United States District Court, S.D. New York
OPINION AND ORDER
M. WOOD, UNITED STATES DISTRICT JUDGE
Salonclick LLC d/b/a MiN New York ("MiN NY"), a
company founded by Chad Murawczyk, brings this action against
Murawczyk's former romantic partner and business
associate, Mindy Yang, and her company SuperEgo Management
LLC ("SuperEgo") for, inter alia,
replevin, conversion, unfair competition, and breach of
fiduciary duty. On January 18, 2017, the Court granted in
part and denied in part Defendants' motion to dismiss
Plaintiffs first amended complaint. ECF No. 23. Following an
initial conference before the undersigned, the Court granted
leave for Plaintiff to amend its complaint. ECF No. 45.
Plaintiff filed the operative complaint, the Second Amended
Complaint ("SAC"), on April 7, 2017. ECF No. 46.
Defendants now move to partially dismiss four narrow parts of
Plaintiff s SAC. For the reasons set forth below,
Defendants' motion to dismiss is DENIED.
the narrow scope of the pending motion, the Court describes
only the limited relevant facts. Salonclick LLC was founded
by Chad Murawczyk in 1999. SAC ¶ 11. Salonclick LLC has
done business under the name "MiN" and "MiN
New York, " through which it has manufactured and sold
hair color, hair care, and skin care products. Id.
MiN NY has utilized a variety of website domain names
id. ¶ 13, and
www.inventoryofexperiences.com, id. ¶
68. Since at least 2007, MiN NY has utilized the phrase
"The Art of Living" as a tagline in packaging,
advertising, and online. Id. ¶ 30. In 2014, MiN
NY launched a brand of perfumes called "Scent Stories,
" for which MiN NY has been awarded a trademark.
Id. ¶ 33 & Ex. D. MiN NY's social media
assets include www.newyorkheart.org and its
corresponding Facebook page, which are run by Murawczyk as a
vehicle for advocating against ivory poaching, which are used
to promote MiN NY as a "socially responsible and
concerned business." Id. ¶ 61.
2006, Murawczyk and Yang met and began a romantic
relationship. Id. ¶ 14. In 2007, Yang formed
SuperEgo, id. ¶ 15, and MiN NY hired SuperEgo
to assist with "graphic design, marketing, assistance
with public events, and administrative support, id.
¶¶ 22, 25. The romantic relationship ended in 2008.
Id. ¶ 14. The professional relationship
deteriorated, see Id. ¶¶ 37-38, and, in
the latter half of 2015, Murawczyk terminated Yang,
id. ¶¶ 43-52.
relevant to this motion, the SAC alleges three sets of
actionable activities taken by Yang following her
termination. First, Plaintiff alleges that Yang copied MiN
NY's customer lists, which contain the e-mail addresses
of over 12, 000 of MiN NY's customers. Id.
¶¶ 80-81. MiN NY kept these lists confidential and
alleges that they are proprietary information that were
compiled by MiN NY over "nearly two decades" of
marketing. Id. Yang had access to this information
as part of her marketing work for MiN NY. Id. ¶
80. After her termination, Yang copied the customer lists and
used the information to send e-mails on behalf of Yang's
new business to MiN NY's customers and press contacts.
Id. ¶ 81.
after Murawczyk confirmed Yang's termination in early
2016, Yang used her access to MiN NY's website and social
media accounts for Yang's own benefit. Id.
¶ 55. Yang created a new online business
www.theartofiiving.earm, id. ¶¶
1, 55, and redirected MiN NY's websites-including
www.inventoryofexperiences .com, and
www.newyorkheart.org -to Yang's website,
id. ¶¶ 67-70. Yang has also used MiN
NY's social media pages-such as the Twitter page
@ScentStories and the New York Heart Facebook page-to promote
Yang's new online business. Id. ¶¶ 58,
61, 62. For instance, a post on the @ScentStories Twitter
account told a customer to write to the e-mail address
hello@TheArtOfLiving.Earth, an e-mail address for Yang's
new business, for invitations to special events. Id.
¶ 58. Yang also created her own domain name,
www.mensgroomingessentials.earth, which redirected
to www.theartofliving.earth. Id. ¶ 70.
These activities impaired MiN NY's ability to launch a
new marketing campaign. Id. ¶ 69. Following a
state court proceeding, Yang restored control of the domain
names and social media accounts to MiN NY, except for the New
York Heart Facebook. Id. ¶¶ 75-76, 84.
Plaintiff alleges that Yang and Murawczyk discussed, at some
unspecified time, creating a scent called "Flash of
Light, " which would be a variation of a MiN NY scent,
"Ad Lumen." Id. ¶ 42. In September
2016, after Yang's separation from MiN NY, "Yang
presented a fragrance named 'Flash of Light'" at
a trade conference. Id. ¶ 77; see Id.
¶ 40. Plaintiff alleges that Defendants took "MiN
NY's product in development, 'Flash of Light' and
market[ed] it as their own." Id. ¶ 116.
case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.
. . . A plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that
it exists." Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). In resolving a 12(b)(1) motion,
"the district court must take all uncontroverted facts
in the complaint (or petition) as true, and draw all
reasonable inferences in favor of the party asserting
jurisdiction." Tandon v. Captain's Cove Marina
of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014).
"[W]here jurisdictional facts are placed in dispute, the
court has the power and obligation to decide issues of fact
by reference to evidence outside the pleadings, such as
affidavits." Id. (quoting APWUv.
Potter, 343 F.3d 619, 627 (2d Cir. 2003)).
order to survive a Rule 12(b)(6) motion to dismiss, a
plaintiff must plead sufficient factual allegations "to
state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570
(2007). A claim is facially 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." Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). The Court accepts as true all
well-pleaded factual allegations and draws all reasonable