MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART [20] MOTION TO DISMISS
DAVID NUFFER, District Judge.
Defendant Ellucian Company, L.P. moved to dismiss the complaint for late service of process and for failure to state a claim.1 Plaintiff Eleutian Technology, Inc., responded in opposition.2 Ellucian replied in support of the motion.3
After a hearing before Judge Jenkins,4 both parties were ordered to supplement the briefing.5 Eleutian6 and Ellucian7 provided additional briefing.
On November 29, 2016, Judge Jenkins recused and the case was reassigned to Judge Waddoups.8 On November 30, 2017, Judge Waddoups recused and the case was reassigned to the undersigned.9
The 12(b)(5) portion of the Motion to Dismiss depends on the validity of a Ruling and Order Extending Time to Serve Complaint10 entered by the magistrate judge prior to Judge Jenkin's assignment as case presiding judge. Because the Ruling and Order Extending Time to Serve Complaint resolves dispositive issues in the case, it is reviewed de novo.
The Ruling and Order Extending Time to Serve Complaint11 is ADOPTED as the order of the court. The Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The third claim for relief is DISMISSED WITH PREJUDICE; the portions of the fourth and eighth claims for relief are DISMISSED WITHOUT PREJUDICE; and the seventh claim for relief is DISMISSED WITH PREJUDICE.
Table of Contents
Background Procedure and Facts 3
Discussion 5
The Complaint will not be dismissed for late service 5
The Motion for Extension of Time will be reviewed de novo. 5
The Ruling and Order Extending Time to Serve Complaint is adopted 8
The third and seventh claims for relief are dismissed with prejudice and portions of the
fourth and eighth claims for relief are dismissed without prejudice 11
The third claim for relief is dismissed with prejudice for failure to state a claim 13
The portions of the fourth and eighth claims for relief that relate to dilution by
tarnishment are dismissed without prejudice for failure to state a claim 15
The seventh claim for relief is dismissed with prejudice for failure to state a
claim 19
Order 21
BACKGROUND PROCEDURE AND FACTS
1. Eleutian filed the complaint on September 9, 2015.12
2. The case was assigned to Magistrate Judge Pead.13
3. Counsel for Eleutian emailed a "courtesy copy" of the complaint to Lori Lesser, an individual at Ellucian's counsel's firm.14
4. The time period allotted by Federal Rule of Civil Procedure 4(m) for service expired on January 7, 2016.
5. On January 26, 2016, Eleutian moved for an extension of time to serve the complaint.15
6. In that motion, Eleutian requested a permissive extension.16
7. Magistrate Judge Pead granted the Motion for Extension of Time in the Ruling and Order Extending Time to Serve Complaint.
8. The Complaint includes the following causes of action:
a. First Claim: "Infringement of Plaintiff's Service Mark Certificate of Registration No. 4,649,191";17
b. Second Claim: "Unfair Competition in Violation of Section 43(a)(1)(A) of the Lanham Act";18
c. Third Claim: "False Advertising in Violation of Section 43(a)(1)(B) of the Lanham Act";19
d. Fourth Claim: "Dilution of Famous Mark in Violation of Section 43(c) of the Lanham Act";20
e. Fifth Claim: "Cancelation of the Registrations for the ELLUCIAN marks and the ELLUCIAN GO mark under Section 37 of the Lanham Act";21
f. Sixth Claim: "Common Law Trademark and Trade Name Infringement";22
g. Seventh Claim: "Unfair Competition in Violation of Utah Code Annotated Sections 13-5a-101-103";23 and
h. Eighth Claim: "Trademark Dilution in Violation of Utah Code Annotated Section 70-ca-403)."24
9. Upon one or more party's request or failure to consent to the magistrate judge, the case was randomly assigned to Judge Jenkins on March 4, 2016.25
10. On March 11, 2016, Ellucian filed this Motion to Dismiss.26
11. On June 15, 2016, Judge Jenkins heard oral argument on this motion.27
DISCUSSION
The Complaint will not be dismissed for late service.
The Motion to Dismiss seeks to dismiss for late service of process. Because Magistrate Judge Pead granted the Motion for Extension of Time, the nub of Ellucian's 12(b)(5) basis for dismissing Eleutian's complaint is whether Judge Pead's Ruling and Order Extending Time to Serve Complaint is effective.
The Motion for Extension of Time will be reviewed de novo.
General Order 11-001 states:
All full time Magistrate Judges in the District will be included in the civil case assignment process at the time the civil case is opened. The proportion of cases so assigned will be determined by the court and will be periodically reviewed and adjusted. Cases so assigned shall be deemed to be assigned to the Chief Judge and referred to the magistrate judge for the exercise of all authority under 28 U.S.C. 636(b) as provided in DUCivR 72-2(a)(6) during the period of time when the parties enter the case and decide whether to consent to the exercise of full civil jurisdiction under 28 U.S.C. § 636(c).
Upon its filing, this case was therefore assigned to Chief Judge David Nuffer and referred to Magistrate Judge Pead under 28 U.S.C. § 636(b).
28 U.S.C. § 636(b) provides two alternative paths for magistrate judge action on referral. Sub-section 636(b)(1)(A) states that "a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except" various specified motions, which go to the merits of the entire case and are commonly referred to as "dispositive motions." Thus, sub-section 636(b)(1)(A) enables a magistrate judge to "determine" any non-dispositive motion. Any objection to such an order is reviewed to determine if it is clearly erroneous or contrary to law.28
By contrast, sub-section 636(b)(1)(B) states that "a judge may . . . designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in" sub-section A. A magistrate judge may not determine a dispositive motion, but must report and recommend action to the district judge. The district judge reviews these matters de novo.29
General Order 11-001 authorizes a magistrate judge to take action under sub-section 636(b)(1)(A) and under sub-section 636(b)(1)(B). Any objection to an order issued under sub-section 636(b)(1)(A) or to a report and recommendation issued under sub-section 636(b)(1)(B) is handled by the Chief District Judge.
Regardless of the form of a magistrate judge's order, the nature of the motion governs whether the magistrate judge's order will be considered as an order with immediate effect under sub-section A or as a report and recommendation under sub-section B.30
Eleutian's Motion for Extension of Time appears, superficially, to be a non-dispositive motion. It only seeks to extend time for service of process. In Ocelot Oil Corp. v. Sparrow Industries,31 the Tenth Circuit held that motions are not deemed dispositive on categorical bases, but rather are treated as dispositive motions "when they have an identical effect" to those motions excepted under section 636(b)(1)(A).32
The time allotted for service by Federal Rule of Civil Procedure 4(m) expired on January 7, 2016. After that date, Ellucian had a 12(b)(5) defense for insufficient service of process33 and the potential defense that the statute of limitations had run on some of Eleutian's claims. The Motion for Extension of Time effectively sought to overcome those defenses.34 Ellucian's motion was, therefore, a dispositive motion.35 Magistrate Judge Pead's Order will be construed as a report and recommendation subject to de novo review.
Federal Rule of Civil Procedure 72(b) requires that "specific written objections" to the magistrate judge's findings and recommendations on dispositive motions must be filed "[w]ithin 14 days after being served with a copy of the recommended disposition." Ellucian failed to make any objections to the Ruling and Order Extending Time to Serve Complaint.
Failing to file objections or failing to file objections within 14 days precludes the right to an Article III judge's review.36 Ellucian therefore has no right to complain about the effect of the Ruling and Order Extending Time to Serve Complaint. "[T]he district judge[, however] retains the power to engage in sua sponte review of any portion of the magistrate's report and recommendation, regardless of the absence of objections."37 "Such sua sponte review may be under a de novo standard, or any lesser standard of review."38 Even when there is no objection, "the better practice is for the district judge to afford some level of review to dispositive legal issues raised by the report."39
Because a district court judge has discretion to review a magistrate judge's report and recommendation even without objections, it is not necessary to construe Ellucian's Motion to Dismiss as an objection40—timely or not—to the Ruling and Order Extending Time to Serve Complaint. The court will exercise its discretion and review the Motion for Extension of Time de novo.
The Ruling and Order Extending Time to Serve Complaint is adopted.
In its Motion for Extension of Time, Eleutian sought "a permissive extension of the time for Eleutian to serve the Complaint on this matter . . . through and including fourteen . . . days from the entry of the Court's Order on this Motion."41
The version of Federal Rule of Civil Procedure 4(m) in place at the time Eleutian filed the complaint stated:
If a defendant is not served within 12042 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
In Espinoza v. U.S.,43 the Tenth Circuit states the framework for granting a motion for an extension of time to effect service.
The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service. . . . If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.44
The Tenth Circuit has not provided factors that should be considered when dismissing a case without prejudice.45 It has stated, however, that dismissal without prejudice "can be an extreme sanction if the statute of limitations bars refiling," and consequently "the district court must explain why it imposed the extreme sanction of dismissal."46 And further, "dismissal without prejudice when statute of limitations has run is an extreme sanction which should only be used when lesser sanctions would not serve interests of justice."47
Eleutian's Motion for Extension of Time stated that it "does not seek a mandatory extension of time due to good cause."48 If good cause were shown, the extension would be mandatory.49 Instead, Eleutian seeks a permissive extension.50 Courts consider various factors when evaluating permissive extensions. "First, the advisory committee's note states that `[r]elief may be justified . . . if the applicable statute of limitations would bar the refiled action.'"51 Second, courts should consider the complexity of effecting service.52
Eleutian notified Ellucian of trademark concerns on November 26, 2012.53 On September 9, 2015, Eleutian filed the complaint.54 That same day, counsel for Eleutian emailed the complaint to Lori Lesser,55 a partner at the firm representing defendant. Lesser had previously corresponded with counsel for plaintiff. She sent the response to Eleutian's November 26, 2012, notification of trademark concerns.56 Sometime in November 2015, the statute of limitations for some Eleutian's claims may have expired. On January 7, 2016, the 120-day service period expired. On January 26, 2016, Eleutian filed the Motion for Extension of Time.57
Eleutian could have served Ellucian. Service would not have been complicated. There was no labyrinthine bureaucracy with which to contend. This seems to have been nothing more than a breakdown in calendaring. Eleutian was aware of the possibility of bringing suit in 2012. It waited to file a complaint until within two months of the expiration of the statute of limitations. Then it appears to have done nothing for 139 days.
Though Eleutian's practice is not approved, its failure to serve the complaint on Ellucian does not justify dismissal without prejudice. Therefore, the Ruling and Order Extending Time to Serve Complaint is adopted. The late service preserves the claims. The complaint will not be dismissed based on the time of Eleutian's service of process.
The third and seventh claims for relief are dismissed with prejudice and portions of the fourth and eighth claims for relief are dismissed without prejudice.
Ellucian seeks to dismiss the following claims with prejudice: Third Claim, False Advertising in Violation of Section 43(a)(1)(B) of the Lanham Act; Fourth Claim, Dilution of Famous Mark in Violation of Section 43(c) of the Lanham Act; Seventh Claim, Unfair Competition in Violation of Utah Code Annotated Sections 13-5a-101-103; and Eighth Claim, Trademark Dilution in Violation of Utah Code Annotated Section 70-3a-403.
Ellucian is entitled to dismissal under Rule 12(b)(6) when the complaint, standing alone, is legally insufficient to state a claim for which relief may be granted.58 When considering a motion to dismiss for failure to state a claim, the thrust of all well-pleaded facts in the complaint is presumed, but need not consider conclusory allegations.59 Nor are the complaint's legal conclusions and opinions accepted, whether or not they are couched as facts.60 "In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but also attached exhibits, and documents incorporated into the complaint by reference."61
The United States Supreme Court has held that satisfying the basic pleading requirements of the federal rules "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'"62 "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."63 "[N]aked assertions devoid of further factual enhancement,"64 do not state a claim sufficiently to survive a motion to dismiss.
"But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'"65 "[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."66 That is, "[t]he allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief."67 "This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them."68
Measured against this legal standard, the third, fourth, seventh, and eighth causes of action fail to state a claim for the reasons stated below.
The third claim for relief is dismissed with prejudice for failure to state a claim.
Eleutian alleges that "Ellucian has used in commerce a false designation of origin, false or misleading descriptions of fact, or false or misleading representations of fact as to the nature, characteristics, and/or qualities of its services and/or goods, in violation of Section 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B)."69
To prevail on false advertising claim under the Lanham Act, Eleutian must demonstrate:
(1) that [Ellucian] made material false or misleading representations of fact in connection with the commercial advertising or promotion of its product; (2) in commerce; (3) that are either likely to cause confusion or mistake as to (a) the origin, association or approval of the product with or by another, or (b) the characteristics of the goods or services; and (4) injure [Eleutian].70
Ellucian argues that the Complaint is deficient because it "does not allege that Ellucian made a material false or misleading representation[] of fact in connection with the commercial advertising or promotion of its product."71 In other words, Ellucian only challenges the sufficiency of Eleutian's complaint on the first prong of the false advertising claim under the Lanham Act.
False advertising under the "Lanham Act encompasses more than literal falsehoods, because otherwise, clever use of innuendo, indirect intimations, and ambiguous suggestions could shield the advertisement from scrutiny precisely when protection against such sophisticated deception is most needed."72 There are two types of false advertisements: advertisements that are literally false and advertisements that are impliedly false. If the complaint relies on this latter type of misstatement, "courts favor testing by consumer reaction surveys, but have also found falsity based on their own independent reaction and the reaction of witnesses testifying before the court, including testimony based on test results, consumer surveys, complaints received, allegations of more than a few instance of misrepresentation, and otherwise."73
In Vincent v. Utah Plastic Surgery Soc.,74 the Tenth Circuit affirmed the district court's dismissal of the plaintiff's complaint. Among others claims, plaintiffs asserted a false advertising claim under the Lanham Act. Specifically, plaintiffs alleged that defendants' advertisements "conveyed a contrived and deceptive" description of plaintiffs' trade. The plaintiffs alleged an implied falsity claim. The court stated that to prevail, plaintiffs "must show actual consumer deception."75 The court continued, "Plaintiffs can make this showing by presenting extrinsic evidence that demonstrates a statistically significant part of the commercial audience holds the false belief allegedly communicated by the challenged advertisement." After reviewing the complaint, the court affirmed the dismissal, stating, "Plaintiffs' complaint contains no such factual allegation or any other specific factual allegation on the issue of actual consumer deception." The court also rejected plaintiffs' argument that they could produce reaction surveys if the court decided it were necessary:
This argument is easily rejected. Plaintiffs have not indicated that they possess any such surveys. Further, Plaintiffs are required at the pleading stage to allege enough facts to raise a reasonable expectation that discovery will reveal evidence to support their claim. . . . While Plaintiffs' complaint need not contain sufficient evidence to prove their claim, they cannot file an inadequate complaint and then use the discovery process to develop a factual basis for their claims in the first instance.76
Similarly, Eleutian fails to satisfy the necessary pleading requirements. Eleutian points to numerous paragraphs in the complaint,77 but none provide more than a conclusory recitation of the elements, let alone provide anything beyond mere speculation that there was actual consumer deception.78
There is no indication in the briefing that Eleutian could remedy these deficiencies. Ellucian moved for dismissal with prejudice,79 yet Eleutian does not proffer any additional facts or request the opportunity to amend the complaint. Therefore, Eleutian's third cause of action is dismissed with prejudice.
The portions of the fourth and eighth claims for relief that relate to dilution by tarnishment are dismissed without prejudice for failure to state a claim.
Eleutian alleges in the fourth claim for relief that
Ellucian's use and sale of services and goods that are confusingly similar to the ELEUTIAN Mark, after the ELEUTIAN Mark became famous, have caused dilution of the distinctive quality of the ELEUTIAN Mark, in violation of 15 U.S.C. § 1125(c), by decreasing the capacity of the ELEUTIAN Mark to identify and distinguish Eleutian's services (blurring) and also by tarnishing the value of the ELEUTIAN Mark.80
To make a claim under § 1125(c), the owner of a distinctive and famous mark may bring action against another person who "commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury."81 Thus, there are two possible claims under § 1125(c), a claim for dilution by blurring and a claim for dilution by tarnishment. Eleutian wraps both claims into its fourth claim for relief.
Eleutian alleges in the eighth claim for relief that
Ellucian has used in commerce imitations of Eleutian's famous ELEUTIAN Mark in connection with the sale, offering for sale, distribution, and/or advertising of products and/or services, and such use is likely to cause injury to Eleutian's business reputation and/or to cause dilution of the distinctive quality of the ELEUTIAN Mark, in violation of Utah Code Annotated Section 70-3a-403 and the common law.82
Utah Code § 70-3a-403 states
(1) Subject to the principles of equity and upon the terms the court considers reasonable, the owner of a mark that is famous in this state is entitled to:
(a) an injunction against another person's commercial use of a mark, if the use:
(i) begins after the mark has become famous; and
(ii) causes dilution of the distinctive quality of the mark;
The Tenth Circuit summarizes Utah's anti-dilution statute (actually, anti-dilution statutes generally) and the common law concept of anti-dilution accordingly:
There is a likelihood of dilution due to (1) injury to the value of the mark caused by actual or potential confusion, (2) diminution in the uniqueness and individuality of the mark, or (3) injury resulting from use of the mark in a manner that tarnishes or appropriates the goodwill and reputation associated with plaintiff's mark.83
Though Utah's statute only refers to dilution generally, the Tenth Circuit's summary captures the specific types of dilution available to plaintiffs. Thus, Eleutian's eighth claim for relief encompasses all three types of dilution.
Ellucian only challenges the portion of the fourth and eighth claims for relief that relate to dilution by tarnishment.84
"Tarnishment occurs when the plaintiff's trademark is likened to products of low quality, or is portrayed in a negative context. When the association is made through harmless or clean puns and parodies, however, tarnishment is unlikely."85 "Tarnishment results when one party uses another's mark in a manner that tarnishes or appropriates the goodwill and reputation associated with the mark."86 Said differently, "[t]arnishment generally arises when the plaintiff's trademark is linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context likely to evoke unflattering thoughts about the owner's product."87 To plead a claim for dilution by tarnishment under both federal and Utah law,88 the plaintiff must allege some factual circumstances, such as those described above, that demonstrate tarnishment.
Ellucian argues that Eleutian fails to "allege Ellucian's products or services are of shoddy quality," and instead relies on speculation.89 Ellucian further argues that Eleutian fails to "allege that Ellucian portrays its marks in an unwholesome or unsavory context."90 Eleutian responds that under the Lanham Act it need only show a likely future dilution91 and that under Utah's antidilution statute there is no requirement to allege that the defendant's products are of "shoddy quality" or portrayed "in an unwholesome or unsavory context."92 In the alternative, Eleutian attaches a declaration to its opposition that provides examples of negative reviews of Ellucian's products.93 Eleutian offers, if necessary, to "amend its Complaint to add allegations of Ellucian goods and services that are of shoddy or subpar quality."94
Extra-pleading material will not be considered. The Complaint does not allege that Ellucian's products are "of shoddy quality, or is portrayed in an unwholesome or unsavory context likely to evoke unflattering thoughts about" Eleutian.95 Eleutian only makes conclusory statements.96 Those do not satisfy pleading requirements. And Eleutian's argument that it need only show the likelihood of future dilution is unhelpful because it fails to do that too.
Eleutian's offer to amend the complaint cannot be granted at this time. DUCivR 15-1 requires the amending party to "attach the proposed amended complaint as an exhibit to the motion for leave to file." Eleutian failed to formally move for an amendment and failed to attach the proposed amended complaint.
Therefore, the portions of the fourth and eighth cause of actions that relate to dilution by tarnishment are dismissed without prejudice. Eleutian may move to amend.
The seventh claim for relief is dismissed with prejudice for failure to state a claim.
Eleutian also alleges that
Ellucian has used in commerce false or misleading descriptions of fact that are likely to cause confusion (and have already caused actual confusion), or to cause mistake or to deceive, as to whether Ellucian is affiliated, connected, or associated with Eleutian and/or as to whether Eleutian sponsored or approved of Ellucian's activities, in violation of Utah Code Annotated Sections 13-5a-101 through — 103.97
To prevail on an unfair competition claim under the Utah Unfair Competition Act (UUCA), Eleutian must demonstrate that there has been "an intentional business act or practice" that:
(i) (A) is unlawful, unfair, or fraudulent; and
(B) leads to a material diminution in value of intellectual property; and
(ii) is one of the following:
(A) malicious cyber activity;
(B) infringement of a patent, trademark, or trade name;
(C) a software license violation; or
(D) predatory hiring practices.98
Courts interpreting the UUCA have found that the complaint must allege something "beyond simply trademark infringement,"99 namely allegations of a practice that is "unlawful, unfair, or fraudulent." In short, in the trademark setting, the plaintiff must allege infringement-plus.100
Ellucian argues that
The only "business practice[s]" the Complaint alleges Ellucian has engaged in are (1) "using the mark ELLUCIAN GO in commerce [starting] on March 29, 2013"; (2) marketing and promoting its goods and services on the Internet; and (3) offering and selling "its goods and services . . . to the educational and college and university market." The Complaint does not allege that any of these acts, absent [Eleutian's] allegation of trademark infringement, are "unlawful, unfair, or fraudulent."101
In response, Eleutian points to numerous paragraphs from the complaint that, it argues, allege something more than trademark infringement.102 Specifically, they allege that Ellucian
• "[A]dvertised its services implicitly as being affiliated with Eleutian and/or approved or sponsored by Eleutian";103
• "continues to use the Ellucian and Ellucian Go marks despite full knowledge of the Eleutian mark and Eleutian's efforts in marketing, advertising and promoting the Eleutian mark";104 and
• "used false or misleading descriptions of fact as to whether Ellucian is affiliated with Eleutian and as to whether Eleutian sponsored or approved of Ellucian's activities, and vice versa."105
These are allegations of trademark infringement. And similar to Eleutian's false advertisement claim, the allegations are conclusory. Eleutian's use of Icon Health & Fitness, Inc. v. Johnson Health Tech North America, Inc.,106 is not helpful. Icon Health focused on whether the UUCA was preempted by federal patent law.107 And as Ellucian properly summarizes,108 the UUCA claim was not dismissed in that case because there were allegations that went beyond trademark infringement, actions that were "unlawful, unfair, or fraudulent."109
There is no indication in the briefing that Eleutian could remedy these deficiencies. Ellucian moved for dismissal with prejudice,110 yet Eleutian does not proffer any additional facts or request the opportunity to amend the complaint. Therefore, Eleutian's seventh claim for relief is dismissed with prejudice.
ORDER
IT IS HEREBY ORDERED that the Motion to Dismiss for Late Service of Process Pursuant to Fed. R. Civ. P. 12(b)(5) and 4(m) and for Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6) and 8111 is GRANTED IN PART and DENIED IN PART. Because Magistrate Judge Pead's Ruling and Order Extending Time to Serve Complaint112 is adopted, the 12(b)(5) grounds for dismissal are not considered. The third claim for relief is DISMISSED WITH PREJUDICE. The portions of the fourth and eighth Claims for relief that relate to dilution by tarnishment are DISMISSED WITHOUT PREJUDICE. And the seventh claim for relief is DISMISSED WITH PREJUDICE.
