AFL Telecommunications LLC v. Fiberoptic Hardware LLC et al

Filing 44

ORDER granting 38 Motion to Dismiss Counts/Claims. Defendant/Counterclaimant shall file an amended second counterclaim on or before 12/16/2011. Signed by Judge David G Campbell on 12/1/2011.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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AFL Telecommunications LLC,
Plaintiff,

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ORDER

vs.

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No. CV11-1081-PHX-DGC

Fiberoptic Hardware, LLC,

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Defendant.

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Plaintiff and Counterdefendant AFL Telecommunications LLC (“AFL”) moves to

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dismiss the second counterclaim by Defendant and Counterclaimant Fiberoptic

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Hardware, LLC (“FOH”) pursuant to Fed. R. Civ. P. 12(b)(6). Doc. 38. FOH opposes

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the motion and, in the alternative, requests leave to amend the second counterclaim.

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Doc. 41. The motion is fully briefed. Docs. 38, 41, 43. The parties do not request oral

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argument. For the reasons below, the Court will grant AFL’s motion to dismiss and grant

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FOH leave to amend.

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When analyzing a claim under Rule 12(b)(6), the well-pled factual allegations

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“‘are taken as true and construed in the light most favorable to the nonmoving party.’”

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Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (citation omitted). Legal

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conclusions couched as factual allegations “are not entitled to the assumption of truth,”

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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), and therefore “‘are insufficient to defeat

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a motion to dismiss for failure to state a claim.’” In re Cutera Sec. Litig., 610 F.3d 1103,

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1108 (9th Cir. 2010) (citation omitted). To avoid a Rule 12(b)(6) dismissal, the claim

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must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). Dismissal is appropriate where the claim

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lacks a cognizable legal theory, lacks sufficient facts alleged under a cognizable legal

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theory, or contains allegations disclosing some absolute defense or bar to recovery. See

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Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v.

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County of L.A., 119 F.3d 778, 783, n.1 (9th Cir. 1997).

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In its second counterclaim, FOH seeks a declaratory judgment that the Fujikura

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trademarks at issue are invalid. Doc. 33, at 9-10. Under the Declaratory Judgment Act,

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28 U.S.C. § 2201, “the question in each case is whether the facts alleged, under all the

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circumstances, show that there is a substantial controversy, between parties having

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adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a

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declaratory judgment.” Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273

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(1941). In its opposition to the motion to dismiss, FOH cites this standard and concludes

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that “[t]he answer to each of those questions is yes. AFL has sued FOH for trademark

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infringement and FOH is entitled to a declaratory judgment describing its rights. That is

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all FOH has to show in order to survive a motion to dismiss its claim for declaratory

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relief.” Doc. 41, at 1-2. The Court disagrees. FOH has not alleged any facts that meet

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the required showing. FOH makes only these assertions in its second counterclaim for

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declaratory judgment:

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8.
A real and actual controversy exists between Counter-Plaintiff FOH
and Counter-Defendant AFL as to whether FOH is infringing valid
trademarks of AFL. The controversy warrants declaratory relief.
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The Fujikura marks at issue (U.S. Reg. no 2,332,588 and U.S. Reg.
No. 3,774,956 are invalid and subject to cancellation.
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Pursuant to 15 U.S.C. § 1119, FOH seeks a declaration that the
Fujikura marks at issue are invalid.

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Doc. 33, at 9-10. These assertions are the type of “threadbare recitals of a cause of

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action’s elements, supported by mere conclusory statements,” that the Supreme Court

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held insufficient to survive a motion to dismiss. Iqbal, 129 S. Ct. at 1949.

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FOH’s second counterclaim also fails to advance a legal theory for the relief it

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seeks. In its opposition to the motion to dismiss, FOH suggests that “[l]egal theories . . .

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include, among others, laches/acquiescence or that the Fujikura mark has become

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generic.” Doc. 41, at 2-3. FOH also claims that, “[b]ecause of the extensive briefing

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already submitted in this case, and FOH’s counter-claims themselves, AFL is on notice of

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FOH’s claims.” Doc. 41, at 2. The Court, however, may not assume that the plaintiff can

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prove facts different from those alleged in the claim itself.

See Associated Gen.

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Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

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FOH requests leave to amend the second counterclaim in the event that AFL’s

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motion to dismiss is granted. Doc. 41, at 4. AFL does not oppose this request. The

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Court will grant FOH leave to amend pursuant to Fed. R. Civ. P. 15(a)(2).

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IT IS ORDERED:

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Plaintiff/Counterdefendant’s motion to dismiss (Doc. 38) is granted.

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2.

Defendant/Counterclaimant’s request to amend (Doc. 41) is granted.

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Defendant/Counterclaimant shall file an amended second counterclaim by

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December 16, 2011.

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Dated this 1st day of December, 2011.

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