Phoenix Entertainment Partners LLC v. 2822 McKinney LLC et al
MEMORANDUM OPINION AND ORDER granting in part and declining to reach in part 78 MOTION to Dismiss for Failure to State a Claim filed by Mia's Sports Bar & Grill Inc. (Ordered by Judge Sidney A Fitzwater on 7/31/2017) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
2822 McKINNEY, LLC, et al.,
§ Civil Action No. 3:15-CV-0639-D
In an order filed on January 3, 2017, the court granted the motion to dismiss of defendant
Mia’s Sports Bar & Grill, Inc. (“Mia’s Sports Bar”) but also granted plaintiff Phoenix Entertainment
Partners, LLC (“Phoenix”) leave to replead. The court held that Phoenix had failed in its first
amended complaint to plausibly plead that Mia’s Sports Bar had used or displayed the Sound Choice
marks “in commerce,” or that Phoenix had suffered any actionable trademark injuries. Phoenix then
filed its second amended complaint,1 in which it amended the allegations of its trademark
infringement claim under 15 U.S.C. § 1114(1) and its unfair competition claim under 15 U.S.C.
§ 1125(a), and added a third claim for relief—a Texas-law claim for injury to business reputation
or trademark under Tex. Bus. & Com. Code Ann. § 16.103. Mia’s Sports Bar moves anew to
dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted.
The court grants Mia’s Sports Bar’s motion to dismiss Phoenix’s federal claims.2 Although
The caption of this pleading is a “first amended complaint,” but the court will refer to it as
Phoenix’s second amended complaint.
Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion”
adopted by the Judicial Conference of the United States, this is a “written opinion issued by the
Phoenix has revised its first and second claims for relief, the second amended complaint still fails
to plausibly plead that Mia’s Sports Bar has used or displayed the Sound Choice marks “in
commerce,” or that Phoenix has suffered any actionable trademark injuries. While Phoenix adverts
to these concepts in the second amended complaint, the allegations are conclusory and therefore
insufficient. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As noted, Phoenix has added a third claim for relief—a Texas-law claim for injury to
business reputation or trademark. Mia’s Sports Bar moves to dismiss this claim as well. The court
declines in its discretion to consider this claim, and it dismisses it without prejudice. Phoenix
invokes this court’s federal-question jurisdiction under 28 U.S.C. § 1331, and its jurisdiction under
28 U.S.C. § 1338(a). See 2d Am. Compl. ¶¶ 2 and 3. Phoenix relies on the court’s supplemental
jurisdiction to assert the Texas state-law claim. See id. ¶ 4.3 Although this court can exercise
supplemental jurisdiction over this state-law claim under 28 U.S.C. § 1367(a), “when all federal
claims are dismissed or otherwise eliminated from a case prior to trial, [the Fifth Circuit has] stated
that [its] ‘general rule’ is to decline to exercise jurisdiction over the pendent state law claims.”
McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998) (citing Wong v. Stripling, 881 F.2d 200,
204 (5th Cir. 1989)), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433,
440 (5th Cir. 2003) (en banc). Having dismissed Phoenix’s federal-law claims, the court in its
court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written,
however, primarily for the parties, to decide issues presented in this case, and not for publication in
an official reporter, and should be understood accordingly.
Phoenix does not allege that the parties are diverse citizens, and it does not invoke this
court’s diversity jurisdiction.
discretion declines to exercise supplemental jurisdiction over the single state-law claim that remains.
Accordingly, the court grants in part the motion to dismiss of defendant Mia’s Sports Bar
and dismisses Phoenix’s federal-law claims with prejudice. The court declines in its discretion to
exercise supplemental jurisdiction over Phoenix’s state-law claim, and it dismisses the state-law
claim without prejudice. The court is entering a Rule 54(b) final judgment today.
July 31, 2017.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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