Nasser et al v. Julius Samann LTD et al

Filing 28

ORDER Granting 11 Motion to Dismiss Complaint for Failure to State a Claim; Denying 6 Motion for More Definite Statement; Denying 9 Motion to Dismiss Pursuant to First-To-File Rule without Prejudice. Plaintiffs may file and serve a First Amended Complaint on or before 9/8/2017. If Plaintiffs fail to do so, the Court will close this case. Signed by Judge Barry Ted Moskowitz on 8/14/2017. (All non-registered users served via U.S. Mail Service)(mxn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17-cv-0863-BTM-MDD
IBRAHIM NASSER; SERIOUS
SCENTS,

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Plaintiffs,
v.
JULIUS SAMMANN LTD. DBA
LITTLE TREE DBA CARFRESHNER CORPORATION, et
al.,

ORDER GRANTING MOTION TO
DISMISS COMPLAINT FOR
FAILURE TO STATE A CLAIM;
DENYING MOTION FOR MORE
DEFINITE STATEMENT; DENYING
MOTION TO DISMISS PURSUANT
TO FIRST-TO-FILE RULE
[ECF NOS. 6, 9, 11]

Defendants.

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Defendant Car-Freshner Corporation, erroneously sued as Julius Samann

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Ltd. dba Little Tree dba Car-Freshner Corporation (“Car-Freshner”), moves to

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dismiss Plaintiffs’ complaint for failure to state a claim pursuant to Fed. R. Civ. P.

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12(b)(6), or alternatively for a more definite statement pursuant to Fed. R. Civ. P.

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12(e). (ECF No. 11.) Defendant Energizer Brands II LLC (“Energizer”) moves to

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dismiss the complaint pursuant to the first-to-file rule. (ECF Nos. 6, 9.) For the

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reasons discussed below, the Court will grant Car-Freshner’s motion to dismiss,

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deny its alternative motion for more definite statement as moot, and deny

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Energizer’s motion to dismiss without prejudice.
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I.

BACKGROUND

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On April 28, 2017, Plaintiffs Ibrahim Nasser (“Nasser”) and Serious Scents,

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proceeding pro se, filed a complaint against defendants Car-Freshner, Energizer,

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and Nature’s Appeal Manufacturing Corporation dba Stink Grenade (“Nature’s

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Appeal”) (collective, “Defendants”). The action arises from Defendants’ alleged

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use of a “stolen image design and concept” for hand-grenade-shaped air

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fresheners that come “in [an] array of fanciful colors and pleasant scents,” see

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Compl. at 12, 14, and purports to assert claims for trademark infringement,

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copyright infringement, the Racketeer Influenced and Corrupt Organizations Act

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(“RICO”), 18 U.S.C. §§ 1961, et seq., and other violations of federal law, see

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Compl. at 1, 2-3.

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On May 19, 2017, Energizer filed a motion to dismiss Plaintiffs’ complaint

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pursuant to the first-to-file rule, a rule of federal comity that “permits a court to

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decline jurisdiction when a complaint involving the same issues has already been

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filed in another district.” See Energizer II’s Mot. (ECF No. 6-1) at 6 (quoting

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Pacesetter Sys., Inc., v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982)).

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Energizer contends it should be dismissed from this action because on March 10,

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2017, it filed an action against Plaintiffs in federal court in the Eastern District of

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Missouri in which it asserts claims that it maintains are substantially similar to the

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ones Plaintiffs are pursuing here.

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On May 23, 2017, Car-Freshner filed a motion to dismiss Plaintiffs’ complaint

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pursuant to Rule 12(b)(6) for failure to state a claim, or alternatively, for more

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definite statement pursuant to Rule 12(e).1

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Nasser has filed oppositions to both motions. (ECF Nos. 16, 22).

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Plaintiffs have not filed proofs of service of the summons and complaint, and Nature’s Appeal has not made an
appearance, so it is unclear whether Nature’s Appeal has been served.
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II.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Car-Freshner contends that Plaintiffs’ complaint is too poorly pled to state a

claim. The Court agrees and will dismiss the complaint with leave to amend.

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The pleading defects Car-Freshner identifies fall within the scope of Rules

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8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. Rule 8(a) provides that

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a complaint must contain “a short and plain statement of the claim showing that

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the plaintiff is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although the pleadings of

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pro se plaintiffs are liberally construed, the basic pleading requirements of Rule 8

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apply to self-represented and represented plaintiffs alike. Ghazali v. Moran, 46

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F.3d 52, 54 (9th Cir. 1995); Wynder v. McMahon, 360 F.3d 73, 79 n. 11 (2d Cir.

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2004). Complaints that are too confusing and prolix to “perform the essential

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functions of a compliant” are subject to dismissal under Rule 8(a). See, e.g.,

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McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir. 1996) (upholding a Rule 8(a)

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dismissal of a complaint that was “argumentative, prolix, replete with redundancy,

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and largely irrelevant”); Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir.

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1985) (upholding a Rule 8(a) dismissal of a complaint that was confusing and

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conclusory).

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Plaintiffs’ complaint fails to adhere to the Rule 8(a) pleading requirements in

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several ways. In general, it is confusing, unfocused, argumentative, and scattered

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with irrelevant material, including unnecessary aspersions on Defendants’

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attorneys. See Compl. at 9, 10 (“The opposition attorney’s [sic] will demand that

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each and every legal nuance must be played out in exacting detail[;]” “This Court

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will hear the opposition attorneys seeming like legal mashed cats.”).

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although the cover page lists a number of claims that Plaintiffs intend to assert, the

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body of the complaint does not state each claim individually, and it lacks simple,

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concise and direct statements setting forth the alleged wrongdoing of each

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defendant in support of any of the intended claims. See Nevijel v. North Coast Life

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Ins. Co., 651 F.2d 671, 675 (9th Cir. 1981) (approving district court’s dismissal

Also,

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under Rule 8(a) of a complaint for failure to assert “a short, simple, concise and

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direct statement respecting the alleged wrongdoing of each appellee”).

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complaint also impermissibly groups all of the defendants together. See Adobe

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Sys. Inc. v. Blue Source Grp., Inc., No. 14-CV-02147-LHK, 2015 WL 5118509, at

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*10 (N.D. Cal. Aug. 31, 2015) (“As a general rule, when a pleading fails ‘to allege

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what role each Defendant played in the harm,’ this ‘makes it exceedingly difficult

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… for individual Defendants to respond to Plaintiffs’ allegations.”). To the limited

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extent Plaintiffs refer to a particular defendant, the references are ambiguous and

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confusing. See Compl. at 12 (referring to “defendant king of air fresheners” and

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“Defendant Tree Company”). The allegations addressing Plaintiffs are similarly

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deficient. The body of the complaint refers almost exclusively to Nasser, making

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it unclear which claims are being asserted on behalf of Serious Scents, or what

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type of entity Serious Scents is. For all these reasons, Plaintiffs’ complaint falls

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short of the requirements of Rule 8(a). See McHenry, 84 F.3d at 1180 (“Something

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labeled a complaint but … without simplicity, conciseness and clarity as to whom

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plaintiffs are suing for what wrongs, fails to perform the essential functions of a

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complaint.”)

The

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Dismissal is also warranted under Rule 12(b)(6) because the complaint fails

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to state a plausible claim for relief. See Fed. R. Civ. P. 12(b)(6). “To survive a

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motion to dismiss, a complaint must contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007)).

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assertions are not entitled to the assumption of truth. Id. at 679, 680-81. Here,

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Plaintiffs’ complaint fails to show, through well-pleaded factual allegations, how the

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elements of the laws underlying their claims were violated by defendants. The

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most frequently-discussed claim in the complaint is the claim for trademark

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violation, but the allegations in support of this claim are no more than bare

Allegations that amount to no more than legal conclusions or bare

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assertions and legal conclusions. See Compl. at 14 (“The defendants at that

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moment in time made a conscious decision to mass market a stolen image and

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concept belonging to Mr. Nasser…”), 15 (“The defendants with purposeful intent

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actually cause the theft of the protections of a trademark and copyright by causing

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confusion in the marketplace.”).

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Therefore, the Court will grant Car-Freshner’s motion to dismiss the

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complaint for failure to state a claim. Because the defects in the complaint apply

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equally to all Defendants, the complaint will be dismissed in its entirety. Car-

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Freshner’s alternative request for a more definite statement under Rule 12(e) will

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be denied as moot. 2

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Dismissal will be with leave to amend.

See Eminence Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (leave to amend “shall be freely

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given when justice so requires” and granted “with extreme liberality”). If Plaintiffs

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file an amended complaint, they should take note that they must also comply with

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Federal Rule of Civil Procedure 10(b), which requires that a party “state its claims

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in numbered paragraphs, each limited as far as practicable to a single set of

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circumstances.” Fed. R. Civ. P. 10(b).

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III.

MOTION TO DISMISS PURSUANT TO FIRST-TO-FILE RULE

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A district court has discretion to dismiss, stay, or transfer a case pursuant to

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the first-to-file rule. Pacesetter, 678 F.2d at 94-95. Determining whether the first-

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to-file rule applies requires the court to analyze three factors: (1) chronology of the

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actions, (2) similarity of the parties, and (3) similarity of the issues. Gunnar Optiks,

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LLC v. Mad Panda, LLC, No. 3:14-cv-1938 BTM(KSC), 2015 WL 1013775, at *1

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(S.D. Cal. Mar. 9, 2015). Evaluation of the second and third factors requires the

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court to consider whether the claims and parties in each case are “substantially

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In ruling on this motion, the Court did not rely on Car-Freshner’s request for judicial notice (“RJN”) submitted
with its reply brief, and therefore denies the RJN as irrelevant.
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similar.” Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989).

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Here, Plaintiffs have not yet stated a viable claim for relief. It would be

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premature for the Court to try to determine whether this action involves

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“substantially similar” claims and parties as the ones involved in the Missouri case,

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since it is not certain which, if any, of Plaintiffs’ claims will survive, or against which

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Defendants they will be asserted. Accordingly, the Court will deny Energizer’s

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motion without prejudice.

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IV.

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PLAINTIFFS’ NONCOMPLIANCE WITH LOCAL RULES
The Court notes that in the short time this action has been pending, Plaintiffs

have developed a pattern of violating the Local Rules.

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Nasser filed both of his opposition briefs late, in violation of this District’s

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Local Civil Rule 7.1.e.2, which provides that opposition briefs must be filed “not

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later than fourteen (14) calendar days prior to the noticed hearing.” CivLR 7.1.e.2.

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The Court accepted the noncompliant briefs, but had to move the hearing dates

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on both motions to give Energizer and Car-Freshner sufficient time to reply. See

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ECF Nos. 17, 23.

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Plaintiff thereafter submitted several more pleadings, including a motion for

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leave to amend, which was submitted on June 30, 2017, without first requesting a

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hearing date from chambers, in violation of Local Civil Rule 7.1.b; a “Response”

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brief submitted on July 5, 2017, which is essentially a surreply brief, in violation of

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this Court’s Civil Chambers Rules providing that surreplies may not be filed

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without leave of court, see Hon. Barry Ted Moskowitz, Civ. Chambers R. at 2,

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“Sur-replies” (Feb. 24, 2015); a proof of service of the surreply brief submitted on

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July 6, 2017; a documented titled “Judicial Notice” indicating Plaintiffs had

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completed drafting a First Amended Complaint, which was submitted on July 27,

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2017; and a First Amended Complaint, which was submitted prematurely on

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August 7, 2017, before the Court granted leave to amend.

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Since the motion to amend, surreply (including the proof of service of the
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surreply), and request for judicial notice were unnecessary to the Court’s decision,

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there is no prejudice to Defendants in accepting them, so they will be accepted

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under separate order.

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Because Plaintiffs submitted the First Amended Complaint prematurely and

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without the benefit of this Court’s order, it will be rejected so that Plaintiffs can

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determine whether it needs to be modified based on the discussion above.

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Plaintiffs may re-submit a First Amended Complaint by the deadline set forth

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below.

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Although Plaintiffs are proceeding pro se, they must nevertheless comply

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with the applicable rules of civil procedure. See King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that

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govern other litigants.”). If Plaintiffs file a First Amended Complaint and proceed

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with this action, they will need to familiarize themselves with and make a concerted

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effort to comply with the Local Rules of this District as well as this Court’s Civil

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Chambers Rules, both of which are available online. See CivLR, available at:

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https://www.casd.uscourts.gov/Rules/Lists/Rules/Attachments/92/Local%20Rule

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s%202016%20v1.pdf; Hon. Barry Ted Moskowitz, Civ. Chambers R., available at:

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https://www.casd.uscourts.gov/Rules/Lists/Rules/Attachments/12/Moskowitz%20

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Civil%20Chambers%20Rules.pdf. Failure to follow the rules of procedure in the

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future may lead to further rejection of noncompliant filings.

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V.

CONCLUSION AND ORDER

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For the reasons discussed above, the Court GRANTS Car-Freshner’s

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motion to dismiss for failure to state a claim, DENIES Car-Freshner’s alternative

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motion for more definite statement as moot, and DENIES Energizer’s motion to

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dismiss without prejudice.

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//

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//

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//
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Plaintiffs’ complaint is DISMISSED without prejudice. Plaintiffs may file and

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serve a First Amended Complaint on or before September 8, 2017. If Plaintiffs fail

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to do so, the Court will close this case.

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IT IS SO ORDERED.
Dated: August 14, 2017

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