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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JGX, INC., ET AL.,

Plaintiffs,

v.

JOHN HANDLERY, et al.,

Defendants.

Case No. 17-cv-00287-BLF 

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS WITH LEAVE 

TO AMEND

[Re: ECF 18]

Presently before the Court is the motion to dismiss Plaintiff JGX, Inc., Nick Bovis, Bovis 

Foods, LLC, and SMTM Technology, LLC’s (collectively, “Plaintiffs”) complaint brought by 

Defendants Jon Handlery, Handlery Hotels, Sam Singer, and Singer Associates, Inc. (collectively, 

“Defendants”). Mot., ECF 18; Mem. P. & A. (“Mem”), ECF 18-1. Plaintiffs filed an opposition 

on March 9, 2017. ECF 20.

1

 Defendants filed a reply on March 16, 2017. ECF 22. The Court 

heard oral argument on Defendants’ motion on August 10, 2017. The Court has considered the 

parties’ briefing and oral argument presented at the hearing. For the reasons stated on the record 

and below, the Court GRANTS the motion with leave to amend.

 

1

Plaintiffs also filed a request for judicial notice requesting the Court to take judicial notice of the 

stipulation and order barring Defendants’ use of the trademark during the pendency of the action. 

ECF 21. The stipulation and order is filed in this case at ECF 16. Judicial notice of the stipulation 

and order is appropriate because it is a document publicly filed with this Court. See Mir v. Little 

Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of matters of 

public record).
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United States District Court

Northern District of California

This case involves a dispute over the intellectual property rights to the San Francisco 

landmark “LEFTY O’DOUL’S.” Plaintiffs allege ownership of the mark and bring claims against 

Defendants for trademark infringement, dilution, and unfair competition in connection with 

Defendants’ alleged “actual and intended” unauthorized use of the mark. Compl. ¶¶ 65, 69, ECF 1. 

Defendants argue that the complaint fails to state a claim for relief because Plaintiffs have failed to 

allege any actionable “use” of the marks at issue by Defendants. See generally Mem. Defendants 

further argue that the complaint lacks factual allegations to support claims against defendants Jon 

Handlery, Sam Singer, and Singer Associates, Inc. in their individual capacities. Id. 

The Court finds that the complaint fails to adequately allege actionable “use” of the 

“LEFTY O’DOUL’S” mark by any of the Defendants. The parties do not dispute that all of 

Plaintiffs’ trademark claims are subject to a “commercial use” requirement. See, e.g., Bosley Med. 

Inst., Inc. v. Kremer, 403 F.3d 672, 676 (9th Cir. 2005) (“The Supreme Court has made it clear 

that trademark infringement law prevents only unauthorized uses of a trademark in connection 

with a commercial transaction in which the trademark is being used to confuse potential 

consumers.”) In the complaint, Plaintiffs rely on statements made by Handlery Hotels and its 

agents in order to allege use of the mark by Defendants. Compl. ¶¶ 10, 11, 12, 45. As alleged, the 

statements in the complaint demonstrate the belief held by Handlery Hotels that the “LEFTY 

O’DOUL’S” mark belongs to the Handlery family. However, the statements alone do not create 

the plausible inference that Defendants actually, or imminently will, use the mark in commerce. 

See Name.Space, Inc. v. Internet Corp. for Assigned Names & Numbers, 795 F.3d 1124, 1133 (9th 

Cir. 2015) (affirming the district court’s dismissal of the complaint because plaintiff did not allege 

“actual or imminent infringement.”) (quoting Swedlow, Inc. v. Rohm & Haas Co., 455 F.2d 884, 

886 (9th Cir. 1972)). 

For these reasons and the reasons stated on the record, the Court finds that the complaint 

fails to allege facts to support a plausible basis for Defendants’ actual or imminent use of the 

mark. Plaintiffs’ trademark claims are therefore DISMISSED WITH LEAVE TO AMEND. 

Moreover, Plaintiffs’ failure to allege trademark violations requires that the unfair competition 

claim under § 17200 of California’s Unfair Competition Law (“UCL”) also be DISMISSED 
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United States District Court

Northern District of California

WITH LEAVE TO AMEND. Although § 17200 liability can be premised on trademark 

violations, see Cleary v. News Corp., 30 F.3d 1255, 1263 (9th Cir.1994), the claim cannot stand 

independently of a trademark violation or other unlawful act. See Name.Space, 795 F.3d at 1134. 

In any event, unfair competition liability itself requires a “misleading or deceptive use.” Los 

Defensores, Inc. v. Gomez, 223 Cal. App. 4th 377, 394, 166 Cal. Rptr. 3d 899, 913 (2014).

The Court also agrees with Defendants that the complaint fails to allege facts supporting 

any claims against defendants Jon Handlery, Sam Singer, and Singer Associates, Inc. Plaintiffs 

argue that the complaint sufficiently alleges that the defendants “and each of them” used Sam 

Singer as the “mouthpiece” to communicate their trademark infringement, dilution, and unfair 

business practices. Opp’n 2. The complaint must adequately notify all Defendants of the claims 

against them and the acts that expose them to liability. The Court finds that the allegations in the 

complaint are insufficient to satisfy Federal Rule of Civil Procedure 8(a) notice pleading as to Jon 

Handlery, Sam Singer, and Singer Associates, Inc. While a complaint need not contain detailed 

factual allegations, it “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 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 

As such, an amended complaint would need to allege facts regarding the misconduct of Jon 

Handlery, Sam Singer, and Singer Associates, Inc. attributable to them in their individual

capacities rather than in their capacities as representatives of Handlery Hotels. 

Pursuant to Federal Rule of Civil Procedure 15(a), a court should grant leave to amend a 

complaint “when justice so requires,” because “the purpose of Rule 15 ... [is] to facilitate decision 

on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 

(9th Cir. 2000) (en banc). The Court notes that Plaintiffs raised relevant allegations in their 

opposition that are not included in the complaint. For example, Plaintiffs contend that Defendants 

used a sign bearing the “LEFTY O’DOUL’S” mark after the expiration of Plaintiffs’ lease. Opp’n

8. Further, Plaintiffs state that they lost licensing and franchising deals and were unable to lease a 

new space for the “LEFTY O’DOUL’S” restaurant. Opp’n 2. Although the Court does not 
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United States District Court

Northern District of California

consider these allegations in the instant motion to dismiss, such additional allegations could 

bolster Plaintiffs’ claims. 

Accordingly, the Court GRANTS Defendants’ motion to dismiss the complaint with leave 

to amend the deficiencies articulated above and on the record. Plaintiffs shall file an amended 

complaint that addresses these deficiencies on or before September 15, 2017. 

Dated: August 11, 2017

______________________________________

BETH LABSON FREEMAN

United States District Judge