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Personified, LLC v. Sales Consultants of Cary

August 7, 2008

PERSONIFIED, LLC, PLAINTIFF,
v.
SALES CONSULTANTS OF CARY, LLC, DEFENDANT.



The opinion of the court was delivered by: Samuel Der-Yeghiayan United States District Court Judge

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the Court on Defendant Sales Consultants of Cary, LLC's ("SCC") motion to dismiss. For the reasons stated below, we grant the motion to dismiss.

BACKGROUND

Plaintiff Personified, LLC ("Personified") alleges that on December 19, 2007, CareerBuilder LLC ("CareerBuilder"), the parent company to Personified, filed an intent-to-use trademark application for the mark "Personified" ("Mark"). On March 24, 2008, RightFish, LLC, a subsidiary of CareerBuilder, allegedly changed its name to Personified and CareerBuilder assigned all rights to the Mark to Personified. SCC is allegedly a search and recruitment consulting company that provides staffing services under the name "Personify."

According to Personified, SCC has accused Personified of engaging in wrongful conduct by filing the trademark application and using the Mark. SCC also allegedly accused Personified of attempting to confuse consumers and attempting to contact customers of SCC. In a letter dated May 21, 2008 ("Letter"), SCC allegedly demanded that Personified withdraw its trademark application, cease using the Mark, and pay SCC $100,000.00 in damages.

Personified brought the instant action, and includes in the complaint one declaratory judgment claim. Personified seeks a declaration stating that it has not violated any federal trademark or unfair competition laws. Personified also seeks a declaration stating that it has not violated any Illinois or North Carolina unfair competition laws. SCC moves to dismiss the instant action, and Personified requests that we stay a ruling on the motion.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."

E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under the current notice pleading standard in federal courts a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "'provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455(quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").

DISCUSSION

Personified filed the instant action on May 30, 2008. SCC contends that shortly thereafter, on June 5, 2008, SCC brought an action against Personified in North Carolina ("North Carolina Action"). SCC contends that the subject matter at issue in the North Carolina Action is the same as in the instant action. SCC argues that Personified is engaging in forum shopping by attempting to have the dispute resolved in the instant court and that the court should dismiss the instant action.

I. Subject Matter Jurisdiction

The Declaratory Judgment Act authorizes a federal court to "'give declaratory judgments in a case of actual controversy within its jurisdiction, but it is not an independent grant of jurisdiction, rather jurisdiction must be predicated on some other statute.'" Newell Operating Co. v. International Union of United Auto., Aerospace, and Agr. Implement Workers of America, 2008 WL 2600795, at *3 (7th Cir. 2008)(quoting Rueth v. EPA, 13 F.3d 227, 231 (7th Cir. 1993)). In the instant action, Personified's claim involves issues concerning liability under ...


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