United States District Court, S.D. New York
Susen Gench, Plaintiff, Pro se, Kew Gardens, N.Y. USA.
For Hostgator.Com, L.L.C., Defendant: Joseph V. Norvell, LEAD ATTORNEY, Norvell IP LLC, Northfield, IL USA; Thomas M Monagan, LEAD ATTORNEY, PRO HAC VICE, Norvell IP LLC, Northfield, IL USA; Marc Ari Lieberstein, Robert Nathan Potter, Kilpatrick Townsend & Stockton LLP, New York, N.Y. USA.
For Enom Incorporated, Defendant: William Charles Silverman, LEAD ATTORNEY, Greenberg Traurig, LLP (NYC), New York, N.Y. USA; Ian Charles Ballon, PRO HAC VICE, Greenberg Traurig, LLP(NY), Albany, N.Y. USA; John Charles Molluzzo, Greenberg Traurig, LLP (NY), New York, N.Y. USA; Lori Chang, Greenbaum Rowe Smith & Davis Llp(75becker Farm Rd.), Roseland, N.J. USA.
For Liquid Web Incorporated, Defendant: David Donahue, LEAD ATTORNEY, Emily Sarah Weiss, Fross Zelnick Lehrman & Zissu, P.C., New York, N.Y. USA.
For Wired Tree, Defendant: Mark Jon Rosenberg, LEAD ATTORNEY, Tarter Krinsky & Drogin Llp(1350 B'Way), New York, N.Y. USA.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge.
Plaintiff Susen Gench filed suit against defendants HostGator.com LLC (" HostGator"); Wired Tree; eNom Incorporated (" eNom"); Liquid Web Incorporated (" Liquid Web"); and an entity referred to as " SiteGap.com; SiteGap.Net; Site Gap" (" Site Gap"), alleging violations of federal trademark and copyright law and New York's law against false advertising. HostGator, Wired Tree, and eNom (collectively, " defendants") have each moved to dismiss the complaint. For the reasons that follow, these motions should be granted.
A. Facts Alleged in the Amended Complaint
For the purposes of deciding the defendants' motions to dismiss, the Court assumes that the factual allegations in Gench's amended complaint are true and draws all reasonable inferences in her favor. See, e.g., Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014) (citation omitted). That being said, we note that the allegations in Gench's 25-page largely single-spaced amended complaint are extremely difficult to follow. Nonetheless, we summarize below the facts that are material to her claims as best we can understand them.
On September 12, 2007, Gench registered the domain name OnlineTutorForEnglish.com (the " domain") with an entity called " Tucows." See Amended Complaint, filed May 23, 2014 (Docket # 5) (" Am. Compl."), at 4. But see Ex. 2 to Am. Compl. (reflecting a registration date of September 12, 2006). Since then, Gench has operated the OnlineTutorForEnglish.com website (the " site"). See Am. Compl. at 4-5, 10. The site provides tutoring by native English speakers and other English-language learning resources. See id. at 10. The site offers its users the opportunity to live chat with tutors through the use of a console installed on Gench's computer. See id. at 5. Gench has advertised the site in various media, including via Google AdWords, Yahoo!, and LinkedIn. See id. at 4. Gench has also produced other content bearing the name " Online Tutor For English, " including videos published on YouTube and articles published on the site and on other websites. See id. at 4-5. Gench makes income from the site from advertisements, tutorial purchases, and online tutoring purchases. Id. at 10.
On July 6 or 7, 2010, Gench enlisted Wired Tree to host her website. See id. at 14-15, 21. Although the site used a " minimal" amount of its " allocated bandwidth, " it still ran slowly, to Gench's dissatisfaction. See id. at 21. In January 2011, Gench transferred the site from Wired Tree to HostGator, having purchased a web hosting " Business Plan" from HostGator. See id. at 5-6, 21. This plan included a dedicated IP address, unlimited bandwidth, and 24/7 technical support, and cost Gench $15 per month. See id. at 5, 12. The site used only " minimal resources, " about 1.5 to 2 gigabytes of bandwidth per month. Id. at 12.
In September 2011, Gench transferred her domain to eNom, but in either February or March 2012, she transferred it back to HostGator. See id. at 5, 10. At some point thereafter, Gench became dissatisfied with HostGator's service, as the site was experiencing significant downtime and she felt HostGator was not responding quickly or effectively to her complaints. See id. at 5, 12-13. Eventually, Gench requested that the domain be transferred back to eNom, though this transfer was never completed, or was completed and subsequently reversed. See id. at 5 (alleging that HostGator either " never completed the transfer" or completed it then " transferred it back to themselves"); id. at 8 (alleging that " HostGator and Enom never performed the transfer procedure"). On September 7, 2013, Gench temporarily transferred the domain to a company called In Motion Hosting, which is not named as a defendant in this suit. See id. at 8. Then, on November 1, 2013, Gench once again transferred the domain to defendant Liquid Web. See id.
The number of visitors to the site reached a high of 32, 203 in February 2012, see id. at 9-10; Ex. 32 to Am. Compl., but then declined substantially, see Am. Compl. at 8-9; Exs. 32-36 to Am. Compl. With this loss of traffic, the site also suffered losses in advertisement value, search engine rankings, and overall profitability. See Am. Compl. at 21-22. The site has not operated since May 2, 2014. See id. at 18, 22.
B. Procedural History
Gench filed the original complaint in this action on May 19, 2014. See Complaint, filed May 19, 2014 (Docket # 2). On May 23, 2014, Gench filed an amended complaint, which alleges violations of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d); the Copyright Act, 17 U.S.C. § § 101 et seq.; and New York's law against false advertising, N.Y. Gen. Bus. L. § § 350 et seq. (McKinney 2014). See Am. Compl. at 3. Annexed to the amended complaint are more than 90 exhibits, comprising nearly 400 pages.
At the same time she filed her original complaint, Gench requested a preliminary injunction and temporary restraining order to require the defendants to provide her access to OnlineTutorForEnglish.com and to require them to provide her with certain information about the website. See unsigned Order to Show Cause for Preliminary Injunction and Temporary Restraining Order, filed May 19, 2014 (Docket # 3); see also Letter addressed to Judge Lewis A. Kaplan from Susen Gench, filed May 23, 2014 (Docket # 4). By Order dated May 29, 2014 (Docket # 6), Judge Ronnie Abrams denied this request.
On June 25, 2014, HostGator filed a motion to dismiss the claims against it (Docket # 14), with an accompanying memorandum of law (Docket # 15). Gench then submitted to the Court -- and apparently served on HostGator's counsel -- a document dated July 9, 2014, entitled " Motion in Opposition to Dismiss." See Order dated July 14, 2014 (Docket # 45), at 2; Endorsed Letter addressed to Magistrate Judge Gabriel W. Gorenstein from Tom Monagan, filed Sept. 9, 2014 (Docket # 74) (" Sept. 9 End.."), at 1. The Clerk's office rejected this document for filing because at the time of its submission to the Pro Se Office, Gench was required to file through the ECF system, as she had previously requested, and the document had been submitted in paper form. See Motion for Permission for Electronic Case Filing, filed June 23, 2014 (Docket # 11). Ultimately, this document was filed with the Court because it was attached to a different document Gench filed on August 22, 2014, which she styled as a motion for " summary judgment" against HostGator. See Plaintiff's Motion for Summary Judgment Pursuant to Rule 56(f)(1) Against HostGator for Failure to Properly Address Facts (e), to Dismiss Motion 12(b)(6) Pursuant to Rule 12(b)(7) and Rule 19 for Failure to Join a Party, SiteGap.com; Sanctions Pursuant to 11(b) Frivilous [sic] Defense for Unauthorized Domain Registration, Copyrighted Content Infringement: Static.reverse.softlayer.com; and for Deceptive Advertising of Bandwidth Under 350-e, and for Failure to Timely Serve the Motion, filed Aug. 22, 2014 (Docket # 66) (" Pl. Opp'n to HostGator"). Even though the July 9 document had not been filed on the docket sheet, HostGator filed a reply memorandum in response to it on July 30, 2014. See Reply in Support of HostGator.com's Motion to Dismiss Pursuant to Rule 12(b)(6), filed July 30, 2014 (Docket # 54). After Gench filed the " summary judgment" document, the Court directed HostGator to treat it as further opposition to HostGator's motion to dismiss. See Sept. 9 End. at 2. HostGator filed a second reply brief on September 30, 2014. See Additional Reply Brief in Support of HostGator.com's Motion to Dismiss Pursuant to Rule 12(b)(6), filed Sept. 30, 2014 (Docket # 84).
On July 1, 2014, Wired Tree filed its motion to dismiss (Docket ## 22, 23). On July 10, 2014, it filed a memorandum of law in support of that motion (Docket # 30), which relied largely on HostGator's memorandum of law, see id. at 1. Gench opposed this motion to dismiss in a document filed on August 8, 2014. See Plaintiff's Reply in Opposition to Wired Tree's Motion of Rule 12(b)(6) to Dismiss, Pursuant to Rule 12(b)(7) and Rule 19 for Failure to Join a Party, SiteGap.com, Frivolous Defense, Sanctions: Rule 11(b), filed Aug. 8, 2014 (Docket # 58) (" Pl. Opp'n to Wired Tree"). Wired Tree filed a reply in further support of its motion to dismiss on August 29, ...