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Meng v. Xinhuanet Co., Ltd.

United States District Court, S.D. New York

July 24, 2017

WEICAN MENG, Plaintiff,
v.
XINHUANET CO., LTD., Defendant.

          OPINION AND ORDER

          Edgardo Ramds, U.S.D.J.

         Weican 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.

         I. Factual Background[1]

         Plaintiff 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.

         Defendant 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.

         On May 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').[2] 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.[3] Id. ¶ 13.

         II. Procedural Background

         On 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.[4] 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.

         III. Legal Standard

         A. Rule 12(b)(6) Motion to Dismiss Standard

         Under 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.

         B. Pro Se Plaintiff

         The 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 reading.

         IV. ...


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