Chavez v. Khalil

Filing 4

ORDER TO AMEND: Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Courts Pro Se Intake Unit within 30 days of the date of this order, capti on the document as an Amended Complaint, and label the document with docket number 21-CV-9158 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be ta ken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. SO ORDERED. (Signed by Judge Laura Taylor Swain on 11/16/21) (rdz) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JUAN PABLO CHAVEZ,
Plaintiff,
-against-

21-CV-9158 (LTS)
ORDER TO AMEND

JACOB KHALIL,
Defendant.

LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is appearing pro se, brings this action invoking the Court’s federal question
jurisdiction. Plaintiff alleges that Defendant Jacob Khalil engaged in trademark infringement and
violated his rights under 42 U.S.C. §§ 1981, 1985. By order dated November 15, 2021, the Court
granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis
(IFP). 1 For the reasons set forth below, the Court grants Plaintiff leave to file an amended
complaint within 30 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss a complaint brought IFP, or any portion of the complaint, that is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also

1

Plaintiff uses several pseudonyms, including “Gente ‘Jude’ Natural-Unido,” Johnny
Arco, and Chief Maestro Chavez. He has a lengthy litigation history and has been warned that
continued filing of frivolous actions will result in an order restricting him from proceeding IFP.
See Natural-Unido v. Broad Corp., ECF 1:21-CV-5586, 7 (S.D.N.Y. Nov. 3, 2021); Chavez v.
Cause Ya’ll Took My Phone I Don’t Know Their Names, ECF 1:21-CV-8526 (S.D.N.Y. Nov. 16,
2021).

dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3).
While the law mandates dismissal on any of these grounds, the court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original).
BACKGROUND
Plaintiff Juan Pablo Chavez alleges the following facts. Plaintiff’s claims arose on
October 13, 2021, or October 18, 2021, at Smalls Jazz Club in Manhattan, New York, or at
“Mezzrow.” (ECF 2 at 5.) Defendant Jacob Khalil:
intentionally caused actual confusion as to the sponsorship and origin of his
services . . . [ellipses original] by promoting a show on Instagram stating
“violin:@rtsmediaink.” Misappropriation of a “publicity” service mark. A
significant # of consumers have been confused. Defendant deprived plaintiff the
right of consideration / contract formation before using plaintiff brand which had
acquired a secondary meaning There is existence of bad faith when defendant
missed a saturday meeting and went on to produce poor quality promotions of a
show defendant did not intend to rehearse with plaintiff for or consider justly.
Defendant in disguise of @jacobkhalilmusic entered the social media premises of
plaintiff in order to deprive him license income of the use of plaintiffs
unregistered mark for publicity, not violin, services. 2
(Id. at 5-6.) He styles his claims as follows:
Trademark infringement 43(a) of “@rtsmediaink”
42 U.S.C. § 1981 equal rights to make contract as enjoy by white citizens.
42 U.S.C. § 1985 conspiracy w/Instagram/pseudonyms to deprive rights.

2

This quote is verbatim, with all errors in the original.
2

(Id. at 6.)
Plaintiff further notes that he is a “member of minority race & class of people compelled
to perform outside.” (Id. at 1.) Plaintiff sues Jacob Khalil, seeking damages and injunctive relief.
DISCUSSION
A.

Rule 8 of the Federal Rules of Civil Procedure
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and

plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief
if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the Court accepts all
well-pleaded factual allegations as true and draws all reasonable inferences in the pleader’s
favor. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555). But the Court need not accept
“[t]hreadbare recitals of the elements of a cause of action,” which are essentially legal
conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). After separating legal conclusions
from well-pleaded factual allegations, the court must determine whether those facts make it
plausible – not merely possible – that the pleader is entitled to relief. Id.
Here, Plaintiff asserts a legal conclusion – that Defendant Jacob Khalil violated his rights
under Section 43(a) of the Trademark Act – but Plaintiff does not plead facts about what
occurred. Plaintiff seems to allege that on a Saturday, someone missed a meeting; that someone
performed in Manhattan – either Plaintiff or Defendant; and that there was “poor publicity” for
this or another event. Plaintiff may be alleging that he has a trademark for @rtsmedialink, which
was used to promote a show that Defendant performed without him, but it is unclear. Because it
is unclear from the facts alleged in the complaint what happened, or what Defendant allegedly
did or failed to do that violated Plaintiff’s rights under the Trademark Act, these allegations fail
to comply with Rule 8.
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Plaintiff further contends that Defendant violated 42 U.S.C. § 1981, which prohibits
discrimination based on race in the making and enforcement of contracts, and engaged in
“conspiracy w/ Instagram/pseudonyms,” in violation of 42 U.S.C. § 1985. Plaintiff does not
include any facts about anything that happened that would give rise to an inference of
discrimination based on race. He also does not plead any facts about Defendant’s alleged
conspiracy, such as with whom Defendant conspired or what Defendant did. Plaintiff’s
allegations thus do not comply with Rule 8 and fail to state a claim on which relief can be
granted.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts
generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its
defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.
2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has
cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege
additional facts to state a valid claim, the Court grants Plaintiff 30 days’ leave to amend his
complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims.
In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a
short and plain statement of the relevant facts supporting each claim against each defendant. If
Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should
include all of the information in the amended complaint that Plaintiff wants the Court to consider
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in deciding whether the amended complaint states a claim for relief. That information should
include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do,
the approximate date and time of each event, and the general location where each
event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory
relief.
Essentially, Plaintiff’s amended complaint should tell the Court: who violated his
federally protected rights and how; when and where such violations occurred; and why Plaintiff
is entitled to relief.
Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint, any facts or claims that Plaintiff wants to include from the original complaint
must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards
set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit
within 30 days of the date of this order, caption the document as an “Amended Complaint,” and
label the document with docket number 21-CV-9158 (LTS). An Amended Complaint form is
attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the
time allowed, and he cannot show good cause to excuse such failure, the complaint will be
dismissed for failure to state a claim upon which relief may be granted.

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The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is
directed to mail a copy of this order to Plaintiff and note service on the docket.
SO ORDERED.
Dated:

November 16, 2021
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

6

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
Do you want a jury trial?
Yes
No

Write the full name of each defendant. If you need more
space, please write “see attached” in the space above and
attach an additional sheet of paper with the full list of
names. The names listed above must be identical to those
contained in Section II.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

I.

BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of
cases can be heard in federal court: cases involving a federal question and cases involving
diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United
States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,
a case in which a citizen of one State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may
be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
Federal Question
Diversity of Citizenship

A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff ,

, is a citizen of the State of
(Plaintiff’s name)

(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.
If more than one plaintiff is named in the complaint, attach additional pages providing
information for each additional plaintiff.

Page 2

If the defendant is an individual:
The defendant,

, is a citizen of the State of
(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.

If the defendant is a corporation:
The defendant,

, is incorporated under the laws of

the State of
and has its principal place of business in the State of
or is incorporated under the laws of (foreign state)
and has its principal place of business in

.

If more than one defendant is named in the complaint, attach additional pages providing
information for each additional defendant.

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address

County, City

State

Telephone Number

Zip Code

Email Address (if available)

Page 3

B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. Attach additional pages if needed.
Defendant 1:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 3:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Page 4

Defendant 4:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

III. STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and what each defendant personally did or failed to do that harmed you. Attach
additional pages if needed.

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INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical
treatment, if any, you required and received.

IV. RELIEF
State briefly what money damages or other relief you want the court to order.

Page 6

V. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil
Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
Yes

No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

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