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Wisey's #1 LLC v. Nimellis Pizzeria LLC

United States District Court, District Circuit

July 9, 2013

WISEY’S #1 LLC, Plaintiff,
v.
NIMELLIS PIZZERIA LLC; MINELLIS PIZZERIA ENTERPRISES LLC; and DAVAR ASHGRIZZADEH, Defendants.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

After Wisey’s #1 LLC (“Wisey’s”) brought federal statutory and state common law claims against Nimellis Pizzeria LLC, Minellis Pizzeria Enterprises LLC, and Davar Ashgrizzadeh (collectively “Nimellis”), the defendants filed counterclaims alleging four state common law torts against Wisey’s for the actions of its employees. Wisey’s has now moved to dismiss the counterclaims under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure state a claim upon which relief can be granted. For the reasons stated below, the Court will grant Wisey’s motion to dismiss under Rule 12(b)(1) without reaching the Rule 12(b)(6) motion.

FACTS

Davar Ashgrizzadeh owns and operates Minellis Pizzeria Enterprises LLC, a defunct entity no longer operating, and Nimellis Pizzeria LLC. Am. Countercls. [Docket Entry 24] ¶ 7 (Jan. 9, 2013). Nimellis owns and operates a restaurant known as Café Romeo’s located at 2132 Wisconsin Avenue N.W. in the District of Columbia. Id.

Nimellis’ counterclaims stem from an alleged business feud that began around June 2011 when Café Romeo’s started to offer smoothies. See id. ¶¶ 9, 11. “On or around June or August 2011, ” Nimellis alleges an agent, owner, or employee of Wisey’s approached Ashgrizzadeh and demanded that Café Romeo’s stop selling smoothies. Id. ¶¶ 9, 11. Wisey’s is an active competitor in the Georgetown and broader District of Columbia smoothie market and is located at 1440 Wisconsin Avenue N.W. in the District of Columbia. Id. ¶¶ 4, 13. The agent, owner, or employee told Ashgrizzadeh that if Café Romeo’s sold milkshakes instead of smoothies, then Wisey’s and Café Romeo’s could be “friends, ” but if Café Romeo’s continued to sell smoothies, then Wisey’s would destroy Café Romeo’s business. See id. ¶ 11.

When Café Romeo’s refused to stop selling smoothies, Nimellis alleges that Wisey’s through its owner Nabeel Audeh and its employee Helal Awadallah began a defamatory campaign to embarrass Ashgrizzadeh and “destroy Café Romeo’s underlying business.” See Id . ¶ 14. Many of the subsequent actions involved Ashgrizzadeh’s status as a sex offender. See, e.g., id. ¶ 15. In 1996, Ashgrizzadeh pleaded guilty to a sex offense involving another adult, for which he served a two-year sentence and is listed on the sex offender registry in Virginia. See id. ¶ 16.

Nimellis alleges that in the summer of 2011, through its owners, agents, or employees— including Awadallah—Wisey’s told its own customers that Ashgrizzadeh was a “psychopath” and a “child molester” while disseminating his sex offender registry information to them. See Id . ¶ 15. Nimellis also alleges that in or around February 2012, Wisey’s through its owners, agents, or employees sent text messages to Café Romeo’s employees that contained Ashgrizzadeh’s sex offender registry information. Id. ¶ 17.

In June 2012, Café Romeo’s began trading as WISEATS/Wise Eats Café “as a reaction to the damages caused by the plaintiff’s [Wisey’s] behavior.” Id. ¶ 18.[1] Café Romeo’s trade changes led to Wisey’s initial complaint in this action, which included claims of federal trademark infringement, federal unfair competition, and federal unlawful cybersquatting based on Nimellis’ alleged infringement of Wisey’s mark and menu, as well as the registration of www.wiseats.com. See Compl. [Docket Entry 1] ¶¶ 67, 79, 84 (Sept. 27, 2012). Nimellis alleges that after Café Romeo’s began trading as WISEATS/Wise Eats Café, Wisey’s harassment “began to escalate and become more aggressive.” See Am. Countercls. ¶ 18.

“On or about” the end of May or June 1, 2012, Ashgrizzadeh allegedly found printouts of his sex offender registry information on cars and slid underneath apartment doors in his apartment complex in Virginia. See id. ¶ 19. Ashgrizzadeh saw Awadallah nearby with fliers, at which time Awadallah allegedly told him “[t]his is nothing. You’ll see what’s coming.” See Id . “In or around” June 3, 2012, Awadallah allegedly asked two of Ashgrizzadeh’s employees whether they knew that Ashgrizzadeh had “raped a nine-year-old boy.” Id. ¶ 23. Then, “[o]n or about” August 22, 2012 at around 2:00 p.m. or 2:30 p.m., Audeh allegedly arrived at Café Romeo’s and accused Ashgrizzadeh of copying Wisey’s menu while threatening to put Café Romeo’s out of business. See id. ¶ 20. Audeh also allegedly said that Ashgrizzadeh had molested a nine-year-old boy and was a pedophile in front of several unnamed patrons and two named employees of Café Romeo’s. See id. ¶ 20 & n.2. Two regular lunch customers present for the alleged incident have not returned since. See id. ¶ 22.

Around the end of August 2012, Awadallah allegedly approached Ashgrizzadeh at a Restaurant Depot in Virginia, where both restaurants purchased supplies. See id. ¶ 24. While Ashgrizzadeh was checking out, Awadallah asked the cashier whether she knew that Ashgrizzadeh[2] had “raped a nine-year-old boy” and “was a pedophile with mental issues.” See id.

Finally, on September 7, 2012 around 10 p.m., Ashgrizzadeh was driving with two employees of Café Romeo’s in Georgetown. See id. ¶ 25. When Ashgrizzadeh stopped at the corner of Potomac Avenue and M Street, NW, Awadallah shouted from the car next to him at the employees, asking whether they knew Ashgrizzadeh was a sex offender. Id.

Wisey’s filed a complaint that included federal claims for trademark infringement, unfair competition and unlawful cybersquatting under the Lanham Act (collectively “Lanham Act claims”). See Compl. at 11. Nimellis responded with counterclaims, now amended, alleging common law defamation, tortious interference with prospective business advantage, anticompetitive conduct and intentional infliction of emotional distress (IIED). See Am. Countercls. ¶¶ 35, 39, 45, 57. Nimellis alleges that Wisey’s actions have lost Nimellis former and potential customers of dine-in, takeout and delivery options, as well as damage to its reputation and goodwill. See id. ¶¶ 27-29. Currently before the Court is Wisey’s motion to dismiss Nimellis’ amended counterclaims.

STANDARD OF REVIEW

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court— counter-plaintiff Nimellis here—bears the burden of establishing that the court has jurisdiction. See U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). Furthermore, because subject matter jurisdiction focuses on the Court’s authority to hear the party’s claims, a Rule 12(b)(1) motion “imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). Therefore, the party’s factual allegations in its counterclaims “‘will bear closer scrutiny in resolving a 12(b)(1) ...


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