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Parker v. Goichberg

December 29, 2008

GORDON ROY PARKER, A/K/A "RAY GORDON, CREATOR OF THE PIVOT," D/B/A SNODGRASS PUBLISHING GROUP
v.
WILLIAM GOICHBERG, PAUL TRUONG SUSAN POLGAR, UNITED STATES CHESS FEDERATION AND JOEL CHANNING



The opinion of the court was delivered by: Joyner, J.

MEMORANDUM AND ORDER

This case is presently pending before the Court for disposition of: (1) the defendants' motions for dismissal of the plaintiff's pro se complaint under Fed. R. Civ. P. 12(b)(2), (5) and (6) and 12(f) (Docket Nos. 27, 28 and 29), (2) the plaintiff's second motion to conduct jurisdictional discovery against defendants Truong, Polgar and Channing (Docket No. 31), and (3) Plaintiff's second motion for extension of time to service complaint, or for alternative service by mail (Docket No. 32). For the reasons which follow, the motions shall be granted in part and denied in part and the complaint dismissed in its entirety with respect to Defendants Channing, Goichberg, and the United States Chess Federation.

History of the Case

Plaintiff Gordon Roy Parker instituted this action by filing a pro se complaint in this Court on February 20, 2008 which endeavored to state claims against these and other defendants for defamation and injurious falsehood, tortious interference, fraudulent and negligent misrepresentation, simple and gross negligence, retaliation discrimination under Title VII and the PHRA, failure to hire against the public interest in violation of the PHRA, Lanham Act violations, civil conspiracy and RICO conspiracy. Defendants William Goichberg, Paul Truong, Susan Polgar, Joel Channing and the United States Chess Federation ("USCF") all moved to dismiss the complaint and this Court, finding that the complaint failed to satisfy the "short and plain" pleading requirement of Fed. R. Civ. P. 8(a), granted the motion with leave to the plaintiff to file an amended complaint curing the deficiencies within 30 days. (See Order of September 2, 2008).*fn1

Thereafter, on October 3, 2008, Plaintiff filed an "Amended Complaint for Libel, Gross and Simple Negligence, Lanham Act Violations, Title VII and PHRA Retaliation, Civil Conspiracy, RICO Conspiracy, and Fraudulent Misrepresentation." Although he re-ordered the counts from his original complaint and apparently dropped his claims against several of the defendants,*fn2 the sum and substance of Plaintiff's claims are the same and arise out of a series of publications which commenced in or about January -March, 2006 on the USENET internet web site by an individual known as "the fake Sam Sloan" or "FSS". According to the plaintiff, this imposter attempted to make him look bad by using Plaintiff's identity to attack female chess personalities such as Jennifer Shahade, who had been hired as the editor for the online version of Chess Life, the official magazine of the Defendant United States Chess Federation. The bulk of Plaintiff's Amended Complaint is spent detailing a vast number of these posted attacks, many of which border on the obscene. It appears that at various times the imposter would cease impersonating the plaintiff only to resume on later dates. Plaintiff also references a number of other lawsuits that have been filed by the individual defendants against the United States Chess Federation ("USCF") in other state courts and in other districts for conspiracy to destroy career (Polgar v. USCF, N.D. Tex., #08-0169), by the USCF against the individual defendants (USCF v. Truong, San Francisco, Calif.) to enforce subpoena, and by the individual defendants against each other (Sloan v. Truong, S.D. N.Y. #07-8537). The relevance of these citations is unclear but it appears that from them, Plaintiff has somehow concluded that both defendants Susan Polgar and Paul Truong have been operating as the imposter and making the internet postings under the plaintiff's name. Mr. Parker further avers that "Defendants Polgar and Truong began impersonating him at the request of Defendant Channing for the purpose of retaliating against him because he elected to exercise his rights under antidiscrimination laws, including Title VII" and that after September 8, 2007, whenever Defendants Polgar and Truong were so impersonating him, they were serving as officers of Defendant USCF.

By way of the motions now before us, the defendants all submit that the amended complaint should be dismissed with prejudice because:

1. It fails to state any valid claims upon which relief can be granted.

2. Service was never properly effectuated and thus the Court does not have jurisdiction over them.

3. This court lacks personal jurisdiction over Defendants.

4. The Amended Complaint, like the original Complaint, fails to comply with the mandates of Rule 8(a) and Rule 9(b).

5. It contains scandalous and impertinent matter which should, at a minimum, be stricken.

We shall address each of these arguments in turn.

Standards Governing Defendants' Motions to Dismiss

It is well-settled that in considering motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the district courts must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Krantz v. Prudential Investments Fund Management, 305 F.3d 140, 142 (3d Cir. 2002); Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000). In so doing, the courts must consider whether the complaint has alleged enough facts to state a claim to relief that is plausible on its face. Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed. 2d 929, 949 (2007). "It is therefore no longer sufficient to allege mere elements of a cause of action; instead a complaint must allege facts suggestive of the proscribed conduct." Umland v. Planco Financial Services, Inc., 542 F.3d 59, 64 (3d Cir. 2008), quoting Philips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear that the plaintiff can prove no set of facts that would entitle him to relief, considering documents that are attached to or submitted with the complaint and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders and items appearing in the record of the case. Buck v. Hampton Township School District, 452 F.3d 256, 260 (3d Cir. 2006). The inquiry is not whether the plaintiff will ultimately prevail in a trial on the merits, but whether he should be afforded an opportunity to offer evidence in support of his claim. In re Rockefeller Center Properties, Inc., 311 F.3d 198, 215 (3d Cir. 2002).

Because lack of personal jurisdiction is a waivable defense under Fed. R. Civ. P. 12(h)(1), it is incumbent upon the defendant to challenge it by filing a motion to dismiss under Rule 12(b)(2). See, e.g.: Clark v. Matsushita Electric Industrial Co., Ltd., 811 F. Supp. 1061, 1064 (M.D. Pa. 1993). Motions to dismiss for lack of personal jurisdiction generally require the Court to accept as true the allegations of the pleadings and construe disputed facts in favor of the plaintiff. Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002); Heft v. AAI Corp., 355 F. Supp. 2d 757, 761 (M.D. Pa. 2005). Once challenged, the plaintiff then bears the burden of establishing personal jurisdiction. O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007). A Rule 12(b)(2) motion is inherently a matter which requires resolution of factual issues outside the pleadings. Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Weber v. Jolly Hotels, Inc., 977 F. Supp. 327, 331 (D.N.J. 1997) citing, inter alia, Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67, n. 9 (3rd Cir. 1984); Wolk v. Teledyne Industries, 475 F. Supp. 2d 491, 501 (E. D. Pa. 2007). At no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant's Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. Once the motion is made, the plaintiff must respond with actual proofs, not mere allegations. Weber, supra.

Furthermore, before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must satisfied. Omni Capital International v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 409, 98 L.Ed. 2d 415, 423 (1987). "Service of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served." Id., quoting Mississippi Publishing Co. v. Murphree, 326 U.S. 438, 444-445 (1946). Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, "insufficiency of service of process" is one basis for which a defendant may seek dismissal of a complaint. Allstate Insurance Co. v. Funai Corp., 249 F.R.D. 157, 160 (M.D. Pa. 2008). In a motion under Rule 12(b)(5), "the party asserting the validity of service bears the burden of proof on that issue." Id., quoting, inter alia, Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993).

Upon determining that process has not been properly served on a defendant, district courts possess broad discretion to either dismiss the plaintiff's complaint for failure to effect service or to simply quash service of process. Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992). However, dismissal of a complaint is inappropriate when there exists a reasonable prospect that service may yet be obtained. Id. In such instances, the district court should, at most, quash service, leaving the plaintiffs free to effect proper service. Id.; Tiggett v. New Jersey National Guard, Civ. A. No. 90-2265, 1990 U.S. Dist. LEXIS 15673 at *23 (E.D. Pa. Nov. 20, 1990), citing National Expositions, Inc. v. DuBois, 97 F.R.D. 400, 403 (W.D. Pa. 1983).

Discussion

A. Failure to Plead Claims for Which Relief May be Granted.

As noted, Defendants contend that the amended complaint must be dismissed in its entirety because the plaintiff fails to allege any viable causes of action.

1. Federal Claims for Lanham Act Violations.

In count IV of his amended complaint, Mr. Parker purports to assert a claim under the Lanham Act, 15 U.S.C. §1051, et. seq. against Defendants Truong, Polgar and the USCF "for false and disparaging statements made in the promotion of a competitive product or service, in this case chess instruction and publication, for each impersonation of him by Defendants Truong/Polgar..." (Amended Complaint, ¶75).

Under §43(a) of the Lanham Act, 15 U.S.C. §1125(a)(1): Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

By containing such broad language, the Act "proscribes not only trademark infringement in its narrow sense, but more generally creates a federal cause of action for unfair competition." A T & T Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1428 (3d Cir. 1994), quoting, inter alia, Duraco Products, Inc. v. Joy Plastic Enterprises, Ltd., 40 F.3d 1431, 1438 (3d Cir. 1994), American Greetings Corp. v. Dan-Dee Imports, Inc., 807 F.2d 1136, 1140 (3d Cir. 1986). This is so as to protect the remedial nature of the Act which is, in essence to "prevent customer confusion that enables a seller to pass 'off his goods as the goods of another.'" Barmasters Bartending School v. Authentic Bartending School, 931 F. Supp. 377, 384 (E.D. Pa. 1996); First Keystone Federal Savings Bank v. First Keystone Mortgage, 923 F. Supp. 693, 705 (E.D. Pa. 1996), quoting Lang v. Retirement Living Publishing Co., 949 F.2d 576, 582 (2d Cir. 1991). In order to succeed on such a claim, the plaintiff must ultimately prove, by a preponderance of the evidence that:

(1) the defendants use a false designation of origin;

(2) that such use of a false designation occurs in interstate commerce in connection with goods and services;

(3) that such false designation is likely to cause confusion, mistake or deception as to the origin, sponsorship, or approval of Defendant's goods or services by another person; and

(4) that Plaintiff has been or is likely to be damaged. Parker v. Google, 242 Fed. Appx. 833, 2007 U.S. App. LEXIS 16370, (3d Cir. July 10, 2007); AT& T v. Winback, supra, citing 3 McCarthy on Trademarks §27.03[1][a] at 27-21.

In applying the preceding authorities to Count IV of the amended complaint in this case, we find that it fails to state a viable claim for relief under the Lanham Act. Notwithstanding the conclusory allegation in paragraph 75 (recited above), the gravamen of plaintiff's amended complaint is that beginning on March 17, 2006 and continuing off and on until late September, 2007, Defendants Polgar and Truong, masquerading as the "fake Sam Sloan" impersonated him in a large number of online postings via USENET's message boards. Mr. Parker also avers that he himself "peaked as a USCF-rated Expert," that he "specializes in and teaches chess openings" and "has published books on many topics, including chess and seduction (relationships)...," "... coached high school chess, taught talented children, ... published a free book on his website..." and that at the time they authored some of the postings, Polgar and Truong were members of the USCF board. (Amended Complaint, ¶s1, 3, 71, 73). Although the amended complaint further recites verbatim and at length a vast number of the online postings which are the basis of this civil action, we note that those postings, while obscene, involve only opinionated personal attacks on various other individuals who are presumably well-known within the chess world. No mention is made of any goods or services belonging to or offered by the plaintiff such as is necessary to state a claim for unfair competition under the Lanham Act. Thus while other people may have mistakenly believed that it was the plaintiff Parker and not the defendants who authored these personal attacks and while the defendants may have intended that Mr. Parker himself would be held in low esteem by the members of the audience who read the postings, there is nothing in the amended complaint that suggests that the defendants were falsely designating the origin of any goods and/or services which properly belonged to the plaintiff. Count IV shall therefore be dismissed with prejudice.

2. Federal RICO Claims Against Polgar, Truong, Goichberg and Channing

RICO provides for civil actions in which treble damages and attorney's fees may be recovered to vindicate "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter..." 18 U.S.C. §1964(c); Rotella v. Wood, 528 U.S. 549, 552, 120 S.Ct. 1075, 1078, 145 L.Ed. 2d 1047, 1053 (2000). There are four possible ways to violate section 1962, which reads as follows:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of Section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern of racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.

(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or ...


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