The Democratic Party of N.J., Inc. v. Devine

1

THE DEMOCRATIC PARTY OF NJ, INC., organized as the NEW JERSEY DEMOCRATIC STATE COMMITTEE, Plaintiff, v. JAMES DEVINE, LISA MCCORMICK, “NJDEMS.COM”, NEW JERSEY DEMOCRATIC PARTY A N.J. NONPROFIT CORPORATION, JOHN AND JANE DOES 120, AND XYZ CORPORATIONS 1-20, Defendants.

Civil Action No. 22-01268

United States District Court, D. New Jersey

June 7, 2023

NOT FOR PUBLICATION

OPINION

JOHN MICHAEL VAZQUEZ, U.S.D.J.

This matter returns to the Court on the motion of Defendants James Devine, Lisa McCormick, NJDEMS.com, and New Jersey Democratic Party A N.J. Nonprofit Corporation (collectively “Defendants”) to dismiss Plaintiff's Third Amended Complaint. D.E. 37. The Court reviewed the submissions in support and in opposition,^[1] and considered the motion without oral argument pursuant to Fed.R.Civ.P 78(b) and L. Civ. R. 78.1(b). For the reasons stated below Defendants' motion to dismiss is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND^[2]

Plaintiff is the New Jersey Democratic Party Inc., organized as the New Jersey Democratic State Committee (“NJDSC”), the sole statewide committee authorized under state law to represent the Democratic Party in New Jersey. TAC ¶¶ 8, 22. Defendants Devine and McCormick are New Jersey residents, domestic partners, and co-owners and operators of the website NJDEMS.com. Id. ¶¶ 9-11. NJDEMS.com is a website that was registered on March 20, 2009, and has New Jersey listed as the “home state” under “Registrant Contact Information.” Id. ¶ 12. New Jersey Democratic Party A N.J. Nonprofit Corporation (“NJDP Inc.) is a non-profit corporation with a registered office in New Jersey, and Devine is the registered agent for, and one of the trustees and/or officers of, this nonprofit corporation. Id. ¶ 16.

As the official statewide committee for the Democratic Party, Plaintiff maintains the political organization and management of the Democratic Party in New Jersey. Id. ¶ 22. This includes “setting the party's standards, ideologies, and preferences to maintain the unity of the party throughout the state and give voters a clear depiction of who the party is, what it stands for, and who its standard bearers are.” Id. Since December 1, 1984, Plaintiff has used the mark “New Jersey Democratic Party” in its campaign materials, press releases, and other written and electronic communications to identify Plaintiff's services and represent the origin of those services. Id. ¶¶ 31, 32. Third parties, including local and national news outlets, have also used this mark to refer to Plaintiff since at least 1984, and Plaintiff has become “known” to “persons both inside and outside of New Jersey who are interested in the Democratic Party and its activities” as the “New Jersey Democratic Party.” Id. ¶ 33. Present day sources also associate the mark “New Jersey Democratic Party” with Plaintiff, such as Wikidata, which lists several names by which Plaintiff is “also known as,” including “New Jersey Democratic Party.” Id. ¶ 34. In addition, search engines direct searches for “New Jersey Democratic Party” to Plaintiff's website and other materials prepared by Plaintiff. Id. ¶ 35.

The mark “NJDEMS” has been used as the name of Plaintiff's website-NJDEMS.org- since at least December 25, 1996. Id. ¶ 36. Plaintiff has operated its website at this address since then and uses the website in support of its “statutorily-granted authority under Title 19 as the sole statewide committee authorized to represent the Democratic party in New Jersey.” Id. ¶¶ 37, 106. Through this website and other avenues, Plaintiff communicates with voters regarding its platform and endorsement of candidates in statewide elections. Id. ¶¶ 25, 37. This included endorsing certain Democratic candidates for political office in the 2021 New Jersey general election (“2021 Election”), as well as other upcoming election cycles. Id. ¶ 25. Plaintiff also uses the “NJDEMS” mark on campaign materials that it distributes in relation to elections throughout New Jersey as well as on its website and social media pages to engage with the citizens of New Jersey. Id. ¶¶ 38, 105, 107. On each of its social media pages-Facebook, Twitter, and Instagram, where Plaintiff has approximately 19,000, 14,200, and 1,584 followers, respectively-the “NJDEMS” mark appears in Plaintiff's profile picture, and the mark also appears throughout the page on Twitter and Instagram. Id. ¶¶ 39, 41, 43.^[3]

Plaintiff alleges that in October 2021, in the days leading up to in-person voting for the 2021 Election, and after the start of the mail-in voting period, Defendants sent an unsolicited political mailer (the “Mailer”) to New Jersey residents that was intended to deceive voters into believing that the candidates depicted on the Mailer were endorsed or supported by Plaintiff. Id. ¶ 1. The Mailer was sent to Union County Residents, primarily in the Borough of Roselle. Id. ¶¶ 45-46. One side of the Mailer depicted a picture of Governor Phil Murphy and Lieutenant Governor Sheila Oliver (who were running for re-election, and Plaintiff's nominated candidates) as well as a photograph of three candidates running for the Board of Education in Roselle: Gisselle Bond, Yessica Chavez, and France Cortez. Id. ¶ 47 (citing Exhibit A). Along the bottom, it read: “Paid for by NJDEMS.COM,” “New Jersey Democratic Party,” and “Not authorized by any candidate or committee.” Id. ¶ 49. On the other side, the Mailer included photographs of the same five individuals, with the text, “Please be sure to vote Column 1 for school board & Column A all the way from Governor on Down!,” “Gisselle Bond, Yessica Chavez, & Frances Cortez are the best candidates for Roselle Schools!” Id. ¶¶ 50-51.

Plaintiff claims that the Mailer, which featured the “NJDEMS” and “New Jersey Democratic Party” marks, strongly implied that Plaintiff endorsed or supported the Board of Education candidates, just as Plaintiff had endorsed Governor Murphy and Lt. Governor Oliver in the upcoming election. Id. ¶¶ 1, 48. But Plaintiff did not endorse the school board candidates. Id. ¶ 48. Plaintiff continues that Devine and McCormick have an extensive history of similar deceptive conduct and provide numerous specific examples. Id. ¶¶ 72-95.

II. PROCEDURAL HISTORY

On October 22, 2021, Plaintiff filed a Complaint in the Superior Court of New Jersey, alleging one count of civil conspiracy. D.E. 1-1. The state court temporarily enjoined Defendants from “creating and publishing or transmitting political flyers, communications or advertisements which include or imply endorsement or authorization by [Plaintiff].” D.E. 1-3, 1-9, 1-12. Plaintiff filed its First Amended Complaint (“FAC”) on March 8, 2022, adding five additional claims. D.E. 1-19.

Defendants then removed the action to this Court and moved to dismiss the FAC. D.E. 1, 4. The Court administratively terminated the motion to dismiss on April 11, 2022 and ordered that Plaintiff file an amended complaint. D.E. 15. On May 2, 2022, Plaintiff filed its Second Amended Complaint (“SAC”) and Defendants moved to dismiss and to strike. D.E. 16, 20-1. On October 4, 2022, the Court granted in part and denied in part Defendants' motion to dismiss and to strike (denying the motion to strike and the motion to dismiss as to Count Six and granting the motion to dismiss as to Counts One, Two, Three, Four, and Five). D.E. 29. On November 3, 2022, Plaintiff filed the TAC. D.E. 31. The TAC asserts the same claims as those asserted in the SAC: (1) civil conspiracy (Count One); (2) a violation of the Anticybersquatting Consumer Protection Act (“ACPA”) (Count Two); (3) unfair competition claims pursuant to the Lanham Act, New Jersey statutory law, and common law (Counts Three, Four, and Five, respectively); and (4) a violation of New Jersey's corporate name statute (Count Six). Defendants move to dismiss Plaintiff's unfair competition, cybersquatting, and corporate name statute claims (Counts Two through Six) under Rule 12(b)(6).^[4]

III. LAW AND ANALYSIS

Rule 12(b)(6) permits a motion to dismiss for “failure to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). For a complaint to survive dismissal under Rule 12(b)(6), it must contain sufficient factual matter to state a claim 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)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016).

In evaluating the sufficiency of a complaint, district courts must separate the factual and legal elements. Fowler v UPMCShadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, “must accept all of the complaint's well-pleaded facts as true.” Fowler, 578 F.3d at 210. In deciding a motion to dismiss the Court may also consider any “document integral to or explicitly relied upon in the complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quotation & emphasis omitted)); see also Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Even if plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts...