Rush v. Hillside Buffalo, LLC
Decision Date | 15 June 2018 |
Docket Number | 1:18–CV–00653 EAW |
Citation | 314 F.Supp.3d 477 |
Parties | Chuck RUSH, Plaintiff, v. HILLSIDE BUFFALO, LLC, also known as The Track at Hillside Buffalo, Daniel J. Hutchinson, JM Motorsports, and Nick Johnston, Defendants. |
Court | U.S. District Court — Western District of New York |
Chuck Rush, North East, PA, pro se.
DECISION AND ORDER
Plaintiff Chuck Rush ("Plaintiff") commenced this pro se action on June 13, 2018, alleging that Defendants violated the Lanham Act, 15 U.S.C. § 1051 et seq. , committed larceny under the Uniform Code of Military Justice, 10 U.S.C. § 921, and otherwise converted his property rights by advertising his registered trademark, or a variation thereof, and profiting from this misappropriation. (Dkt. 1). Plaintiff has also filed a motion for a temporary restraining order, a motion for a preliminary injunction, and a motion for an expedited hearing on his preliminary injunction application. (Dkt. 2; Dkt. 4). For the following reasons, Plaintiff's motion for a temporary restraining order is denied. The Court sets a status conference for Thursday, July 5, 2018, at 3:00 P.M., at the United States Courthouse, 2 Niagara Square, Buffalo, NY 14202–3350. All parties and/or their counsel must appear at that status conference.
Plaintiff avers that he owns and operates "Crash–A–Rama," which he describes as " ‘[t]he wildest show on wheels,’ featuring men and women running old junk cars in exciting and entertaining events." (Dkt. 2 at 3–4). Plaintiff further avers that he is the sole owner of a registered federal trademark for the name, "Crash–A–Rama." (Id. at 4; see Dkt. 1 at 16–25 (exhibits to Plaintiff's complaint) ). Plaintiff has operated Crash–A–Rama at the Holland International Speedway (the "Speedway") in Holland, New York for eighteen years. (Dkt. 2 at 3–4). However, Defendants recently acquired the Speedway, and they now operate that location under the name "Hillside Buffalo, LLC a/k/a The Track at Hillside Buffalo." (Id. at 4).
Plaintiff avers that on or about May 30, 2018, Defendants "knowingly and purposefully converted [his] business and federal trademark ... into ‘Crash–O–Rama’; all for [D]efendants' exclusive profit and gain and to the detriment of [P]laintiff[.]" (Id. ). Defendants have advertised a "Crash–O–Rama" event to take place on Saturday, June 16, 2018, at the Speedway, and appear to have done so in conjunction with the sale of tickets both online and in print. (Dkt. 2 at 4–6; see Dkt. 1 at 33, 37, 41–46 (exhibits to Plaintiff's complaint) ). Plaintiff avers that this "slight and nearly unnoticeable change" to his registered trademark was intended to capitalize upon Plaintiff's "good reputation, unique auto racing, and successful business history and earnings" by confusing and "trick[ing] the public and consumers ... to sell tickets and generate money only to [Defendants'] benefit." (Dkt. 2 at 4–5).
The next day, Plaintiff notified Defendants by email that they had infringed upon his registered trademark, and he demanded that they "cease and desist" any further misappropriation of the "Crash–A–Rama" name. (Id. at 5). In his complaint, Plaintiff alleges that he sent a second email to Defendants on June 13, 2018, rendering essentially the same notice described in the first email. (Dkt. 1 at 7, 52). Plaintiff avers that his emails have not halted Defendants' continued use of his registered trademark, and thus, he seeks a temporary restraining order to prevent Defendants from holding the "Crash–O–Rama" event on Saturday, June 16, 2018. (See Dkt. 2 at 5–6).2
"Federal district courts are required to test their subject matter jurisdiction sua sponte. " Sabatino v. St. Barnabas Med. Ctr. , No. 03 CV 7445 (CSH), 2004 WL 2413940, at *2 (S.D.N.Y. Oct. 28, 2004). "Diversity jurisdiction exists where the parties are citizens of different states and the amount in controversy exceeds $75,000." Ceglia v. Zuckerberg , 772 F.Supp.2d 453, 455 (W.D.N.Y. 2011). " ‘[C]itizens of different States’ means that there must be complete diversity, i.e., that each plaintiff's citizenship must be different from the citizenship of each defendant." Hallingby v. Hallingby , 574 F.3d 51, 56 (2d Cir. 2009) ; see Doctor's Assocs., Inc. v. Distajo , 66 F.3d 438, 445 (2d Cir. 1995) (). "A person's citizenship for purposes of diversity is based upon his domicile." Ceglia , 772 F.Supp.2d at 455.
Plaintiff alleges that he is a citizen of the State of Florida, and that Defendants are all citizens of the State of New York for diversity purposes. (Dkt. 1 at 3–5). In doing so, Plaintiff alleges that Hillside Buffalo, LLC is a corporation that is incorporated under the laws of the State of New York, and that it maintains its principal place of business in New York. (Id. at 4). However, Hillside Buffalo, LLC is a limited liability company.
"In general, the citizenship of a limited liability company is determined by the citizenship of each of its members." Carter v. HealthPort Techs., LLC , 822 F.3d 47, 60 (2d Cir. 2016) ; see Nationstar Mortg. LLC v. Pignataro , No. 1: 15–CV–1041 (LEK/DJS), 2016 WL 3647876, at *1 (N.D.N.Y. July 1, 2016) . Plaintiff has failed to identify any of Hillside Buffalo, LLC's members, let alone allege their citizenship for diversity purposes. See Courtyard Apartments Prop. 1, LLC v. Rosenblum , No. 17-CV-2909 (DRH)(SIL), 2018 WL 1611386, at *2 (E.D.N.Y. Apr. 3, 2018) (). "Citizenship of all members must be known to insure that complete diversity exists in this action." Caro v. Fid. Brokerage Servs., LLC , No. 3:12-CV-1066 (CSH), 2013 WL 3929708, at *4 (D. Conn. July 26, 2013). The absence of any such allegations completely compromises Plaintiff's assertion of federal diversity jurisdiction. See PMX Agency LLC v. Blackstreet Capital Holdings, LLC , No. 1:16-CV-03849 (ALC), 2017 WL 3605380, at * 1 (S.D.N.Y. Aug. 21, 2017) ( ).
Therefore, although Plaintiff seeks to invoke principles of diversity of citizenship, he has failed to properly allege a basis for diversity jurisdiction.
"It is well settled that the scope of ‘in commerce’ as a jurisdictional predicate of the Lanham Act is broad and has a sweeping reach." Planned Parenthood Fed'n of Am., Inc. v. Bucci , No. 97 Civ. 0629 (KMW), 1997 WL 133313, at *3 (S.D.N.Y. Mar. 24, 1997), aff'd , 152 F.3d 920 (2d Cir. 1998). Courts have frequently determined that the "in commerce" standard is satisfied by messages or advertisements sent posted over the Internet. See, e.g. , World Wrestling Fed'n Entm't, Inc. v. Bozell , 142 F.Supp.2d 514, 528–29 (S.D.N.Y. 2001) ( ); Bucci , 1997 WL 133313, at *3 (); Intermatic Inc. v. Toeppen , 947 F.Supp. 1227, 1239–40 (N.D. Ill. 1996) ; see also Pump Wear, Inc. v. Insulin Pump Packs For You, LLC , No. l:08–CV–570, 2008 WL 11355284, at *1 (N.D.N.Y. Sept. 23, 2008) ( ).
Although Plaintiff's allegations invoking the Lanham Act are somewhat unclear and not wholly fleshed out, in reviewing the Complaint as a whole the Court preliminarily finds that it has subject matter jurisdiction to...
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