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BROWN v. ADIDAS INT.

April 12, 1996

JEFFREY W. BROWN, an individual, Plaintiff,
v.
ADIDAS INT., et al., ADIDAS AMERICA, ADIDAS INC., various unknown parties, to include all "Parties" that Supply ADIDAS with material(s) and outsole formulation(s) and Products, Defendant.



The opinion of the court was delivered by: HUFF

 Defendant adidas America, Inc. moves to dismiss plaintiff's first amended complaint pursuant to Federal Rules 12(b)(1) and 12(b)(6). Plaintiff opposes defendant's motion. After reviewing the papers submitted by the parties, the court finds that plaintiff has failed to state a claim upon which relief can be granted. Accordingly, the court grants defendant's motion to dismiss the action pursuant to Federal Rule 12(b)(6). In addition, the court finds an award of attorney's fees pursuant to 28 U.S.C. section 1927 inappropriate at this time. Consequently, the court denies that request.

 BACKGROUND

 On February 16, 1996, plaintiff, Jeffrey W. Brown, withdrew his original complaint of December 15, 1995 and substituted an amended complaint. In his complaint, Brown alleges the following as causes of actions: "unfair competition, common law breach of agreement, trade secret infringement, patent infringement, copyright infringement, bad faith [sic], negligence, duty of care [sic], special motion for summary judgment [sic], estopel [sic], demur edudicated motion of ipso facto [sic], injunctive relief, duress and hardship [sic], uniform code of conduct [sic], dilution [sic], and punitive damages."

 At the core of his complaint, Brown appears to allege a breach of contract claim against adidas. Brown alleges that an agreement between him, his company B&B Technologies LLP, and adidas requires adidas to disclose to him "some legal right that supersedes [his] past and current intellectual property rights." (F.A.C., P 8). Because adidas failed to make such a demonstration to plaintiff, he instituted the current action. The underlying dispute concerns Brown's claims that adidas may have appropriated a trade secret to which he claims a patent.

 DISCUSSION

 A. Motion to Dismiss Pursuant to Rule 12(b)(1)

 Defendant moves to dismiss the complaint pursuant to Federal Rule 12(b)(1). That rule provides that a complaint may be dismissed for "lack of jurisdiction over the subject matter." FED. R. CIV. P. 12(b)(1). In a motion to dismiss for lack of subject matter jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the court from evaluating for itself the merits of jurisdictional claims." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).

 "Federal courts are courts of limited jurisdiction." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). This court "presume[s] that a cause lies outside this limited jurisdiction, and [that] the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994). Local Rule 3.2 mandates that each plaintiff set forth the facts in the complaint which support federal jurisdiction. Loc. R. 3.2(a). Plaintiff may meet this burden in one of two ways: he may demonstrate that cause of action arises under federal law or he may set forth facts sufficient to accord this court diversity jurisdiction.

 First, plaintiff attempts to establish a federal cause of action in order to invoke the jurisdiction of this court. In paragraph one the first amended complaint, Brown claims that his claims "arise under the Intellectual Property Patent Laws of the United States, 35 & 37 USC [sic] [.] Plaintiff also cites Title 27 Copyright Laws [sic]" as a basis for federal jurisdiction. (F.A.C., P 2).

 Initially, the court notes that 37 U.S.C. section 101 et seq. governs the "pay and allowances of the Uniformed Services." This title does not in any way concern intellectual property, nor does Brown articulate any cause of action involving the payment of the uniformed services. Similarly, plaintiff's cites incorrectly to Title 27 when alleging claims of copyright infringement. Title 27 deals with "intoxicating liquors"; Title 17 governs copyright law. Thus, the court will evaluate plaintiff's copyright claims under the correct title of the United States Code.

 Defendant attacks plaintiff's attempt to invoke federal jurisdiction under Title 35 of the United States Code concerning patents and Title 17 concerning copyright. However, defendant does not argue that plaintiff's claims do not raise federal questions; rather, defendant argues that plaintiff has failed to set forth facts which support the federal claim plaintiff intends; this argument amounts to an assertion that plaintiff has failed to state a claim upon which relief can be granted. To that extent, the court considers defendant's arguments below when applying the standard appropriate for Rule 12(b)(6). Consequently, the court denies defendant's motion to dismiss pursuant to 12(b)(1) to the extent that defendant attacks plaintiff's federal claims.

 However, in addition to his claims for federal question jurisdiction, Brown asserts diversity jurisdiction. Because Brown fails to identify either his or the defendant's domicile for jurisdictional purposes, the court finds insufficient Brown's assertion of diversity jurisdiction. See 28 U.S.C. § 1332.

 B. Motion to Dismiss Pursuant to Rule 12(b)(6)

 In addition to raising the issues of jurisdiction, defendant makes a motion to dismiss under Rule 12(b)(6). That rule allows the court to dismiss a complaint upon finding that plaintiff has failed to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). Looking beyond the jurisdictional question and evaluating the substance of Brown's federal and state claims, the court finds Brown's complaint devoid of any claim upon which relief can be granted.

 A dismissal pursuant to rule 12(b)(6) is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1989). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1991). Finally, courts must construe the complaint in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

 The only facts the court can extract from this complaint are as follows: defendant uses B&B Technologies' patented "polybutadiene" outsole formulation and trade secret designs in its "Predator" soccer shoe; defendant appropriated plaintiff's copyrighted shoe designs; defendant refuses to disclose how they acquired the rights to use patented polybutadiene formulations and trade secrets. *fn1" From these facts, plaintiff develops twelve claims. The court will address in the order set forth by Brown each "cause of action" alleged by Brown as he articulates these claims in his first amended complaint.

 1. Demur to Complaint

 Plaintiff labels his first claim "demur to complaint." *fn2" The court notes that a demurrer is pleading filed by a defendant which argues that as a matter of law, plaintiff's complaint falls so far short of articulating a viable cause of action, the court should dismiss it. See People v. Hale, 232 Cal. App. 2d 112, 120, 42 Cal. Rptr. 533 (1965). However, Rule 7(c) of the Federal Rules abolished demurrers in the federal practice of law. Consequently, the court finds plaintiff's "demur to complaint" void of any legal claim and dismisses it with prejudice from the complaint. *fn3"

 2. First Supplemental Cause of Action

 In Brown's "first supplemental cause of action," he claims that adidas handled "proprietary [sic] and confidential documents and files" in a negligent manner. (F.A.C., P 9). He then claims that adidas must provide him with original documents when it provides him with proof that it does not use his patented formulations and designs. Id. It appears that plaintiff attempts to mask a request for discovery as a cause of action. The court cannot recognize any legal claim in Brown's "first supplemental cause of action." At no point does Brown articulate the genesis of any duty, either ...


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