United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
JOHN G. KOELTL, District Judge.
The third party defendants, Spandex House, Inc. and Sabudh Nath, move to dismiss the Amended Third Party Complaint filed against them by the pro se third party plaintiff, Idil Doguoglu Posey. The original Complaint in this action was brought against Posey by the plaintiff, Elastic Wonder, Inc., alleging federal trademark infringement under the Lanham Act, 15 U.S.C. § 1125(a), and cybersquatting under the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d), along with related declaratory and state law claims. Posey brought counterclaims against Elastic Wonder and a Third Party Complaint against Spandex House and Nath for substantially the same claims that had been brought against her by Elastic Wonder. The third party defendants now move to dismiss the Amended Third Party Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1332.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id . When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
Because Posey is proceeding pro se, the Court must "construe [her] complaint liberally and interpret it to raise the strongest arguments that it suggests." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted) (alteration omitted). "Even in a pro se case, ... threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Id . (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)). Thus, although the Court must "draw the most favorable inferences" that the plaintiff's complaint supports, it "cannot invent factual allegations that [she] has not pled." Id .; see also Little v. City of New York, No. 13cv3813, 2014 WL 4783006, at *1 (S.D.N.Y. Sept. 25, 2014).
The following allegations are taken from the Amended Third Party Complaint, and are assumed to be true for purposes of this motion to dismiss.
The third party plaintiff Posey is a Swiss fashion designer who has been in the fashion industry for over twenty years and is currently based in New York City. Am. Third Party Compl. ¶ 26. In December 2012, Posey developed the brand Elastic Wonder, a line of leggings. Id . ¶ 27. She registered the domain name www.elasticwonder.com for the new brand on December 12, 2012, markets the brand to the public through various social media accounts, and sells designs through an online shop at the Elastic Wonder website. Id.
While Posey was developing the line, she discussed the business with third party defendant Nath. Id . ¶ 6. Posey was friendly with Nath, having worked over the years with him and his business, third party defendant Spandex House, a fabric supplier. Id . Posey proposed that they jointly market and produce her Elastic Wonder brand, using Spandex House's fabrics to offer competitive pricing. Id . ¶¶ 6, 28. Nath was slow to warm to the idea, but eventually offered Posey funding and fabric samples in what Posey alleges was an acceptance of the joint business venture. Id . ¶¶ 29-36. However, while Posey alleges that Nath was supposed to "get the paperwork together", she does not allege that they entered into any written agreement. Id . ¶ 37.
Posey alleges that while she continued to work on designing and developing marketing materials for the Elastic Wonder brand, Nath "attempted to misappropriate Elastic Wonder" by incorporating the company Elastic Wonder, Inc., registering a similar domain name, and offering her designs to the public displaying the Elastic Wonder name and logo. Id . ¶¶ 38, 40. Posey alleges that Nath has offered Elastic Wonder designs via the internet, a trade show in Las Vegas, and a store in New York City, and that Spandex House is identified as the owner of the Elastic Wonder brand. Id . ¶¶ 40-43. Posey also alleges that Spandex House has used the Elastic Wonder brand to sell its own fabric. Id.
Upon becoming aware of Nath's actions, Posey informed Nath that she would no longer be doing business with him and sent him a cease and desist letter demanding that he stop using her brand and designs. Id . ¶ 40. Posey claims that Nath and Spandex House have continued to infringe on her trademark. Id . ¶¶ 44-45.
This action began on or about August 12, 2013, when Elastic Wonder, Inc. sued Posey for federal trademark infringement, among other claims. In its Complaint, Elastic Wonder alleges that it owns the Elastic Wonder trademark, and that Posey was merely assisting it in the venture. Compl. ¶¶ 4-7. On or about October 4, 2013, Posey submitted an Amended Answer to the Complaint, alleged counterclaims against Elastic Wonder, and moved for joinder of Nath and Spandex House. On or about February 24, 2014, Posey filed a Third Party Complaint against Nath and Spandex House, and filed her Amended Third Party Complaint on April 4, 2014. In her Amended Complaint, Posey alleges a count of trademark infringement under the Lanham Act, 15 U.S.C. § 1125(a), a count of cybersquatting under the ACPA, 15 U.S.C. § 1125(d), and New York state ...