United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramds, U.S.D.J.
Meng (“Plaintiff) brought this action against Xinhuanet
Co., Ltd. (“Defendant”), challenging an order
issued by the Beijing Office of the Asian Domain Name Dispute
Resolution Center (“ADNDRC”) to transfer the
domain name “Xinhua.news” (the “Domain
Name”) from Plaintiff to Defendant. Plaintiff asserts
seven claims against Defendant under federal and state law.
Before the Court is Defendant's motion to dismiss the
Amended Complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Doc. 18. For the reasons stated
below, the two federal claims brought by Plaintiff are
dismissed and the Court declines to exercise supplemental
jurisdiction over the state claims. Accordingly,
Defendant's motion is GRANTED.
works in the business of publicity, news, and information.
Am. Compl. ¶ 35. Plaintiff runs the “Boxun”
electronic news media, which publishes daily website articles
and a hardcopy magazine called “Boxun Journal
Monthly.” Id. ¶¶ 3-4. On July 12,
2015, Plaintiff, acting on behalf of Boxun, registered the
Domain Name with Name.com, Inc. Id. ¶ 23.
Plaintiff used the Domain Name as the platform for
Boxun's internet publication. Id.
is a comprehensive news information portal under China Xinhua
News Agency. Id. ¶ 8. Defendant owns thirty-one
local channels and releases daily global news in different
languages, id. ¶ 9, and has a New York office
at Times Square. Id. ¶ 14. Defendant registered
and owns the domain names “Xinhuaet.com, ”
“Xinhuaet.com.cn, ” “Xinhua.org, ”
“Xinhua.cn, ” and “News.cn.”
Id. ¶ 12.
5, 2016, Defendant filed a complaint with the ADNDRC Beijing
Office pursuant to the Rules for Uniform Domain Name Dispute
Resolution Policy (“UDRP”) approved by the
Internet Corporation for Assigned Names Numbers
(“ICANN'). Am. Compl., Ex. 2, at 1. On June 20,
Plaintiff submitted his response to the ADNDRC Beijing
Office. Id. On July 21, 2016, the ADNDRC arbitrator
ruled in favor of Defendant and held that the Domain Name is
confusingly similar to Defendant's registered service
marks, that Plaintiff has no rights or legitimate interests
in the Domain Name, and that the Domain Name was registered
and is being used in bad faith. Am. Compl. ¶¶ 7-13.
The panel ordered the Domain Name to be transferred to
Defendant. Id. ¶ 13.
August 2, 2016, Plaintiff, acting pro se, filed the
instant action. Complaint, Doc. 1. On December 23, 2016,
pursuant to an agreement by the parties, Plaintiff, assisted
by counsel, filed an Amended Complaint, alleging two federal
claims--unfair and deceptive competition under Federal Trade
Commission Act, and failure to register with the U.S.
Department of Justice pursuant to the Foreign Agents
Registration Act. Plaintiff also alleges state law claims of
trover and conversion, trespass to chattel, and unjust
enrichment. Am. Compl. On January 23, 2017, Defendant
filed the instant motion to dismiss Plaintiffs Amended
Complaint. Defendant's Notice of Motion to Dismiss
(“Def s Mot.”) (Doc. 18). Plaintiffs counsel
subsequently sought to withdraw, and on March 3, 2017, the
Court granted Plaintiffs counsel's withdrawal. Doc. 24.
Plaintiff has been acting pro se since.
Rule 12(b)(6) Motion to Dismiss Standard
Rule 12(b)(6), a complaint may be dismissed for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). When ruling on a
motion to dismiss pursuant to Rule 12(b)(6), the Court must
accept all factual allegations in the complaint as true and
draw all reasonable inferences in the plaintiffs favor.
Koch v. Christie 's Int 'l PLC, 699 F.3d
141, 145 (2d Cir. 2012). However, the Court is not required
to credit “mere conclusory statements” or
“threadbare recitals of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)); see also id. at 681 (citing
Twombly, 550 U.S. at 551). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter . . . to ‘state a claim to relief that
is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
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.” Id. (citing Twombly, 550
U.S. at 556). If the plaintiff has not “nudged [his]
claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Twombly, 550
U.S. at 570.
Pro Se Plaintiff
same standard applies to motions to dismiss for pro
se plaintiffs. See Zapolski v. Fed. Republic of
Germany, 425 F. App'x 5, 6 (2d Cir. 2011).
Generally, the Court is obligated to construe a pro
se complaint liberally, and to interpret a pro
se plaintiff's claims as raising the strongest
arguments that they suggest. Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d. Cir. 2006). Here,
however, while Plaintiff is currently proceeding pro
se, the Amended Complaint was drafted with the
assistance of his retained lawyer. Courts in this District
have observed that it would be “fundamentally
unfair” to extend the special solicitude typically
afforded pro se parties to submissions drafted by
lawyers. Simpson v. Wells Fargo Bank, No. 15 Civ.
1487 (JMF), 2016 WL 393544, at *2 (S.D.N.Y. Feb. 1, 2016);
see also CIT Grp./Commercial Servs., Inc. v. Prisco,
640 F.Supp.2d 401, 407 (S.D.N.Y. 2009) (concluding that
pro se defendant's motion papers assisted by a
counsel need not be given the liberal reading normally
afforded to a pro se party). While Plaintiff's
Amended Complaint need not be given the liberal reading
normally afforded to a pro se party, the ruling of
this Court would not change if the Court gives it such a