Pinnacle Holding Company, LLC et al v. Allen et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
PINNACLE HOLDING COMPANY, LLC and
PINNACLE EMPLOYEE SERVICES, LLC,
Plaintiffs,
5:24-cv-00239
v. 	(AJB/CBF)
MICHAEL ALLEN and PINNACLE EMPLOYEE
SERVICES, INC.,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HANCOCK ESTABROOK, LLP 	JAMES P. YOUNGS, ESQ.
1800 AXA Tower I
100 Madison Street
Syracuse, New York 13202
Attorneys for Plaintiffs
LEWIS & LIN, LLC 	DAVID D. LIN, ESQ.
77 Sands Street, 6th Floor
Brooklyn, New York 11201
Attorneys for Defendants
CARLA B. FREEDMAN, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
I. 	INTRODUCTION
Currently before the Court is a motion for leave to file a Second Amended Complaint
(“SAC”), Dkt. No. 50, filed by Plaintiffs Pinnacle Employee Services, LLC, and Pinnacle
Holding Company, LLC (“Plaintiffs”). The factual background of this matter was set forth at
length in District Judge Anthony J. Brindisi’s Decision and Order dated September 2, 2025, and
will not be repeated here. See generally Dkt. No. 43.
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As relevant here, Plaintiffs first filed a complaint alleging trademark infringement on
February 16, 2024. Dkt. No. 1. Pursuant to a stipulation between the parties, on June 27, 2024,
Plaintiffs filed a First Amended Complaint (“FAC”). Dkt. No. 27. Thereafter, on July 11, 2024,
Defendants Michael Allen and Pinnacle Employee Services, Inc. (“Defendants”), filed a motion
to dismiss the FAC alleging, inter alia, lack of personal jurisdiction. Dkt. No. 29. Plaintiffs
opposed the motion to dismiss. Dkt. No. 34. In Judge Brindisi’s Decision and Order, referenced
above, the Court concluded, “Plaintiffs have not established that the Court has personal
jurisdiction over [defendant] PES, Inc. or [defendant] Allen. However, as plaintiffs have
established, a more satisfactory showing of the facts is necessary.” Dkt. No. 43 at 38.
Consequently, Judge Brindisi granted, in part, Plaintiffs’ request to conduct jurisdictional
discovery ordering “limited jurisdictional discovery restricted to information answering the basic
question of whether defendants have transacted business within New York.” Id. Lastly, the
Court held that “Plaintiffs may seek leave to amend their complaint following the completion of
jurisdictional discovery . . . .” Id.
Thereafter, the Hon. Therésè Wiley Dancks, United States Magistrate Judge, issued a
Text Order directing Defendants to provide jurisdictional discovery responses to Plaintiffs
concerning the timeframe from April 12, 2017, through February 16, 2024, the date Plaintiffs
commenced this lawsuit by filing the original complaint. Dkt. No. 49. After receiving all
discovery responses, Plaintiffs moved for leave to file a SAC. See Dkt. Nos. 50 and 51. The
Defendants filed a response opposing the motion. See Dkt. No. 54.
The case was reassigned to the undersigned by Text Order entered February 13, 2026.
Dkt. No. 58. For reasons explained below, Plaintiffs’ motion for leave to file a SAC (Dkt. No.
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50) is denied and the Court recommends that Defendants’ motion to dismiss the FAC for lack of
personal jurisdiction (Dkt. No. 29) be granted.
II. 	DISCUSSION
A. 	Motion to Amend
1. 	Applicable Legal Standards
The Federal Rules of Civil Procedure provide that courts “should freely give leave” to
amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Second Circuit has
stated “[t]his permissive standard is consistent with our strong preference for resolving disputes
on the merits.” Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (citation
omitted). Leave to amend should be given “absent evidence of undue delay, bad faith or dilatory
motive on the part of the movant, undue prejudice to the opposing party, or futility.” Monahan
v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 283 (2d Cir. 2000); see also Couloute v. Ryncarz, No. 11-
CV-5986 (HB), 2012 WL 541089, at *3 (S.D.N.Y. Feb. 17, 2012) (quoting Monahan, 214 F.3d
at 283). However, motions to amend “should generally be denied in instances of futility, undue
delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments
previously allowed, or undue prejudice to the non-moving party.” Burch v. Pioneer Credit
Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008); Monahan, 214 F.3d at 283.
In considering legal sufficiency, a court must accept as true all well-pled facts in the
complaint and draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). This presumption, however, does not extend
to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The decision to grant or
deny a motion to amend is committed to the sound discretion of the trial court and the court’s
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decision is not subject to review on appeal except for abuse of discretion. Nettis v. Levitt, 241
F.3d 186, 192 (2d Cir. 2001).
Under Rule 15, leave to amend may be denied if the amendment would be futile. See,
e.g., Knife Rights, Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015). Amendment is futile if the
proposed claim could not survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir.
2002) (citing Dougherty v. N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.
2002)). It therefore follows that an amendment is considered futile if it cannot withstand a
motion to dismiss based on a failure to cure a jurisdictional defect. Lucente, 310 F.3d at 258;
Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 127 (2d Cir. 2007); McCabe v.
Trombley, 867 F. Supp. 20, 127 (N.D.N.Y. 1994).
On a Rule 12(b)(6) motion to dismiss, the court may consider not only the allegations in
the complaint but also “documents attached to the complaint as an exhibit, or incorporated by
reference . . . matters of which judicial notice may be taken, or . . . documents in plaintiff’s
possession or of which plaintiff had knowledge and relied on in bringing the suit.” Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2001).
2. 	Analysis
Following the completion of jurisdictional discovery during which Defendants provided
information to Plaintiffs to determine whether Defendants had sufficient contacts with the State
of New York to establish this Court’s personal jurisdiction over Defendants at the time this
action was filed, Plaintiffs have identified one document which they contend establishes the
requisite personal jurisdiction. That single “smoking gun” document is an application submitted
by Defendant Allen, on behalf of Defendant Pinnacle Employee Services, Inc., to register the
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mark “PINNACLE EMPLOYEE SERVICES” with the New York State Department of State
(“NYS DOS”) on March 19, 2023. Dkt. No. 50-9 at 6 and Dkt. No. 50-6. Plaintiffs contend that
this document, which bears a date of March 19, 2023, establishes this Court’s personal
jurisdiction over Defendants because the application date precedes the filing of the complaint
approximately 11 months later on February 16, 2024. See Dkt. No. 50-9 at 6.
At the time Plaintiffs filed their response to Defendants’ motion to dismiss, Plaintiffs had
only been provided an application submitted by Defendant Allen, on behalf of Defendant
Pinnacle Employee Services, Inc., to register the mark “PINNACLE EMPLOYEE SERVICES”
with the NYS DOS dated March 12, 2024. Dkt. No. 50-9 at 7 and Dkt. No. 36-2. In his
Decision and Order, Judge Brindisi found that this application was insufficient to establish
personal jurisdiction over Defendants as it “came after plaintiffs filed this lawsuit on February
10, 2024.1 And it is axiomatic that post-lawsuit contacts are not enough to establish personal
jurisdiction.” Dkt. No. 43 at 36 (emphasis added).
In their current briefing concerning Plaintiffs’ motion for leave to file a SAC, there
appears to be little dispute as to the facts regarding Defendants’ contacts with New York State as
it relates to the requirements under New York’s long-arm statute, N.Y.C.P.L.R. § 302(a)(1).2
First, between April 12, 2017, and February 16, 2024, Defendants did not: maintain any
offices, employees, or agents in the State of New York; have any clients or customers located in
New York, including remote clients or subsidiaries with New York Addresses; execute any
contracts with, receive payments from, or provide services to entities registered or operating in
1 This date appears to be a typographical error as the original complaint was filed on February
16, 2024. See Dkt. No. 1.
2 This Court will not restate the legal requirements to establish personal jurisdiction in New York
as it was discussed at length in Judge Brindisi’s Decision and Order. See generally Dkt. No. 43.
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New York; personally conduct in-person meetings or business solicitations, or provide services
in New York on behalf of Defendant Pinnacle Employee Services, Inc. Moreover, Defendants’
business operations were conducted entirely outside New York and, aside from the
administrative trademark filing process, Defendants had never transacted business in New York
and had not purposefully directed any commercial conduct toward New York. See generally
Dkt. Nos. 50-7 and 54-1. In sum, the jurisdictional discovery revealed that other than the
applications for and subsequent receipt of a New York State service mark from the NYS DOS,
Defendants have no other connection to the State of New York.
With respect to the New York service mark obtained by the Defendants, the parties agree
to all facts and dates, save one.
First, the parties agree that Defendants applied for a New York State service mark for the
words “PINNACLE EMPLOYEE SERVICES” on March 12, 2024. See Dkt. Nos. 50-9 at 7, 54
at 5, 54-1 at ¶4, and 54-3. Second, the parties agree that on March 22, 2024, the New York State
Department of State issued a certificate to Defendants that the words “PINNACLE EMPLOYEE
SERVICES” had been registered as their New York service mark. Dkt. Nos. 50-9 at 7, 54 at 5,
54-1 at ¶8, and 54-5. The parties also agree3 that Carolyn Thomas, an Office Assistant at the
NYS DOS, sent an email dated March 19, 2024, to Defendant Allen which stated, “I will have to
return your application back to rejected due to the business cards does not match what you have
in #5. I tried calling you but it was a constant busy single (sic).” Dkt. Nos. 54 at 5, 54-1 at ¶5,
and 54-2.
3 In their reply brief, Plaintiffs note that they did not receive this email communication from
Defendants during discovery, however, Plaintiffs have not contested its authenticity. Dkt. No. 57
at ¶9.
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Plaintiffs and Defendants disagree, however, as to whether another application Defendant
Allen submitted to the New York State Department of State for a service mark for the words
“PINNACLE EMPLOYEE SERVICES” was sent on March 19, 2023, or March 19, 2024.
Defendants do not dispute that the date on said application is listed as “March 19, 2023,”
however, Defendants assert such date, specifically the year “2023,” was a typographical error
and, in fact, the application was actually submitted on March 19, 2024. Dkt. Nos. 54 at 5 and
54-1 at ¶7.
Using a commonsense analysis, the Court acknowledges there is merit to Defendants’
claim that the date “2023” is a typographical error. To that end, under the Plaintiffs’ timeline,
Defendant Allen must have submitted an application to the NYS DOS for a service mark on
March 19, 2023. When he received no response from NYS DOS, almost a year later, on March
12, 2024, he submitted a second application. Shortly thereafter, on March 19, 2024, Defendant
Allen received an email from NYS DOS indicating there was a deficiency in his application and
the application was rejected. Then, with no further submissions and/or corrections to the
deficient application, NYS DOS inexplicably issued Defendant Allen a certificate showing that
the service mark (PINNACLE EMPLOYEE SERVICES) had been registered on March 22,
2024.
By contrast, it would be more logical to assume, as Defendants assert, that Defendant
Allen submitted his first application to register the service mark for the words “PINNACLE
EMPLOYEE SERVICES” to NYS DOS on March 12, 2024. Then, one week later, on March
19, 2024, Defendant Allen received an email from NYS DOS informing him that the application
was rejected and that same day (March 19, 2024), Defendant Allen submitted a second,
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corrected, application to NYS DOS, which Defendant Allen subsequently received a certificate
for on March 22, 2024, confirming that the service mark had been registered.
Furthermore, in comparing the March 12 and March 19 applications, in addition to the
differing dates, in Section 5 of the applications, the application dated March 12, 2024, states
“Our Trademark name is Pinnacle Employee Services,” but the application dated March 19,
2023, states “Our service mark name is Pinnacle Employee Services . . . .” Compare Dkt. No.
54-3, with Dkt. No. 54-4. Logically, it makes sense that the original application used the phrase
“trademark” and, after receiving the March 19, 2024, email from NYS DOS–which bore the
word “Servicemark” in the subject line and informed Defendant Allen his application had been
rejected –Defendant Allen changed the language in Section 5 of his application form from
“Trademark” to “service mark” and then resubmitted his application that same day (March 19,
2024). See Dkt. Nos. 54-2, 54-3, and 54-4.
Yet, as previously discussed, the law is well settled that a court must accept as true all
well-pled facts in the complaint and draw all reasonable inferences in the pleader’s favor. See
ATSI Commc’ns, Inc., supra; see also Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000);
Matson v. Bd. of Educ., City School Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011). Pursuant to
that black-letter law, this Court must assume that the date Defendant Allen submitted the March
19 application to NYS DOS was in 2023, prior to Plaintiffs filing their first complaint on
February 16, 2024. However, even assuming that fact as true, Plaintiffs’ motion for leave to file
a SAC still fails as Plaintiffs have not shown that Defendants are subject to personal jurisdiction
in New York.
In support of their argument that Defendants are subject to personal jurisdiction here in
New York, Plaintiffs argue, “by applying for and obtaining the ‘983 Registration, the
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Defendants have vested the Court with personal jurisdiction over them.” Dkt. No. 50-9 at 9
(emphasis added). Such argument misses the mark. It is not just the application, but rather the
application coupled with the actual registration of a service mark that subjects a defendant to
personal jurisdiction in New York. All the rights and privileges of conducting business activities
in New York that are conferred upon a company, corporation, or business entity are only in
effect once they have obtained the registration of their service mark.
Plaintiffs emphasize that a trademark registration with NYS DOS subjects the holder of
the registration to voluntary consent to the jurisdiction of courts in New York. See Dkt. No. 50-9
at 7-9. In support of that argument, Plaintiffs cite to New York’s General Business Law
(“GBL”) § 360-n(b), which states, “[i]n any action brought against a non-resident registrant,
service may be effected upon the secretary as agent for service of the registrant in accordance
with the procedures established for service upon non-resident corporations and business entities.”
See id. at 8 (emphasis added). New York GBL § 360(f) defines the term “applicant” as “the
person filing an application for a registration of a mark under this article, and the legal
representatives, successors, or assigns of such person. GBL § 360(g) defines the term
“registrant” as “the person to whom the registration of a mark under this article is issued, and the
legal representatives, successors, or assigns of such person.” Finally, GBL § 360-d states, “Upon
compliance by the applicant with the requirements of this article, the secretary shall cause a
certificate of registration to be issued and delivered to the applicant . . . . Any certificate of
registration issued by the secretary under the provisions hereof or a copy thereof duly certified
by the secretary shall be admissible in evidence as competent and sufficient proof of the
registration of such mark in any actions or judicial proceedings in any court of this state.”
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Thus, service of process may be made upon New York’s Secretary of State for entities
that are registered here, not companies that have merely applied for—but not yet obtained—a
registered trademark or service mark. Additionally, it is a certificate of registration—not an
application for a certificate of registration—that is admissible in evidence in any court in New
York as proof of registration of a service mark.
Defendants argue, “A rejected trademark application—regardless of when it is filed—
does not confer enforceable rights, does not reflect commercial exploitation of the New York
marketplace, and does not constitute purposeful availment sufficient to support personal
jurisdiction under CPLR § 302(a)(1).” Dkt. No. 54 at 12. The Court agrees. Thus, the discovery
of an application for a service mark that may have been submitted to NYS DOS by Defendants
prior to the filing of the complaint by Plaintiffs is not sufficient to cure the jurisdictional defect
identified by Judge Brindisi in his Decision and Order.
WHEREFORE, based on the foregoing, it is hereby
ORDERED that Plaintiffs’ motion for leave to file a Second Amended Complaint (Dkt.
No. 50) is DENIED4; and it is further
RECOMMENDED that Defendants’ motion to dismiss the First Amended Complaint
for lack of personal jurisdiction (Dkt. No. 29) be GRANTED; and it is further
ORDERED that the Clerk provide Plaintiffs with a copy of this Order and Report-
Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk of the
4 In the alternative, Plaintiffs seek leave to file a supplemental pleading alleging the dates the
Defendants applied for and obtained the “‘983 Registration.” Dkt. No. 50 at 16-18. The
undersigned denies such relief for the same reasons set forth above.
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Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C.
§ 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).
Dated: May 19, 2026
Syracuse, New York
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