MEMORANDUM & ORDER
VITALIANO, United States District Judge.
Plaintiff Scott Stephens brought this action, arising under New York common law, against Trump Organization LLC, Donald J. Trump, Alan Garten, and Michael Cohen, seeking compensatory and declaratory relief on claims of defamation and tortious interference with business relations. Compl., ECF No. 1. Defendants have moved to dismiss, under Rule 12(b)(6), for failure to state a claim upon which relief might be granted. Defs. Mot., ECF No. 20. Stephens has opposed the motion, but, in the alternative, asks for leave to amend. P l. Mem. at 17, ECF No. 23. For the reasons stated below, the motion to dismiss is granted in its entirety, plaintiff's request for leave to amend is denied, and the complaint is dismissed with prejudice.
Domain Names and Cybersquatting
Lying at the core of this lawsuit are allegations of "cybersquatting," that is, the practice of procuring "the registration as domain names of well-known trademarks by non-trademark holders who then try to
UDRP allows a trademark holder to initiate an administrative proceeding against a squatting domain name registrant to cancel or transfer the offending domain name when
UDRP ¶ 4(a).
Obviously, given that administrative decisions under UDRP are not binding on the courts, see Web-adviso v. Trump, 927 F.Supp.2d 32, 37 n. 2 (E.D.N.Y.2013), aff'd sub nom. Yung v. Trump, 648 Fed. Appx. 24 (2d Cir.2016), resort to judicial remedies is likely unavoidable where disputes continue. Indeed, UDRP specifically contemplates that parties may file an action with a court of competent jurisdiction. UDRP ¶ 4(k). The interests of trademark holders and domain name registrants are both protected by the federal Anti-Cybersquatting Consumer Protection Act ("ACPA"), Pub. L. No. 106-113, § 3001 et seq., a 1999 amendment to the Lanham Act. ACPA prohibits registrants from registering domain names that are identical or confusingly similar to a distinctive or famous mark, with a bad faith intent to profit from that mark. 15 U.S.C. § 1125(d)(1)(A). Both UDRP and ACPA, at the same time, protect registrants from "reverse domain name hijacking," or bad faith attempts "to deprive a registered domain-name holder of a domain name." UDRP ¶¶ 1, 15; see 15 U.S.C. § 1114(2)(D)(V)(v). ACPA provides that "[a] domain name registrant whose domain name has been suspended, disabled, or transferred under a policy [such as UDRP] may, upon notice to the mark owner, file a civil action to establish that the registration or use of the domain name by such registrant is not unlawful under this chapter."
Stephens, a citizen of California, filed this action against defendants, who are each citizens of New York, seeking damages in excess of $75,000. Compl. ¶¶ 3-20.
Although not mentioned in the complaint, on March 18, 2015, Trump filed a complaint with WIPO to engineer the transfer of the "trumpestates.com" domain name from Stephens to Trump. Maron Decl. Ex. 2, ECF No. 22.
Stephens filed this action on April 19, 2015, before the WIPO administrative panel issued its decision. Orbiting the core matters then pending before WIPO, his claims of defamation and tortious interference with business relations were pegged to allegations that the Trump defendants "communicated false statements to at least one third party about [him] that [have] harmed his reputation." Compl. ¶ 63. These allegedly defamatory statements include those that he was "violating the law" and "cybersquatting" through his registration of "trumpestates.com." Id. ¶¶ 64-66. He further alleges, generally, that defendants "interfered with [his] business relations with the intent to harm [him]." Id. ¶ 68. Additionally, Stephens prays for a declaratory judgment that he did not, by registering the domain name "trumpestates.com," violate federal trademark law, UDRP, UDRP Rules, or WIPO Rules. Id. ¶¶ 71-82. The complaint does not contain an ACPA claim.
"[A] complaint must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is 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. Prior to filing a responsive pleading, a defendant may move to dismiss a complaint pursuant to Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
When considering a 12(b)(6) motion, the district court must "accept all factual allegations in the complaint as true and draw
The Trump defendants argue that each cause of action is insufficiently pled and must be dismissed. Defs. Mem., ECF No. 21; Defs. Reply Mem., ECF No. 24. Stephens, in a two way response, opposes the motion, but, in the alternative, requests leave to amend the complaint to cure any deficiencies. Pl. Mem., ECF No. 23. The parties concur that New York law governs plaintiff's common law claims. See Chau v. Lewis, 771 F.3d 118, 126 (2d Cir.2014).
To state a claim for defamation under New York law, a plaintiff must plead that "the defendant published to a third party a defamatory statement of fact that was false, was made with the applicable level of fault, and either was defamatory per se or caused the plaintiff special harm, so long as the statement was not protected by privilege." Chandok v. Klessig, 632 F.3d 803, 814 (2d Cir.2011); see Salvatore v. Kumar, 45 A.D.3d 560, 845 N.Y.S.2d 384, 388 (2d Dep't 2007). Although New York law would require the plaintiff to include the specific defamatory words in the complaint, the more liberal federal pleading standard is satisfied when the complaint "adequately identifies the purported communication, and [identifies] who made the communication, when it was made, and to whom it was communicated." Radin v. Tun, No. 12 Civ. 1393 (ARR) (VMS), 2015 WL 4645255, at *23 (E.D.N.Y. Aug. 4, 2015) (quoting Vanderwoude v. City of New York, No. 12 Civ. 9046 (KPF), 2014 WL 2592457, at *19 (S.D.N.Y. June 10, 2014)); see Thai v. Cayre Grp., Ltd., 726 F.Supp.2d 323, 329 (S.D.N.Y.2010) (same).
Stephens's complaint fails to satisfy this clear and basic pleading standard. Specifically, it does not identify who made the allegedly defamatory statements, when they were made, and whom they were made. See Compl. ¶¶ 64-65. The complaint then tersely accuses the Trump defendants of making other unidentified, but purportedly defamatory, statements. Id. ¶ 66. Stephens's opposition brief also alludes, for the first time, to unpled allegations of defamation concerning trademark infringement and UDRP Rules. See Pl. Mem. 12. These claims also lack the basic specificity required under Rule 8. Moreover, Stephens's opposition makes no attempt to remedy any of the initial pleading deficiencies asserted by defendants.
Far more significantly, even had the complaint satisfied the fundamental pleading requirements, Stephens's actions would have barred his filing of a good faith defamation claim To come right to the point, the website hosted at "trumpestates.com,"
Tortious Interference With Business Relations
To plausibly plead a claim for tortious interference with business relations, New York law requires a plaintiff to interpose supporting allegations that, "(i) the plaintiff had business relations with a third party; (ii) the defendants interfered with those business relations; (iii) the defendants acted for a wrongful purpose or used dishonest, unfair, or improper means; and (iv) the defendants' acts injured the relationship." Scutti Enters., LLC. v. Park Place Entm't Corp., 322 F.3d 211, 215 (2d Cir.2003) (quoting Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir.2002)). The failure to identify a specific business relationship with a third party is "fatal" to a claim of tortious interference. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 115 (2d Cir.2010); see Transcience Corp. v. Big Time Toys, LLC, 50 F.Supp.3d 441, 457 (S.D.N.Y.2014) (same). Plainly, the complaint does not identify any third party with which plaintiff had a business relationship, let alone with which defendants interfered and injured.
"In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). To be an actual controversy, "the dispute [must] be `definite and concrete, touching the legal relations of parties having adverse legal interests'; and  it [must] be `real and substantial' and `admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 771, 166 L.Ed.2d 604 (2007) (quoting Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81 S.Ct. 617 (1937)). As with any pleading, the complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
Stephens is in pursuit of blanket declarations that he has not violated federal trademark law, UDRP, UDRP Rules, or WIPO Rules by registering the domain name "trumpestates.com," without identifying any specific statutes, policy provisions, or rules that are in actual contention, nor the facts that would entitle him to relief. At minimum, certainly, these sweeping requests violate Rule 8 because they do not "give [defendants] fair notice of what the ... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Instead, the pleading would require defendants to guess the provision of law or policy that might be in dispute.
Plaintiff, in the context of this motion, suggests his request for declaratory judgment is made in response to the WIPO decision, pursuant to ACPA's reverse domain name hijacking provision, 15 U.S.C. § 1114(2)(D)(V)(v). See Pl. Mem. 17. Of course, the complaint, which predates the WIPO decision, does not contain any claim asserted under ACPA. Notwithstanding, although APCA contemplates declaratory actions that the registration of a particular domain name "is not unlawful under this chapter," 15 U.S.C. § 1114(2)(D)(V)(v), Stephens has not pled sufficient facts to support a finding that such a claim has been plausibly pled.
As discussed above, ACPA's provision against cybersquatting prohibits the registration of domain names that are confusingly similar to famous or distinctive marks. 15 U.S.C. § 1125(d)(1). Stephens alleges that the phrases "trumpestates," "trump estates," and "trumpestates.com" have not been trademarked. Compl. ¶¶ 72-74. But, ACPA requires only confusing similarity, not complete identity with an existing trademark. 15 U.S.C. § 1125(d)(1)(A)(ii)(I); see Web-adviso, 927 F.Supp.2d at 41 (the domain names "trumpbeijing.com" and "trumpindia.com," were confusingly similar to the TRUMP® mark). Moreover, Stephens does not offer any factual allegations that he acted in good faith when he registered the cybersquatting domain name. Instead, Stephens actually admits that his business is the reselling of domain names,
Leave to Amend
Finally, Stephens requests permission to amend his complaint in lieu of dismissal. While leave to amend should be freely given "when justice so requires," Fed. R. Civ. P. 15(a)(2), leave is properly denied when the amendment would be futile. See TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir.2014). Moreover, "[a] plaintiff need not be given leave to amend if [he] fails to specify  to the district court ... how amendment would cure the pleading deficiencies in [his] complaint." Id. at 505.
Stephens, most assuredly, would not be the first to bemoan that the entrepreneurial spirit embodied in his business model had been snuffed out by an entanglement of intense federal regulation. Since the first American progressive era heralded by the presidency of Theodore Roosevelt, the American body politic has embraced a network of intense regulation of business to protect pure food and drugs, the public health, the environment, workers, consumers, and, indeed, business itself. The Trump defendants are entitled to seek refuge in those federal regulations to blunt Stephens in his entrepreneurship and bar the legal remedies he would pursue to fend them off. That network of regulations makes crystal clear that, even in cyberspace, the TRUMP® mark is entitled to regulatory protection fair and square. It is inconceivable that Stephens could, as the silence of his papers emphasizes, plead any facts that would entitle him to co-opt the Trump name, that any words used by the Trump defendants to denounce his cybersquatting (in all of its forms) would be defamatory, or that seeking to block his use of the Trump domain name he registered would interfere with any of his legitimate business relations. As a consequence, leave to amend is not warranted and is denied.
For the reasons explained above, the motion of the Trump defendants to dismiss
The Clerk of Court is directed to enter judgment accordingly and to close this case.