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Albert Sanchez, Sr v. Albert

May 12, 2011

ALBERT SANCHEZ, SR.,
PLAINTIFF,
v.
ALBERT SANCHEZ, JR.; MCKEEN LABORATORY, INC.; EL-GEN INJUNCTION LLC; AMARC ENTERPRISES, INC.; ALO
INVESTMENTS, LLC.; ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) GRANTING DEFENDANTS' MOTION TO PLAINTIFF'S EX PARTE (2) DENYING APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND/OR ORDER TO GARNETT SHOW CAUSE WHY A PRELIMINARY SHOULD NOT BE ENTERED DISMISS; (Doc. Nos. 15, 34)

Presently before the Court are Defendants' motion to dismiss Plaintiff's first amended complaint (Doc. No. 15 (MTD)) and Plaintiff's ex parte application for a temporary restraining order (TRO) and order to show cause why a preliminary injunction should not be entered (Doc. No. 34 (Appl.)). Also before the Court are the parties' respective oppositions (Doc. Nos. 23 (Opp'n to MTD), 36 (Opp'n to Appl.)) and replies (Doc. Nos. 24 (Reply to MTD), 37 (Reply to Appl.)). Having considered the parties' arguments and the law, the Court GRANTS Defendants' motion to dismiss and DENIES Plaintiff's application for a TRO.

BACKGROUND

The parties are well aware of the facts of this case. (See Doc. No. 22 (Order), at 1--3.) In summary, in 1995 Defendant Garnett McKeen Laboratory, Inc. (GML) introduced Plaintiff to a dietary supplement product, which came to be known as POLY-MVA.*fn1 (Doc. No. 6-2 (Albert Sanchez, Sr. Decl.) ¶ 3.) Plaintiff agreed to "assume the Sole Worldwide Distribution rights" for the product (id. ¶ 4) and immediately began to market and sell it under the POLY-MVA mark (id. ¶ 6). In 2008, however, Defendant El-Gen LLC, GML's manufacturing subsidiary, terminated the distribution agreement in favor of a new agreement with AMARC Enterprises, Inc. (AMARC). (Id. ¶ 10; Doc. No. 34-5 (McKeen Decl.) ¶ 9.)

According to Plaintiff, Defendant Albert Lee Sanchez secretly formed AMARC and ALO Investments, LLC in 2002. (FAC ¶ 21.) Through ALO, Albert Lee Sanchez allegedly fraudulently obtained trademark protection for the POLY-MVA mark. (Id. ¶ 28.) The United States Patent and Trademark Office subsequently canceled the registration for the POLY-MVA mark. (Id. ¶ 30.) On April 27, 2010, ALO-again allegedly fraudulently-began anew the registration process for the POLY-MVA mark. (Id. ¶ 33.) Plaintiff alleges that Albert Lee Sanchez and ALO never owned and were never entitled to register the POLY-MVA mark. (Id. ¶ 35).

Against this background, Plaintiff asserts several trademark infringement claims (see FAC), two of which Defendants ask the Court to dismiss (see Doc. No. 15-1 (Mem. ISO MTD), at 3--5). This background also serves as the factual basis for Plaintiff's application for a TRO enjoining Defendants from refusing to sell POLY-MVA to him. (Mem. ISO Appl. 1, 13.)

LEGAL STANDARD

1. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ---- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible if the facts pleaded "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged----but it has not 'show[n]'----'that the pleader is entitled to relief.'" Id.

2. Ex Parte Application for TRO

Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc. (NRDC), 555 U.S. 7, 129 S. Ct. 365, 374 (2008) (citing Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 2218--19 (2008)); see also Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). This is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." NRDC, 129 S. Ct. at 376. This clear showing requires Plaintiff to show more than a mere "possibility" of irreparable harm, but instead he must "demonstrate that irreparable injury is likely in the absence of an injunction." Id. at 375; accord Am. Trucking Ass'ns, 559 F.3d at 1052.

ANALYSIS

1. Motion to ...


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