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Dearborn Tree Service, Inc. v. Gray's OutdoorServices, LLC

United States District Court, E.D. Michigan, Southern Division

July 21, 2015

Dearborn Tree Service, Inc., Plaintiff,
Gray’s OutdoorServices, LLC, et al., Defendants.

Mona K. Majzoub United States Magistrate Judge


Hon. Gershwin A. Drain United States District Court Judge


Dearborn Tree Service, Inc., (“Dearborn Tree” or “Plaintiff’) initiated this action on June 13, 2013, against Gray’s OutdoorServices, LLC, Thomas Gray,, Inc., and Brandon Lombardo (collectively “original Defendants”). See Dkt. No. 1. In its First Amended Complaint, Dearborn Tree set forth claims of Cybersquatting, False Designation of Origin, Business Defamation, Unfair Competition, and Concert of Action against the original Defendants. See Dkt. No. 43. Defendants, Inc. and its owner, Brandon Lombardo, were dismissed from this case pursuant to a stipulation between the parties on April 28, 2015. See Dkt. No. 136. Accordingly, Gray’s OutdoorServices, LLC and its owner, Thomas Gray (collectively “Gray’s”), are the only Defendants remaining in this action.

Presently before the Court is Dearborn Tree’s Motion for Leave to Amend Complaint [140]. The matter is fully briefed. Having reviewed and considered Dearborn Tree’s Motions and supporting briefs, Gray’s responses thereto, and the entire record; the Court determines that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions. As such, oral argument will not aid the decisional process and the Court will decide this matter “on the briefs.” See Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons more fully discussed herein, the Court DENIES Dearborn Tree’s Motion [140].

I. Background

Dearborn Tree commenced this action alleging that the original Defendants intentionally copied and used the service mark of “DEARBORN TREE SERVICE” in conjunction with the domain names “” and “” See Dkt. No. 43. According to Dearborn Tree, the original defendants used the service mark DEARBORN TREE SERVICE to divert customers from Dearborn Tree and profit from Dearborn Tree’s goodwill and reputation in the community. See Id. Gray’s filed a Partial Motion for Summary Judgment on June 1, 2015. See Dkt. No. 137. The Court extended the Dispositive Motion Cut-off of this case to June 11, 2015, see Dkt. No. 139, to grant Plaintiff’s counsel additional time to file Dearborn Tree’s Motion for Partial Summary Judgment. See Dkt. No. 142. Now, after the parties have filed dispositive motions, Dearborn Tree is seeking to amend its Complaint in light of the findings it made during the discovery period.

II. Discussion

A. Legal Standard

Pursuant to Rule 15 of the Federal Rules of Civil Procedure (“Rule 15”), a party may amend a pleading before trial as a matter of course, with the opposing party’s written consent, or by leave of the Court. See Fed. R. Civ. P. 15(a)(1)-(2). Rule 15 clarifies that a “court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Sixth Circuit has found that “[t]he decision as to when ‘justice requires’ an amendment is within the discretion of the trial judge.” Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir. 1989) (citation and alteration omitted).

Nevertheless, “[a]lthough Federal Rule of Civil Procedure 15(a)(2) provides that a court should freely give leave to amend a complaint when justice so requires, the right to amend is not absolute or automatic.” Tucker v. Middleburg–Legacy Place, 539 F.3d 545, 551 (6th Cir. 2008) (internal quotation and modification omitted). The Sixth Circuit has guided that “[i]n deciding whether to allow an amendment, the court should consider the delay in filing, the lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir.2001). “Delay by itself is not sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted.” Brooks v. Celeste, 39 F.3d 125, 129 (6th Cir. 1994) (citing Head, 870 F.2d at 1123).

B. Legal Analysis

Dearborn Tree seeks to amend its Complaint to include claims that Gray’s “also used DEARBORN TREE” in an improper manner. See Dkt. No. 145 at 4 (emphasis in original). Specifically, Dearborn Tree is seeking to amend the Complaint because it states that, during the course of discovery, Gray’s “admitted that they owned, registered and used” the domains “[], [], [], and [] in essentially the same way that [Gray’s allegedly] registered and used [].” Dkt. No. 140 at 12.

Dearborn Tree emphasizes that the mark “DEARBORN TREE is [] not necessarily a separate mark, but instead, it is the short form of Plaintiff’s complete mark DEARBORN TREE SERVICE.” Dkt. No. 145 at 5. Thus, Dearborn Tree attempts to clarify that it “is not seeking to add any new causes of action, or new legal theories. The ...

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