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Young Pharmaceuticals Inc v. Marchese

United States District Court, D. Connecticut

February 6, 2017

YOUNG PHARMACEUTICALS, INC. and SKINLUMA, LLC, Plaintiffs,
v.
PETER MARCHESE and AMP MEDICAL PRODUCTS, LLC, Defendants.

          MEMORANDUM OF DECISION DENYING DEFENDANT AMP MEDICAL PRODUCTS, LLC'S MOTION TO DISMISS OR TRANSFER VENUE [DKT. 89] AND GRANTING PLAINTIFF YOUNG PHARMACEUTICALS, INC.'S MOTION TO AMEND [DKT. 90]

          Hon. Vanessa L. Bryant United States District Judge.

         The Plaintiffs, Young Pharmaceuticals, Inc. (“Young”) and Skinluma LLC (“Skinluma”), bring this action for trademark infringement, trade dress infringement, unfair competition, and tortious interference against Defendants Peter Marchese and AMP Medical Products LLC (“AMP”). Defendant AMP has moved to dismiss for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2), or to transfer this case to the District of Nevada pursuant to 28 U.S.C. §§ 1404(a) or 1406(a). [Dkt. 89-1 at 1-2, 15.] Thereafter, Young moved for leave to file a third amended complaint. [Dkt. 90.] For the reasons that follow, Plaintiffs' Motion for Leave to Amend is GRANTED and AMP's Motion to Dismiss or Transfer Venue is DENIED.

         I. Background

         Defendant AMP is a corporation organized and existing under the laws of Nevada and having its principal place of business in Nevada. [Dkt. 89-2 (“Marchese Aff.”) ¶ 2.] Defendant Peter Marchese is AMP's Managing Member, and is domiciled in Nevada. Id. AMP sells skincare products to doctors and medical spas, at trade shows, and through AMP sales representatives. Id. ¶ 5. AMP has never participated in a trade show in Connecticut. Id. ¶ 6. AMP maintains a website but does not sell its products on this website, therefore no Connecticut residents have purchased any AMP products or services through this website. Id. ¶ 15. Similarly, AMP has never advertised in Connecticut, and maintains no bank accounts in Connecticut. Id. ¶¶ 17-18. Prior to this lawsuit, AMP had never been sued in any Connecticut court. Id. ¶ 19.

         Although AMP maintains no offices, owns no property, and has no registered agent in Connecticut, id. ¶¶ 13-14, on two separate occasions, AMP sold products using the allegedly infringing mark, “Anti-Redness Foaming Cleanser, ” to a reseller of dermatological products. [Id. ¶ 12; Dkt. 92, Exh. 4, Invoices dated 9/25/14 and 3/12/15.] This allegedly infringing product was shipped to Connecticut on two separate occasions. Id. From the date of AMP's formation on or about May 14, 2014 until the instant suit was filed, AMP's gross worldwide sales totaled $198, 827. [Dkt. 84-1 at 10.] Of this amount, $11, 613 were made in Connecticut, of which $450 were of the two allegedly infringing products. [Dkt. 84-1 at 10.] As such, nearly 6% of AMP's sales were made in Connecticut.

         Mr. Marchese, whom Plaintiffs aver is AMP's “sole owner and agent, ” also travels regularly to Connecticut to “check in” with a Connecticut customer, and can be reached at telephone numbers with Connecticut area codes. [Dkt. 92-1 (“Kasper Aff.”) ¶¶ 6-7.] Plaintiffs also allege that a different company that Mr. Marchese owns, called Metro Labels & Marking Systems, LLC, is headquartered in Connecticut, that Mr. Marchese maintains a residence in Connecticut, and that AMP has done business with a second Connecticut client. [Dkt. 92-2 (“Kulesza Aff.”) ¶¶ 6-8.] The record contains no evidence regarding the nature or frequency of Mr. Marchese's use of the Connecticut residence, or what if any connection Metro Labels has with this case.

         II. Motion for Leave to Amend the Pleadings

         The Court first addresses whether Plaintiffs should be permitted to file a third amended complaint. Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend the pleadings should be “freely give[n] . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2). Within the Second Circuit, leave will be given unless the non-movant establishes prejudice or bad faith. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725-26 (2d Cir. 2010) (citing Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). Of these, prejudice to the non-movant is the more important factor. Id. “Amendment may be prejudicial when, among other things, it would ‘require the opponent to expend significant additional resources to conduct discovery and prepare for trial' or ‘significantly delay the resolution of the dispute.'” Id. (quoting State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)).

         Defendants offer no evidence that Young seeks leave to amend in bad faith. Instead, Defendants claim that amendment is prejudicial, because it precludes them from addressing Young's new allegations in their motion to dismiss. However, Young's amended complaint was filed on the same date as Young's opposition to AMP's motion to dismiss, giving Defendants ample time to respond to the new allegations in a reply brief. To the extent Defendants believed the page limit or time allotted was inadequate to address these allegations, they could easily have sought leave to file supplemental briefing. Defendants have offered no evidence that they must expend significant additional resources to investigate the new allegations, or that these allegations will delay the disposition of this case. In light of these circumstances, the Court finds that Defendants will suffer no prejudice if Young is permitted to amend. Plaintiff Young's motion for leave to amend is therefore GRANTED.

         III. Motion to Dismiss for Lack of Personal Jurisdiction

         A. Legal Standard

         A civil action should be dismissed if the court lacks personal jurisdiction over a party. Fed.R.Civ.P. 12(b)(2). “When responding to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant.” Am. Wholesalers Underwriting, Ltd. v. Am. Wholesale Ins. Grp., Inc., 312 F.Supp.2d 247, 251 (D. Conn. 2004) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)). Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction and by making a prima facie case of jurisdiction. Id. (citing Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). Where, as here, the parties have conducted discovery regarding the Defendants' contacts with Connecticut, but no evidentiary hearing has been held, “plaintiffs' prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant.” Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010) (citing Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996)) (quotations omitted). “When considering a Rule 12(b)(2) motion, the court construes any factual averments and resolves all doubts in the plaintiff's favor.” Am. Wholesalers Underwriting, 312 F.Supp.2d at 251 (citing CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)). The same standard is applicable to review of venue. Panterra Engineered Plastics, Inc. v. Transp. SYS. Sols., LLC, 455 F.Supp.2d 104, 108-09 (D. Conn. 2006) (citing Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005)).

         B. Discussion

         1. Persona ...


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