United States District Court, S.D. New York
MEMORANDUM DECISION & ORDER
KATHERINE B. FORREST, District Judge
Assa Realty, LLC (“Assa”)-a New York limited
liability company- filed its complaint in this action against
24 defendants alleging that they infringed plaintiff's
trademark through their use of plaintiff's
“CASSA” mark in connection with real estate and
condominium development projects in Florida.
(See Compl. ¶¶ 1-61., ECF No. 1 (emphasis
added).) Specifically, Assa asserts claims against defendants
for trademark infringement, false designation of origin,
dilution, unjust enrichment, and consumer fraud relating to
defendants alleges use of plaintiff's CASSA mark.
(Id. ¶¶ 95-147.)
complaint, plaintiff also alleges that “[v]enue is
proper in this district pursuant to 28 U.S.C. § 1391 as
a substantial part of the events or omission giving rise to
the claims occurred in this judicial district.”
(Id. ¶ 29.) Upon receiving plaintiff's
complaint, the Court issued an order directing plaintiff to
show cause why venue is proper in the Southern District of
New York. (ECF No. 53.)
January 27, 2017, plaintiff submitted a letter responding to
the Court's Order. (ECF No. 54.) Thereafter, defendants
filed motions to dismiss for lack of personal jurisdiction
and for improper venue and the Court allowed the parties to
engage in 30 days of jurisdictional discovery. (ECF Nos. 63,
67, 84, 88.) Following the limited period provided for
jurisdictional discovery, plaintiff filed its opposition to
defendants' motions to dismiss (ECF No. 91) and
defendants filed their replies in further support of the
motions (ECF Nos. 94, 96, 97.)
reasons discussed below, defendants' motions are GRANTED
and plaintiff's complaint is dismissed for improper
Federal Rule of Civil Procedure 12(b)(3)
motion to dismiss for improper venue under Federal Rule of
Civil Procedure 12(b)(3), the Court applies the same standard
of review as it does to a motion to dismiss for lack of
personal jurisdiction pursuant to Rule 12(b)(2). See Gulf
Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir.
2005). While the plaintiff bears the burden of establishing
that venue is proper, “[i]f the court chooses to rely
on pleadings and affidavits, the plaintiff need only make a
prima facie showing of [venue].” Id. (quoting
CutCo Indus. v. Naughton, 806 F.2d 361, 364-65 (2d
Cir. 1986)) (alteration in original). “The decision
whether to dismiss an action for improper venue is committed
to the Court's sound discretion. Blauschild v.
Tudor, 31 F.Supp.3d 527, 530 (E.D.N.Y. 2014); see
Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.
1993)). In determining whether venue is proper, the court
“must view all facts in the light most favorable to the
plaintiff.” Cold Spring Harbor Lab., 762
F.Supp.2d at 551 (citing Phillips v. Audio Active
Ltd., 494 F.3d 378, 384 (2d Cir. 2007)). Accordingly,
the “court must accept the facts alleged in the
complaint as true and construe all reasonable inferences in
the plaintiff's favor.” Dolson v. New York
State Thruway Authority, Fisher v. Hopkins, No.
02-CV-7077, 2003 WL 102845, at *2 (S.D.N.Y. Jan. 9, 2003).
U.S.C. § 1391
28 U.S.C. § 1391, venue is proper in: “(1) a
judicial district in which any defendant resides, if all
defendants are residents of the State in which the district
is located; (2) a judicial district in which a substantial
part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the
subject of the action is situated; or (3) if there is no
district in which an action may otherwise be brought as
provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction
with respect to such action.” 28 U.S.C. § 1391(b).
District courts are “required to construe the venue
statute strictly.” Gulf Ins. Co. v.
Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005). As
relevant to this case, “[t]he Lanham Act does not have
a specific venue provision. Thus, the provisions in 28 U.S.C.
§ 1391 govern the venue determination.” Lewis
v. Madej, No. 15-CV-2676, 2015 WL 6442255, at *9
(S.D.N.Y. Oct. 23, 2015).
has not plead facts sufficient to demonstrate that venue is
proper is proper in this District. Rather, accepting all of
the facts plead in the complaint as true, it is clear that
venue is improper in this District.
noted above, plaintiff alleges in its complaint that
“[v]enue is proper in this district pursuant to 28
U.S.C. § 1391 as a substantial part of the events or
omission giving rise to the claims occurred in this judicial
district.” (Id. ¶ 29.) However, in
opposition to defendants' motions to dismiss, plaintiff
essentially abandons this argument. Plaintiff does not argue
in its opposition-and it appears, for good reason-that a
substantial part of the events giving rise to plaintiff's
claims occurred in the Southern District of New York.
all of the allegations in plaintiff's complaint as true,
almost all (if not all) of the events allegedly giving rise
to plaintiff's claims occurred in Florida. Plaintiff does
not allege that the purported trademark infringement occurred
in this District, nor has plaintiff proffered any facts which
would support that infringement occurred in this