th Cir. 1981). The Court may not do so, however, without providing the plaintiff with notice and an opportunity to respond. See Lee v. City of L.A., 250 F.3d 668, 683 n. 7 (9th Cir. 2001). In keeping with this principle, the Court hereby notifies Ms. Hibbl er that it intends to dismiss her federal trademark claim against Defendant Kenneth Moultry with prejudice and her state law claims against Defendant Kenneth Moultry without prejudice, because it appears to the Court that Defendant Kenneth Moultry occupies a position similar to the other Defendants and that the claims against all Defendants are related. The Court ORDERS Ms Nibbler to show cause in writing within ten (10) days of the date of entry of this Order why the Court should not also dismiss her claims against Defendant Kenneth Moultry.
The Court GRANTS Defendants' Motion to Dismiss as to Ms. Hibbler's federal trademark infringement claim. The Court declines to exercise jurisdiction over Ms. Hibbler's remaining state law claims against the moving Defendants and DISMISSES these claims without prejudice. The Court ORDERS Ms Hibbler to show cause in writing within ten (10) days of the date of entry of this Order why the Court should not also dismiss her claims against Defendant Kenneth Moultry.
The clerk is ordered to provide copies of this order to all counsel.