United States District Court, D. Connecticut
YOUNG PHARMACEUTICALS, INC. and SKINLUMA, LLC, Plaintiffs,
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]
Vanessa L. Bryant United States District Judge.
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.
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.
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
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.
Motion for Leave to Amend the Pleadings
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.
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.
Motion to Dismiss for Lack of Personal Jurisdiction
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)).