The Vantone Group Limited Liability Company v. Yangpu NGT Industrial Co., Ltd. et al

Filing 202

MEMORANDUM OPINION AND ORDER re: 125 FIRST MOTION to Dismiss Second Amended Complaint. filed by Beijing Vantone Real Etstae Co., Ltd., Feng Lun, Vantone Holdings Co., Ltd. For the foregoing reasons, the Moving Defendants' moti on to dismiss the Second Amended Complaint pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6) is denied in its entirety. This Memorandum Opinion and Order resolves docket entry number 125. SO ORDERED. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 7/2/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------x
THE VANTONE GROUP LIMITED LIABILITY
CO.,
Plaintiff,
-v-

No. 13CV7639-LTS-MHD

YANGPU NGT INDUSTRIAL CO., LTD., et al.,
Defendants.
------------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Defendants Vantone Holdings Company, Ltd. (“Holdings Co.”), Beijing Vantone
Real Estate Co. (“Beijing Vantone”) and Feng Lun (collectively, the “Moving Defendants”)
move to dismiss the complaint of Plaintiff Vantone Group Limited Liability Company
(“Vantone Group” or “Plaintiff”) pursuant to both Federal Rule of Civil Procedure 8, for failure
to satisfy the minimum federal pleading requirements, and Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim upon which relief may be granted. Plaintiff asserts eleven
causes of action in its complaint – ten of them against a total of 24 defendants – including
federal trademark infringement, false designation of origin, cybersquatting, cancellation of
federally registered marks, state law trademark infringement, state law injury to business
reputation and dilution, deceptive business practices, false advertising, use of name with intent to
deceive, unjust enrichment, and a request for declaratory relief. The Court has jurisdiction of
this case under 28 U.S.C. § 1331. The Court has carefully considered the parties’ submissions
and, for the reasons stated below, denies the Moving Defendants’ motion in its entirety.

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BACKGROUND1
Plaintiff Vantone Group is the record owner of the federally registered trademark
“The Vantone Group” for real estate brokerage services. (SAC ¶ 39.) This mark was registered
on October 5, 2010. (Id.) Plaintiff also owns the rights to the federally registered trademark
“The Vantone Group” for financial and investment services, including management and
brokerage of stocks, bonds, options commodities and other securities. (Id. ¶ 40.) This mark was
registered on November 6, 2012. (Id.) Vantone Group also owns the New York State service
mark “The Vantone Group” for real estate brokerage services. (Id. ¶ 4.) Plaintiff claims to have
first used the name “The Vantone Group” in commerce in 2007. (Id. ¶ 37.) Because a large
portion of the Vantone Group’s clients are Chinese nationals, in 2012 Plaintiff began offering a
Chinese version of its website, which included a Chinese character transliteration of “The
Vantone Group” mark. (Id. ¶ 38.)
In January of 2012, Plaintiff Vantone Group submitted its opposition to two
federal trademark applications that had been made by non-moving defendant Yangpu NGT
Industrial Co., Ltd. (“Yangpu”), both of which sought to register the name “Vantone” in
connection with various services. (Id. ¶ 43.) In February of 2012, Yangpu abandoned these
applications, and registration of the marks was subsequently refused. (Id.) On March 1, 2012,
Plaintiff wrote Yangpu, demanding that it further abandon three pending applications for
Chinese character marks, which Plaintiff alleged incorporated the Chinese transliteration of the
registered “The Vantone Group” mark. (Id. ¶ 44.) Yangpu refused to do so, and the Chinese

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The relevant factual history is drawn from the Second Amended Complaint
(“SAC”) in this action. (See Docket Entry. No. 123.)
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character marks were registered. (Id. ¶ 45.) When Plaintiff attempted to register the Chinese
transliteration of its mark in May 2012, it was informed that this application would be denied
due to the likelihood of confusion with Yangpu’s Chinese character marks. (SAC ¶ 46.) On
February 4, 2013, Plaintiff filed for cancellation of two of Yangpu’s Chinese character marks;
these applications are currently pending. (Id. ¶ 47.)
According to the SAC, the defendants2 have continued to use the allegedly
infringing Chinese character marks, as well marks that are “confusingly similar” to the
Plaintiff’s English “Vantone Group” marks. (Id. ¶ 48.) Specifically, the SAC asserts that these
marks have been used in connection with real estate and financial services being offered in New
York City, including “the China Center project,” which is to be a new tenant at the rebuilt
World Trade Center site. (Id.) The SAC alleges several additional acts undertaken either by
Yangpu or the more amorphous “defendants,” including attempts to register other marks
incorporating the infringing Chinese characters (id. ¶ 49), registration of several web domains
that incorporate a portion of the Plaintiff’s English language mark (id. ¶ 50), and inclusion of a
link to the Plaintiff’s website on the vantone.com site (id. ¶ 51).
The SAC further alleges, on information and belief, that several of the Defendants
– including the three Moving Defendants – are alter egos of one another. For instance, Plaintiff
alleges that Defendant Vantone Holdings Co. is a Chinese company that is also “the head of the
‘Vantone’ entity/joint venture which is structured as a network of shell companies and operates
as one entity.” (Id. ¶ 12) With regard to Defendant Beijing Vantone, the SAC alleges that it is
an “affiliated, related or subsidiary company of one or more of the other Defendants” that has

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The SAC consistently fails to specify the defendants to which it refers, or if it means
to refer to all 24 of those named.
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directly and contributorily infringed on the Plaintiff’s “The Vantone Group” mark, in part by
“direct[ing] all activities of all affiliates” in the United States on behalf of Holdings Co. (SAC ¶
20.) The SAC alleges that Defendant Fen Lung is the chairman of Defendant Holdings Co., that
he has “controlled and directed each of the Defendants,” and that he is the “moving, active,
conscious force behind and the principal architect of the infringing acts alleged . . . and is aiding
and abetting the infringement of” the Plaintiff’s mark. (Id. ¶ 33.)
Plaintiff filed its First Amended Complaint in this action on November 12, 2013.
(See Docket Entry No. 5.) The Moving Defendants moved to dismiss that complaint on grounds
similar to those asserted in this motion. (See Docket Entry No. 113.) Plaintiff then requested
leave to file the Second Amended Complaint, which this Court granted, and the Second
Amended Complaint was filed on September 9, 2014, mooting the Moving Defendants’ prior
motion to dismiss. (See Docket Entry Nos. 121-23.) The instant motion was filed on September
23, 2014. (See Docket Entry. No. 125.)

Plaintiff’s Claims
Plaintiff asserts eleven claims in the SAC, including federal trademark
infringement, false designation of origin, cybersquatting, state trademark infringement, state law
injury to business reputation and dilution, deceptive business practices, false advertising, use of
name with intent to deceive, unjust enrichment, and a request for declaratory relief. Each of
Plaintiff’s claims, with the exception of one for cancellation of two registered trademarks, is
asserted collectively against the 24 defendants. (See generally SAC.) The claims are largely
predicated on actions allegedly taken by Yangpu, although the SAC includes factual allegations
that touch specifically on the acts of the Moving Defendants. (See id.) The Plaintiff’s briefing
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elucidates its belief that Holdings Co.’s responsibility rests largely on a theory of alter-ego
liability; that Beijing Vantone is liable directly, contributorily and on the basis of alter-ego
liability; and that Feng Lun is liable both directly and as the director and sole shareholder of a
number of the defendant companies.

DISCUSSION
Federal Rule of Civil Procedure 8
The Moving Defendants first contend that Plaintiff’s Second Amended Complaint
should be dismissed pursuant to Federal Rule of Civil Procedure 8 for failing to provide fair
notice of the grounds upon which the claims alleged are based. Rule 8 requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). The Supreme Court has elaborated on this requirement, holding that a
complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Such a complaint “demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
“formulaic recitation of the elements of a cause of action will not do,” and merely offering
“naked assertion[s] devoid of further factual enhancement” will not satisfy Rule 8’s
requirements. Id. at 678 (internal quotation marks and citations omitted). The purpose of this
requirement is to “provide fair notice of the claims and to enable the adverse party to answer the
complaint and prepare for trial.” Strunk v. U.S. House of Representatives, 68 F. App’x 233, 235
(2d Cir. 2003). A complaint fails to meet the Rule 8 requirements when it is “so confused,
ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.”
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Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
The Moving Defendants rest principally on the argument that the Plaintiff has
engaged in impermissible “group pleading” and in doing so has failed to provide any of the
defendants with notice of the relevant claims against them. In support of this argument, the
Moving Defendants cite several cases in which courts have dismissed complaints that
impermissibly lumped together defendants in a manner that failed to put them on notice of the
relevant claims. (See Moving Defendants’ Memorandum of Law, Docket Entry No. 126, at pp.
8-9.) However, the cases cited do not go so far as to stand for the proposition that the Moving
Defendants would hope: that “group pleading” can never satisfy federal pleading standards. The
Second Circuit has held that the “key to Rule 8(a)’s requirements is whether adequate notice is
given,” and that “fair notice” is “that which will enable the adverse party to answer and prepare
for trial, allow the application of res judicata, and identify the nature of the case so that it may be
assigned the proper form of trial.” Wydner v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004)
(internal quotation marks and citations omitted). Rule 8 “does not demand that a complaint be a
model of clarity” so long as it provides “fair notice of what the plaintiff’s claim is and the
ground upon which it rests.” Atuahene v. City of Hartford, 10 F. App’x. 33 (2d Cir. 2001)
(internal quotation marks and citation omitted). Further, courts within this Circuit have held that
“[n]othing in Rule 8 prohibits collectively referring to multiple defendants where the complaint
alerts defendants that identical claims are asserted against each defendant.” Hudak v. Berkley
Group, Inc., No. 13CV0089-WWE, 2014 WL 354676, at *4 (D. Conn., Jan. 23, 2014).
It is true that, with regard to ten of the eleven claims asserted in the SAC, the
Plaintiff refers to all 24 defendants collectively. It is also true that this technique muddles the
clarity of the allegations contained within the SAC, particularly with regard to those asserted
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against defendants who cannot easily be linked with the Chinese companies and their American
counterparts. However, these deficiencies do not rise to the level of a Rule 8 violation. The
Second Circuit has found dismissal appropriate pursuant to Rule 8 when a complaint is
“unintelligible” and fails to “explain[] what conduct constituted the violations, which defendants
violated which statutes . . . or how the alleged violations harmed [the plaintiff].” Strunk, 68 F.
App’x at 235. Here, at the very least, the SAC gives the defendants notice of the claims asserted
against them for various trademark-related infractions. The SAC puts all defendants on notice
that Plaintiff’s claims arise from the allegedly impermissible usage of the Vantone mark and,
therefore, the Moving Defendants can readily identify the nature of the case. In Anwar v.
Fairfield Greenwich Ltd., Judge Marrero declined to dismiss a complaint on Rule 8 grounds on
the basis of group pleading, finding that the complaint sufficiently distinguished the conduct of
each of the defendants. See 728 F. Supp. 2d 372, 422 (S.D.N.Y. 2010). Although it is far from
precise, the SAC does make factual allegations that distinguish between the conduct of the
Moving Defendants, listing specific actions taken by each of them. (See generally SAC.)
Similarly, the court in Hudak refused to dismiss a complaint that alleged that
“two defendants acted jointly in violation of the TCPA,” noting that “[p]rior to discovery,
plaintiff need not explain the details of each defendant’s role in the planning, funding, and
executing [of] defendant’s alleged joint [] scheme. Nothing in Rule 8 prohibits collectively
referring to multiple defendants where the complaint alerts defendants that identical claims are
asserted against each defendant.” 2014 WL 354676, at *4. Here, the SAC alleges joint activity
amongst the Moving Defendants; it need not elaborate extensively on the details with regard to
each defendant to comply with Rule 8. The test of Rule 8 pleading sufficiency is simply whether
Defendants have received adequate notice of the claims. Wydner, 360 F.3d at 79. Because the
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Court finds that the SAC sufficiently provides the Moving Defendants with notice of the claims
asserted against them, there is no basis for dismissal pursuant to Rule 8, and the Court denies this
portion of the Moving Defendants’ motion.

Federal Rule of Civil Procedure 12(b)(6)
The Moving Defendants also move to dismiss the SAC on the basis of its
failure to state a claim pursuant to Rule 12(b)(6).3 When deciding a Rule 12(b)(6) motion to
dismiss a complaint for failure to state a claim, the Court assumes the truth of facts asserted in
the complaint and draws all reasonable inferences from those facts in favor of the plaintiff. See
Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). To survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A pleading that offers
“labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (internal citations omitted). If the plaintiff
has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must
be dismissed.” Twombly, 550 U.S. at 570.
To successfully make out a claim for infringement under the Lanham Act, a
plaintiff must allege that it holds a mark that is “valid [and] entitled to protection.” 77388

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Although the Defendants move to dismiss the entire SAC, they argue only the
insufficiency of the SAC’s claims with regard to Plaintiff’s trademark infringement
claims. Accordingly, the Court addresses only those claims in this Memorandum
Opinion and Order.
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Ontario Ltd. v. Lencore Acoustics Corp., 105 F. Supp. 2d 56, 66 n.4 (E.D.N.Y. 2000). Plaintiff
must then plead facts demonstrating “the unauthorized use by defendants of plaintiffs’ marks in
a manner likely to cause consumer confusion.” C & L Intern. Trading Inc. v. American Tibetan
Health Institute, Inc., No. 13CV2638-LLS, 2013 WL 6086907, at *4 (S.D.N.Y. Nov. 19, 2013).
The same requirements apply to Plaintiff’s state law infringement claims, as the standards for
trademark infringement under New York common law are substantively identical to those under
the Lanham Act. See American Tibetan, 2013 WL 6086907, at *4 (“The requirements of
plaintiffs’ trademark infringement claim brought under New York State law . . . are
interchangeable with the requirements of the Lanham Act.”).

Defendants Beijing Vantone and Feng Lun4
The Moving Defendants argue that the SAC has not alleged sufficient facts with
regard to either Beijing Vantone or Feng Lun to frame a judicially cognizable cause of action for
trademark infringement. This contention is incorrect. Plaintiff has pleaded that it is the record
owner of the federally registered mark “The Vantone Group” for real estate brokerage services,
as well as for financial and investment services. (SAC ¶¶ 1-2.) Plaintiff has also pleaded that it
is the record owner of the New York State Service Mark “The Vantone Group” for real estate
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The Moving Defendants argue that both Beijing Vantone and Feng Lun are entitled to
invoke the affirmative defense of fair use. “An affirmative defense may be raised by a
pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary
judgment procedure, if the defense appears on the face of the complaint.” Pani v.
Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998). To establish a fair
use affirmative defense in a trademark action, a party must demonstrate that use of the
mark was made: (1) other than as a mark; (2) in a descriptive sense; and (3) in good
faith. See JA Apparel Corp. v. Abboud, 568 F.3d 390, 400 (2d Cir. 2009). None of
the three elements of this affirmative defense is apparent on the face of the Second
Amended Complaint. Thus, the Moving Defendants have failed to demonstrate that
dismissal on fair use grounds is proper.
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brokerage services. (SAC ¶ 4.) The Lanham Act provides that registration of a mark is
“conclusive evidence of the validity of the registered mark and of the registration of the mark, of
the registrant's ownership of the mark, and of the registrant's exclusive right to use the registered
mark in commerce.” 15 U.S.C.S. § 1115 (LexisNexis 2006). Therefore, Plaintiff has clearly
alleged facts sufficient to establish the first prong of its trademark infringement claim.
Plaintiff has also alleged facts relating to both Beijing Vantone and Feng Lun
that, if taken as true, demonstrate that their actions are likely to cause confusion with respect to
the Plaintiff’s mark. With regard to Beijing Vantone, Plaintiff has alleged that the company has
“conducted presentations and produced and distributed brochures advertising and promoting the
China Center project under the ‘Vantone’ mark.” (SAC ¶ 20.) Plaintiff has also pleaded that
Beijing Vantone has paid for tenant improvements at the China Center’s World Trade Center
site. (Id.) Furthermore, Plaintiff asserts that Beijing Vantone admitted in its 2012 annual report
that the Chinese characters contained in Yangpu’s allegedly infringing trademark applications
“translate and transliterate to ‘Vantone’ in English.” (Id. ¶ 55.) Plaintiff has also alleged that
Beijing Vantone operates in the same general industry that it does; such facts may support an
inference of likelihood of confusion.5 (Id. ¶ 20) See Heptagon Creations, Ltd. v. Core Group
Marketing LLC, No. 11CV1794-LTS, 2011 WL 6600267, at *8 (S.D.N.Y. Dec. 22, 2011). By
alleging that Beijing Vantone has used a mark identical to the registered marks that Plaintiff

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In their Reply Memorandum, Moving Defendants argue that, because Plaintiff has not
alleged precisely enough that the parties are industry competitors, there can be no
inference of confusion, and thus no trademark infringement claim can be made out.
Aside from the fact that Moving Defendants improperly raise this argument for the
first time in their reply briefing (United States v. Letscher, 83 F. Supp. 2d 367, 377
(S.D.N.Y.1999) (“arguments raised in reply papers are not properly a basis for
granting relief”)), the Court is not convinced that the Moving Defendants have
sufficiently dispelled any possible basis of confusion.
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owns in connection with the services it offers, Plaintiff has successfully pleaded facts that
demonstrate the potential for consumer confusion. Plaintiff has thus pleaded both elements of its
trademark infringement claims sufficiently with respect to Beijing Vantone, and the Court denies
Beijing Vantone’s motion to dismiss these claims pursuant to Rule 12(b)(6).
Plaintiff also has alleged facts that demonstrate Defendant Feng Lun’s personal
involvement in potentially infringing activities. The SAC states that Feng Lun was “the
signatory on all of Defendant Yangpu’s trademark applications,” that he has given “interviews
advertising and promoting the China Center project in connection with the ‘Vantone’ mark . . . in
which he propagates the belief that . . . the China Center is a ‘Vantone’ project,” and that he
“signed a mass mailing letter advertising and promoting the China Center project in connection
with the ‘Vantone’ mark.” (SAC ¶ 33.) Each of these allegations indicates Feng Lun’s use of
the Plaintiff’s registered mark in a manner that could potentially create confusion within a
common industry. The Court finds that Plaintiff has successfully pleaded facts establishing both
elements of its trademark infringement claims with regard to Feng Lun, and denies Feng Lun’s
motion to dismiss pursuant to Rule 12(b)(6).

Defendant Holdings Co.
The parties’ briefs address only Plaintiff’s alter-ego theory of liability against
Holdings Co. To prove alter-ego liability, a plaintiff must pierce the corporate veil, which
requires “a showing that: (1) the owners exercised complete domination of the corporation in
respect to the transaction attacked; and (2) that such domination was used to commit a fraud or
wrong against the plaintiff which resulted in plaintiff's injury.” Tommy Lee Handbags Mfg. Ltd.
v. 1948 Corp., 971 F. Supp. 2d 368, 376 (S.D.N.Y. 2013) (internal quotation marks and citation
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omitted). See also Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 853 (2d Cir. 1985) (holding
that to pierce the corporate veil, a plaintiff must show complete control and that “such control
[has] been used by the defendant to commit fraud or wrong, to perpetrate the violation of a
statutory or other positive legal duty, or a dishonest and unjust act in contravention of plaintiff's
legal rights.”). Satisfying this test requires more than conclusory allegations of control; the party
seeking to establish alter ego liability must plead sufficient “factual allegations to establish that
[the parent]’s domination of [the alleged alter ego] was the means by which a wrong was done to
plaintiff.” Ross Products Div. Abbott Laboratories Inc. v. Saper, No. 06CV3264-LDW, 2007
WL 1288125, at *6 (E.D.N.Y. Apr. 26, 2007) (adopting Report and Recommendation of
Orenstein, M.J.). “[A] claim sufficient to overcome the presumption of separateness afforded to
related corporations . . . is not established by the bare allegation that one corporation dominated
and controlled another.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 195 (2d Cir.
2010) (internal quotation marks and citations omitted).
Courts consider a number of factors in deciding whether one company has
exercised the requisite domination over another to pierce the corporate veil, including: whether a
parent corporation owns all or most of the subsidiary; whether the parent and subsidiary share
officers and directors; whether the parent finances the subsidiary; whether the subsidiary is
inadequately capitalized; whether the parent pays the salaries and expenses of employees of the
subsidiary; whether the subsidiary has no business except with the parent; whether the directors
or executives of the subsidiary receive their orders from the parent corporation in the latter’s
interest; and whether the formal legal requirements of the subsidiary’s governance are observed.
See Labor Union of Pico Korea, Ltd. v. Pico Products, Inc., No. 90CV0774-TJM, 1991 WL
299121, at *6 (N.D.N.Y. Dec. 23, 1991). Here, the SAC contains allegations that align with
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many of these factors, including that the defendants “have substantially identical management,
the same business purpose . . . operate as one entity, utilize the same equipment and office space,
target the same customers in a unified effort under the ‘Vantone’ mark, are supervised by
Vantone Holdings Co., Ltd., through Beijing Vantone Real Estate Co., Ltd., and are generally
wholly owned by each other. Ownership and employees of each shell entity shifts freely
between other shell entities . . . [the entities also] do not follow corporate formalities, are
inadequately capitalized, and have their expenses paid for by” either Holdings Co. or Beijing
Vantone. (SAC ¶ 52.) The SAC further alleges that Holdings Co. serves a supervisory function,
that it is the “head” of the joint entity, that it is the sole shareholder of at least one other
defendant, that it commingles funds with other defendants, that it pays expenses for other
defendants, and that it sends management employees to supervise other defendants. (Id. ¶¶ 12,
52.)
However, Plaintiff fails to satisfy the second element necessary to pierce the
corporate veil: demonstrating that Holdings Co. abused the corporate form in order to commit a
wrong against it. Plaintiff must ultimately prove both prongs of the test to succeed and “[w]here
the challenged complaint lacks this causative element – i.e., the use of domination to cause the
injury, it should result in the dismissal of the corporate veil-piercing allegation.” CSX Transp.,
Inc. v. Filco Carting Corp., No. 10CV1055-NGG, 2011 WL 2713487, at *3 (E.D.N.Y. July 11,
2011) (internal quotation marks and citation omitted). The facts pleaded must be sufficient to
indicate that the parent’s domination of the alleged alter ego was the “means by which” a wrong
was committed against the plaintiff. Ross Products, 2007 WL 1288125, at *6. See, e.g., Tommy
Lee Handbags, 971 F. Supp. 2d at 376-77 (finding causative link in fact that an alter-ego
company was formed “precisely to evade . . . creditors,” and allowing for piercing of the
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corporate veil.) Although Plaintiff pleads facts that suggest Holdings Co.’s domination of
several of its co-defendants, the SAC contains no facts tending to show that Holdings Co. made
use of this domination in order to commit a wrong or perpetrate a fraud against the Plaintiff.
Without such a causative link, Plaintiff fails to plead facts sufficient to support alter-ego liability.
Despite the insufficiency of Plaintiff’s argument regarding Holdings Co.’s alterego liability, the Moving Defendants have failed to demonstrate that the SAC should be
dismissed as against Holdings Co. The Moving Defendants have done nothing to address the ten
specific claims asserted against Holdings Co., other than to repeatedly state in conclusory
fashion that the SAC provides no grounds for entitlement to relief on any of the numerous causes
of action alleged. The Moving Defendants fail to make either a legal or factual showing
addressing the insufficiency of any of the causes of action asserted against Holdings Co. in the
SAC, and it is not the role of this Court to divine these arguments on behalf of the Moving
Defendants. The Court thus cannot conclude that the Moving Defendants have carried their
burden of demonstrating that dismissal of the SAC pursuant to Rule 12(b)(6) is appropriate with
respect to Holdings Co.

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CONCLUSION
For the foregoing reasons, the Moving Defendants’ motion to dismiss the Second
Amended Complaint pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6) is denied in its
entirety.
This Memorandum Opinion and Order resolves docket entry number 125.
SO ORDERED.

Dated: New York, New York
July 2, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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