United States District Court, W.D. New York
DECISION AND ORDER
Lawrence J. Vilardo, United States District Judge
plaintiff, Sit N' Stay Pet Services, Inc. (“Sit
N' Stay”), has sued Carrie Hoffman doing business
as Kelsey's Sit and Stay and Kelsey's Sit, Play,
& Stay. Based on the similarity of the three business
names, Sit N' Stay has alleged that Kelsey's Sit and
Stay and Kelsey's Sit, Play, & Stay engaged in unfair
competition and false designation of origin in violation of
the Lanham Act (the “Act”), 15 U.S.C. Section
1125(a); trademark infringement and unfair competition in
violation of New York common law; and deceptive trade
practices in violation of New York General Business Law
Section 349. Before this Court is Magistrate Judge Jeremiah
J. McCarthy's Report and Recommendation on the
defendant's motion to dismiss for lack of subject-matter
jurisdiction and the plaintiff's request for Rule 11
sanctions. For the following reasons, this Court adopts Judge
McCarthy's recommendation and denies both the motion to
dismiss and the request for Rule 11 sanctions.
Sauer, the owner and operator of Sit N' Stay, has sold
pet-sitting and dog-training services since at least June 4,
2002, under the name “Sit N' Stay Pet
Services.” Docket Item 1 ¶¶ 12, 28. Sauer has
maintained a website advertising her services since at least
May 30, 2003, at the domain name
www.sitnstaypetservices.com, with other domain names
directed to this website. Id. ¶ 34, 34.1-.4.
She incorporated Sit N' Stay Pet Services, Inc., on July
3, 2008. Id. ¶¶ 11, 28, 39.
to the complaint, defendant Hoffman has been advertising and
selling pet-sitting services under the name
“Kelsey's Sit and Stay” since January 1,
2015. Id. ¶ 52. In December 2016, Hoffman began
doing business also as “Kelsey's Sit, Play, &
Stay, ” and at the time the complaint was filed she did
business under both names. Id. ¶ 55. She has
advertised and sold services at the domain name
www.facebook.com/KelseysSitandStay since April 17,
2015; at www.KelseysSitandStay.com since January 1,
2016; and at www.facebook.com/KelseysSitPlayandStay
since sometime after December 5, 2016. Id. ¶
of answering the complaint, Hoffman moved to dismiss for lack
of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). Docket Item 6. The case was referred to
Judge McCarthy on March 1, 2017. Docket Item 7. The plaintiff
then filed a memorandum opposing the motion to dismiss, which
included a request for sanctions under Federal Rule of Civil
Procedure 11. Docket Item 9. On April 17, 2017, Judge
McCarthy issued his Report and Recommendation, in which he
recommended that both the defendant's motion to dismiss
and the plaintiff's request for Rule 11 sanctions should
be denied. Docket Item 12. The defendant objected, and, after
the objection was fully briefed, this Court heard oral
argument on June 16, 2017. Docket Items 13, 15-17.
REVIEW OF REPORT AND RECOMMENDATION
Court “must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to” and “may accept, reject, or modify
the recommended disposition.” Fed.R.Civ.P. 72(b)(3);
see 28 U.S.C. § 636(b)(1).
PROCEDURAL PRINCIPLES FOR FEDERAL-QUESTION
has moved to dismiss the complaint for lack of
federal-question jurisdiction. She argues that Sit N'
Stay has not met its burden of establishing jurisdiction
because it has failed to plead claims that arise out of
federal law or raise a substantial federal question. Docket
Item 6-1 at 12.
courts have jurisdiction to hear all cases “arising
under the Constitution, laws or treaties of the United
States.” 28 U.S.C. § 1331. A suit arises under the
federal law that creates the cause of action only if the
complaint, on its face, pleads such a cause of action.
Louisville & Nashville R. Co. v. Mottley, 211
U.S. 149, 152 (1908); American Well Works Co. v. Layne
Bowler Co., 241 U.S. 257, 260 (1916). Therefore,
“[a] plaintiff properly invokes § 1331
jurisdiction when she pleads a colorable claim ‘arising
under' the Federal Constitution or laws.”
Arbaugh v. Y & H Corp., 546 U.S. 500, 501 (2006)
may bring a motion challenging the federal court's
subject-matter jurisdiction at any time. Fed.R.Civ.P.
12(h)(3). Following such a motion, “[a] 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.”
Makarova v. United States, 201 F.3d 110, 113 (2d
Cir. 2000) (citing Fed.R.Civ.P. 12(b)(1)).
party asserting federal jurisdiction bears the burden of
proving that the case is properly in federal court.”
Gilman v. BHS Sec., Inc., 104 F.3d 1418, 1421 (2d
Cir. 1997) (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)). Once a plaintiff
asserts a federal question, however, the plaintiff need only
show that she has alleged a non-frivolous claim under federal
law to establish subject-matter jurisdiction. Shapiro v.
McManus, __ U.S. __, 136 S.Ct. 450, 455 (2015) (citing
Bell v. Hood, 327 U.S. 678, 682-83 (1946)).
“Absent such frivolity, ‘the failure to state a
proper cause of action calls for a judgment on the merits and
not for a dismissal for want of jurisdiction.'”
Id. at 456 (quoting Bell, 327 U.S. at
682). Thus, there is a “very low threshold
required to support federal-question jurisdiction.”
Gallego v. Northland Group Inc., 814 F.3d 123, 128
(2d Cir. 2016).
the Rule 12(b)(1) motion is facial, i.e., based
solely on the allegations of the complaint . . . the
plaintiff has no evidentiary burden.” Carter v.
HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016).
Under those circumstances, a court draws all facts from the
complaint, “which [it] assume[s] to be true unless
contradicted by more specific allegations or documentary
evidence.” Amidax Trading Grp. v. S.W.I.F.T.
SCRL, 671 F.3d 140, 145 (2d Cir. 2011). A defendant is
permitted, however, “to make a fact-based Rule 12(b)(1)
motion, proffering evidence beyond the [p]leading.”
Carter, 822 F.3d at 57.
FEDERAL-QUESTION JURISDICTION ...