Hart v. Amazon.com, Inc.

191 F.Supp.3d 809

Reginald HART, Plaintiff,

v.AMAZON.COM, INC., Defendant.

No. 15 C 01217

United States District Court, N.D. Illinois, Eastern Division.

Signed June 13, 2016

Reginald Hart, Chicago, IL, pro se.

Michael A. Hierl, Hughes Socol Piers Resnick & Dym Ltd., Chicago, IL, for Plaintiff.

Christopher Robert Hagale, Bartlit Beck Herman Palenchar & Scott LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén Castillo, United States District Judge

Reginald Hart ("Plaintiff") brings his amended complaint in this action against Defendant Amazon.com, Inc. ("Amazon")¹ alleging trademark infringement, unfair competition, and false designation of origin under Illinois common law and the Lanham Act, 15 U.S.C. § 1125. (R. 68, Am. Compl.) Plaintiff also alleges negligence, promissory estoppel, negligent infliction of emotional distress, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILL. COMP. STAT. 505/1 et seq. , the Illinois Uniform Deceptive Trade Practices Act ("IUDTPA"), 815 ILL. COMP. STAT. 510/1 et seq. , and the Illinois Right of Publicity Act ("IRPA"), 765 ILL. COMP. STAT. 1075/1 et seq. (R. 68, Am. Compl.) Presently before the Court is Amazon's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 69, Mot.) For the reasons stated below, the motion is granted.

RELEVANT FACTS

Plaintiff's amended complaint includes many of the same facts as his original complaint, which have already been explained in this Court's prior opinion, Hart v. Amazon.com , No. 15–C–01217, 2015 WL 8489973, at *1 (N.D.Ill. Dec. 8, 2015) ; accordingly, only a brief recitation of the relevant facts is required. Plaintiff, a resident of Illinois, has authored two books: Vagabond Natural and Vagabond Spiritual. (R. 68, Am. Compl. ¶¶ 1-2.) These books focus on Plaintiff's experiences with homelessness and seek to "raise money and bring an end to vagabondage ...." (Id. ¶ 2.) Plaintiff has "never sold Vagabond Spiritual in the market place" and has only distributed a limited number of copies of Vagabond Natural. (Id. ¶¶ 45-46, 60.)

Despite the limited distribution of Plaintiff's books, Plaintiff discovered copies of Vagabond Natural and Vagabond Spiritual listed for sale on Amazon's website. (Id. ¶¶ 45-46.) Plaintiff believes that these copies were counterfeits. (Id. ¶¶ 39-47.) Throughout March 2014, Plaintiff submitted a series of electronic notices to Amazon through its "Report Infringement" webpage claiming that Amazon was selling "unlawful reproductions" of his books. (Id. ¶¶ 39-41.) Plaintiff also sent Amazon a letter dated March 23, 2014, asking Amazon to remove the books from its website, disclose how long the books had been available for sale, and specify how many copies had been sold. (Id. ¶ 47; R. 68, Ex. 8 to Am. Compl.) Amazon responded with a letter that "implied ... it was solely a search engine and not an online retailer." (R. 68, Am. Compl. ¶ 47.) Approximately nine months later, Plaintiff submitted another electronic notice asking Amazon to remove the books from its website because Vagabond Natural and Vagabond Spiritual "[had] never been published to the public at large." (Id. ¶ 42; R. 68, Ex. 4 to Am. Compl.)

On January 21, 2015, Amazon sent Plaintiff an email informing him that it was "in the process of removing" Vagabond Natural and Vagabond Spiritual from its website and that "[i]t typically takes 2-3 days for a listing to disappear once it has been removed." (R. 68, Am. Compl. ¶¶ 80, 90; R. 68, Ex. 10 to Am. Compl.) Both books remained on Amazon's website until March 25, 2015. (R. 68, Am. Compl. ¶ 103.) Amazon provided Hart with its sales records, which indicate that there were a total of six sales of Hart's books by third parties through Amazon's website. (R. 68, Ex. 7 to Am. Compl.) Plaintiff claims that Amazon's conduct caused him "mental anguish" and violated his trademark rights. (Id. ¶¶ 77, 83, 87, 93, 123.)

PROCEDURAL HISTORY

Plaintiff first filed a pro se complaint on February 9, 2015, against Amazon and "All Unknown and Known Third Party Agent Sellers of Amazon" alleging direct, contributory, and vicarious copyright infringement under the Federal Copyright Act, 17 U.S.C. § 101 et seq. , negligent spoliation of evidence, aiding and abetting "wrongful acts," intentional infliction of emotional distress, and a violation of the IRPA. Hart , 2015 WL 8489973, at *2. On March 15, 2015, Plaintiff moved to have counsel appointed. (R. 28, Min. Entry.) The Court granted Plaintiff's motion and counsel appeared on Plaintiff's behalf. (Id. ; R. 30, Appearance.) However, appointed counsel subsequently moved to withdraw because Plaintiff "insist[ed] upon presenting a claim that, in [counsel's] view, [was] not warranted under existing law and [could not] be supported by a reasonable argument for an extension, modification, or reversal of existing law." (R. 37, Mot. to Withdraw.) Following an unsuccessful settlement conference with Amazon, the Court granted counsel's motion to withdraw. (R. 41, Min. Entry.)

On August 19, 2015, Amazon moved for judgment on the pleadings arguing that Plaintiff's claims were "legally and factually deficient." (R. 43, Def.'s Mot. at 15.) The Court granted Amazon's motion because Plaintiff failed to adequately plead his claims. Hart , 2015 WL 8489973, at *9. However, this Court granted him leave to file an amended complaint consistent with the Court's opinion. Id. On January 4, 2016, Plaintiff filed an amended complaint alleging negligence (Count I), "trademark infringement, unfair competition, and false designation of origin" (Count II), a violation of the ICFA (Count III), a violation of the IUDTPA (Count IV), promissory estoppel (Count V), a violation of the IRPA (Count VI), and negligent infliction of emotional distress (Count VII). (R. 68, Am. Compl. ¶¶ 48-123.) Amazon again moves to dismiss. (R. 69, Mot.; 70, Mem.)

LEGAL STANDARD

"A motion to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Firestone Fin. Corp. v. Meyer , 796 F.3d 822, 825 (7th Cir.2015) (alterations and citation omitted). To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Under this standard, the Court "accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff."

Kubiak v. City of Chi. , 810 F.3d 476, 480–81 (7th Cir.2016). However, the Court "need not accept as true any legal assertions or recital of the elements of a cause of action supported by mere conclusory statements." Vesely v. Armslist LLC , 762 F.3d 661, 664–65 (7th Cir.2014) (citation and internal quotation marks omitted).

Because Plaintiff is proceeding pro se , the Court construes his complaint "liberally" and holds it to a "less stringent standard than formal pleadings drafted by lawyers." Perez v. Fenoglio , 792 F.3d 768, 776 (7th Cir.2015) (citation omitted). However, while a pro se litigant's pleadings are held to a lesser standard, the litigant must still comply with the Court's rules and procedures. See McInnis v. Duncan , 697 F.3d 661, 665 (7th Cir.2012) ("As we often have reminded litigants, even those who are pro se must follow court rules and directives."); see also McNeil v United States , 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("While we have insisted that the pleadings prepared by [pro se litigants] ... be liberally construed, ... we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel." (internal citations omitted)).

ANALYSIS

I. Lanham Act and IUDTPA Claims

The Court will first address Plaintiff's Lanham Act claim and then move to the remaining state law claims. Count II of the amended complaint includes claims for trademark infringement, unfair competition, and false designation of origin under the Lanham Act and Illinois common law. (R. 68, Am. Compl. ¶¶ 68-77.) In addition, Plaintiff asserts an IUDTPA claim; however, the allegations are nearly identical to those in the Lanham Act claims. (Id. ¶¶ 85-87.) Amazon argues that Plaintiff fails to state claims under the Lanham Act, common law, or the IUDTPA. (R. 70, Mem. at 4-8; see also id. at 11–12.) As discussed below, Plaintiff's claims are insufficient because he does not allege that Amazon's actions are likely to cause confusion among consumers.

Plaintiff's pro se complaint is at times difficult to understand, but his claims ultimately revolve around the same conduct: Amazon allegedly engaged in counterfeiting and displayed and sold counterfeit copies of his books featuring his tradename and trademark. (R. 68, Am. Compl. ¶¶ 1, 47, 69, 70, 86.) Plaintiff claims that his trademarks include the name "Henrietta Press" and a symbol "comprised of an [o]pen [b]ook with [p]ages emerging therefrom." (Id. ¶ 69.) Plaintiff's counterfeiting claim focuses on three different allegations. First, Amazon allegedly sold counterfeit copies of Hart's books and thereby improperly used his tradename and trademark that were affixed to the allegedly counterfeit versions. (Id. ¶¶ 75-77, 81.) Second, Amazon allegedly caused confusion in the marketplace by suggesting that Plaintiff is affiliated with or approves of Amazon. (Id. ¶¶ 71, 75.) Third, Amazon allegedly caused confusion in the marketplace by suggesting that the copies of Hart's books sold through Amazon were authentic. (Id. ¶ 72.) In support of his IUDTPA...