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Decision Yahoo Lottery

Decision Yahoo Lottery

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Published by mschwimmer
trademark decsiion SDNY, yahoo fake lottery, defamation privilege
trademark decsiion SDNY, yahoo fake lottery, defamation privilege

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Published by: mschwimmer on Feb 07, 2011
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02/07/2011

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NITED STATES DISTRICT
COURT
SOUTHERN
DISTRICT
OF
NEW
YORK
DATE
PILED-
IJi,/
/lJ
------x
YAHOO,
INC.,
I
I
08
Civ.
4581
(LTS)
(THK)
Plaintiff,
-against
(PRO
SE)
DAIANN
NAKCHAN,
et
al.,
Defendants.
-----
-----------
--x
TO:
HON. LAURA TAYLOR
SWAIN, UNITED STATES DISTRICT JUDGE.
FROM:THEODORE
H.
KATZ,
UNITED STATES
MAGISTRATE
JUDGE.
Plaintiff
Yahoo,
Inc.
brings
this
action
claiming,
inter
trademark
infringement,
counterfeiting,
false
signation
of
gin,
and
dilution, arising
outof
a
conspiracy involving
defendants
around
the
world
who
deceived
internet
users
into
believing
that
they
had
won a
lottery
or
ze
of
by
Yahoo.
Presently
before
the
Court
is Plaintiff's
motion
to
dismiss thecounterclaim
of
Defendant
Emmanuel
C.
On
("Onyema").For
the
reasons
that
follow
the
Court
recommends
that
Plaintiff's
motion
be
granted.
DISCUSSION
In
an
Order,
dated
October
13,
2010,
the
District
Court
granted
Plaintiff's
motion
for
judgment
on
the pleadings
and
di
ssed
Onyema's
counterclaims
hout
prejudice to
ading.
The
Order
gave
Onyema
until
November
15,
2010
to
replead
his
Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 1 of 7
 
counterclaims,
and
specificallystated that
"[i]f
no
ty
answer
wi
th
countercl
is
filed
and
served
by
November
15,
2010,Onyema's
counte
aims
will
be
smissed
with
judice
without
further notice."
Onyema
did
not
file
his
Amended
Answer
and
Counterclaim
until
November
16, 2010.
Docket
Entry
#
80.)
PIa
iff
now
seeks
the
dismiss
of the
counterclaim
arguing
(1)
the
counterclaim
is
untimely,
and
(2)
it
fails
to
state
a
claim
for
reI f.
(See
Memorandum
of
Law
in
Support
of
PIa
iff's
Motion
to
Dismiss
the
Counterclaim
of
Defendant
Emmanuel
C.
Onyema
and
Stay
of
Discovery
("Pl.'
s
Mem.).)
Onyema
has
not
responded
to
the
motion.
Although
Onyema's
amended
answer
and
counterclaim
is,
i
untimely,
in
view
of
fact
that
(1)
it
was
late
by
only
one
day,
(2)
Onyema
is
proceedingpro
se,
(3)
Plaintiff
has
not
prejudi
by
the
delay, the
Court
will
address
the
counterclaim
on
its
me
s.
I.
Motion
to
Dismiss
StandardIn
iding
a
mot
to
dismiss
under
Rule
12
(b)
(6),
a
court
"must
as
true
all
of the
1
allegations set
out
in
[the]
plaintiff's
complaint,
draw
inferences
from
t e
allegations
in
the
1
most
favorable
to
[the]
p
intiff,
construe
complaint
1
lly."
Roth
v.
Jennings,
489
F.3d
499,
510
(2d
Cir.
2007)
(quotGregory
v.
Daly,
243F.
687,
691
(2d
Cir.
2001));
2 
Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 2 of 7
 
~~~:::£..
. ! . ! . ~ ~ = - . . . . . . . : - = - - . = : . . : : ! . . . ! . . . - . : ~ . . . . : : : : . ; : , : ~ ~ , 
287 F.3d
138,
145(2d
Cir.
2002). 
"This
is
especially
true
when
deal
ing
with
.121:Q.
secomplaints
al
ing
c I
rights
lations."
Weixel,
287
F.3d
at
146.
Notwithstanding
lowances
that
courts
make
r
prose
litigants,
however,
they
are
not
exempt from
the
usual
pleading
requirements.
See
Graham
v.
Knebel,
No.
08
Civ.
4363
(LAP),
2009
WL
4334382,
at
*2
(S.D.N.Y.
Dec.
1,
2009).
Supreme
Court's
decision inBell
Atlantic
Corp.
v.
Twombly,
550
U.S.
544,127
S.
Ct.
1955
(2007), adds
a
"plaus
lity
standard," in
evaluat the
sufficiency
of
a
complaint,
which
is
guided
by
"[t]wo
working
principles."
Ashcroft
v.
Iqbal,
U.S.
,
129
S.
Ct.
1937,
1949
(2009);
see
also
Harris
v.
Mills,
572
F.3d
66,
72
(2d
Cir.
2009);
Bilello
v.
J.P.
Morgan
Chase
Ret.
Plan,
No.
07
Civ.
7379
(DLC),
2009
WL
2461005,
at
*5-6
(S.D.N.Y.
Aug.
12,
2009).
"rst,
tenetthat
a
court
must
accept
as
true
I
ofthe
allegations
contained
in
a
complaint
is
inapplicable
to
legal
conclusions.
Threadbare
recitals
of
elements
of
a
cause
of
action,
supported
by
mere
conclusory
statements,
do
not
suffice."
Iqbal,
129 S.
Ct.
at
1949;
see
also
Harris,
372
F.3d
at
72.
"Second,
only
a
complaint
that
states
a
plausib
claim
for
relief
survives
a
motion
to
dismiss,"
and
"[d]etermining
whether
a
compla
states
a
plausible
claim
for
relief
will
be
a
context-specific
task
that
requires
the
reviewing
court
to
draw on
3 
Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 3 of 7

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