Cagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 1of9 Page ID #:299 1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11] SUNIL BHASIN, M.D Case No. EDCV 13-00293-VAP (OPx) 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS AND DENYING MOTION 14] NERRY PATHAK AKA AASHIT PATHAK, et al. ) ) ) } ) TO SET ASIDE DEFAULT AS MOOT ) ) Motions filed on March 11, ) ) 15 013 and March 28, 2013] Defendants. 16 17 Plaintiff Sunil Bhasin brings this action alleging 18] infringement of the trademarks "Cheese of the Month Club" 19]and "Vegetable of the Month Club." Currently before the 20|/Court are Defendants' Motion to Dismiss (Doc. No. 12) and 21]/Motion to Set Aside Default (Doc. No. 30). The Court, 22|| having received and considered all paper submitted in 23] support of, and in opposition to, the Motions, finds the 24]/Motions appropriate for resolution without a hearing. ed. R. Civ. P. 78; L.R. 7-15. For the reasons set 26] forth below, the Court GRANTS the Motion to Dismiss and Ny DENIES AS MOOT the Motion to Set Aside Default. 28Cagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 2 of 9 Page ID #:300 I. BACKGROUND A. Procedural History On February 15, 2013, Bhasin filed his Complaint aw we against Defendant Nerry Pathak aka Aashit Pathak, w DiscountsWarehouse.com, 24HourBestBuy.com, 6] Buyexoticmeats.com, Exoticfruitclub.com, and 7] Specialtyfruitclubs.com, asserting the following ten 8]claims: (1) Trademark Infringement in violation of 15 9]u.s.c. § 1114, et seq.; (2) Trademark Dilution in 10] violation of Lanham Act § 43(c); (3) False Designation of 11] Origin in violation of Lanham Act § 43(a); (4) Passing 12) Off in violation of Lanham Act § 43(a); (5) Unfair 13] Competition, in violation of Cal. Bus. & Prof. Code 14] S§ 17200, 17500; (6) Cybersquatting in violation of 15}}/Lanham Act § 43(d); (7) Unjust Enrichment; (8) Demand for 16] Accounting; (9) Constructive Trust; and (10) Permanent 17] Injunction (Doc. No. 1). Bhasin filed a Request for 18] Amendment on March 11, 2013, requesting permission to 19 Pathak for Defendant Doe 1 (Doc. No. 20 21 22 Pathak filed a Motion to Dismiss on March 11, 2013 23|| (Doc. No. 12). Bhasin filed an Opposition on April 11, 24/2013 (Doc. No. 36). Pathak filed a Reply on April 22, 25} 2013 (Doc. No. 40). 26 Ny 28Cagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 3 of9 Page ID #:301 On Bhasin's request, the Clerk of Court entered default against Defendants DiscountsWarehouse.com, 24HourBestBuy.com, Buyexoticmeats.com, aw we Exoticfruitclub.com, and Specialtyfruitclubs.com (the w “Website Defendants") on March 14, 2013 (Doc. Nos. 22, 6] 23, 25, 26) and March 15, 2013 (Doc. No. 24). 8 The Website Defendants filed a Motion to Set Aside 9] Default on March 28, 2013 (Doc. No. 30). Bhasin filed an 10] Opposition on April 12, 2013 (Doc. No. 38). The Website 11] Defendants filed a Reply on April 22, 2013 (Doc. No. 41). 12 13]B. Allegations in the Complaint 14 Bhasin is in the bu iness of manufacturing, 15|/marketing, and distributing gourmet foods, including 16] cheese and vegetables. (Compl. 7 17.) Bhasin alleges 17] that he owns the trademarks "Cheese of the Month Club" 18] and "Vegetable of the Month Club." (Compl. 97 16, 19 19] Both marks were initially registered to Anshu Pathak and 20] assigned to Exotic Meat Market Inc. (Exs. A & B to 21] Def.'s RIN.) Exotic Meat Market Inc. assigned the mar. 22]}to Bhasin and recorded the assignments with the USPTO on 23]/March 11, 2013 (Exs. A & C to Pl.'s RUN.) 24 25 Defendants operate websites that sell cheese, 26] vegetables, and other food items. (Compl. { 36.) These 21] websites "link consumers to the Cheese of the Month Club 28Cagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 4 of 9 Page ID #:302 1] and vegetable of the Month Club that they are offering." 2] (Compl. 9 37.) Defendants also use the marks in other, 3] unspecified ways to market to their customers. (See 4] compl. 94 40-41.) 5 6]|C. Requests for Judicial Notice 7 Pathak requests judicial notice of (1) the record for 8| Trademark Registration Number 3852089, from the Trademark 9]}/Electronic Search System ("TESS") on the website of the 10] United States Patent and Trademark Office ("USPTO"); and 11] (2) the record for Trademark Registration Number 3933231, 12] from the TESS on the website of the USPTO (Doc, No. 12- 13/1). Bhasin requests judicial notice of (1) the Notice of 14] Recordation of A gnment Document, filed with the USPTO 15]/as PTAS 103656093, assigning Registration Number 3852089; 16] (2) the record for Trademark Registration Number 3852089, 17] from the TESS on the website of the USPTO; (3) the Notice 18] of Recordation of Assignment Docume: led with the t, £ 19] USPTO as PTAS 103656092, assigning Registration Number 20] 3933231; (4) the complaint in Omaha Steaks Int'l, Inc. v. 21] Anshu Pathak, No. 2:09-cv-2854-RGK-FFMx, filed April 23, 22/2009 in the Centr. District of California; and (5) the 23] complaint in Harry and David v, Anshu Pathak, No. 1:09- 24] cv-3013-CL, filed February 11, 2009 in the District of 25] Oregon (Doc. No. 37). 26 Ny 28Cagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 5 of 9 Page ID #:303 1 A court may take judicial notice of court filings and 2] other matters of public record. See Reyn’s Pasta Bella 3] LLC_v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 4] 2006) (citing Burbank-Glendale-Pasadena Airport Auth. v. 5] City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998)). 6| The Court grants judicial notice of these documents. 8 II. LEGAL STANDARD 9 Federal Rule of Civil Procedure 12(b) (6) allows a ilure to state a 10|/party to bring a motion to dismiss for 11]/claim upon which relief can be granted. Rule 12(b) (6) is 12] read in conjunction with Rule 8(a), which requires only a 13] short and plain statement of the claim showing that the 14] pleader is entitled to relief. Fed. R. Civ. P. 8(a) (2); 15] Conley v. Gibson, 355 U.S. 41, 47 (1957) (holding that 16||the Federal Rules require that a plaintiff provide "'a 17] short and plain statement of the claim' that will give 18] the defendant fair notice of what the plaintif 's claim 19] is and the grounds upon which it rests." (quoting Fed. R. 20|/civ. P. 8(a)(2))); Bell Atlantic Corp. v. Twombly, 550 21l/u.s. 544, 555 (2007). When evaluating a Rule 12(b) (6) 22|/motion, a court must accept all material allegations in 23] the complai nt — as well as any reasonable inferences to 24|]}be drawn from them — as true and construe them in the Do! 25] light most favorable to the non-moving party. S$ v 26] United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ny Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096 28Cagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 6 of 9 Page ID #:304 (9th Cir. 2005); Moyo v. Gomez, 32 F.3d 1382, 1384 (Sth Cir. 1994). aw we "While a complaint attacked by a Rule 12(b) (6) motion w to dismiss does not need detailed factual allegations, a 6| plaintiff's obligation to provide the ‘ground: 7] ‘entitlement to relief! requires more than labels and 8| conclusions, and a formulaic recitation of the elements 9] of a cause of action will not do." Twombly, 550 U.S. at 10/555 (citations omitted). Rather, the allegations in the 11]/complaint "must be enough to raise a right to relief 12] above the speculative level." Id. 13 14 To survive a motion to dismiss, a plaintiff must 15]/allege "enough facts to state a claim to relief that is 16] plausible on its face." Twombly, 550 U.S. at 57 17] Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 18] (2003). "The plausibility standard is not akin to a 19] ‘probability requirement,’ but it asks for more than 20|| sheer possibility that a defendant has acted unlawfully. 21 ere a complaint pleads that are 'merely 22] consistent with’ 23 defendant's liability, it stops short £ the line between possibility and plausibility of 24] tentitlement to relief.’ Iqbal, 129 S. Ct. at 1949 25|| (quoting Twombly, 550 U.S. at 556). Recently, the Ninth 26] Circuit clarified that (1) a complaint must "contain Ny sufficient allegations of underlying facts to give fair 28Cagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 7 of 9 Page ID #:305 aw we w 10 11 12 13 14 15 16 17 18 19 20 2l 22 23 24 25 26 Ny 28 nd itse notice and to enable the opposing party to de effectively," and (2) "the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing the party to be subjected to the expense of discovery and continued litigation." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Although the scope of review is limited to the contents of the complaint, the Court may also consider exhibits submitted with the complaint, Hal Roach Studios Inc. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990), and "take judicial notice of matters of public record outside the pleadings," Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988). III. DISCUSSION Pathak argues that Bh in lacks standing to assert his claims because Bhasin is not the registered owner of the "Cheese the Month Club" and "Vegetable of the Month Club" trademarks. (Mot. at 3.) Bhasin asserts that he is the lawful owner of the marks. (Opp'n at 3.) Pathak submitted copies of the records for both marks, showing that they were Registered by Anshu Pathak and the last listed owner for each was Exotic Meat Market Inc., a corporation with a Nevada address. (Exs. A & BCagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 8 of 9 Page ID #:306 to Def.'s Req. for Judicial Not. JN") .) Bhasin submitted USPTO Notices of Recordation of Assignment Documents, PTAS Nos. 103656092 and 103656093, showing aw we that Exotic Meat Market Inc. assigned the marks to him on w March 11, 2013. (Exs. A & C to Pl.'s RUN.) 7 Article III of the Constitution limits judicial power 8|/to actual cases or controversies. Clapper v. Amnesty 9] Int'l] usa, 133 S. Ct. 1138, 1146 (2013). One element of 10] the case-or-controversy requirement is standing, which 11]"focuses on whether the plaintiff is the proper party to 12|/bring this suit." Raines v. Byrd, 521 U.S. 811, 818 13] (1997). The plai ntiff must establish standing by 14 asserting an injury that is "concrete, particularized, 15]/and actual or imminent; fairly traceable to the 16] challenged action; and redressable by a favorable Geertson Seed Farms, 130 S. Ct. 17] ruling." Monsanto Co. 18] 2743, 2752 (2010). "While the proof required to 19]/establish standing increases as the suit proceeds, the 20|| standing inquiry remains focused on whether the party 21] invoking jurisdiction had the requisite stake in the 22] outcome when the suit filed." Davis v. Fed. Election 23] Comm'n, 554 U.S. 724, 734 (2008) (citation omitted). 24 25 Bhasin did not own the marks at issue when he filed 26|| the Complaint in February 2013. Accordingly, he lacked Ny standing to bring the action, and his case must be 28Cagb 5:13-cv-00293-VAP-OP Document 44 Filed 05/03/13 Page 9 of 9 Page ID #:307 dismissed. any amended complaint would be similarly subject to dismissal, the Court dismisses the action without leave te amend. See Saul v. United States, 928 aw we F.2d 829, 843 (9th Cir. 1991). w 6 As Bhasin lacks standing to bring his claims, he may 7 not proceed against any of the Defendants. Therefore, 8}}the Court dismisses the entire action and DENIES 9] Defendants' Motion to Set Aside Default as moot. 10 11 IV. CONCLUSION 12 For the reasons set forth above, the Court GRANTS the 13] Motion to Dismiss without leave to amend and DENIES the 14] Motion to Set Aside Default as moot. 15 16 17 wn A, Phe Dated: May 3, 2013 18 IRGINIA A, PHILLIPS 1 United States District Judge 20 2l 22 23 24 25 26 Ny 28