Você está na página 1de 10

Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF FLORIDA

Civil Case No.: 1:19-cv-22908-MGC

QUEENS HOSPITALITY, LLC, a Florida


limited liability Company,

Plaintiff,

v.

BREAKFAST BITCH LLC, a California


limited liability company,

Defendant.

DEFENDANT’S MOTION TO DISMISS AND MEMORANDUM IN OPPOSITION TO


PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Fed. R. Civ. P. 4, 8 & 12 and Local Rule 7.1(c), Breakfast Bitch LLC (“BB

LLC”, “Defendant” or “Non-moving Party”) hereby moves to dismiss the present action and

opposes Plaintiff Queens Hospitality, LLC’s (“Queens Hospitality”, “Plaintiff” or “Moving

Party”) Motion for Preliminary Injunction (ECF No. 1) as follows:

I. There is no Complaint in this Case, which should be dismissed under Rule 3.

Fundamentally, in order to “commence” a civil case in federal court, a plaintiff must file a

Complaint. Fed. R. of Civ. P. 3 (“A civil action is commenced by filing a complaint with the

court.”); Williams v. Davey Tree Service, 2010 WL 2776582 *1 (M.D. Fla. Jun 28, 2010)(finding

Plaintiff had failed to properly commence civil action and therefore recommending the court deny

Plaintiff’s construed motion and dismiss this action).

Fed. R. of Civ. P. 8 governs proper pleading and requires “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement

-1-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 2 of 10

ensures that the defendant is given fair notice of what the claim is and the grounds upon which it

rests. See Davey Tree Service *1 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

To meet this standard, the plaintiff must allege “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do. Twombly, 550 U.S. at 555 (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Rule 8(a) requires that a complaint must contain “(1) a short and plain statement of the

grounds upon which the court’s jurisdiction depends”. Broughton v. City of Jacksonville, 2006 WL

8439288 *1 (M.D. Fla. Apr 10, 2006)(“[i]n this case, the Court is unable to determine whether

Plaintiff’s claims are frivolous, malicious, fail to state a claim, or seek monetary relief…because

Plaintiff has not filed a complaint or other document setting forth his claims”).

Until a complaint has been filed, the court’s jurisdiction has not been properly invoked. Id.

The … complaint must include a caption as described in Rule 10 and all of the
claims for which Plaintiff seeks relief. In addition, Plaintiff shall include “a short
and plain statement of the grounds upon which the court’s jurisdiction depends” as
required in Rule 8(a)(1). He must allege specific facts that show that the Court has
jurisdiction over this matter. Further, as instructed in Rule 8(a)(2), the … complaint
must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” In particular, Plaintiff must clearly state the legal theory or
theories upon which he seeks relief and explain how each Defendant is responsible.
He shall provide “a demand for judgment for the relief” sought as directed by Rule
8(a)(3), and should clarify what relief is sought against which Defendants. Finally,
Plaintiff shall review and comply with the pleading requirements contained in Rules
8, 9, 10, and 11 as well as those contained in Local Rules…

Id. at 2.

Rule 3 cannot be circumvented by filing a motion. See Ness v. United States Department

of the Interior, 2016 WL 11578775 (M.D. Fla. Sep. 13, 2016) (denying motion where the plaintiff

failed to file a complaint alleging the basis for her claims, asserting any cause of action, or stating

the basis for the Court’s jurisdiction, and holding that without a properly pleaded complaint, the

-2-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 3 of 10

Court was unable to determine if the plaintiff had a cognizable cause of action, claim, or right to

proceed within the jurisdiction of the Court). Indeed, without a complaint, it is not possible to

determine the complete basis for subject matter jurisdiction, personal jurisdiction, or venue. Id.,

see also Seltz v. Medina, 2013 WL 2920415 (M.D. Fla. Jun. 13, 2013); Duck v. Scott, 2015 WL

620801 *2 (M.D. Fla. Feb. 12, 2015) (“[and] finally, even setting aside the forgoing, there are

glaring procedural deficiencies fatal to this case. Duck did not file a complaint or any other initial

pleading along with his motion”).

Here, Plaintiff has not filed a complaint, but rather has attempted, improperly, to commence

this case by filing a motion for preliminary injunction. See D.E. 1, the “Motion.” Fundamentally,

the Motion does not set forth any claims for relief and does not state the basis for the Court’s

jurisdiction. This case should therefore be dismissed and the Motion denied under Rule 3.

II. Dismissal of the Action and Denial of the Motion under Rule 8.

Under Fed. R. Civ. P. 8, a complaint requires a “claim for relief” containing:


(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different
types of relief.
As stated above, there is no complaint in this case. Accordingly, there is no “claim for relief.”

Further, the Motion does not set forth: (1) the grounds for the court’s jurisdiction; or (2) any

statement of the claim showing plaintiff is entitled to relief. Therefore, it cannot serve as a

substitute for a complaint. This case should thus be dismissed and the Motion denied under Rule

8.

-3-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 4 of 10

III. Dismissal of the Action and Denial of the Motion under Rules 4 and 12.

Under Fed. R. Civ. P. 4(c)(1), “[a] summons must be served with a copy of the complaint.”

While Plaintiff did serve a summons on BB LLC, it was not served with a copy of the complaint

because there is no complaint. And because a complaint has not been filed or served with the

summons, there is, facially, insufficiency of process and service of process. Nor, as stated above,

is there a stated claim upon which relief could be granted. Therefore, the case should be dismissed

and the Motion denied collectively under Rules 4 and 12(b)(4), (5) and (6).

IV. Dismissal under Rule 12(b)(2) for Lack of Personal Jurisdiction.

The Motion does not allege a basis for personal jurisdiction over BB LLC and there is

none.1 As set forth in the attached Declaration of Tracii Hutsona, President of BB LLC:

BB LLC, a California corporation, is a single-location restaurant that opened in July 2019

in San Diego, California. [Hutsona Decl. ¶3, 4]. BB LLC is not registered as a foreign corporation

in Florida or any other jurisdiction. Id. Its sole office and place of business is located in San

Diego. [Id., ¶5]. BB LLC derives all of its revenues from its San Diego restaurant. [Id. ¶6]. All

of BB LLC’s members, owners, officers, shareholders and employees work and reside in

California, and none reside or work in Florida. [Id., ¶¶7, 8].

Further, none of BB LLC’s employees travel for business purposes to Florida, and BB LLC

does not advertise or otherwise target Florida consumers to visit its San Diego restaurant. [Id., ¶¶9,

10]. In sum, even if Plaintiff had filed a complaint, and even if that complaint had asserted a basis

for personal jurisdiction, Ms. Hutsona’s Declaration proves that Defendant is not subject to

personal jurisdiction in Florida.

1
To the extent that this action is not dismissed and/or Plaintiff later files a complaint, BB LLC reserves the right to
object to jurisdiction and venue at that time under Fed. R. Civ. P. 12.

-4-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 5 of 10

V. Plaintiff is Not Entitled to Injunctive Relief.

Entry of a preliminary injunction requires the moving party to show: (1) a substantial

likelihood of success on the merits; (2) that an injunction is necessary to prevent irreparable injury;

(3) that the injury to the moving party outweighs whatever damage the proposed injunction might

cause the non-moving party; and, (4) that an injunction is in the public interest. BellSouth

Telecomms., Inc. v. MCI Metro Access Transmission Servs., LLC, 425 F.3d 964, 968 (11th Cir.

2005).

A. No substantial likelihood of success on the merits.

While there is no complaint, and thus no asserted “claims for relief,” Plaintiff’s Motion is

based on alleged trademark infringement. Specifically, Plaintiff alleges that BREAKFAST

BITCH infringes BACON BITCH. That argument is meritless.

To prove trademark infringement under 15 U.S.C. § 1114, a plaintiff must show: “(1) that

it had trademark rights in the mark or name at issue and (2) that the other party had adopted a mark

or name that was the same, or confusingly similar to its mark, such that consumers were likely to

confuse the two.” Lone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355,

358 (11th Cir. 1997). Ownership of a valid trademark is essential to a trademark infringement

claim. Dimitri Corp. v. Invicta Watch Company of America, Inc. Compton v. Fifth Ave. Ass'n,

Inc., 7 F.Supp.2d 1328, 1332 (M.D. Fla. 1998); Contemporary Restaurant Concepts, Ltd. v. Las

Tapas-Jacksonville, Inc., 753 F. Supp. 156 (M.D. Fla. 1991).

Plaintiff’s case fails in the first instance—it has not presented any evidence whatsoever

that it owns a valid trademark or has trademark rights in BACON BITCH. While Plaintiff attaches

-5-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 6 of 10

several exhibits to its Motion, none of them support, let alone establish any rights in the claimed

trademark.2

Moreover, a claim under § 1114 requires ownership of a mark registered with the U.S.

Trademark Office. While a registration is referenced in the Motion, it is not attached. Plaintiff’s

claim for trademark infringement fails on its face and Plaintiff has not established a likelihood of

success on the merits.

Similarly, Plaintiff has not submitted any evidence supporting a likelihood of confusion

between its purported BACON BITCH mark and BREAKFAST BITCH. In determining the

likelihood of confusion between the two marks, courts in the 11th Circuit analyze seven factors:

(1) type of mark, (2) similarity of mark, (3) similarity of the products the marks represent, (4)

similarity of the parties’ retail outlets and customers, (5) similarity of advertising media used, (6)

defendant’s intent and (7) actual confusion. Lone Star Steakhouse & Saloon v. Longhorn Steaks,

122 F.3d 1379, 1382 (11th Cir. 1997).

Here, the marks are visibly and audibly distinct, with the only similarity being the common

word “bitch.” [Hutsona Decl. ¶17]. But there are hundreds of U.S. trademark registrations that

contain the term “bitch,” including five in the catering and restaurant class of services, including,

for example, BISCUIT BITCH, that pre-date Plaintiff’s registration. See Hutsona Decl. ¶15 and

Exhibits 2 and 3]. These third party uses weaken any mark, particularly in the restaurant business,

containing “bitch.” Michael Caruso and Co., Inc. v. Estefan Enterprises, Inc., 994 F. Supp. 1454,

1459 (S.D. Fla. 1998) (“Plaintiff's mark is further weakened by extensive third party use of the

term “bongo.”); Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 260 (5th Cir.1980) (finding

term “domino” of weak trademark significance because of third party use); Armstrong Cork Co.

2
Contrary to Plaintiff’s representation on Exhibit E, it is not an “affidavit” and there is no sworn testimony or evidence
presented in the Motion. The exhibits are unauthenticated hearsay evidence.

-6-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 7 of 10

v. World Carpets, Inc., 597 F.2d 496, 505 (5th Cir.1979) (holding that wide use of mark “World”

resulted in little likelihood of confusion); El Chico, Inc. v. El Chico Cafe, 214 F.2d 721, 725 (5th

Cir.1954) (holding that 27 trademark registrations of ‘El Chico,’ made term weak trade name

deserving limited protection).

Moreover, the parties’ trade channels and markets are separated by approximately 2,200

miles. [Id. ¶19]. Where neither party appears to engage in nationwide advertising, it is nearly

inconceivable that consumers in California will confuse BREAKFAST BITCH with BACON

BITCH, a mark that they will not likely encounter.

Plaintiff has not met its burden of showing a substantial likelihood of success on the merits

and the Motion should be denied.

B. Queens Hospitality Has Not Demonstrated an Irreparable Injury, Weighing of


Injury or Benefit to Public Interest.

Queens Hospitality has submitted no evidence that it has been irreparably injured by BB

LLC’s use of “BREAKFAST BITCH.” Queens Hospitality cites no declaration, exhibit or

expert’s consumer survey and merely recites its concerns regarding BB LLC’s opening of its

restaurant. Since BB LLC’s opening has now passed, Queens Hospitality’s contentions are

simply moot. Moreover, any alleged urgency is squarely contradicted by Queens Hospitality’s

failure to even serve its motion prior to BB LLC’s opening. Because Queens Hospitality cannot

establish any of the factors for entitlement to an injunction, the Motion should be denied in its

entirety and the case should be dismissed with prejudice.

VI. If an Injunction is Granted, Plaintiffs Must Post a Bond as Security Pursuant to Fed. R.
Civ. P. 65.

The Federal Rules of Civil Procedure require: “The court may issue a preliminary injunction

or temporary restraining order only if the movant gives security in an amount that the court considers

-7-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 8 of 10

proper to pay costs and damages sustained by any party found to have been wrongfully enjoined or

restrained.” Fed. R. Civ. P. 65(c) (emphasis added.) The injunction bond deserves scrutiny, as it is

often the sole remedy for a wrongfully enjoined party. Jamaica 2188 of the Brotherhood of R and S

Clerks v. Railing Express Agency, Inc., 200 F.Supp. 253, 254 (E.D.N.Y. 1961). Plaintiff fails to

acknowledge this requirement in its moving papers

The financial burden of any injunction on BB LLC, which opened for business just days ago,

would be substantial and onerous. See Hutsona Decl. ¶20 and Exhibits 4 and 5. BB LLC has spent

approximately $50,000 in naming, branding and marketing the name of its restaurant. Id. In

particular, BB LLC has spent over $16,000 on merchandise, employee uniforms and décor branded

with “BREAKFAST BITCH.” Id. Complying with an injunction to change its business name during

the pendency of the case would exceed $50,000. Id. As such, plaintiff should be required to post a

bond to secure the costs and damages that could be sustained by defendant as required by Fed. R.

Civ. P. 65(c).

VI. CONCLUSION

For the foregoing reasons, BB LLC respectfully request the Court deny plaintiff Queens

Hospitality’s motion in its entirety and with prejudice. Moreover, since no complaint has been

served or even filed, BB LLC further requests that the Court dismiss the case with prejudice. BB

LLC reserves the right seek attorneys’ fees and sanctions in a post-judgment motion.

Dated: August 14, 2019 Respectfully Submitted,

-8-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 9 of 10

By /Matthew S. Nelles/ ____________


Matthew S. Nelles
Florida Bar No. 009245
mnelles@nklawflorida.com
E. Adriana Kostencki
Florida Bar No. 84507
akostencki@nklawflorida.com
NELLES KOSTENCKI PLLC
Corporate Center
110 E. Broward Blvd, Suite 670
Fort Lauderdale, FL 33301
Telephone: (954) 246-4800
Facsimile: (954) 246-4900

Attorneys for BREAKFAST BITCH LLC

-9-
Case 1:19-cv-22908-MGC Document 12 Entered on FLSD Docket 08/14/2019 Page 10 of 10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 14th day of August, 2019, I electronically filed the

foregoing with the Clerk of the Court using CM/ECF, which will serve a copy of the foregoing

document on all counsel of record via transmission of Notices of Electronic Filing generated by

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized

to receive electronically Notices of Electronic Filing.

By: /s/ Adriana Kostencki


Adriana Kostencki, Esq.

-10-

Você também pode gostar