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Xtreme Caged Combat, et al v. Ecc Fitness (Aka Extreme Cage Combat)

November 20, 2012

XTREME CAGED COMBAT, ET AL., PLAINTIFFS,
v.
ECC FITNESS (AKA EXTREME CAGE COMBAT), ET AL., DEFENDANTS.



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

MEMORANDUM & ORDER

Before this Court are Defendants' Motion to Dismiss or, in the Alternative, Motion for a More Definite Statement (Doc. No. 10) and Plaintiffs' response thereto (Doc. No. 11). For the reasons set forth in this Memorandum, the Court will grant the motion in part and deny it in part.

I. FACTUAL & PROCEDURAL BACKGROUND

Xtreme Caged Combat ("Plaintiff" or "Xtreme") is a mixed martial arts promotion and training facility in Philadelphia, Pennsylvania.*fn1 The business is registered and licensed, and is owned by Ryan Kerwin ("Plaintiff" or "Kerwin"). Xtreme has been in business since April of 2009. The business emblem for Xtreme is the letters "XCC" with a line cutting through the letters.

ECC Fitness, also known as Extreme Cage Combat ("Defendant" or "ECC Fitness") is a mixed martial arts training facility in Feasterville, Pennsylvania. ECC is owned by Steve Rosenblum ("Defendant" or "Rosenblum") and Ofa Donaldson ("Defendant" or "Donaldson"). ECC has been doing business under its current name since around December of 2011. The business emblem for ECC Fitness is the letters "ECC" with a line cutting through the letters. Rosenblum and Donaldson knew Kerwin personally and had knowledge of Xtreme prior to operating their business as ECC Fitness.

In April or May of 2012, the Defendants sent out an advertisement in "Clipper Magazine," advertising their business with the ECC Fitness name, the emblem, and the words "Extreme Cage Combat" appearing in the advertisement. The Defendants also used t-shirts with the same for promotional events, and advertised their facility using the same on Rosenblum's Facebook page.

Kerwin and Xtreme commenced the present action by filing a complaint with this Court on July 9, 2012. They asserted claims for trademark infringement or dilution, under 15 U.S.C. § 1125(a)(1), commonly known as the Lanham Act.

On July 12, 2012, James Scott ("Plaintiff" or "Scott") went to ECC Fitness and served a copy of the original complaint and summons on Donaldson and Rosenblum. After he was served, Donaldson approached Scott's car and punched the front passenger side window and kicked a dent in the rear passenger side door. Scott filed a police report documenting the damage, and had the car repaired. Kerwin reimbursed Scott for the expense of the repairs.

Kerwin and Scott then filed a "Supplemental Complaint" with this Court on August 7, 2012, asserting a claim for damage to personal property supplemental to Kerwin and Xtreme's trademark infringement claim. The Plaintiffs are proceeding pro se.*fn2

On August 30, 2012, the Defendants moved to dismiss the complaint in its entirety. The Defendants claim that there is no subject matter jurisdiction over the claims, and the complaint fails to state a claim upon which relief can be granted. In the alternative, the Defendants move for a more definite statement, in the form of a single amended complaint.

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a court to dismiss a case for lack of subject matter jurisdiction. A motion pursuant to Rule 12(b)(1) affords the opportunity to challenge the Court's jurisdiction both on the face of the complaint and as a factual matter. Common Cause of Pennsylvania v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009). When considering a motion under Rule 12(b)(1), no presumption of truthfulness attaches to plaintiff's allegations because the issue is whether the court has power to hear the case. Mortensen v. First Federal Savings & Loan Assoc., 549 F.2d 884, 891 (3d Cir. 1977). Additionally, a ...


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