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Ready for the World Inc. v. Riley

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

September 9, 2019

READY FOR THE WORLD INC., D/B/A READY FOR THE WORLD, Plaintiff,
v.
MELVIN RILEY, JOHN EATON, RENEE ATKINS, DANIEL DILLMAN, JAN MARK LAND, Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [#19; #24; #26; #28; #30]

          Denise Page Hood Chief Judge, U.S. District Court

         I. BACKGROUND

         A. Procedural Background

         On January 7, 2019, Plaintiff Ready for the World, Inc., d/b/a Ready for the World (“Ready for the World”) filed a Verified Complaint against Defendants Melvin Riley (“Riley”), John Eaton (“Eaton”), Renee Atkins (“Atkins”), Daniel Dillman (“Dillman”), and Jan Mark Land (“Land”) (collectively, “Defendants”) alleging: Federal Trademark Infringement pursuant to 15 U.S.C. § 1114 (Count I); Federal Trademark Infringement pursuant to 15 U.S.C. § 1125(a) (Count II); Federal Trademark Dilution (Count III); Passing Off (Count IV); False Advertising (Count V); Damages pursuant to 15 U.S.C. § 1117 (Count VI); Common Law Trademark Infringement and Unfair Competition (Count VII); and Violation of the Michigan Consumer Protection Act (Count VIII). (Doc # 1) Ready for the World filed a Motion for Temporary Restraining Order and Preliminary Injunction on January 18, 2019. (Doc # 4) The Court granted Ready for the World's Motion for Temporary Restraining Order on January 22, 2019 (Doc # 8) and granted its Motion for Preliminary Injunction on February 8, 2019 (Doc # 32).

         Each Defendant filed a Motion to Dismiss (Doc # 19; Doc # 24; Doc # 26; Doc # 28; Doc # 30) and these Motions are currently before the Court. Responses (Doc # 33; Doc # 34; Doc # 35; Doc 36; Doc # 37) and Replies (Doc # 39; Doc # 43; Doc # 44; Doc # 45; Doc # 46) have been filed. A hearing on these Motions was held on May 15, 2019.

         B. Factual Background

         Ready for the World is a successful American R&B band from Flint, Michigan, that had numerous pop, soul, and dance hits in the mid-eighties. (Doc # 1, Pg ID 4) In 2008, Ready for the World, Inc. was formed by Riley, Eaton, Willie Triplett, Gordon Strozier, Gregory Potts, Gerald Valentine. (Doc # 1, Pg ID 4; Doc # 1-2) In 2010, Ready for the World registered a trademark with the United States Patent and Trademark Office for “Ready for the World” and the group was given the exclusive rights to the trademark for entertainment, namely, live performances by a musical band. (Doc # 1, Pg ID 5; Doc # 1-3) This trademark is currently active and is presently in use by Ready for the World, Inc. The trademark is considered a famous mark within the meaning of 15 U.S.C. § 1125(c). (Doc # 1, Pg ID 7) Further, the trademark is incontestable pursuant to 15 U.S.C. § 1065(c) and 15 U.S.C. § 1115(b). (Id.)

         On February 18, 2015, Riley indicated to Ready for the World that in the future, he would only perform as the solo entity, “Melvin Riley.” (Doc # 1, Pg ID 6; Doc # 1-4) Ready for the World, Inc. executed a Shareholders Agreement in February 2018 that was endorsed and executed by all of the group's members except Riley, who refused to sign it. (Doc # 1, Pg ID 6; Doc # 1-5) On February 18, 2018, Ready for the World's manager, Terry Harvey, contacted Riley and confirmed that Riley had left the group and would no longer perform with the other members. (Doc # 1, Pg ID 6; Doc # 1-6) On October 3, 2018, Riley contacted Amanda Tilk of Groove Entertainment and Steve Seiden of Yapsody Entertainment and the Sycuan Casino via email and stated that he was no longer performing or touring with Ready for the World, but would instead be performing with Eaton under the name “Ready 4 the World.” (Doc # 1, Pg ID 6; Doc # 1-7)

         Around June 2017, Ready for the World began to notice advertisements throughout the United States in print, social media, and over the radio, that consisted of Riley and Eaton promoting their shows under the names “Ready for the World” and “Ready 4 the World featuring Melvin Riley.” (Doc # 1, Pg ID 8) On April 20, 2018, Ready for the World, Inc. sent a letter to Atikns, Riley's agent and manager, to cease and desist promoting Riley as “Ready for the World.” (Id. at 9.) On July 16, 2018, Dixon Kummer, Ready for the World's attorney at the time, sent Defendants a letter demanding that they “cease and desist” from any and all use of the Ready for the World mark. (Doc # 1, Pg ID 9; Doc # 1-12) After Defendants received Kummer's letter, Riley and Eaton proceeded to perform on September 22, 2018, and played many of the hits that were identified with Ready for the World. (Doc # 1, Pg ID 10) Riley's marketing of himself as Ready for the World has led to some confusion regarding who will actually be performing during live performances. (Doc # 1, Pg ID 10; Doc # 1-13)

         Since Riley departed from Ready for the World, the group has continued to record and perform under the Ready for the World trademark. (Doc # 1, Pg ID 7) Ready for the World engages in extensive marketing, promotions, and other media to maintain the group's visibility. (Id.) To date, Defendants have never asked for, nor obtained permission from Ready for the World, Inc. to use the Ready for the World trademark in connection with their musical endeavors or performances. (Id.)

         II. STANDARDS OF REVIEW

         A. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack of subject matter jurisdiction. A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack). Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)).

         In the case of a facial attack, the court takes the allegations of the complaint as true to determine whether the plaintiff has alleged a basis for subject matter jurisdiction. Id. In the case of a factual attack, a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court's authority to hear the case. Id. Plaintiff bears the burden of establishing that subject matter jurisdiction exists. DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). In the case of a factual attack, plaintiff carries the burden of establishing subject matter jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936).

         B. Rule 12(b)(2)

         Plaintiff bears “the burden of establishing the district court's personal jurisdiction” over the Defendant. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002). As there has been no evidentiary hearing on the matter, the court will “consider the pleadings and affidavits in a light most favorable to the plaintiff.” Compuserve, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996) (citing Theunissen v. Matthews, 935 F.2d 1454, 1458-59 (6th Cir. 1991)). Granting a motion to dismiss is only proper “if all the specific facts which the plaintiff ... alleges collectively fail to state a prima facie case for jurisdiction.” Id. (emphasis in original).

         General jurisdiction is satisfied in a forum if the defendant's contacts within that forum are “so constant and pervasive as to render it essentially at home.” Diamler AG v. Bauman, 134 S.Ct. 746, 751 (2014) (citations omitted). “With respect to a corporation, the place of incorporation and principal place of business are paradigm bases for general jurisdiction.” Id. at 760. Alternatively, personal jurisdiction can be satisfied through specific jurisdiction. Specific jurisdiction “grants jurisdiction only to the extent that a claim arises out of or relates to a defendant's contacts in the forum state.” Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 679 (6th Cir. 2012) (citation omitted). Whether a defendant's claim arises out of contacts in the forum is determined applying three criteria. Southern Machine Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968). First, the defendant must “purposefully avail himself of the privilege of acting in the forum state....” Id. Second, the “cause of action must arise from the defendant's activities there.” Id. Third, the acts of the defendant must demonstrate a “substantial enough connection with the forum state....” Id.

         C. Rule 12(b)(3)

         Federal Rule of Civil Procedure 12(b)(3) provides for a motion to dismiss based on improper venue. “On a motion to dismiss for improper venue, the plaintiff bears the burden of proving that venue is proper.” Audi AG & Volkswagen of Am., Inc. v. Izumi, 204 F.Supp.2d 1014, 1022 (E.D. Mich. 2002). A dismissal for improper venue may be based on Rule 12(b)(3), but the requirements for what is a proper venue are established by 28 U.S.C. § 1391(b). Kerobo v. Southwestern Clean Fuels, Corp., 285 F.3d 531, 538 (6th Cir. 2002). The statute reads:

(b) Venue in general.-- A civil action may be brought in--
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal ...

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