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Assa Realty LLC v. The Solution Group Corp.

United States District Court, S.D. New York

May 22, 2017

ASSA REALTY LLC, Plaintiff,
v.
THE SOLUTION GROUP CORP. et al., Defendants.

          MEMORANDUM DECISION & ORDER

          KATHERINE B. FORREST, District Judge

         Plaintiff 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[1] 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.)

         In its 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.)

         On 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[2] 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.)

         For the reasons discussed below, defendants' motions are GRANTED and plaintiff's complaint is dismissed for improper venue.

         I. LEGAL PRINCIPLES

         A. Federal Rule of Civil Procedure 12(b)(3)

         On a 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).

         B. 28 U.S.C. § 1391

         Under 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).

         II. DISCUSSION

         Plaintiff 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.[3]

         As 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.

         Accepting 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 District.[4] ...


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