Kodi Bear Concepts, Inc. v. RHK Town Square, LLC

Filing 18

ORDER that 8 Motion to Dismiss is GRANTED, with leave to amend in part. Signed by Chief Judge Robert C. Jones on 10/17/12. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
KODI BEAR CONCEPTS, INC,

13

)
)
)
)
)
)
)
)
)
)

14

This case arises out of a restaurant’s use of a name similar to that of another restaurant.

15

Pending before the Court is a motion to dismiss. For the reasons given herein, the Court grants

16

the motion, with leave to amend in part.

17

I.

9
Plaintiff,
10
vs.
11
RHK TOWN SQUARE, LLC,
12
Defendant.

18

2:12-cv-01223-RCJ-PAL
ORDER

FACTS AND PROCEDURAL HISTORY
Plaintiff Kodi Bear Concepts, Inc. has been doing business as“Bob Taylor’s Ranch

19

House” or “The Ranch House” restaurant in Las Vegas, Nevada since 1955. (See Compl. ¶ 8,

20

July 11, 2012, ECF No. 1). Defendant RHK Town Square, LLC has been doing business as the

21

“Ranch House Kitchen” restaurant in Las Vegas for an unknown period of time. (See id. ¶ 9).

22

Defendant has refused to change its name despite Plaintiff’s demands. (See id. ¶¶ 10–12).

23

Plaintiff does not allege that The Ranch House is a registered trademark. (See generally id.).

24
25

Plaintiff sued Defendant in this Court on five nominal causes of action: (1)–(2) violation
of the Lanham Act, 15 U.S.C. § 1125; (2) deceptive trade practices under Nevada Revised

1

Statutes (“NRS”) Chapter 598; (4) trademark infringement under NRS Chapter 600; and (5)

2

damages. Defendant has moved to dismiss for failure to state a claim.

3

II.

LEGAL STANDARDS

4

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

5

claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

6

what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

7

(1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

8

that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

9

12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

10

F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

11

failure to state a claim, dismissal is appropriate only when the complaint does not give the

12

defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell

13

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

14

sufficient to state a claim, the court will take all material allegations as true and construe them in

15

the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

16

Cir. 1986). The court, however, is not required to accept as true allegations that are merely

17

conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

18

State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

19

with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own

20

case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79

21

(2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff

22

pleads factual content that allows the court to draw the reasonable inference that the defendant is

23

liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule

24

8(a), a plaintiff must do more than specify the legal theory under which he seeks to hold a

25

defendant liable; he also must identify the theory of his own case so that the court can properly
Page 2 of 4

1

determine not only whether any such legal theory exists (Conley review), but also whether the

2

plaintiff has any basis for relief under such a theory even assuming the facts are as he alleges

3

(Twombly-Iqbal review).

4

“Generally, a district court may not consider any material beyond the pleadings in ruling

5

on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

6

complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

7

& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

8

whose contents are alleged in a complaint and whose authenticity no party questions, but which

9

are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

10

motion to dismiss” without converting the motion to dismiss into a motion for summary

11

judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

12

of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

13

Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

14

considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

15

summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

16

2001).

17

III.

18

ANALYSIS
The fifth cause of action is a prayer for relief, not an independent cause of action. The

19

Court will therefore dismiss it as a separate cause of action, without leave to amend, though

20

Plaintiff may amend the prayer for relief, accordingly.

21

The Court will dismiss the Lanham Act claims, with leave to amend, because Plaintiff has

22

not specified any of the myriad of potential violations under that act, some of which require

23

registration as an element, which Plaintiff does not allege. Plaintiff attempts to clarify its

24

intended claims in the response, but such clarification must be made via an amended complaint.

25

A state law trademark dilution claim seeking an injunction under Chapter 600 does not
Page 3 of 4

1

require registration, for example, see Nev. Rev. Stat. § 600.435(1) (“[T]he owner of a mark that

2

is famous in this State may bring an action to enjoin commercial use of the mark . . . .”), which is

3

only one factor in determining whether the mark is “famous,” see id. § 600.435(2)(h), and the

4

factors to be considered in determining whether a mark is “famous” such that it can be sued upon

5

are fact intensive, see id. § 600.435(2)(a)–(h), making dismissal under Rule 12(b)(6)

6

inappropriate. Still, Plaintiff must amend the Complaint to allege violations with more

7

specificity than “NRS 600 et seq.” Chapter 600 lists various kinds of violations. Plaintiff also

8

fails to specify any of the many kinds of violation under Chapter 598. See, e.g., id.

9

§ 598.0915–598.0925.

10

In summary, Plaintiff must amend the first through fourth claims to allege particular

11

causes of action, as opposed to simply identifying broad swaths of the state and federal code that

12

contain multiple causes of action. And Plaintiff must plead facts making such claims plausible,

13

not simply recite the causes of action.

14
15
16
17
18

CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 8) is GRANTED, with
leave to amend in part.
IT IS SO ORDERED.
Dated this 18th day of September, 2012.
17th day of October, 2012.

19
20

_____________________________________
ROBERT C. JONES
United States District Judge

21
22
23
24
25
Page 4 of 4