PAUL G. GARDEPHE, District Judge.
In this action, Plaintiffs Buccellati Holding Italia SPA and Buccellati, Inc. allege that Defendants Laura Buccellati LLC, Laura Buccellati, and Lilian Azel have engaged in trademark infringement, false designation of origin, trademark dilution, unfair competition, and unfair and deceptive trade practices.
Defendants have moved to dismiss for lack of personal jurisdiction and improper venue under Fed.R.Civ.P. 12(b)(2) and (3) or, alternatively, to transfer this action to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). Because this Court lacks personal jurisdiction over the Defendants, the motion to dismiss will be granted.
Plaintiff Buccellati Holding Italia SPA is an Italian corporation with its principal place of business in Milan, Italy. (Cmplt. ¶ 4) This entity manufactures and sells products bearing the Buccellati trademarks, including jewelry, watches, silverware, writing instruments, ornamental boxes, cutlery, belt buckles, and handbags. (Id.) Plaintiff Buccellati, Inc. is a New York corporation with its principal place of business in the Bronx, New York. (Id. ¶ 5) Buccellati, Inc. is the exclusive distributor
Defendant Laura Buccellati LLC is a Florida limited liability company with its principal place of business in Miami, Florida. (Id. ¶ 6) Defendants Laura Buccellati and Lilian Azel are co-founders of Laura Buccellati LLC, and both reside in Florida. (Id. ¶¶ 7-8)
The Buccellati family has been selling fine jewelry since the 1700's. (Id. ¶ 10) In the 1920's, the Buccellati family began manufacturing and selling handbags, clutches, and purses made of various materials, including leather, gold, silver, and textiles. (Id.) Plaintiffs allege that "[t]oday the Buccellati brand is synonymous with luxury, quality, and craftsmanship, and consumers and the trade instantly identify [Plaintiffs] as the source of all products and services bearing the Buccellati name and trademark." (Id.)
Plaintiffs' products and services are sold under several trademarks which Buccellati Holding Italia SPA owns and has registered with the U.S. Patent and Trademark Office. (Id. ¶ 11, Ex. A) The Buccellati trademarks are displayed on jewelry, watches, silverware, writing instruments, ornamental boxes, cutlery, belt buckles, handbags, and other products. (Id. ¶ 12) Plaintiffs have retail locations in Manhattan, Beverly Hills, and Aspen, Colorado. (Id.)
Plaintiffs have extensively advertised and promoted the products manufactured and services offered under the Buccellati trademarks. (Id. ¶ 13) Plaintiffs allege that
(Id.) Plaintiffs further allege that over the past five years they have sold "tens of millions of dollars" in products bearing Buccellati trademarks in the United States alone. (Id. ¶ 14)
Laura Buccellati is a member of the Buccellati family, but she sold her interest in the Buccellati companies in 1989. (Id. ¶ 18) Plaintiffs claim, however, that Laura Buccellati and Lilian Azel, through Laura Buccellati LLC, are "attempt[ing] to capitalize on the popularity of the Buccellati Trademarks by using and/or permitting various companies to use [marks that infringe the Buccellati trademarks]." (Id. ¶¶ 18-19)
Plaintiffs further allege that Laura Buccellati, through Laura Buccellati LLC, has attempted to register trademarks containing the name Laura Buccellati, both in the United States and internationally. (Id. ¶ 21) In the United States, such attempted registration has been refused on the basis that the name Laura Buccellati is likely to be confused with the Buccellati trademarks. (Id.)
Plaintiffs claim that Laura Buccellati is nonetheless designing, manufacturing, promoting, importing, and selling consumer products under the Laura Buccellati name and trademark, and is using other designs, logos, and indicia that are imitations of the Buccellati trademarks. (Id. ¶ 17) Plaintiffs further claim that these allegedly infringing marks are used on "handbags, carryalls, purses, wallets, belts, and scarves."
(Id. ¶ 23) Plaintiffs claim that Defendants' use of the alleged infringing marks has "caused (and will likely continue to cause) [] actual confusion in the marketplace, harm to the business reputation and goodwill of [Plaintiffs], and damage to [Plaintiffs'] business relations with consumers and prospective consumers." (Id. ¶ 24)
This action was filed on October 14, 2011. (Dkt. No. 1) On December 5, 2011, Defendants filed a pre-motion letter asserting, inter alia, that this Court lacks personal jurisdiction over them. (Dec. 5, 2011 Ltr. (Dkt. No. 32) at 2) After conducting a pre-motion conference (see Dkt. No. 19), the Court issued an order providing for sixty days of jurisdictional discovery, including both written discovery and depositions. (Dkt. No. 20) The instant motion was filed on June 4, 2012. (Dkt. No. 22)
Much of the jurisdictional discovery focused on Defendants' late 2009 retention of Tara Solomon, Inc. d/b/a Tara Ink, a public relations firm. (See Tenney Decl., Ex. 3 (Solomon Dep. Tr.) at 10-11; id., Ex. 10) Defendants hired Solomon—who is based in Los Angeles and Miami Beach—to generate press attention for, and retailer interest in, Defendants' handbag collection. (Id., Ex. 3 at 8)
Solomon "arranged ... New York deskside editor appointments to introduce [Defendants'] Fall/Winter 2010 collection," and spoke with editors at Conde Nast Traveler, InStyle, Lucky, Marie Claire, Town & Country, Vogue, W, and WWD. Solomon also contacted a number of "high-end retailers" in New York and Washington, D.C. about Defendants' collection, including buyers at Bergdorf Goodman, Saks Fifth Avenue, Barneys, and Neiman Marcus. (Id., Ex. 8 at 4, Ex. 9 at 2-4, Ex. 11 at 2, Ex. 12 at 2)
In June 2010, Defendants Laura Buccellati and Azel traveled to New York City with Solomon for the purpose of meeting with a number of magazine fashion editors. (Id., Ex. 1 (L. Buccellati Dep. Tr.) at 35-36; id., Ex. 9 at 1) The purpose of the meetings was to showcase Laura Buccellati's Fall 2010 handbag collection and to obtain "free placements in ... magazines." (Id., Ex. 1 (L. Buccellati Dep. Tr.) at 35-36; id., Ex. 9 at 1) Approximately ten meetings took place in Manhattan with fashion editors over a two-day period. (Tenney Deck, Ex. 13) During the New York meetings with editors, Defendants distributed Laura Buccellati scarves, catalogs, and press kits. (Tenney Deck., Ex. 3 (Solomon Dep. Tr.) at 23-26)
Jurisdictional discovery also revealed that Defendants' website—www.laurabuccellati.com— has made only one sale in New York. (L. Buccellati Decl. ¶¶ 10, 12-13; Azel Decl. ¶¶ 9, 11, 12) That sale took place on October 5, 2011, and was made to Plaintiffs' New York-based private investigator, Maxine Kaplan. (Id.) Kaplan purchased a Laura Buccellati-branded handbag for $1,425, and arranged for it to be shipped to her New York work address. (Azrin Decl., Ex. A (Kaplan Dep. Tr.) at 9, 20-25, 32, 55-56, 84) No other merchandise
"The plaintiff bears the burden of establishing that the court has jurisdiction over the defendant when served with a Rule 12(b)(2) motion to dismiss." Whitaker v. Am., Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001). "In deciding [such a motion,] a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); accord Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 153 (2d Cir.1999). Here, the Court permitted the parties to conduct jurisdictional discovery over a sixty-day period. (See Dkt. No. 20)
The nature of plaintiff's burden to demonstrate jurisdiction "varies depending on the procedural posture of the litigation." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). Prior to discovery, a Rule 12(b)(2) motion will fail where plaintiff has "[pled] in good faith legally sufficient allegations of jurisdiction." Id. (internal citation omitted). Where, however, "there has been discovery on the issue of [personal] jurisdiction, the plaintiff's prima facie showing must include `an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant.' The plaintiff cannot rely merely on conclusory statements or allegations; rather, the prima facie showing must be `factually supported.'" Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00 Civ. 5663(MBM), 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001) (quoting Ball, 902 F.2d at 197) (internal citations omitted); accord Morrison v. N.Y. State Div. for Youth Children & Family Servs., No. 98 Civ. 643, 2000 WL 532762, at *1 (S.D.N.Y. Apr. 25, 2000)
"In a federal question case where a defendant resides outside the forum state, a federal court applies the forum state's personal jurisdiction rules `if the federal statute does not specifically provide for national service of process.'" PDK Labs v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997) (citing Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir.1990)). "[T]he Lanham Act does not provide for nationwide service of process[;]" therefore "this Court must look to New York's jurisdictional statutes to determine personal jurisdiction." Greenlight Capital, Inc. v. Green-Light (Switz.) S.A., No. 04 Civ. 3136(HB), 2005 WL 13682, *2 (S.D.N.Y. Jan. 3, 2005) (citing Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir.2004)).
New York's long-arm statute provides that
N.Y. C.P.L.R. § 302(a).
The exercise of personal jurisdiction must also comport with constitutional due process principles.
Defendants argue that two provisions of New York's long-arm statute give this Court personal jurisdiction over the Defendants: CPLR § 302(a)(1)—the "transacting business" prong of the long-arm statute— and CPLR § 302(a)(3)(ii), which addresses tortious acts committed outside New York that cause injury to a person or property inside New York. (See Pltfs. Opp. Br. 7-15)
CPLR § 302(a)(1) provides, in pertinent part, that a court "may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent ... transacts any business within the state," so long as the plaintiff's "cause of action aris[es] from" that transaction. CPLR §302(a)(1). Accordingly, "in determining whether personal jurisdiction may be exercised under section 302(a)(1), `a court must decide (1) whether the defendant "transacts any business" in New York and, if so, (2) whether this cause of action "aris[es] from" such a business transaction.'" Licci, 673 F.3d at 60 (quoting Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007)).
"[T]he overriding criterion necessary to establish a transaction of business is some act by which the defendant purposefully avails itself of the privilege of conducting activities within New York." Id. at 61 (internal quotation omitted). "As to § 302(a)(1)'s second requirement, `a suit will be deemed to have arisen out of a party's activities in New York if there is an articulable nexus, or a substantial relationship, between the claim asserted and the actions that occurred in New York.'" HSH Nordbank AG N.Y. Branch v. Street, No. 11 Civ. 9405(DLC), 2012 WL 2921875, at *4 (S.D.N.Y. July 18, 2012) (citing Licci, 673 F.3d at 66). "A single act within New York will, in the proper case, satisfy the
"Although Section 302(a)(1) is typically invoked in breach of contract cases[,] it applies as well to actions in tort when supported by a sufficient showing of facts." Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir.2004) (internal quotation and citations omitted) The Second Circuit has found that a "Lanham Act claim sounds in tort." Id. (citing PPX Enters., Inc. v. Audiofidelity, Inc., 746 F.2d 120, 124-25 (2d Cir.1984) (Section 43(a) of the Lanham Act "created a new statutory tort")).
In arguing that Defendants transacted business in New York, and that their cause of action arises out of that transaction of business, Plaintiffs rely on the following:
(Pltfs. Opp. Br. 8-9)
It is undisputed, however, that Defendants have no office, employees, sales representatives, distributors, or retailers in New York, and that they do not own or rent any property in New York. The only sale to a New York resident of Defendants' merchandise—indeed, the only sale ever over Defendants' website—was to Plaintiffs' investigator. Defendants have sold no other merchandise in New York. Moreover, the New York meetings with fashion editors led to no publicity for Defendants' products, and there is no evidence that any of Solomon's efforts led to any purchase of Defendants' products anywhere. Defendants did not enter into advertising agreements with anyone in New York, nor did they purchase advertisements in the magazines whose editors they visited. (L. Buccellati Decl. ¶¶ 19-18; Azel Decl. ¶¶ 8-17) Under these circumstances, the activities cited by Plaintiffs are not sufficient to justify this Court's exercise of personal jurisdiction over Defendants.
While there is not unanimity on this issue, the vast weight of authority is that a finding of personal jurisdiction may not rest solely on an act such as this instigated by a plaintiff. Courts in this District and elsewhere have expressed "hostility towards finding jurisdiction under such potentially manufactured circumstances." Unique Indus., Inc. v. Sui & Sons Int'l Trading Corp., No. 05 Civ. 2744(KMK), 2007 WL 3378256, at *5 (S.D.N.Y. Nov. 9, 2007) (citing ISI Brands, Inc. v. KCC Int'l, Inc., 458 F.Supp.2d 81, 89 (E.D.N.Y.2006) (noting, in a case where purchases of counterfeit products were made by plaintiff's agents, "[i]t is beyond dispute that jurisdiction cannot be manufactured by the Plaintiff')); Mattel, Inc. v. Anderson, No. 04-CV-5275 (RCC), 2005 WL 1690528, at *2 (S.D.N.Y. July 18, 2005) ("`Defendant[] cannot be said to have `purposefully' availed [herself] of the protections of this forum when it was an act of someone associated with plaintiff, rather than [her] web site advertising, that brought [her] products into this forum.'" (quoting Millennium Enters., Inc. v. Millennium Music, LP, 33 F.Supp.2d 907, 911 (D.Or. 1999)); Edberg v. Neogen Corp., 17 F.Supp.2d 104, 112 (D.Conn.1998) (noting that "the courts have repeatedly held that jurisdiction may not be manufactured by the conduct of others"); Elbex Video Kabushiki Kaisha v. Taiwan Regular Elec. Co., No. 93 Civ. 6160(KMW), 1995 WL 224774, at *2 (S.D.N.Y. Apr. 14, 1995) (finding no personal jurisdiction where plaintiff arranged for former employee to make purchase from defendant for purpose of creating jurisdiction); see also Clarus Transphase Scientific, Inc. v. Q-Ray, Inc., No. C 06-3450 JF (RS), 2006 WL 2374738, at *3 n.3 (N.D.Cal. Aug. 16, 2006) ("A plaintiff cannot manufacture personal jurisdiction in a trademark case by purchasing the accused product in the forum state." (citing Millennium Enters., 33 F.Supp.2d at 911)); Jell-E-Bath Inc. v. Crystal Mud Spa, No. 05-1703-KI, 2006 WL 1305113, at *3 n.1 (D.Or. May 8, 2006) ("Plaintiff cannot manufacture personal jurisdiction."); McGill Tech. Ltd. v. Gourmet Techs., Inc., 300 F.Supp.2d 501, 506 (E.D.Mich.2004) (disregarding a contact with forum state where contact was likely the product of plaintiffs counsel's family member and initiated for purposes of litigation) (citing, inter alia, Elecs. For Imaging, Inc. v. Coyle, 340 F.3d 1344, 1350 (Fed.Cir.2003)); Millennium Enters., 33 F.Supp.2d at 911 (holding that internet purchase of one compact disc by plaintiff's counsel did not constitute purposeful availment); Sunwest Silver, Inc. v. Int'l Connection, Inc., 4 F.Supp.2d 1284, 1287 (D.N.M.1998) ("Courts have held repeatedly that a defendant's responses to the unilateral acts of a plaintiff are not contacts with the forum state sufficient to establish personal jurisdiction."); DeSantis v. Hafner
The logic of these cases is that a plaintiff cannot rely solely on its own manipulative acts to create jurisdiction, and that in such circumstances the defendant cannot be said to have purposefully availed itself of the privilege of conducting activities in the state selected by plaintiff. Moreover, in cases where, as here, plaintiffs' causes of action are founded on notions of consumer confusion, courts have concluded that it is improper to rely on a transaction—for jurisdictional purposes—in which the purchaser obviously was not confused as to the source of the merchandise. See, e.g., ISI Brands, 458 F.Supp.2d at 88 (noting that plaintiff's agents' purchase of infringing product had "nothing to do with Plaintiffs action for infringement since [plaintiff] cannot claim to have been confused as to with whom [they] [were] dealing" (internal quotation omitted; alterations in original)); cf. McBee v. Delica Co., 417 F.3d 107, 128 (1st Cir.2005) (denying preliminary injunction for alleged Lanham Act violations where sales "were all made to [plaintiff's] own investigators, who were brought in to assist in this litigation and therefore fully understood [plaintiff's] lack of any relationship with [defendant]").
Under the unusual circumstances of this case, in which Plaintiffs have not offered evidence of any meaningful contacts between Defendants and New York, this Court will not rely on the sale of a handbag to Plaintiffs' investigator as a basis for exercising personal jurisdiction over the Defendants.
The remaining contacts with New York cited by Plaintiffs are not sufficient to justify this Court's exercise of personal jurisdiction over the Defendants. The meetings with the fashion editors and retail buyers led to nothing: no articles were published, no advertisements were purchased, no contracts were entered into, and no goods were sold as a result of these meetings. The distribution of free samples and media kits to these editors likewise led to no commercial activity, and does not constitute the transaction of business in New York.
Meetings and communications that never result in a business relationship or transaction do not provide a basis for the exercise of personal jurisdiction. See, e.g., Aquiline Capital Partners LLC v. FinArch LLC, 861 F.Supp.2d 378, 388 (S.D.N.Y.2012) ("New York courts have held that ... exploratory meetings taking place in New York, `leading to nothing more than a proposal that was itself the subject of further negotiations over the phone, by mail, and in meetings outside
In sum, none of the contacts with New York cited by Plaintiffs are sufficient to provide a basis for the exercise of personal jurisdiction under CPLR § 302(a)(1).
CPLR § 302(a)(3) provides for the exercise of personal jurisdiction where the defendant "commits a tortious act without the state causing injury to person or property within the state ... if he ... expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce...." CPLR § 302(a)(3)(ii).
Plaintiffs have sufficiently alleged that Defendants committed a tortious act of trademark infringement and that injury from the alleged act occurred in New York. Accordingly, Plaintiffs have satisfied the initial two requirements of Section 302(a)(3)(ii).
In order to make out a prima facie case for the exercise of personal jurisdiction under Section 302(a)(3)(i), Plaintiffs must allege anticipated in-state economic injury from an out-of-state tort. Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 203-04, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (1978). The Lanham Act imposes liability on any person who "use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services...." 15 U.S.C. § 1114(1)(a). Therefore, for purposes of determining jurisdiction under Section 302(a)(3)(ii), the alleged injury stemming from infringement of a trademark "in the form of damage to goodwill, lost sales, or lost customers" will occur "where the trademark owner resides and conducts business," because this is where the "`first effects' of trademark infringement or dilution are typically felt." Savage Universal Corp. v. Grazier Constr., Inc., No. 04 Civ. 1089(GEL), 2004 WL 1824102, at *9 (S.D.N.Y. Aug. 13, 2004).
Here, Plaintiffs allege that the Defendants' sale of merchandise under the Laura Buccellati mark infringes their trademarks, threatens the distinctive quality of their trademarks, and has confused and will confuse consumers. Plaintiffs' allegations demonstrate a tortious act resulting in an injury in New York, given that they reside and/or conduct business in New York. While Plaintiffs have not demonstrated sales of Defendants' products in New York—other than to their private investigator—it is undisputed that New York residents can view Defendants' website
CPLR § 302(a)(3)(ii) requires that a defendant, in addition to causing injury within New York, must have expected, or reasonably should have expected, its allegedly tortious actions to have consequences in New York. CPLR § 302(a)(3)(ii).
Starmedia, 2001 WL 417118, at *3 (quoting Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 241 (2d Cir.1999)). "Thus, the defendant must make `a discernable effort to directly or indirectly serve the New York market.'" Id. (quoting Kernan, 175 F.3d at 241). Here, there is no evidence of a "discernable effort [by Defendants] to directly or indirectly serve the New York market." Id.
Plaintiffs argue that the "tangible manifestations" of Defendants' desire to serve the New York market are
(Pltfs. Opp. Br. 14 (internal citations omitted))
The existence of Defendants' website carries little weight under the unusual circumstances of this case. It is undisputed that although Defendants' website has been extant for three years or more, Defendants' only sale of any merchandise over the website was to Plaintiffs' investigator. (L. Buccellati Decl. ¶¶ 10, 12-13; Azel Decl. ¶¶ 9, 11, 12) Indeed, since Laura Buccellati, LLC was founded, the only sale of any merchandise to a New York customer is the sale to Plaintiffs' investigator. (Id.) Moreover, Defendants have offered uncontradicted evidence that their business
Defendants' hiring of Solomon, the trip to New York to meet with fashion editors, and the samples sent to fashion editors in New York, do not change the analysis. While these facts demonstrate an attempt to attract publicity for Defendants' products— an attempt that was unsuccessful— there is no evidence that these meetings were directed at the New York market. Defendants' meetings were with fashion editors of national publications, such as Conde Nast Traveler, InStyle, Lucky, Marie Claire, Town & Country, Vogue, W, and WWD. (Tenney Decl., Ex. 8 at 4)
Finally, "contracting with a New York company to manufacture branded promotional materials" (Pltfs. Opp. Br. 14), is a reference to Motivators, Inc. and Laura Buccellati's purchase of 100 compact mirrors. As noted above, the facts concerning this incident are entirely unclear. In particular, Plaintiffs have not offered evidence that the compacts were branded in a fashion that infringed their trademarks.
The cases cited by Plaintiffs (Pltfs. Opp. Br. 13-14) do not support their argument that the facts discussed above are sufficient for the exercise of personal jurisdiction under CPLR § 302(a)(3)(ii). In Parker Waichman Alonso LLP v. Orlando Firm, P.C., 09 Civ. 7401(CM), 2010 WL 1956871 (S.D.N.Y. May 14, 2010), for example, the defendant lawyer—who operated an infringing website—admitted that "it [was] his intention to reach New York." There was also evidence that the defendant had "sign[ed] up six New York clients... via the website," and that he had "conducted settlement negotiations in New York for a class action that ultimately settled for $7 million." Parker Waichman, 2010 WL 1956871, at *10. Similarly, in Am. Network, Inc. v. Access America/Connect Atl., Inc., 975 F.Supp. 494, 498 (S.D.N.Y. 1997), defendant had "signed up six New York subscribers" through its infringing website. Likewise, in Starmedia, defendant admitted that the purpose of its website was to "attract new customers, including customers from New York," and the court found that defendant had "used its website to attract and service business across the nation, including in New York, and ha[d] received substantial revenue from those interstate sales." Starmedia, 2001 WL 417118, at *1, *3; see also Savage Universal Corp., 2004 WL 1824102, at *9 (jurisdiction found under Section 302(a)(3)(ii) where defendant used his websites to pursue "spiteful campaign of trademark infringement and defamation" against New York-based company).
Given the undisputed evidence that (1) Defendants' business plan had no component of sales to New York; (2) Defendants never had any New York customers; (3) Defendants' website generated no sales and no revenue for Defendants, whether from New York or elsewhere; and (4) the only sale Defendants ever made over their website, and the only sale they ever made to a New York customer, was their sale to Plaintiffs' New York-based investigator, the cases cited by Plaintiffs do not demonstrate that this Court has jurisdiction over the Defendants under Section 302(a)(3)(ii). See Royalty Network Inc. v. Dishant.com, LLC, 638 F.Supp.2d 410, 424 (S.D.N.Y. 2009) (finding no jurisdiction under Section 302(a)(3)(ii) where plaintiff had not "establish[ed]
For the reasons stated above, Defendants' motion to dismiss for lack of personal jurisdiction is GRANTED, The Clerk of the Court is directed to terminate the motion (Dkt. No. 22) and to close this case.
SO ORDERED.