Adams, Nash & Haskell, Inc. v. United States

ADAMS, NASH & HASKELL, INC., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Civil Action No.: 20-1916 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

April 9, 2021

Re Document No.: 22

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

In this case, Plaintiff Adams, Nash & Haskell, Inc. ("ANH"), a labor relations strategist based in Kentucky, brings claims under the Lanham Act for trademark infringement, false designation of origin, and unfair competition against Defendant United States of America (the "Government"). ANH is the registered owner of the trademark "VIEWPOINT," which it uses in connection with employee opinion surveys. Every year, the Government, through the U.S. Office of Personnel Management, conducts a survey of federal executive branch employees called the Federal Employee Viewpoint Survey. ANH argues that the Government's use of the word "viewpoint" in its survey violates federal trademark law. Before the Court is the Government's motion to dismiss. The Government argues that because it has conducted the Federal Employee Viewpoint Survey since 2010, and any claims against the Government must be brought within six years of accrual, ANH's claims are time barred. The Government also claims that ANH has failed to state a plausible claim of false designation of origin. For the reasons set forth below, the Court concludes that dismissal of the claims on statute of limitations grounds is inappropriate at this early stage. The Court agrees, however, that ANH has failed to plead a plausible claim of false designation of origin. Accordingly, the Court grants in part and denies in part the Government's motion.

II. BACKGROUND

According to the Amended Complaint, ANH is a labor relations strategist based in Erlanger, Kentucky. Am. Compl. ¶ 7, ECF No. 5. The company "provides employers with, among other things, guidance regarding employee opinions relating to their employment." Id. In connection with this business, ANH offers assessment tools such as employee surveys. Id. ¶ 8. ANH owns the trademark "VIEWPOINT," which it registered in 1994 for use in conducting employee opinion surveys. Id. ¶ 9-10; see also Am. Compl. Ex. A. ANH alleges that because of "long and widespread use" of the trademark, including "extensive promotion and advertising," the company "has established extensive goodwill, public recognition, and secondary meaning for the VIEWPOINT mark as an identifier of ANH in the United States." Id. ¶ 11. Outside of these general allegations of fact, ANH does not provide any examples of how it uses the mark.

ANH alleges that the government "is using the mark VIEWPOINT for the purpose of conducting employee opinion surveys." Id. ¶ 12. And because the government "has no connection or association with ANH and is not authorized by ANH to use the VIEWPOINT mark," id. ¶ 13, the company brings counts against the government under the Lanham Act for federal trademark infringement, under 15 U.S.C. § 1114, false designation of origin, under 15 U.S.C. § 1125(a), and unfair competition, also under 15 U.S.C. § 1125(a), see id. ¶¶ 14-23.¹ ANH attached to the Amended Complaint an article titled "The Best Places to Work in theFederal Government 2018 Rankings," which appears to be authored by Partnership for Public Service. See Am. Compl. Ex. B. The attached article references the "U.S. Office of Personnel Management's Federal Employee Viewpoint Survey." Id. Outside of the attached exhibit and allegation that the government "uses the VIEWPOINT mark for the purpose of conducting employee opinion surveys," Am. Compl. ¶ 12, the Amended Complaint does not describe or provide any examples of how the government uses the mark.

ANH originally filed suit in the District of New Jersey. See Compl., ECF No. 1. ANH amended its original complaint as a matter of right less than a month after first filing suit. See Am. Compl. Upon consideration of the government's initial motion to dismiss, the District of New Jersey transferred this matter to this Court. See Order, ECF No. 15. The government has now filed a new motion to dismiss, arguing that the statute of limitations for claims against the government bars ANH's claims and that, independently, ANH has failed to state a plausible false designation of origin claim. See Gov't Mot. Dismiss, ECF No. 22. The government's motion is fully briefed and ripe for decision. See ANH's Opp'n Mot. Dismiss ("ANH's Opp'n"), ECF No. 24; Gov't Reply Supp. Mot. Dismiss ("Gov't Reply"), ECF No. 26.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint's factual allegations are to be taken as true, and the court is to construe them liberally in the plaintiff's favor. See, e.g., UnitedStates v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Notwithstanding this liberal construal, the court deciding a Rule 12 motion must parse the complaint for "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility requirement means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555.

IV. ANALYSIS

The Government puts forth two primary arguments. First, the Government claims that ANH's claims are time barred pursuant to the statute of limitations for claims brought against the federal government. Second, and independently, the Government asserts that ANH has failed to plead a plausible claim of false designation of origin. Because the Court concludes that it cannot dismiss ANH's claims on statute of limitations grounds at this early stage, it will consider both arguments.

A. Statute of Limitations

Federal law provides that every "civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). "Section 2401(a) generally applies to all civil actions whether legal, equitable,or mixed." Felter v. Kempthorne, 473 F.3d 1255, 1259 (D.C. Cir. 2007) (citation omitted). Recently, the D.C. Circuit clarified that, in light of the Supreme Court's decision in United States v. Kwai Fun Wong, 575 U.S. 402 (2015), the time bar in Section 2401(a) "is nonjurisdictional and subject to equitable tolling." Jackson v. Modly, 949 F.3d 763, 778 (D.C. Cir. 2020).² The parties agree that Section 2401(a) applies to the federal claims brought against the government in this case. See Gov't Mot. Dismiss at 9-10; ANH's Opp'n at 9.³

Although Section 2401(a) sets the statute of limitations bar at six years, it does not define when a "right of action first accrues." Courts "determine the time at which [a] federal claim accrued—the moment at which the limitations period began to run—by consulting federal law."Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 341 (D.C. Cir. 1991). In Connors, the D.C. Circuit explained that "the discovery rule is the general accrual rule in federal courts" applicable to federal questions "in the absence of contrary directive from Congress." Id. at 342; see also Jack's Canoes & Kayaks, LLC v. Nat'l Park Serv., 933 F. Supp. 2d 58, 75 (D.D.C. 2013) ("[I]t is well-established in the D.C. Circuit that the 'discovery rule is the general accrual rule in federal courts'" (quoting Connors, 935 F.2d at 342)); Flynn v. Pulaski Const. Co., Inc., No. 02-cv-02336, 2006 WL 47304, at *10 (D.D.C. Jan. 6, 2006) (stating "the accrual period is determined as a matter of federal common law" and that "the accrual period begins to run based on the injury discovery rule"). Under the discovery rule, "the statute of limitations does not begin to run 'until the plaintiff discovers, or with reasonable due diligence should have discovered, the injury that is the basis of the action.'" Jordan v. Dist. of Columbia, 161 F. Supp. 3d 45, 62 (D.D.C. 2016) (quoting Connors, 935 F.2d at 341)). Although the Government argues that the discovery rule is inapplicable to this case, see Gov't Reply at 10-12, it points to no directive from Congress or other contrary authority suggesting that the rule—which applies generally in federal courts—is inapplicable here.⁴ Accordingly, the Court finds the discovery rule applies in this case.

The D.C. Circuit has stated that "courts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint." Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). "[B]ecause statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred." Id. (citing Richards v. Mileski, 662 F.2d 65, 73 (D.C. Cir. 1981)). "Acourt may dismiss a claim on statute of limitations grounds only if 'no reasonable person could disagree on the date' on which the cause of action...