Opinion
21-CV-9158 (LTS)
11-16-2021
JUAN PABLO CHAVEZ, Plaintiff, v. JACOB KHALIL, Defendant.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge.
Plaintiff, who is appearing pro se, brings this action invoking the Court's federal question jurisdiction. Plaintiff alleges that Defendant Jacob Khalil engaged in trademark infringement and violated his rights under 42 U.S.C. §§ 1981, 1985. By order dated November 15, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 30 days of the date of this order.
Plaintiff uses several pseudonyms, including “Gente ‘Jude' Natural-Unido, ” Johnny Arco, and Chief Maestro Chavez. He has a lengthy litigation history and has been warned that continued filing of frivolous actions will result in an order restricting him from proceeding IFP. See Natural-Unido v. Broad Corp., ECF 1:21-CV-5586, 7 (S.D.N.Y. Nov. 3, 2021); Chavez v. Cause Ya'll Took My Phone I Don't Know Their Names, ECF 1:21-CV-8526 (S.D.N.Y. Nov. 16, 2021).
STANDARD OF REVIEW
The Court must dismiss a complaint brought IFP, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
Plaintiff Juan Pablo Chavez alleges the following facts. Plaintiff's claims arose on October 13, 2021, or October 18, 2021, at Smalls Jazz Club in Manhattan, New York, or at “Mezzrow.” (ECF 2 at 5.) Defendant Jacob Khalil:
intentionally caused actual confusion as to the sponsorship and origin of his services . . . [ellipses original] by promoting a show on Instagram stating “violin:@rtsmediaink.” Misappropriation of a “publicity” service mark. A significant # of consumers have been confused. Defendant deprived plaintiff the right of consideration / contract formation before using plaintiff brand which had acquired a secondary meaning There is existence of bad faith when defendant missed a saturday meeting and went on to produce poor quality promotions of a show defendant did not intend to rehearse with plaintiff for or consider justly.
Defendant in disguise of @jacobkhalilmusic entered the social media premises of plaintiff in order to deprive him license income of the use of plaintiffs unregistered mark for publicity, not violin, services.(Id. at 5-6.) He styles his claims as follows:
Trademark infringement 43(a) of “@rtsmediaink”
42 U.S.C. § 1981 equal rights to make contract as enjoy by white citizens.
42 U.S.C. § 1985 conspiracy w/Instagram/pseudonyms to deprive rights.(Id. at 6.)
This quote is verbatim, with all errors in the original.
Plaintiff further notes that he is a “member of minority race & class of people compelled to perform outside.” (Id. at 1.) Plaintiff sues Jacob Khalil, seeking damages and injunctive relief.
DISCUSSION
A. Rule 8 of the Federal Rules of Civil Procedure
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the pleader's favor. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555). But the Court need not accept “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially legal conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
Here, Plaintiff asserts a legal conclusion - that Defendant Jacob Khalil violated his rights under Section 43(a) of the Trademark Act - but Plaintiff does not plead facts about what occurred. Plaintiff seems to allege that on a Saturday, someone missed a meeting; that someone performed in Manhattan - either Plaintiff or Defendant; and that there was “poor publicity” for this or another event. Plaintiff may be alleging that he has a trademark for @rtsmedialink, which was used to promote a show that Defendant performed without him, but it is unclear. Because it is unclear from the facts alleged in the complaint what happened, or what Defendant allegedly did or failed to do that violated Plaintiff's rights under the Trademark Act, these allegations fail to comply with Rule 8.
Plaintiff further contends that Defendant violated 42 U.S.C. § 1981, which prohibits discrimination based on race in the making and enforcement of contracts, and engaged in “conspiracy w/ Instagram/pseudonyms, ” in violation of 42 U.S.C. § 1985. Plaintiff does not include any facts about anything that happened that would give rise to an inference of discrimination based on race. He also does not plead any facts about Defendant's alleged conspiracy, such as with whom Defendant conspired or what Defendant did. Plaintiff's allegations thus do not comply with Rule 8 and fail to state a claim on which relief can be granted.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid claim, the Court grants Plaintiff 30 days' leave to amend his complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 30 days of the date of this order, caption the document as an “Amended Complaint, ” and label the document with docket number 21-CV-9158 (LT S). An Amended Complaint form is attached to this order. No. summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
SO ORDERED.
LAURA TAYLOR SWAIN Chief United States District Judge.
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual's birth; a minor's initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
I. BASIS FOR JURISDICTION
Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
[ ] Federal Question
[ ] Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated? ___
B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff, ___, is a citizen of the State of (Plaintiffs name)
(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of ___.
If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.
If the defendant is an individual:
The defendant, ____, is a citizen of the State of (Defendant's name)
or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of ___.
If the defendant is a corporation:
The defendant, ___, is incorporated under the laws of the State of ___ and has its principal place of business in the State of ___ or is incorporated under the laws of (foreign state) ___ and has its principal place of business in ___.
If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.
II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.
B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed.
III. STATEMENT OF CLAIM
Place(s) of occurrence: ___
Date(s) of occurrence: ___
FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. ___
INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received. ___
IV. RELIEF
State briefly what money damages or other relief you want the court to order. ___
V. PLAINTIFF'S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.ble)
I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
[ ] Yes [ ] No
If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.