Leftenant v. Blackmon

UNITED STATES DISTRICT COURT [1] DISTRICT OF NEVADA [2] * * * [3] NATHAN LEFTENANT, ARNETT Case No. 2:18-cv-01948-EJY 4 LEFTENANT, JERYL BRIGHT, GREGORY JOHNSON, and THOMAS (“TOMI”) 5 JENKINS, ORDER 6 Plaintiffs, 7 v. 8 LAWRENCE (“LARRY”) BLACKMON, 9 Defendant. 10 LAWRENCE (“LARRY”) BLACKMON, 11 Counterclaim Plaintiff, 12 v. 13 NATHAN LEFTENANT, ARNETT LEFTENANT, JERYL BRIGHT, GREGORY 14 JOHNSON, and THOMAS (“TOMI”) JENKINS, [15] Counterclaim Defendants. [16] 17 Before the Court is Plaintiffs’ Partial Motion to Dismiss Defendant’s Amended 18 Counterclaim[s] (ECF No. 235) filed on August 19, 2020. Also before the Court is Plaintiffs’ 19 Amended Partial Motion to Dismiss Defendant’s Amended Counterclaim[s]. ECF No. 239, filed on 20 August 24, 2020. Because Plaintiffs state that the Amended Motion to Dismiss Defendant’s 21 Counterclaims “shall replace the Motion to Dismiss,” the Court only reviewed the Amended Motion 22 to Dismiss (ECF No. 239) and denies Plaintiffs’ Partial Motion to Dismiss (ECF No. 235) as moot. 23 The Court also reviewed Defendant’s Response to Plaintiffs’ Amended Motion to Dismiss (ECF No. 24 241) and Plaintiffs’ Reply (ECF No. 242). 25 I. Background 26 On April 17, 2020, Defendant filed a Motion for Leave to Assert Counterclaims against 27 Plaintiff Thomas “Tomi” Jenkins (“Jenkins”). ECF No. 109. Plaintiffs filed their response on May 1 2020, the Court entered an order granting Defendant’s Motion for Leave to Assert Counterclaims 2 (ECF No. 211). In that Order, the Court stated that Plaintiffs “shall have 14 days from the date of 3 this Order to file a response” to Defendant’s Counterclaims. Id. at 10. Plaintiffs’ Motion to Dismiss 4 parts of Defendant’s amended counterclaims was filed on August 19, 2020, seven days after the due 5 date set by the Court for the response. Six days later, Plaintiffs filed their Amended Motion to 6 Dismiss making it the operative motion. 7 Plaintiffs’ Amended Motion to Dismiss seeks to dismiss Counts I and V asserted by 8 Defendant against Jenkins. Plaintiffs argue that Defendant’s Count I, alleging Trademark 9 Counterfeiting, fails to state a claim because Jenkins’ supposed use of the CAMEO mark at issue 10 was not for live music performances. Plaintiffs claim that because Defendant’s registered trademark 11 was for live performances by a musical group, and Jenkins allegedly promoted himself on the 12 internet and social media sites using the CAMEO mark for reasons other than live performances, 13 Defendant fails to state a § 32 Lanham Act violation. 14 With respect to Count V, which is a Deceptive Trade Practices claim under NRS 598.0915, 15 Plaintiffs state that Defendant fails to allege that Jenkin’s supposed deceptive acts related to goods 16 or services. Plaintiffs further point out that Defendant must plead his deceptive trade claim with 17 particularity, which Plaintiff states Defendant has not done. Plaintiffs add that Jenkins’ social media 18 positing was not an advertisement under NRS 598.0905 19 In response to Plaintiffs’ Amended Motion to Dismiss, Defendant argues that Plaintiffs’ 20 Amended Motion should be denied based upon the Law of the Case Doctrine. Defendant contends 21 the Court previously rejected the arguments in the instant Amended Motion to Dismiss when it 22 granted Defendant’s Leave to Assert Counterclaims. Defendant further argues that he adequately 23 pleads Jenkins engaged in the improper use of a counterfeit CAMEO trademark in paragraphs 48 24 and 51-55 of the Amended Counterclaim. Defendant points to his pleading in which he references 25 a Facebook page that “touts and advertises live performances” or, at a minimum, the same type of 26 services identified in Defendant’s CAMEO trademark, and an Instagram post that includes a picture 27 of Jenkins on stage singing alongside the CAMEO mark and several references to live performances. 1 Nevada law in paragraphs 50-54, and 58, which identifies the date of the infringing posts, the social 2 media platforms on which the posts were made, and the infringing use of the CAMEO mark. 3 In reply, Plaintiffs argue that the Law of the Case Doctrine is inapplicable because a court is 4 free to reconsider its orders before a judgment is entered or the Court is divested of jurisdiction. 5 Plaintiffs otherwise restate their original arguments. 6 II. Discussion 7 In the Court’s July 29, 2020 Order (ECF No. 211) the Court reviewed the standard applicable 8 to the permissive filing of a counterclaim (id. at 3-4) and then discussed, at length, whether 9 Defendant’s Counterclaims against Jenkins were futile. Id. at 4-7. With respect to Count I of the 10 Counterclaim against Jenkins, the Court stated: 11 Counterclaim Plaintiff Blackmon alleges that Jenkins promoted himself on the internet and social media sites using the CAMEO trademark and Defendant’s 12 likeness in January 28, 2020. [ECF No. 109] … ¶¶ 50-51; picture at 30. Counterclaim Plaintiff Blackmon further alleges that Jenkins continued to use the 13 CAMEO trademark in February 2020 on Jenkin’s personal Facebook page. Id ¶¶ 53-54 and picture at 31. These allegations are sufficient to state a trademark 14 counterfeiting claim. Id. ¶¶ 48, 58-61, ECF No. 207-3. 15 ECF No. 211 at 4-5. With respect to Count V of Defendant’s Counterclaim, alleging Deceptive 16 Trade Practices against Jenkins, the Court stated: 17 Defendant also successfully pleads his fifth counterclaim for Deceptive Trade Practices under NRS 598.0915. Under this statute, a person engages in deceptive 18 trade practices if, in the course of his business, he knowingly: 19 (1) Passes off goods or services for sale or lease as those of another person; (2) Makes a false representation as to the source, sponsorship, approval or 20 certification of goods or services for sale or lease; (3) Makes a false representation as to affiliation, connection, association with or certification 21 by another person ...; (7) Represents that goods or services for sale or lease are of a particular standard, quality or grade; [or] (9) Advertises goods or 22 services with intent not to sell or lease them as advertised. N.R.S. § 598.0915. [23] NRS 598.0905 defines “advertisement” as an “attempt by publication, 24 dissemination, solicitation or circulation to induce, directly or indirectly, any person to enter into any obligation to lease or acquire any title or interest in any 25 property.” 26 Here, Counterclaim Plaintiff Blackmon alleges that the Counterclaim Defendants, including Jenkins, violated this statute by using the CAMEO mark, without 27 permission or license to do so, in promotional material and on Facebook pages to 1 Counterclaim Defendants intentionally misled the public regarding their respective affiliation with CAMEO without Counterclaim Plaintiff Blackmon’s permission, 2 the Court finds Counterclaim Plaintiff Blackmon adequately states a claim under NRS 598.0915. Hakkasan LV, LLC v. VIP, UNLTD, LLC, 63 F.Supp.3d 1259 , 1267 3 (D. Nev. 2014) (holding defendant violated § 598.0915 by using the trademark and falsely claiming that he was affiliated with the owner and authorized to use it); Cf. 4 Wilson v. Stratosphere Corp., 371 F.App’x 810, 811 (9th Cir. 2010). 5 Thus, the Court’s July 29, 2020 Order addressed the two claims Plaintiffs again seek to dismiss. The 6 Court finds no basis upon which the Court must reconsider its prior Order. See ECF No. 211. The 7 Court again denies Plaintiffs’ efforts to dismiss Counts I and V of Defendant’s counterclaims based 8 on the contention that Defendant fails to sufficiently state such claims.1 9 III. Order 10 Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Amended Partial Motion to 11 Dismiss Defendant’s Amended Counterclaim (ECF No. 239) is DENIED. 12 IT IS FURTHER ORDERED that Plaintiffs’ Partial Motion to Dismiss Defendant’s 13 Amended Counterclaim (ECF No. 235) is DENIED as moot. 14 DATED this 18th day of November, 2020 [16] 17 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE