Opinion
22-CV-1071 (PMH)
02-11-2022
JOSEPH SUOZZO, Plaintiff, v. BECK CHEVROLET CO., INC.; RUSSELL S. GELLER Defendants.
ORDER TO AMEND
PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE
Joseph Suozzo (“Plaintiff”) brings this pro se action invoking the Court's federal question subject-matter jurisdiction. He sues Beck Chevrolet Co., Inc. (“Beck Chevrolet”) and its President and owner, Russell S. Geller (“Geller and together, “Defendants”), alleging that they violated his due process rights under the Fourteenth Amendment. (Doc. 1, “Compl.” at 2). Plaintiff, who has paid the filing fees to bring this action, seeks damages and injunctive relief.
Citations to the Complaint correspond to the pagination generated by ECF.
The Court, considering Plaintiff's Complaint with the liberality required of pro se pleadings, construes the Complaint as asserting claims of false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1), as well as claims under state law. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 30 days of the date of this order.
STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the fees to bring a federal civil action, if it determines that the action is frivolous, see Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000), fails to state a claim, Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994), or that the Court lacks subject-matter jurisdiction, see Fed.R.Civ.P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court is obliged, however, to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court of the United States has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id. But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Id. (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id. at 679.
BACKGROUND
Plaintiff alleges the following: On July 30, 2021, Plaintiff brought his 1973 Buick Centurion convertible to Beck Chevrolet for minor repairs; Plaintiff gave one of Beck Chevrolet's supervisors (“Dennis”) a written list of the repairs requested. (Compl. at 8). Dennis told Plaintiff that the repairs should be done in two or three days. (Id.). “Notwithstanding [Plaintiff's] constant follow-up visits with Dennis to find out the status, ” however, the repairs have not been completed, and Plaintiff's vehicle remains in the possession of Beck Chevrolet. (Id. at 8-9).
Plaintiff alleges that “Dennis comes across as completely believable no matter how often he breaks his promise. [Plaintiff] had no reason to doubt his sincerity[, ] so [he] continued to leave the car with the hope that one day the repairs actually would be completed.” (Compl. at 8).
Because Plaintiff became “exasperated by the endless delays, ” on January 19, 2022, Plaintiff hand-delivered a letter to Geller, Beck Chevrolet's President and owner. (Id. at 8). After Geller read the letter and had a short discussion with Plaintiff, “during which [Geller] got angrier . . . and even surly, ” Geller told Plaintiff that he “was trespassing on private property[, ] order[ed] [Plaintiff] to immediately leave the premises[, ] [and informed Plaintiff] that he would advise his staff never to allow [Plaintiff] onto the dealership again....” (Id.). Geller refused to discuss the subject of Plaintiff's letter and threatened to have Plaintiff arrested if Plaintiff ever visited Beck Chevrolet again. (Id.).
One week later, Plaintiff received a telephone call from Bob Brunner, a Beck Chevrolet service manager, who told him to come and retrieve his vehicle. Plaintiff asked Brunner if the repairs had been completed; Brunner told him that he had been instructed “‘not to touch that car again.'” (Id.). Plaintiff visited Beck Chevrolet the next day, and asked Dennis “if he would at least install the new set of tires [Plaintiff] had sent to him and do an inspection ” (Id.). Dennis and Plaintiff then went to Brunner's office, and Dennis asked Brunner if he could grant Plaintiff's request; Brunner again stated that he “‘was instructed not to touch that car again.'” (Id.).
Plaintiff asserts claims of false advertising, deceptive practices, and tortious interference with contract. With respect to Plaintiff's claims of false advertising, Plaintiff alleges that the Defendants falsely advertise that they treat customers “‘like family[, ] . . . put[] the customer first[, ] . . . [and that] taking care of customers is what [they] do best.” (Id. at 9). Plaintiff is restoring his vehicle in order to sell it at auction; Defendants' failure to repair the vehicle has delayed its sale.
Plaintiff seeks damages as well as “specific performance of all repairs contracted for.” (Id. at 10).
DISCUSSION
Under the Lanham Act:
[a]ny person who, on or in connection with any goods or services . . . uses in commerce . . . any . . . false or misleading description of fact, or false or misleading representation of fact, which . . . 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.15 U.S.C. § 1125(a)(1)(B).
To state a claim of false advertising under the Lanham Act, “a plaintiff must [show] that the challenged message is (1) either literally or impliedly false, (2) material, (3) placed in interstate commerce, and (4) the cause of actual or likely injury to the plaintiff.” Church & Dwight Co., Inc. v. SPD Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 65 (2d Cir. 2016); see Ideavillage v. Products Corp. v. Cooper Compression Brands LLC, No. 20 Civ. 4604, 2021 WL 5013799, at *6 (S.D.N.Y. Oct. 27, 2021) (pleading requirements for claim of false advertising under the Lanham Act (quoting Church & Dwight Co., Inc., 843 F.3d at 65))).
With respect to the requirement that the challenged message be literally or impliedly false:
[a] plaintiff may establish falsity in two different ways. To establish literal falsity, a plaintiff must show that the advertisement either makes an express statement that is false or a statement that is false by necessary implication, meaning that the advertisement's words or images, considered in context, necessarily and unambiguously imply a false message.... If a message is not literally false, a plaintiff may nonetheless demonstrate that it is impliedly false if the message leaves an impression on the listener or viewer that conflicts with reality.Church & Dwight Co., Inc., 843 F.3d at 65 (internal quotation marks and citations omitted). Further, statements of opinion or puffery are nonactionable under the Lanham Act. Davis v. Avvo, Inc., 345 F.Supp.3d 534, 539-543 (S.D.N.Y. 2018).
While Plaintiff alleges that Defendants falsely advertise that they treat customers “‘like family[, ] . . . put[] the customer first[, ] . . . [and that] taking care of customers is what [the defendants] do best” (Compl. at 9), he does not allege facts sufficient to state a claim of false advertising under the Lanham Act with respect to Defendants' alleged failure to repair his vehicle. District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects unless it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because it is unclear if the defects in the Complaint can be cured with an amendment, the Court grants Plaintiff leave to amend his complaint to allege facts sufficient to state a claim of false advertising under the Lanham Act.
LEAVE TO AMEND
Plaintiff is granted leave to amend his Complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who injured Plaintiff; how, when, and where such injuries occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
The Court grants Plaintiff leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 30 days of the date of this order, caption the document as an “Amended Complaint, ” and label the document with docket number 7:22-CV-1071 (PMH). An amended complaint form is attached to this order.
Defendants need not respond to Plaintiff's Complaint until the Court directs them to do so.
If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the Court will dismiss this action; the Court will dismiss Plaintiff's claims under federal law for failure to state a claim on which relief may be granted, and the Court will decline to consider, under its supplemental jurisdiction, Plaintiff's claims under state law.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 44445 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of Court is respectfully directed to mail a copy of this order to Plaintiff and note service on the docket.