GoVanGo, Inc. et al v. Malabar Bay, LLC et al

Filing 45

ORDER & REASONS: for the reasons stated, the Court grants dft's 43 Motion to Dismiss under Rule 12(b)(6) and need not reach dft's motion under Rule 12(b)(5). Party CNA dismissed. Signed by Chief Judge Sarah S. Vance on 5/21/2012. (rll, ) Modified on 5/21/2012 to edit doc type (rll, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GOVANGO, INC. AND BARRY VAN
GERBIG, JR.

CIVIL ACTION

VERSUS

NO: 11-1600

MALABAR BAY, LLC, AND JAYE’S

SECTION: R

ORDER AND REASONS
Before the Court is defendant National Fire Insurance
Company of Hartford’s motion to dismiss “CNA” under Federal Rules
of Civil Procedure 12(b)(5) and 12(b)(6). Because CNA is a
service mark rather than an insurer or other legal entity,
plaintiffs have not and cannot state a claim against CNA, and
defendant’s 12(b)(6) motion is therefore granted. The Court need
not reach defendant's 12(b)(5) motion.

I.

BACKGROUND
Plaintiffs GoVanGo, Inc. and Barry Van Gerbig, Jr. filed

this lawsuit1 against defendants Malabar Bay, LLC and Jaye’s,
alleging copyright, Lanham Act, and unfair trade practices
violations stemming from defendants’ unauthorized marketing and
sale of products bearing designs identical or substantially

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R. Doc. 1.

similar to plaintiffs’ protected works. On February 27, 2012,
plaintiffs filed a supplemental complaint2 adding National Fire
Insurance Company of Hartford (“National Fire”) and CNA as
defendants, and alleging that both were insurers of Malabar Bay
and Jaye’s. National Fire followed with this motion to dismiss
CNA under Federal Rules of Civil Procedure 12(b)(5) and
12(b)(6).3 National Fire contends that CNA is neither an insurer
nor a legal entity of any kind, but rather, a service mark that
National Fire is authorized to use in its operations.
Consequently, CNA cannot be served with process, nor can
plaintiffs state a claim against it. Plaintiffs do not oppose
National Fire’s motion.

II.

RULE 12(B)(6) STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must plead enough facts “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1960
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 1949.
A court must accept all well-pleaded facts as true and must draw

2

R. Doc. 36.

3

R. Doc. 43.
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all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the Court is not
bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 129 S.Ct. at 1949.
A legally sufficient complaint must establish more than a
“sheer possibility” that plaintiff's claim is true. Id. It need
not contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Id. In other words, the face of
the complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
each element of the plaintiff's claim. Lormand, 565 F.3d at 257.
If there are insufficient factual allegations to raise a right to
relief above the speculative level, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
the claim must be dismissed. Twombly, 550 U.S. at 555; Jones v.
Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325,
328 n.9 (5th Cir. 2007).

III. DISCUSSION
A.

Judicial Notice
Pursuant to Federal Rule of Evidence 201(B), a court may

take judicial notice of adjudicative facts that are not subject
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to reasonable dispute, either because they are (1) generally
known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned. Fed. R.
Evid. 201(b). National Fire has submitted a copy of CNA's
registration with the United States Patent and Trademark Office,
and the Court takes judicial notice of that registration. See
Burkitt v. Flawless Records, Inc., 2005 U.S. Dist. LEXIS 11986,
*9 (E.D. La. 2005) ("[T]rademark registrations are the type of
evidence that a court may judicially notice pursuant to Rule
201(b)(2)."). Conversion of the Rule 12(b)(6) motion into a
motion for summary judgment is not required when the Court takes
judicial notice under Federal Rules of Evidence 201(b). See 5C
Wright & Miller, Fed. Prac. & Proc. Civ. § 1366 (3d ed.) (noting
that matters of which a court can take judicial notice are not
considered “matters outside the pleadings” and do not require
conversion of a motion to dismiss into a motion for summary
judgment); see also Gen. Retail Servs., Inc. v. Wireless Toyz
Franchise, LLC,

255 Fed. Appx. 775, 785 (5th Cir. 2007) (quoting

Wright & Miller with approval); Bethea v. St. Paul Guardian Ins.,
2003 U.S. Dist. LEXIS 8251, *7 (E.D. La. 2003) (“Though the Court
may not look beyond the pleadings [in deciding a 12(b)(6)
motion], the [C]ourt may take into account matters of public
record[.]”) (internal citation omitted).

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B.

Capacity To Be Sued
National Fire contends that because CNA is a service mark,

not a legal entity that can be sued, plaintiffs’ claims against
it must be dismissed. Federal Rule of Civil Procedure 17(b)
directs the Court to apply Louisiana law in determining
procedural capacity. Fed. R. Civ. P. 17(b) (“Capacity to sue or
be sued is determined ... for all other parties, by the law of
the state where the court is located.”). Under Louisiana law, “an
entity must qualify as a juridical person to have the capacity to
be sued.” Dejoie v. Medley, 945 So. 2d 968, 972 (La. App. 2d Cir.
2006). A juridical person is “an entity to which the law
attributes personality, such as a corporation or a
partnership[,]” La. C.C. art. 24, and the juridical status of an
entity depends upon the manner in which it functions and the
authority that created it. Dejoie, 945 So. 2d at 972. “[I]n the
absence of law providing that an entity may sue or be sued, the
entity lacks such capacity.” Dantzler v. Pope, 2009 WL 959508, *1
(E.D. La. 2009) (citing City Council of Lafayette v. Bowen, 649
So. 2d 611 (La. App. 3d Cir. 1994); Green v. District Attorney
Office, 2009 WL 651132 (E.D. La. 2009)).
Courts examining the question have found that service marks
are not entities and do not have legal capacity. In Danna v. CNA
Ins. Co., 1996 U.S. Dist. LEXIS 5048 (E.D. La. 1996), an Eastern
District of Louisiana court recognized that although plaintiff
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sued “CNA Insurance,” CNA was actually “a service mark registered
with the United States Patent and Trademark Agency and [] not a
legal entity.” Id. at 2 n.2. The court found that CNA was an
improper party to the suit and granted the parties’ joint motion
to dismiss CNA as a defendant. Id. Likewise, in Erbe v. Billeter,
2006 U.S. Dist. LEXIS 98438 (W.D. Pa. 2006), the court dismissed
defendant CIGNA Group Insurance upon finding that CIGNA was a
registered service mark and “not a legal entity capable of suing
or being sued.” Id., at *31.
In this case, CNA is a service mark and not a legal entity
capable of suing or being sued. Consequently, plaintiffs have not
stated a plausible claim for relief against CNA, and the Court
grants National Fire’s Rule 12(b)(6) motion.

V.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s

motion to dismiss under Rule 12(b)(6) and need not reach
defendant’s motion under Rule 12(b)(5).

New Orleans, Louisiana, this 21st day of May, 2012.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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