D'AGOSTINO v. APPLIANCES BUY PHONE, INC. et al
MEMORANDUM and ORDER GRANTING 6 Motion to Dismiss ***CIVIL CASE TERMINATED; DENYING AS MOOT 10 Motion for Summary Judgment. Signed by Judge Peter G. Sheridan on 11/3/2014. (kas, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
APPLIANCES BUY PHONE, INC.,
CHERYL SIGMAN, and STEVEN
Civil Action No.:
13-cv-7 122 (PGS)
This matter is before the Court on a motion to dismiss the Complaint by Defendants Appliances
Buy Phone, Inc., Cheryl Sigman and Steven Sigman (hereinafter “Defendants”) (ECF no. 6); and a
motion for summary judgment by Plaintiff (ECF no. 10). For the reasons set forth below, the motion
to dismiss is granted, and the motion for summary judgment is denied as moot.
Several years ago, the same parties’ in this case were before this Court on very similar causes of
action. That prior case had been removed from state court and was pending before this Court based upon
a federal question under the Anti-Cybersquatting Consumer Protection Act (15 U.S.C.
(“ACCPA”). After the case was removed to this Court, Plaintiff Steven D’Agostino (“D’Agostino”)
amended his complaint to voluntarily dismiss the cybersquatting claim because he wished to prosecute
the matter in state court. In July 2012, the Court remanded the matter to the Superior Court of New
Jersey for lack of jurisdiction. See D ‘Agostino v. Appliances Buy Phone, Inc., United States District
Court, District of New Jersey, Civil Action No. 3:10-cv-5415 (FLW/DEA). In the Superior Court of
New Jersey case, a jury found D’Agostino had no cause of action against Defendants. On the same day
that oral argument was held in the Superior Court on a motion for a new trial, D’Agostino served the
Google was a party to the earlier case, but was dismissed in the Superior Court of New Jersey action.
complaint in this matter upon Defendants. (ECF no. 6-2 at ¶ 25).
In the present case, D’Agostino seeks federal jurisdiction over this law suit by reasserting his
cybersquatting claim under the ACCPA, arguing that he originally dismissed that claim without
The ACCPA has a statute of limitations of two years. As the Court reads the Complaint, the
facts extend back to 2003
far beyond the two year statute of limitations. Plaintiff argues that the initial
suit was timely filed, and that the prior law suit tolled the statute of limitations. This argument lacks
merit. Generally, the dismissal of a claim from a law suit without prejudice does not toll the statute of
limitations of that claim. Humphreys v. United States, 272 F.2d 411,412 (9th Cir. 1959). The “original
complaint is treated as it never existed.” Cardio-Medical Assoc. v. Crozer-Chester Medical Center, 721
F.2d 68, 77 (3d Cir. 1983). As such, the anti-cybersquatting claim is dismissed with prejudice.
The remaining counts of the Complaint, breach of contract, fraud, and misappropriation of trade
secrets, are common law clauses of action. The Court has no jurisdiction over the remaining counts, and
the Court declines to assert supplemental jurisdiction over those counts pursuant to 28 U.S.C.
This matter having come before the Court on a motion to dismiss the Complaint by Defendants
Appliances Buy Phone, Inc., Cheryl Sigman and Steven Sigman (ECF no. 6); and a motion for summary
judgment by Plaintiff (ECF no. 10); and for the reasons set above;
IT IS on this
day of November, 2014;
ORDERED that motion to dismiss (ECF no. 6) is granted; and it is further
ORDERED that the motion for summary judgment (ECF no. 10) is denied as moot.
PETER G. SHERIDAN, U.S.D.J.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?