Darling v. Manley

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Michael Darling,
Plaintiff,
v. 	5:25-CV-1779
(ECC/MJK)
Kathy Manley,
Defendant.
_____________________________________________________________________
Michael Darling, Plaintiff pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Elizabeth C. Coombe, U.S. District Judge
ORDER & REPORT-RECOMMENDATION
Darling commenced this action on December 19, 2025 by filing a
Complaint. (“Compl.,”Dkt. 1). Darling also filed an application for leave
to proceed in forma pauperis (“IFP”). (Dkt. 2). On December 22, 2025,
United States District Court Judge Coombe administratively closed the
file because Darling’s IFP application was incomplete. (Dkt. 4). On
February 12, 2026, Darling refiled his motion for leave to proceed IFP.
(Dkt. 5). The Clerk sent the Complaint and IFP application to this
Court for review.
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I. 	BACKGROUND
Darling alleges that Defendant represented him in an appeal.
(Dkt. 1-4). At some point, Darling terminated the representation
because of a dispute about matters that needed to be included in the
appeal. (Id.). Darling informed the appellate court that he fired
Defendant “do [sic] to her incompetence, lies and fraud.” (Id.). Darling
further alleges that Defendant made a fraudulent submission to the
court and that her actions “were unlawful and deliberate knowing full
well she had no authority to proceed with this case.” (Id.).
Darling alleges federal question jurisdiction based on the Fourth
Amendment, “Art III & 2,” and 26 U.S.C. § 7206. (Dkt. 1, ¶ II(A)).
Darling seeks $50,000 in monetary damages. (Dkt. 1, ¶ II(B)(3)).
II. 	IFP APPLICATION
Darling declares in his IFP applications that he is unable to pay
the filing fee. (Dkt. 5). After reviewing Darling’s application, this Court
finds that he is financially eligible for IFP status.
III. 	STANDARD OF REVIEW
Courts can sua sponte dismiss a case at any time if they determine
that an action is (1) frivolous or malicious; (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief against a
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3
defendant who is immune from such relief. See 28 U.S.C. § 1915
(e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must
consider whether the complaint lacks an arguable basis in law or fact.
See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (cleaned up); see also
28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to
prevent abuses of court process as well as to discourage the waste of
judicial resources. See Neitzke, 490 U.S. at 327; see also Harkins v.
Eldredge, 505 F.2d 802, 804 (8th Cir. 1974).
Courts must show liberality toward pro se litigants and use
extreme caution when sua sponte dismissing pro se complaints. See
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d
Cir. 2000). Still, courts have a responsibility to determine that a claim
is not frivolous before permitting a plaintiff to proceed. See id.
IV. 	DISCUSSION
A. The District Court should dismiss the Complaint
because Defendant is not a “state actor.”
The Court recommends dismissing the Complaint against
Defendant with prejudice and without leave to amend because she is
not a “state actor.”
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To support a claim under 42 U.S.C. § 1983, the defendant must be
acting under “color of state law.” However, an attorney representing a
client in a criminal trial, whether that attorney is a public defender,
legal aid attorney, or court-appointed counsel, is not acting under the
color of state law. See Polk County County v. Dodson, 454 U.S. 312, 325,
(1981); see also Rodriquez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)
(stating that it is well established that private attorneys—even if the
attorney was court appointed—are not state actors for the purposes of
Section 1983 claims.). Defendant is therefore not a state actor under
Section 1983. And because Defendant is not a state actor, Darling’s
claims under the Fourth Amendment should be dismissed.
B. Darling’s claim under 26 U.S.C. § 7206 does confer a
private cause of action.
Darling’s claim under 26 U.S.C. § 7206 should be dismissed even
if the District Court finds that Defendant is a “state actor.” It is well
settled that 26 U.S.C. § 7206, a criminal provision of the Internal
Revenue Code, does not confer a private cause of action. See Feifei Gu v.
Zeng, No. 23-CV-4168, 2023 WL 4138519, at *2 (E.D.N.Y. June 22,
2023) (Plaintiff cannot assert a private cause of action under 26 U.S.C.
§ 7206); see also Freedom Calls Found. v. Bukstel, No. 5-CV-5460, 2006
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WL 845509, at *28 (E.D.N.Y. Mar. 3, 2006) (“[T]here is no private right
of action available to [counterclaimant] under 26 U.S.C. § 7206.”).
Because 26 U.S.C. § 7206 does not afford Darling a private cause her
action, his claim should be dismissed with prejudice and without leave
to amend.
V. 	OPPORTUNITY TO AMEND
Generally, before the court dismisses a pro se complaint or any
part of the complaint sua sponte, the court should afford a plaintiff the
opportunity to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present
when the problem with plaintiff’s causes of action is substantive such
that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted).
Here, any amendment would be futile because Defendant is not a
“state actor” and 26 U.S.C. § 7206 does confer Darling with a private
cause of action.
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V. 	CONCLUSION
WHEREFORE, based on the findings above, it is hereby
ORDERED that Darling’s motion to proceed in forma pauperis
(Dkt. 5) is GRANTED, and it is further
RECOMMENDED that the Complaint (Dkt. 1) be DISMISSED
WITH PREJUDICE AND WITHOUT LEAVE TO AMEND because
Defendant is not a state actor for purposes of 42 U.S.C. § 1983 and any
amendment would be futile, and it is further
RECOMMENDED that even if the District Court finds that
Defendant is a state actor, Darling’s claim under 26 U.S.C. § 7206
should be DISMISSED WITH PREJUDICE AND WITHOUT
LEAVE TO AMEND because it does not allow for a private cause of
action, and it is further
ORDERED that the Clerk provide Darling with a copy of this
Order and Report-Recommendation, along with copies of the
unpublished decisions cited herein in accordance with the Second
Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
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Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)
days within which to file written objections to the foregoing report.1
Such objections shall be filed with the Clerk of the Court. FAILURE
TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) 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)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72.
Dated: February 17, 2026.
1 If you are proceeding pro se and are served with this Report-Recommendation and
Order by mail, three additional days will be added to the fourteen-day period,
meaning that you have seventeen days from the date the Report-Recommendation
and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the
last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next day that is not a Saturday,
Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Gu v. Zeng, Not Reported in Fed. Supp. (2023)
2023 WL 4138519
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4138519
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Feifei GU, Plaintiff,
v.
Hongyi ZENG, also known as Harry Zeng, Defendant.
Feifei Gu, Plaintiff,
v.
Sergio Jimenez, Defendant.
23-CV-4168(EK)(LB), 23-CV-4569(EK)(LB)
|
Signed June 22, 2023
Attorneys and Law Firms
Michael Stewart, Pro Se.
Police Officer Scudiero, Pro Se.
Feifei Gu, Brooklyn, NY, Pro Se.
MEMORANDUM & ORDER
ERIC KOMITEE, United States District Judge:
*1 Plaintiff Feifei Gu filed these pro se actions in response
to a landlord-tenant holdover proceeding in Kings County
Housing Court that is slated for trial this month. She names
as defendants the petitioner-landlord and the judge presiding
over that state court matter. On June 20, Plaintiff filed an
emergency order to show cause for a preliminary injunction
and temporary restraining order in each action, seeking,
among other relief, a stay of the impending trial date. The
Court consolidates these actions solely for the purpose of this
Order. Plaintiff's requests to proceed in forma pauperis are
granted. For the reasons discussed below, however, Plaintiff's
complaints are dismissed, and her emergency requests for
injunctive relief are thus denied as moot.
I. Background
In Gu v. Zeng, No. 23-CV-4168, Plaintiff Gu asserts violations
of federal law in connection with a holdover proceeding
initiated by Zeng against her in Kings County Housing Court
under Index No. LT-325749-22/KI. See Compl. ¶ 5, ECF No.
1. Plaintiff asserts that, in the course of that action, Zeng
violated various federal statutes — primarily in the criminal
code — by making false statements, forging documents, and
committing perjury. Id. at ¶¶ 7–17. Plaintiff seeks Zeng's
imprisonment and monetary damages.
In Gu v. Jimenez, No. 23-CV-4569, Gu alleges that the
judge presiding over her landlord-tenant action, Judge Sergio
Jimenez, has “distorted the facts,” refused her demand for a
jury trial, and improperly denied her motion to dismiss. See
Compl. ¶¶ 4–19, ECF No. 1. She again invokes statutes that
criminalize making false statements, forgery, and perjury as
the bases for her claims. Id. at ¶¶ 20–22. Plaintiff similarly
seeks monetary damages, and asks that Judge Jimenez be
“disbarred” and imprisoned.
II. Legal Standard
Under 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss
an in forma pauperis action that “(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is
immune from such relief.” At the pleading stage, “all well-
pleaded, nonconclusory factual allegations” in the complaint
are assumed to be true. Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d 111, 124 (2d Cir. 2010). 1 Pro se complaints
are held to less stringent standards than pleadings drafted by
attorneys, and the Court will read a pro se complaint liberally
and interpret it as raising the strongest arguments it suggests.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
1 Unless otherwise noted, when quoting judicial
decisions this order accepts all alterations and
omits all citations, footnotes, and internal quotation
marks.
Still, a pro se plaintiff is not exempt from “compliance with
relevant rules of procedural and substantive law.” Traguth
v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Furthermore, if the
Court “determines at any time that it lacks subject-matter
jurisdiction, the Court must dismiss the action.” Fed. R. Civ.
P. 12(h)(3); see Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 434 (2011).
III. Discussion
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Gu v. Zeng, Not Reported in Fed. Supp. (2023)
2023 WL 4138519
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
*2 In both cases, Plaintiff attempts to invoke this Court's
jurisdiction by alleging that the defendant violated various
federal criminal statutes. Section 1331 grants a federal
court jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331; see Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006)
(“A plaintiff properly invokes § 1331 jurisdiction when she
pleads a colorable claim ‘arising under’ the Constitution or
laws of the United States.”). A federal court, however, lacks
jurisdiction over a federal claim that “clearly appears to be
immaterial and made solely for the purpose of obtaining
jurisdiction” or is “wholly insubstantial and frivolous.” Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998).
Here, Plaintiff states no valid federal claim. She asserts
claims arising under Title 18, Sections 471, 472, 1621,
and 1623 — federal statutes that criminalize “forgery” (i.e.,
counterfeiting) and perjury. “It is a truism, and has been for
many decades, that in our federal system crimes are always
prosecuted by the Federal Government, not ... by private
complaints.” Conn. Action Now, Inc. v. Roberts Plating Co.,
457 F.2d 81, 86–87 (2d Cir. 1972); see Sheehy v. Brown, 335
F. App'x 102, 104 (2d Cir. 2009) (“[F]ederal criminal statutes
do not provide private causes of action.”). Plaintiff therefore
cannot assert civil claims based on these federal criminal
statutes. See, e.g., Hariprasad v. Master Holdings Inc., 788 F.
App'x 783, 786 (2d Cir. 2019) (finding “no basis for implying
a private right of action” under Section 472 and affirming
dismissal for lack of subject-matter jurisdiction); Ojeda v.
Mendez, No. 20-CV-3910, 2021 WL 66265, at *3 (E.D.N.Y.
Jan. 7, 2021) (dismissing claims brought under Section 471,
among other statutes); Faraldo v. Kessler, No. 8-CV-261,
2008 WL 216608, at *6 (E.D.N.Y. Jan. 23, 2008) (collecting
cases and dismissing claims brought under Sections 1621 and
1623). For the same reason, Plaintiff cannot assert a private
cause of action under 26 U.S.C. § 7206, a criminal provision
of the Internal Revenue Code. See Freedom Calls Found. v.
Bukstel, No. 5-CV-5460, 2006 WL 845509, at *28 (E.D.N.Y.
Mar. 3, 2006) (“[T]here is no private right of action available
to [counterclaimant] under 26 U.S.C. § 7206.”). 2
2 Plaintiffs also has not demonstrated subject-matter
jurisdiction based on a diversity of citizenship.
Under Section 1332, federal courts may exercise
jurisdiction over state law claims where the parties
are citizens of different states and “the matter in
controversy exceeds the sum or value of $75,000,
exclusive of interest and costs.” See 28 U.S.C.
§ 1332(a). Here, Plaintiff indicates that she is a
citizen of New York, and it appears that each
defendant is as well.
Ultimately, Plaintiff alleges claims arising from the tenant
holdover proceeding in state court and the actions taken by
the defendants in connection with that proceeding. Based
on the allegations in the complaints, the Court lacks federal
jurisdiction over such landlord-tenant and related matters.
See, e.g., Johnson v. Ikezi, No. 20-CV-2792, 2021 WL
1091910, at *2 (E.D.N.Y. Mar. 22, 2021) (“[T]o the extent
Plaintiffs seek the Court's intervention in a landlord-tenant
proceeding, there is ... no basis for federal jurisdiction.”);
Southerland v. N.Y.C. Hous. Auth., No. 10-CV-5243, 2011
WL 73387, at *2 (E.D.N.Y. Jan. 7, 2011) (dismissing
claims for wrongful eviction for lack of subject-matter
jurisdiction). 3
3 Additionally, Plaintiff's request for emergency
injunctive relief — to stay the ongoing holdover
proceeding in Kings County Housing Court —
is barred by the Anti-Injunction Act. Under that
statute, “[a] court of the United States may not grant
an injunction to stay proceedings in a State court
except as expressly authorized by Act of Congress,
or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.” 28 U.S.C. §
2283. Courts in this Circuit have regularly applied
the Anti-Injunction Act in denying requests to
enjoin state-court eviction proceedings. See, e.g.,
Watkins v. Ceasar, 88 F. App'x 458, 459 (2d Cir.
2004); Sierra v. City of New York, 528 F. Supp. 2d
465, 467–69 (S.D.N.Y. 2008); Allen v. N.Y.C. Hous.
Auth., No. 10-CV-168, 2010 WL 1644956, at *3
(S.D.N.Y. Apr. 20, 2010) (collecting cases).
*3 Moreover, even if Plaintiff could assert private causes of
action here, her claims against Judge Jimenez would be barred
by absolute immunity. Judges are absolutely immune from
suit for any actions taken within the scope of their judicial
responsibilities, save for a few exceptions not applicable here.
See Mireles v. Waco, 502 U.S. 9, 11 (1991) (suits for money
damages); 42 U.S.C. § 1983 (suits for injunctive relief).
“[A]cts arising out of, or related to, individual cases before the
judge are considered judicial in nature.” Bliven v. Hunt, 579
F.3d 204, 210 (2d Cir. 2009). Here, the claims against Judge
Jimenez arise from decisions made during the state court
holdover proceeding and thus plainly fall within the scope
of his judicial capacity. As a result, such claims are barred
by judicial immunity. See, e.g., Herbert v. Devito, No. 18-
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Gu v. Zeng, Not Reported in Fed. Supp. (2023)
2023 WL 4138519
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
CV-5287, 2018 WL 4845737, at *3 (E.D.N.Y. Oct. 4, 2018);
Southerland, 2011 WL 73387, at *2.
IV. Conclusion
For the foregoing reasons, Plaintiff's requests to proceed in
forma pauperis are granted. Her complaints are dismissed
without prejudice. See Fed. R. Civ. P. 12(h)(3). The
emergency requests for a preliminary injunction and
temporary restraining order are denied as moot. The Clerk of
Court is directed to enter judgment, close these cases, and mail
a copy of this Memorandum and Order to Plaintiff.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and therefore
in forma pauperis status is denied for purpose of an appeal.
Coppedge v. United States, 269 U.S. 438, 444–45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4138519
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01779-ECC-MJK Document 7 Filed 02/17/26 Page 10 of 40

Gu v. Zeng
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Docket 23-1038
Gu v. Jimenez
— C.A.2 July 17, 2023 Docket
2. Docket 1:23-CV-04168
Stewart et al v. Caligeuri # 1902
— E.D.N.Y. June 06, 2023 Docket
Case 5:25-cv-01779-ECC-MJK Document 7 Filed 02/17/26 Page 11 of 40

Gu v. Zeng
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (3)
1. Gu v. Zeng
2023 WL 4138519 , E.D.N.Y. , June 22, 2023
Appeal Dismissed by
2. Gu v. Jimenez
2023 WL 9231563 , 2nd Cir.(N.Y.) , Nov. 22, 2023
Certiorari Denied by
3. Gu v. Jimenez
144 S.Ct. 1396 , U.S. , Apr. 22, 2024
Case 5:25-cv-01779-ECC-MJK Document 7 Filed 02/17/26 Page 12 of 40

Gu v. Zeng
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01779-ECC-MJK Document 7 Filed 02/17/26 Page 13 of 40

Freedom Calls Foundation v. Bukstel, Not Reported in F.Supp.2d (2006)
2006 WL 845509
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Sasqua Group, Inc. v. Courtney, E.D.N.Y., August 2,
2010
KeyCite Overruling Risk
Overruling Risk Erchonia Corp. v. Bissoon, 2nd Cir.(N.Y.), February 22,
2011
2006 WL 845509
Only the Westlaw citation is currently available.
ON LINE Publication ONLY
United States District Court,
E.D. New York.
FREEDOM CALLS FOUNDATION,
a New York corporation, Plaintiff,
v.
Edward BUKSTEL, Defendant.
Edward Bukstel, Counterplaintiff/Third–Party Plaintiff,
v.
Freedom Calls Foundation, a New
York corporation, Counterdefendant,
and
John B. Harlow II, Kate Green, Warren Sherman,
Daniel Kurtz and J.J. Leitner, Third–Party Defendants.
No. 05CV5460(SJ)(VVP).
|
March 3, 2006.
Attorneys and Law Firms
Holland & Knight LLP, New York, NY, By: Christelette
Angelika Hoey, Tamara F. Carmichael, for Plaintiff.
Edward Bukstel, Blue Bell, PA, Defendant pro se.
MEMORANDUM & ORDER
JOHNSON, Senior District Judge:
*1 Presently before the Court is Plaintiff–Counterdefendant
Freedom Calls' (“Plaintiff”) motion for a preliminary
injunction, pursuant to Rule 65 of the Federal Rules of Civil
Procedure, to restrain Defendant–Counterplaintiff–Third–
Party Plaintiff Edward Bukstel (“Defendant”), 1 a former
officer, employee and director of Plaintiff, from engaging
in ongoing acts of unfair competition and cybersquatting in
violation of the Lanham Act, 15 U.S.C. § 1051 et seq., as
well as related and independent violations of New York state
statutory and common law. Plaintiff also moves this Court for
leave to file an amended complaint, pursuant to Rule 15(a) of
the Federal Rules of Civil Procedure.
1 Defendant was also the named plaintiff in Bukstel v.
Harlow et al., Docket No. 05 CV 5996, which was
pending in the United States District Court for the
Eastern District of Pennsylvania (“Pennsylvania
Federal Court”). In that case, Defendant alleged
that Plaintiff and its current directors are liable
for retaliatory termination, fraud, embezzlement,
negligence, breach of contract, defamation, and
breach of fiduciary responsibilities. See Complaint,
Bukstel v. Harlow et al., Docket No. 05 CV 5996
(E.D.Pa. Nov. 15, 2005). On February 2, 2006,
the Pennsylvania Federal Court entered an order of
dismissal for the Bukstel v. Harlow et al. action,
upon Defendant's request.
Also before this Court is Defendant's motion for a
temporary restraining order (“TRO”), preliminary injunction,
and appointment of a receiver. Defendant seeks to enjoin
and restrain Plaintiff's directors from (1) using the
business e-mail account assigned to Defendant while he
was affiliated with Plaintiff to distribute misleading and
fraudulent tax documentation to Plaintiff's donors and patrons
and (2) falsifying tax returns, perpetuating fraud, and
misappropriating assets from Plaintiff.
BACKGROUND
Plaintiff, a New York not-for-profit corporation, 2 was
formed in 2003 to carry out the charitable mission of
building a communications network which enables men and
women on active duty in the United States Armed Forces to
communicate free of charge from their base camps with their
families at home. (Am.Compl.¶¶ 1, 5.) Plaintiff was founded
by Defendant and Plaintiff's current Executive Director, John
Harlow (“Harlow”). (Am.Compl.¶ 9.) Both Defendant and
Harlow served on Plaintiff's initial board of directors. (Harlow
Decl. ¶ 4.)
2 Plaintiff has also been recognized by the Internal
Revenue Service as a tax-exempt organization,
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Freedom Calls Foundation v. Bukstel, Not Reported in F.Supp.2d (2006)
2006 WL 845509
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
as described in Section 501(c)(3) of the Internal
Revenue Code. (Am.Compl.¶ 1.)
From September 2003 until the present, Plaintiff
used the marks FREEDOM CALLS and FREEDOM
CALLS FOUNDATION (collectively, the “Marks”) when
communicating with the public about its charitable services.
(Am.Compl.¶ 6, 7.) Plaintiff has received national and
international publicity for the work it does and has also
received recognition from the United States Department of
Defense, United States Army, and the United States Defense
Security Service. (Harlow Decl. 3 ¶ 10, Ex. F, G.) As a
result of this continuous usage, Plaintiff alleges that it has all
common law rights in and to the Marks. (Am.Compl.¶ 7.)
3 All citations to “Harlow Decl.” refer to Harlow's
Declaration in support of Plaintiff's Motion for a
Preliminary Injunction and for Leave to File an
Amended Complaint, unless otherwise noted.
In addition to using the Marks, Plaintiff also secured
the “freedomcalls.org” domain (the “Plaintiff Domain”)
and subsequently built Plaintiff's website using the
uniform resource locator (the “URL”) www.freedomcalls.org.
(Am.Compl. ¶ 11.) On or about October 28, 2005, Plaintiff
submitted applications to the United States Patent and
Trademark Office (“USPTO”) to register the Marks as
trademarks. (Am.Compl.¶ 6.)
Since its formation, Plaintiff has maintained a list of
corporations, state agencies, schools, colleges, telemedicine
agencies, and other entities with videoconferencing
capabilities that have provided conferencing venues for
military families, as well as a list of family-readiness group
personnel that is responsible for executing the scheduled
events and conferences (collectively, the “Supporters”).
(Harlow Decl. ¶ 11; Hr'g Tr. 4 16:6–11.) Contact information
for the Supporters is maintained in a database called
Operation Hometown Link. (Hr'g Tr. 15:1–12.) Additionally,
Plaintiff maintains contact information for those who have
used or expressed a desire to use Plaintiff's services
to communicate with deployed friends and families (the
“Clients”). (Harlow Decl. ¶ 11.) Contact information for the
Clients is kept on various spreadsheets, which are updated
with family-contact and military-contact information each
time an event is held. (Hr'g Tr. 16:14–19.) Plaintiff refers to
the lists containing contact information for both Supporters
and Clients as the “Supporter & Client List.” (Harlow Decl.
¶ 12.) Plaintiff alleges that the Supporter & Client List is a
trade secret and that the names and the contact information
contained therein are not disclosed on the Internet or in any
public documents. (Id.)
4 All citations to “Hr'g Tr.” refer to the evidentiary
hearing held before this Court on January 12, 2006
for Plaintiff's Motion for Preliminary Injunction
and for Leave to File an Amended Complaint and
Defendant's Motion for a Temporary Restraining
Order, Preliminary Injunction and Appointment of
a Receiver, unless otherwise provided.
*2 While employed with Plaintiff, Defendant's assigned
email address was ebukstel@freedomcalls.org. (Am.Compl.¶
17.) On August 11, 2005, while still employed with Plaintiff,
Bukstel registered the domain name “freedomcalls.us” (the
“Bukstel Domain”) with Go Daddy Software, Inc. (Harlow
Decl., Ex. H.) Soon thereafter, Defendant used the Bukstel
Domain to create a website (the “Bukstel Website”)
using the URL www.freedomcalls.us (the “Bukstel URL”).
(Am.Compl.¶ 15.) Defendant also used the Bukstel Domain
to establish a new e-mail address, ebukstel@freedomcalls.us
(the “Bukstel E-mail”). (Am.Compl.¶ 16.) 5
5 Defendant's pleadings also reveal that
he established and uses a Yahoo!
Instant Message account with the name
“freedomcallsbukstel .” (Def.'s Mot. TRO Prelim.
Injunc. at 5.) Although there is no evidence of the
frequency with which Defendant uses this instant
message account, the evidence before the Court
confirms that the it was used on December 17, 2005
to correspond with an individual that appears to be
a Supporter or Client regarding whether satellite
service connecting the United States to Iraq would
lapse. (Id.)
The Bukstel Website's front page included a banner at the
top that read “Freedom Calls Volunteers.” (Hr'g, Pl.'s Ex.
9. at 1.) 6 Below the banner, there were links entitled
“Home Page,” “About Us,” “Contact Us,” “Volunteers,” and
“Contribute.” (Hr'g, Pl.'s Ex. 9. at 1.) A short description
of the services offered by Plaintiff appeared below the
aforementioned links. (Id.) Thereafter, the Bukstel Website
provided several pictures of Supporters and Clients at various
events sponsored by Plaintiff. (Id. at 1–4.)
6 On or about January 17, 2006, the content of
the Bukstel Website was altered significantly.
Based on this Court's review of the Bukstel
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Website, all hyperlinks, pictures, text, and logos
relating to, or suggesting affiliation with, Plaintiff
have been removed. On that date, only a white
background, a red line, and a ribbon colored with
the United States Flag, reminiscent of the “Support
Our Troops” ribbons, Go Daddy Software, Inc.
logos, a 2006 copyright, and a non-working
“Home Page” hyperlink were visible on the
face of the website. To be sure, the fact that
Defendant, at least in part, has removed potentially
infringing content from Bukstel Website does
not render an award of preliminary relief moot
because he has not provided the Court or Plaintiff
with a consent injunction or other enforceable
assurance that the alleged infringement will not
be repeated. See Columbia Pictures Indus. v.
Miramax Films Corp., 11 F.Supp.2d 1179, 1183
(stating that where defendants' posters and film
trailers allegedly infringed plaintiffs' copyrights,
“the withdrawal of the complained of advertising
does not render this action moot” on motion
for preliminary injunction); Upjohn Co. v. Am.
Home Prods. Corp., 598 F.Supp. 550, 554–55
(S.D.N.Y.1984) (“Before a suit for injunctive
relief can be dismissed as moot, the offending
conduct must have ceased and the court must
find that there is no reasonable expectation that
it will resume.”) (citations omitted). Defendant
has not even provided Plaintiff with reasonable
assurance that the infringing website will not recur.
Cf. American Express Travel Related Servs. Co.,
Inc. v. Mastercard Int'l Inc., 776 F.Supp. 787,
790 (S.D.N.Y.1991) (finding injunction moot once
defendant ceased showing infringed television
commercial and had already filmed a noninfringing
replacement); Greilsheimer v. Ferber Chan &
Essner, No. 98 CV 2553, 1998 U.S. Dist. LEXIS
13445, *1, *2–*3 (S.D.N.Y. Aug. 27, 1998)
(injunction against trademark infringement not
necessary where defendants had not only agreed
to stop using plaintiff's name on firm's sign
and stationery, but had already ordered new,
noninfringing sign and stationery).
When a user clicks on the “About Us” link, a more
detailed program description of Plaintiff appeared, along with
additional pictures of Supporters and Clients at Plaintiff-
sponsored events. (Id. at 5–7.) The program description
included on the Bukstel Website was substantially the same
as that which appears on Plaintiff's official website. (Id. at
5; see Pl.'s Hr'g Ex. 6, 2–3.) The “Contact Us” link takes
website users to language that instructed “Freedom Calls
Volunteers” to “schedule a video connection or volunteer
locations for connecting troops and families” by providing
contact information. (Id. at 8.) The Bukstel Website also
provided info @freedomcalls.us as a point of contact. (Id.)
Harlow learned about the Bukstel Website from an individual
who contacted him sometime after August 2005. (Hr'g Tr.
37:22–23.) Under the impression that the Bukstel Website
belonged to Plaintiff, the individual commented to Harlow
about the change in the quality of the website's look and feel.
(Id. at 37:24–25; 38:1–2.) After receiving information about
the existence of the Bukstel Website, Harlow conducted a
“WHOIS” search in order to determine the identity of the
Bukstel Website registrant. (Hr'g Tr. at 38:2–4.) Harlow's
search revealed that Defendant registered the Bukstel Domain
on August 11, 2005. (Id. at 38:5–7.) Soon thereafter, Harlow
contacted Defendant via phone and via e-mail to request
that Defendant disable the Bukstel Website. (Id. at 39:25,
40:1.) These requests were apparently refused or ignored by
Defendant.
By and through its counsel, Plaintiff issued “cease and desist”
letters to Defendant, on August 29, 2005 and again on October
31, 2005, requesting that Defendant disable the Bukstel
Website. (Harlow Supp. Decl. 7 ¶ 2–3; Am. Compl. ¶ 30.)
Although the content of the Bukstel Website has changed
since these demand letters were issued, Defendant has not
fully complied with these demand letters, as the Bukstel URL
is still functional. (See Am. Compl. ¶ 30.)
7 All citations to “Harlow Supp. Decl.” refer to
Harlow's Supplemental Declaration in Reply to
Defendant's Opposition to, and in further support
of, Plaintiff's Motion for a Preliminary Injunction
and for Leave to File an Amended Complaint,
unless otherwise noted.
*3 On or about November 8, 2005, Plaintiff terminated
Defendant, apparently because of the acrimony between
Defendant and members of Plaintiff's board of directors.
(Am. Compl. ¶ 14; Def.'s Resp. Mem. Def.'s PI Mot. 8
at 4.) In the days immediately following Defendant's
termination, Plaintiff, via Harlow, monitored Defendant's
“freedomcalls.org” account in order to field inquiries
from Supporters and Clients that attempted to contact
Defendant with inquiries related to Plaintiff. (Harlow Opp'n
Decl. 9 ¶ 8.) As a general practice, Harlow responded
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to Defendant's e-mails by sending reply messages from
Harlow's e-mail account, rather than from Defendant's
ebukstel @freedomcalls.org account, and explaining that
Defendant was no longer affiliated with Plaintiff. (Id. at ¶ 9.)
However, in the first or second day following Defendant's
termination, Harlow responded to e-mails directly from
Defendant's “freedomcalls.org” account. (Hr'g Tr. 49:13–16.)
On November 11, 2005, Harlow responded to an e-mail
from a donor (and a friend of Defendant) that requested a
copy of Plaintiff's annual tax return. Without explaining that
Defendant was no longer associated with Plaintiff, Harlow
provided the donor with the requested tax documentation. (Id.
at ¶ 10.) Since that time, Harlow avers that he has not used
the ebukstel@freedomcalls.org e-mail address to respond to
e-mails sent to that account. (Hr'g Tr. 50:20–22.)
8 All citations to “Def.'s Resp. Mem. Def.'s PI
Mot.” refer to Defendant's Response Memorandum
of Law for Plaintiff's Response in Opposition
to Defendant's Motion for TRO, Preliminary
Injunction, and Appointment of a Receiver, unless
otherwise noted.
9 All citations to “Harlow Opp'n Decl.” refer to
Harlow's Declaration in Opposition to Defendant's
Motion for a Temporary Restraining Order,
Preliminary Injunction, and Appointment of a
Receiver, unless otherwise noted.
After his termination, Defendant used the Bukstel Email
to contact Supporters and Clients. On November 23, 2005,
and again on December 6, 2005, Defendant sent e-mails
from the Bukstel E-mail to Supporters and Clients stating
that Plaintiff had canceled or threatened to cancel various
video teleconferences. (Am.Compl.¶ 20.) These e-mails also
contained statements that Harlow mistreated troops and their
families and embezzled money from Plaintiff's bank accounts.
(Am.Compl.¶ 21.) On January 13, 2006 message, Defendant
used the Bukstel E-mail to send a message that accused
Harlow of providing perjurious testimony at the January 12
evidentiary hearing. (Pl.'s 1/18/2006 Ltr., Ex. A.) Plaintiff
asserts that these statements are false and that Defendant
has made “numerous” other false statements on the Bukstel
Website and during the process of contacting and/or soliciting
Supporters and Clients. (Am.Compl.¶ 22.)
Plaintiff filed the complaint in the instant action on November
18, 2005, alleging 13 causes of action. 10 Defendant answered
this complaint and also alleged several counterclaims
against Plaintiff and third-party claims against various board
members and attorneys for Plaintiffs. 11 On December 8,
2005, Plaintiff moved this Court for a preliminary injunction,
and Defendant cross-moved for similar relief. Defendant also
moved for appointment of a temporary receiver and a motion
to disqualify Holland & Knight LLP as Plaintiff's counsel. On
January 11, 2006, the Court held an evidentiary hearing on
these motions.
10 Plaintiff's 13 causes of action, as provided in
the Amended Complaint, are violation of the
Anti–Cybersquatting Consumer Protection Act,
15 U.S.C. § 1125(d) (Count I), federal unfair
competition, 15 U.S.C. § 1125(a) (Count II),
common law unfair competition (Count III),
violations of New York Unfair Competition Law,
N.Y. Gen. Bus. § 360–1 (Count IV), unjust
enrichment (Count V), common law trademark
infringement (Count VI), breach of fiduciary duty
(Count VII), trade secret misappropriation (Count
VIII), tortious interference with business relations
(Count IX), defamation (Count X), trade libel
(Count XI), fraud (Count XII), and prima facie
business tort (Count XIII).
11 Defendant's counterclaims and third-party claims,
as provided in Defendant's Answer, Affirmative
Defenses, and Counterclaims, include retaliatory
termination, fraud; embezzlement, negligence,
breach of contract, defamation, and breach of
fiduciary responsibility.
JURISDICTION
*4 This Court has jurisdiction over Plaintiff's Lanham Act
unfair competition and cyber-squatting claims, pursuant to
15 U.S.C. § 1121(a) ( “The district ... courts of the United
States shall have original jurisdiction ... of all actions arising
under [the Lanham] Act[.]”) The Court has jurisdiction over
Plaintiff's and Defendant's state law claims, pursuant to 28
U.S.C. § 1367 (“[T]he district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in
the action within [the court's] original jurisdiction[.]”). Under
New York's choice of law rules, New York law properly
applies to this case because the relevant transactions appear
to have occurred in New York. See Rogers v. Grimaldi, 875
F.2d 994, 1002 (2d Cir.1989) (noting that a federal court
adjudicating a supplemental state law claim applies the choice
of law rules of the forum state); Lazard Freres & Co. v.
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Protective Life Ins. Co., 108 F.3d 1531, 1539 (2d Cir.1997)
(stating that New York applies the law of the state having the
most significant contacts to the underlying transaction).
DISCUSSION
I. PLAINTIFF'S MOTION FOR A PRELIMINARY
INJUNCTION
A. Standard for Preliminary Injunction
A party seeking a preliminary injunction must show (1)
immediate irreparable injury and (2) either (a) likelihood of
success on the merits or (b) sufficiently serious questions
going to the merits to make them a fair ground for litigation
and a balance of hardship tipping decidedly towards the
movant. See Fed. Express Corp. v. Fed. Expresso, Inc.,
201 F.3d 168, 173 (2d Cir.2000). Irreparable injury under
the Lanham Act is presumed if a plaintiff is able to show
likelihood of confusion, but must be proved independently
absent a showing of likely confusion. See id. at 174.
The movant must show that injury is “neither remote
or speculative, but actual and imminent.” Rodriguez by
Rodriguez v. DeBuono, 175 F.3d 227, 233–34 (2d Cir.1999).
Because monetary loss may be estimated and compensated,
such harm is not considered irreparable harm, Brenntag Int'l
Chems., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir.1999),
unless the movant can show the monetary loss cannot be
compensated, for example, because it will probably result in
bankruptcy, Borey v. Nat. Union Fire Ins. Co., 934 F.2d 30,
34 (2d Cir.1991).
B. Application of the Preliminary Injunction Standard
1. Likelihood of Success on the Merits
As previously noted, Plaintiff brings thirteen causes of action
against Defendant, six of which serve as the basis for
Plaintiff's preliminary injunction request. Each of these six
claims will be examined in turn to determine Plaintiff's
likelihood of success on the merits.
a. Unfair Competition in Violation of the Lanham Act
(Count Two)
Plaintiff alleges that Defendant's use of the Marks in the
Bukstel Domain, Website, URL, and E-mail constitute unfair
competition under section 43(a) of the Lanham Act, 15 U.S.C.
§ 1125(a)(1)(A), because it falsely designates Defendant's
unauthorized products and/or services as originating, being
sponsored by, or having a connection with Plaintiff.
(Am.Compl.¶ 40.) Defendant contends that his use of the
Marks does not violate the Lanham Act because the Bukstel
Domain, URL, Website, and Email were created in good faith
and are not “in commerce” as contemplated by the Lanham
Act. (Def.'s Opp'n Mot. 12 at 2.) Moreover, Defendant states
that Plaintiff waived its right to challenge use of the Marks by
bringing an action against him four months after discovering
existence of the Bukstel Website. (Def.'s Opp'n Mot. at
1.) Defendant further argues that Plaintiff has “unclean
hands” with respect to the Lanham Act unfair competition
claim because Plaintiff has also engaged in various acts of
trademark and copyright infringement. (Def.'s Opp'n Mot. at
2.)
12 All citations to “Def.'s Opp'n Mot.” refer to
Defendant's Memorandum of Law Opposing
Plaintiff's Order to Show Cause, unless otherwise
noted.
*5 Section 43(a) of the Lanham Act creates a federal private
cause of action for injunctive relief and damages against
a person who “uses in commerce any word, term, name,
symbol, or device” or “any false designation of origin” that
is “likely to cause confusion” as to the origin of a product.
15 U.S.C. § 1125(a) (emphasis added). Section 43(a) protects
registered marks, but also protects certain unregistered
trademarks from infringement and even offers a degree
of protection from unfair competition for “unregistrable
marks,” such as generic words that have acquired significant
secondary meaning. Genesee Brewing Co. v. Stroh Brewing
Co., 124 F.3d 137, 142 (2d Cir.1997).
Before turning to the substantive Lanham Act analysis,
the Court will first address Defendant's contention that the
Lanham Act is not applicable here because the Bukstel
Website does not participate “in commerce.” (Def.'s Opp'n
Mot. at 2.) Presumably, Defendant's argument is based
on the fact that neither goods nor services are actively
sold or advertised on the Bukstel Website. The Court
finds this argument to be without merit. The “use in
commerce” requirement is a jurisdictional predicate of the
Lanham Act and, therefore, is broad and has sweeping
reach. Planned Parenthood Fed'n. of Am., Inc. v. Bucci,
No. 97 CV 0629, 1997 WL 133313, *1, *3 (S.D.N.Y.
Mar. 24, 1997). In this case, Defendant's actions have
potentially affected Plaintiff's ability to offer and to provide
its telecommunications services, which were undoubtedly “in
commerce.” See Planned Parenthood Fed'n. of Am., Inc.,
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1997 WL 133313, at *3. Thus, even if Defendant's activities
(including the operation of the Bukstel Website) were not in
interstate commerce for Lanham Act purposes, the potential
effect of those activities on Plaintiff's commercial activities
place Defendant within the reach of the Lanham Act. See
id. Moreover, the presence of the Bukstel Website on the
Internet, where it is capable of being accessed by national and
international users, is sufficient to bring Defendant's use of
the Marks within the reach of the Lanham Act. See id.
(1) Validity of the Marks at Issue
The Court now turns to the issue of whether FREEDOM
CALLS AND FREEDOM CALLS FOUNDATION, although
unregistered marks, are protected by the legal ambit of the
Lanham Act. In the United States Court of Appeals for the
Second Circuit (the “Second Circuit”), it is established that an
unregistered mark is entitled to Lanham Act protection if it
would qualify for registration. See Thompson Med. Co., Inc.
v. Pfizer, Inc., 753 F.2d 208, 215–16 (2d Cir.1985). To qualify
for protection, and thus registration, a mark must either be (1)
“inherently distinctive” or (2) distinctive by virtue of acquired
secondary meaning. Two Pesos, Inc. v. Taco Cabana, Inc.,
505 U.S. 763, 769, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992).
Thus, Plaintiff will prevail on the merits of its unregistered
trademark infringement claim if it can show that “it has a valid
trademark entitled to protection and that the defendant's use of
it is likely to cause confusion.” Arrow Fastener Co. v. Stanley
Works, 59 F.3d 384, 390 (2d Cir.1995).
*6 Marks are classified, in ascending order of strength,
as “(1) generic, (2) descriptive, (3) suggestive, or (4)
arbitrary or fanciful.” Star Indus. v. Bacardi & Co., 412
F.3d 373, 384–385 (2d Cir.2005). Generic marks are those
consisting of words identifying the relevant category of
goods or services. Id. at 385. They are not at all distinctive
and thus are not protectable under any circumstances. Id.
Descriptive marks are those consisting of words identifying
qualities of the product or services. Id. They are not
inherently distinctive, but are protectable provided they have
acquired secondary meaning, which is sometimes referred
to as “acquired distinctiveness.” Id. Suggestive marks and
arbitrary or fanciful marks are each inherently distinctive. Id.
Suggestive marks are those that are not directly descriptive,
but do suggest a quality or qualities of the product through
the use of imagination, thought and perception. Id . Finally,
arbitrary or fanciful marks are ones that do not communicate
any information about the product either directly or by
suggestion. Id.
While Plaintiff states that the Marks are suggestive or fanciful
mark in the context of its “likelihood of confusion analysis,”
discussed infra, Plaintiff also engages in a discussion of the
Marks' acquired secondary meaning, which is only relevant
when a mark is found to be descriptive. See Pl.'s Mem.
Law. Supp. Mot. Prelim. Injunc. at 10. The Court finds that
the Marks are, most likely, suggestive. Both FREEDOM
CALLS and FREEDOM CALLS FOUNDATION suggest,
through the use of imagination and thought, the qualities of
the products and services offered by Plaintiff. Specifically, the
word “Calls” in the Marks suggests the ability of Plaintiff's
clients to communicate telephonically with one another. Also,
the word “Freedom” evokes the idea that the “Calls” are
in some way in support of or related to patriotism, the
United States Armed forces, or other government-related
ideas, entities, or persons.
At a minimum, the Court finds that the Marks are
descriptive. Therefore, if the Marks have secondary
meaning, then they are protectable under the Lanham Act.
Under Second Circuit precedent, the following factors are
relevant in determining secondary meaning: (1) advertising
expenditures; (2) consumer studies linking the mark to a
source; (3) unsolicited media coverage of the product; (4)
sales success; (5) attempts to plagiarize the mark; and (6)
length and exclusivity of the mark's use. Centaur Commc'n v.
A/S/M Commc'n, 830 F.2d 1217, 1222 (2d Cir.1987).
With respect to the first factor, advertising expenditures,
Plaintiff avers that it has expended over $100,000 in order
to promote its services. (Harlow Decl. ¶ 8.) Although this
amount is relatively modest, it is apparent that Plaintiff has
achieved at least a modicum of advertising success, which
the Court finds compelling. See Centaur Commc'n, 830 F.2d
at 1222 (citing First Brands Corp. v. Fred Meyer, Inc.,
809 F.2d 1378, 1383 (9th Cir.1987) (noting that the test of
secondary meaning is not the size of the expenditures used
to create [a mark] but its effectiveness)). Plaintiff has used
its advertising expenditures to sponsor events, attend events,
promote its services, produce posters and other signage, and
maintain its website. (Hr'g Tr. 89:7–9, 18–21 .) Additionally,
Plaintiff's advertising reach extends beyond the reach of its
own financial outlays, as the organization receives donations
of advertising and marketing resources. (Hr'g Tr. 89:11–18 .)
Moreover, Plaintiff has consistently directed its marketing
efforts toward the target customer group, that is, families
of deployed military personnel and branches of the United
States Military. See Centaur Commc'n, 830 F.2d at 1222
(finding modest advertising expenditures weighed in favor
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of secondary meaning because plaintiff invested efforts in
publicizing its connection to the mark by, inter alia, sending
brochures to the relevant consumer group (top American
advertising agencies) and by sending its senior director
from Europe to the United States to meet with advertising
agencies). Plaintiff currently serves approximately 25% of the
Marines deployed to Iraq and serves anywhere from 1200
to 2000 soldiers daily in its technology facilities. (Hr'g Tr.
18:1–4.) Therefore, the Court finds that Plaintiff's advertising
expenditures likely weigh in favor of the Marks' secondary
meaning.
*7 The second factor, the availability of consumer studies
linking the mark to a source, has no bearing on the present
controversy since neither party submitted evidence with
respect to consumer studies linking the Mark to the source.
Turning to the third factor in the secondary meaning inquiry,
unsolicited media coverage, Plaintiff has adduced evidence
of the fact that it has been profiled in various national
and international media outlets and has been recognized by
various governmental agencies. (Harlow Decl., Ex. F and
G.) For example, the “Press” page on Plaintiff's website at
www.freedomcalls.org lists more than 100 instances, with
some as recent as February 20, 2006, where Plaintiff has
received press coverage as a result of its video- or tele-
conferences. Therefore, the Court finds that this factor likely
weighs in favor of the Marks' secondary meaning.
The fourth factor in the secondary meaning inquiry is
Plaintiff's sales success as a result of its use of the Marks.
Although no exact number of users is available, it is clear
based on the amount of unsolicited media coverage received
to date that Plaintiff's services have been well-received by the
target audience, that is, military personnel and their families.
However, given that more specific information relating to
this factor is unavailable, the Court makes no finding as to
Plaintiff's sales success as a result of its use of the Marks.
The Court now considers what is, in this case, a
significant factor in the secondary meaning analysis—
Defendant's attempts to plagiarize the Marks. As evidence
of Defendant's attempts to plagiarize the Marks, Plaintiff
cites Defendant's use of the Bukstel Domain and E-
mail. Defendant counters this allegation by stating that the
Bukstel Domain was created to assuage clients and military
personnel that were complaining about the outdated material
contained on Plaintiff's official website. (D's Opp'n Mot.
at 2.) In Centaur Communications, the court compared
Centaur's MARKETING WEEK to A/S/M's mark and
found striking similarities, leading the court to conclude
that the mark had been copied in an effort to take
advantage of Centaur's consumer recognition and goodwill.
830 F.2d at 1224. Similarly, the differences between
the Bukstel Domain (freedomcalls.us) and the Plaintiff
Domain (freedomcalls.org) is merely the URL extension.
Further, the Bukstel E-mail (ebukstel @freedomcalls.us ) is
strikingly similar to the email Defendant used while affiliated
with Plaintiff (ebukstel@freedomcalls.org). Notwithstanding
Defendant's allegations of his benign motive, the Court finds
that Defendant likely plagiarized, with knowledge, Plaintiff's
Marks.
Finally, the Court considers the length and exclusivity of
Plaintiff's use of the Marks. Plaintiff avers that it has used
the Marks since its inception in September 2003, and that
such use has been exclusive. (Pl.'s Mem. Law. Supp. Mot.
Prelim. Injunc. at 6.) There is no evidence of a break in service
that would suggest that this exclusive use has been disrupted.
Furthermore, there is compelling evidence that Plaintiff
fervently protected itself against potentially infringing uses
of the Marks, contrary to Defendant's assertion. Specifically,
Plaintiff, via Harlow, requested that Defendant stop using the
Busktel Website soon after learning of its existence. Plaintiff,
through counsel, also sent two cease and desist letters to
Defendant, requesting that he discontinue use of the Bukstel
Website. In contrast, Defendant does not present any credible
evidence that Plaintiff's use of the Marks is not exclusive.
Therefore, the Court finds that Plaintiff's use of the Marks is
most likely exclusive.
*8 Based on the foregoing, the Court finds that the Marks
have likely acquired secondary meaning and therefore are
likely to be entitled to the protections afforded by the Lanham
Act.
(2) Likelihood of Confusion
Having determined that FREEDOM CALLS and FREEDOM
CALLS FOUNDATION will likely be deemed valid marks
and thus entitled to legal protection, the Court must now
consider whether there is a likelihood of confusion in the
instant case. In order to be confused, Plaintiff must show that
the public believed that it “sponsored or otherwise approved”
the use of the Marks in the Bukstel Domain, URL, Website,
and E-mail. Pfizer Inc. v. Astra Pharm. Prods., 858 F.Supp.
1305, 1323 (S.D.N.Y.1994).
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In determining likelihood of confusion, this Court will utilize
the nonexclusive list of factors set forth by Judge Friendly in
Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d
Cir.1961), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d
25 (1961), commonly referred to as the Polaroid factors: (1)
strength of plaintiff's mark; (2) degree of similarity between
plaintiff's and defendant's marks; (3) competitive proximity
of the goods or services under the marks; (4) likelihood
that plaintiff will “bridge the gap” and offer products or
services such as defendant's products or services; (5) actual
confusion between the products or services; (6) good faith on
the defendant's part; (7) quality of defendant's product; and (8)
sophistication of buyers of plaintiff's and defendant's goods
or services. The foregoing list of factors does not exhaust the
possibilities—the court may still have to take other variables
into account. W.W.W. Pharm. Co. v. Gillette Co., 984 F.2d 567,
572 (2d Cir.1993). Moreover, “no single Polaroid factor is
determinative.” Id. Rather, “the proper approach is to weigh
each factor in the context of the others to determine if, on
balance, a likelihood of confusion exists.” Id.
Furthermore, if the evidence shows that the defendant
intentionally copied the plaintiff's mark, likelihood of
confusion will be presumed as a matter of law. New York State
Soc. of Certified Pub. Accountants v. Eric Louis Assocs., 79
F.Supp.2d 331, 340 (S.D.N.Y.1999) (citing Mobil Oil Corp. v.
Pegasus Petroleum Corp., 818 F.2d 254, 258 (2d Cir.1987)).
Plaintiff alleges that three aspects of Defendant's conduct
cause a likelihood of confusion: (1) Defendant's use of
each of the Marks, particularly on the Bukstel Website;
(2) registration and use of the Bukstel Domain; and (3)
creation and use of the Bukstel E-mail. The Court finds
that each of Defendant's allegedly unlawful acts provides
compelling evidence of intentional plagiarism; therefore, a
presumption of confusion exists. As has been made clear
through pleadings and hearing testimony, Defendant was
one of Plaintiff's co-founders, served as a member of the
board of directors, and as an officer and employee of the
organization. Therefore, it is highly unlikely that Defendant
was unaware that Plaintiff used the Marks to identify itself.
See New York State Soc. of Certified Pub. Accountants., 79
F.Supp.2d at 340 (S.D.N.Y.1999). Defendant operated with
full knowledge of the current use of the Marks when he placed
the FREEDOM CALLS FOUNDATION logo on the Bukstel
Website and included the FREEDOM CALLS mark in the
Bukstel Domain, URL, and E-mail. Therefore, it is likely
that Defendant developed the Bukstel Domain, URL, Email,
and Website with a clear intent to copy the Plaintiff's Marks.
Defendant has not provided sufficient evidence to rebut this
presumption and, as a result, the presumption remains intact.
*9 This presumption of confusion is further confirmed by
this Court's application of the Polaroid factors to the case
at bar. The first factor, strength of the mark, likely weighs
in Plaintiff's favor. Defendant stated that the primary reason
he created the Bukstel Domain, URL, and Website was to
provide an updated website for individuals that were familiar
with Plaintiff, but that were displeased with Plaintiff's website
maintenance. It is therefore clear that it was precisely the
recognizability of the Marks that led Defendant to create the
“freedomcalls.us” domain name. See New York State Soc. of
Certified Pub. Accountants, 79 F.Supp.2d at 341 (noting that
the recognizability of the Society's mark led defendant to
adopt the infringing “nysscpa.com” domain name).
Similarly, the fact that the Busktel URL and Domain are
nearly identical to Plaintiff's FREEDOM CALLS mark,
provides—with respect to the second Polaroid factor—
strong support for the conclusion that Defendant's use of the
Plaintiff's Marks was likely to confuse consumers. Plaintiff's
FREEDOM CALLS mark and Defendant's “freedomcalls.us”
domain name are nearly identical. The only distinctions are
the latter's lack of capitalization, the lack of a space between
words, and the “us” that is necessary to designate a domain
name. Planned Parenthood, 1997 WL 133313, at *8. In
addition to the distinctions noted above, the one additional
distinction between the FREEDOM CALLS FOUNDATION
mark and “freedomcalls.us” domain is the word “foundation.”
Finally, the degree of similarity between Defendant's
“freedomcalls.us” domain and Plaintiff's “freedomcalls.org”
domain is even stronger. Id.
Turning to the third factor, competitive proximity, the parties'
respective web sites are both located on the World Wide
Web, and the “sites compete for the same audience—namely,
Internet users who are searching for a web site that uses
[P]laintiff's mark as its address.” Planned Parenthood, 1997
WL 133313, at *8. Also, if Defendant were to reactivate
the Bukstel Website, Plaintiff's and Defendant's websites
would be in direct competition with each other. Those
persons seeking Plaintiff's site with the intention of learning
about its mission and services and who would be diverted
to Defendant's site by means of the “freedomcalls.us”
domain name may, indeed, end up using Defendant's services
rather than Plaintiff's. Although it was not clear from the
Bukstel Website, prior to its deactivation, whether or how
Defendant has developed its own tele- or video-conferencing
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infrastructure, it did appear that potential clients or volunteers
could provide their contact information in order to “schedule
a video connection” or “volunteer [a] location for connecting
troops and families.” See Pl.'s Hr'g Ex. 9 at 8. On this
page, there was no link to information regarding Plaintiff;
instead, an e-mail containing the freedomcalls.us domain
name appeared. Persons diverted to Defendant's website were
and have the potential to be not only be confused, but totally
unaware that they are providing personal information to a
service provider that is different from the one they initially
sought out. Therefore, this Court finds that the third Polaroid
factor tips in favor of Plaintiff.
*10 The fourth factor looks to whether the senior user of the
mark is likely to enter the market in which the junior user is
operating, that is, “bridge the gap.” Centaur Commc'n, 830
F.2d at 1227. In the sense that the two sites are competing
for the same users, that is, those looking for a web site that
uses Plaintiff's Marks as its address, there is no gap to bridge.
More broadly, it is clear that Plaintiff is not just likely to
enter Defendant's “business”—it is a foregone conclusion
because this is the exact same space that Plaintiff occupied
before Defendant created his infringing website. This factor,
therefore, carries no weight in the likelihood of confusion
analysis.
The Court now turns to Plaintiff's evidence of actual
confusion, the fifth Polaroid factor. Plaintiff has adduced
compelling evidence that its Supporters and Clients are
actually confused by Defendant's use of the Marks.
Specifically, Harlow received a call from certain Supporters
in Kentucky that were concerned about the content of
an e-mail message they received from Defendant, which
was sent using the Bukstel E-mail. (Harlow Decl. ¶ 18.)
This message was sent by Defendant on November 23,
2005, after Defendant's termination. In sum and substance,
this e-mail accused Harlow of cancelling scheduled video-
conferences and threatening to discontinue services to certain
geographic areas, making denigrating comments about troops
and families, and embezzling cash from Plaintiff. (Harlow
Decl., Ex. J at 1.) Because the FREEDOM CALLS mark
appeared in the e-mail address used by Defendant, the
Supporters believed that Bukstel was still affiliated with
Plaintiff and therefore was authorized to send the e-mail.
(Harlow Decl. ¶ 18.) As a result, Harlow had to provide
clarifying information to these Supporters. (Harlow Decl. ¶
18.) Therefore, this Court finds that the fifth Polaroid factor
likely tips in favor of Plaintiff.
The sixth factor concerns whether Defendant adopted
Plaintiff's Marks in good faith. This factor looks to whether
Defendant adopted its mark with the intention of capitalizing
on Plaintiff's reputation and goodwill. New York State
Soc. of Certified Pub. Accountants, 79 F.Supp.2d at 348
(citing Lang v. Ret. Living Publ'g Co., Inc., 949 F.2d 576,
583 (2d Cir.1991)) (internal quotations omitted). Further,
Defendant's awareness of Plaintiff's use of a given mark to
identify itself can give rise to an inference of bad faith,
and this inference can be bolstered by the further finding
that Defendant proffered no credible innocent explanation
for the adoption of Plaintiff's Marks. Id. (citing Centaur
Commc'n, 830 F.2d at 1228) (internal quotations omitted).
The Court's earlier determination that Defendant intentionally
copied the Marks is an indicator of bad faith. See New York
State Soc. of Certified Pub. Accountants, 79 F.Supp.2d at
348. Furthermore, after receiving two cease and desist letters
from Plaintiff's counsel, Defendant did not seek the advice
of counsel. Rather, Defendant misconstrued demands made
by Plaintiff's counsel in the August 29, 2005 cease and
desist letter as “legal advice” 13 and consequently added a
reference to Plaintiff's www.freedomcalls.org website to the
Bukstel Website. (Def.'s Opp'n Mot. at 23.) Even if Defendant
innocently relied on statements made by Plaintiff's counsel,
this reliance was misplaced and is most likely insufficient to
mitigate the inference of bad faith in this case.
13 The August 29, 2005 letter from Plaintiff's counsel
states that Defendant's “[www.freedomcalls.us]
website, which does not make reference to the
[Plaintiff's] primary website, [ ] will only cause
confusion for donors and others interested in the
[Plaintiff's] work, and will interfere with the pursuit
of the [Plaintiff's] mission.” (Hr'g, Pl.'s Ex. 11.)
*11 Finally, Defendant has offered no credible innocent
explanation of his adoption of Plaintiff's mark. As discussed
above, Defendant adopted Plaintiff's Marks because he
wanted Supporters and Clients to have a website that they
found suitable. Based on the evidence before the Court, it
is clear that Defendant had knowledge of the fact that using
the Marks in the Bukstel URL, Website, Domain, and E-mail
would allow him to capitalize off of the goodwill attached to
Plaintiff's Marks. Therefore, this Court finds that Defendant
most likely did not adopt Plaintiff's mark in good faith.
The Court now considers the seventh Polaroid factor,
the quality of Defendant's product. As previously noted,
the extent to which Defendant offers services is unclear.
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However, if Defendant does offer services, then the services
will almost certainly be inferior because he does not have the
resources to provide the level of service provided by Plaintiff.
The Court therefore finds that the seventh factor also likely
weighs in favor of a finding of a likelihood of confusion.
Coming finally to the eighth factor, the sophistication of the
consumers of the parties' respective services, a finding that
the consumers are sophisticated “usually militates against
a finding of a likelihood of confusion.” Centaur Commc'n,
830 F.2d at 1228. However, when there is a high degree
of similarity between the parties' services and marks, “the
sophistication of the buyers cannot be relied on to prevent
confusion.” Morningside Group, Ltd. v. Morningside Capital
Group, L.L.C., 182 F.3d 133, 143 (2d Cir.1999) (citations
omitted).
In this case, the users of the products and services offered
by Plaintiff vary in their level of sophistication. Clearly,
there are high-ranking government officials and technology
service providers that are intimately familiar with Plaintiff,
its mission, and presumably its website. However, the
similarity between the parties' websites, e-mails, URLs,
and domain names suggest that the sophistication of these
consumers cannot be relied on to prevent confusion. Id. As
for the “unsophisticated” consumer, there are also countless
military personnel and military family members that may be
unfamiliar with Plaintiff and may venture to the Internet to
learn more about its products and services. These are the
unsuspecting individuals that may come across the Bukstel
Website and mistake it for one authorized by Plaintiff.
As Harlow testified at the evidentiary hearing before this
Court, the call notifying him of the Bukstel Website came
from someone familiar with the organization. Although this
unidentified caller was capable of observing the change in
the website's presentation quality, the caller was unable to
ascertain in the first instance that the Bukstel Website was
not sanctioned by Plaintiff. Therefore, the Court finds that the
sophistication of Plaintiff's Supporters and Clients is unlikely
to save Defendant from a finding of a likelihood of confusion.
*12 Of the eight Polaroid factors, seven weigh in favor
Plaintiff. One—the likelihood that Plaintiff will “bridge the
gap”—is of no help to Defendant. Balancing the Polaroid
factors and considering the presumption of confusion, the
Court finds that the that Plaintiff has demonstrated that there is
a significant likelihood of confusion among Plaintiff's current
and prospective Supporters and Clients if Defendant were to
continue to use Plaintiff's Marks.
As a defense to the Lanham Act unfair competition claim,
Defendant asserts that the Bukstel Website was created in
good faith. (Def.'s Opp'n Mot. at 2.) However, a “good
faith defense is no defense” to a Lanham Act claim for
unfair competition. Gucci America, Inc. v. Action Activewear,
Inc., 759 F.Supp. 1060, 1065 (S.D.N.Y.1991). Therefore, this
argument is of no avail to Defendant.
Having also found that Plaintiff's Marks have acquired
secondary meaning, the Court holds that Plaintiff is likely to
succeed on its unfair competition claim under § 43(a) of the
Lanham Act.
b. Cyber–Squatting in Violation of the Lanham Act
(Count I)
Plaintiff also alleges that Defendant violated the Anti–
Cybersquatting Consumer Protection Act (the “ACCPA”),
15 U.S.C. § 1125(d)(1)(A), when he registered the domain
“freedomcalls .us” and used that domain in the Bukstel URL.
The ACCPA provides, in pertinent part, that a person shall
be liable in a civil action by the owner of a mark if, without
regard to the goods or services of the parties, that person:
(i) has a bad faith intent to profit from that mark, including
a personal name which is protected as a mark under this
section and
(ii) registers, traffics in, or uses a domain name that-
* * *
(I) in the case of a mark that is distinctive at the time
of registration of the domain name, is identical or
confusingly similar to that mark[.]
15 U.S.C. § 1125(d)(1)(A).
To succeed on a claim under the ACCPA, Plaintiff must prove
that: (1) Defendant had a bad faith intent to profit from use
of the Marks; (2) the Marks are either distinctive or famous;
and (3) Defendant's domain name is identical or confusingly
similar to Plaintiff's domain name. See Sporty's Farm LLC v.
Sportsman's Mkt., Inc., 202 F.3d 489, 497–99 (2d Cir.2000).
The Court has already determined that both the FREEDOM
CALLS and FREEDOM CALLS FOUNDATION marks are
distinctive because they are, at the very least, descriptive
marks. Therefore, Plaintiff has, most likely, proven the second
factor of the ACCPA inquiry.
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The Court must now consider whether the domain name
“freedomcalls.us” is identical or confusingly similar to
Plaintiff's Marks. When evaluating whether a domain name
is confusingly similar to a mark, a district court disregards
the top-level domain name (e.g. “.com”, “.org”, “.net” etc.).
Omega S.A. v. Omega Engineering, Inc., 228 F.Supp.2d 112,
126, n. 36 (D.Conn.2002) (citing Sporty's Farm, 202 F.3d
at 497–98). Under the ACCPA, “whether a domain name is
confusingly similar to a trademark is to be evaluated ‘without
regard to the goods or services of the parties.” ’ Id. (quoting
15 U.S.C. § 1125(d)(1)(A)). As discussed above, FREEDOM
CALLS, as used by Plaintiff, and “freedomcalls” as used
by Defendant differ by only the spaces between the words
and capitalization. In addition to these minor distinctions,
FREEDOM CALLS FOUNDATION, as used by Plaintiff,
and “freedomcalls” as used by Defendant differ by only
one word. The Court therefore concludes that Defendant's
“freedomcalls.us” domain is confusingly similar to Plaintiff's
Marks.
*13 Finally, the Court turns to the issue of whether
Defendant acted with a bad faith intent to profit from
Plaintiff's Marks when he registered the domain name
“freedomcalls.us.” The ACCPA lists nine factors to assist
courts in determining whether a person has a bad faith intent
to profit from the use of a mark. 14 15 U.S.C. § 1125(d)(1)
(B)(i). The Court is not limited, however, to considering just
the listed factors when making a determination of whether
the statutory criteria for bad faith have been met. Sporty's,
202 F.3d at 498. Rather, the factors are indicia that may be
considered along with other facts. Id.
14 The nine factors enumerated in the ACCPA are: (1)
the trademark or other intellectual property rights
of the person, if any, in the domain name; (2)
the extent to which the domain name consists of
the legal name of the person or a name that is
otherwise commonly used to identify that person;
(3) the person's prior use, if any, of the domain
name in connection with the bona fide offering of
any goods or services; (4) the person's bona fide
noncommercial or fair use of the mark in a site
accessible under the domain name; (5) the person's
intent to divert consumers from the mark owner's
online location to a site accessible under the domain
name that could harm the goodwill represented
by the mark, either for commercial gain or with
the intent to tarnish or disparage the mark, by
creating a likelihood of confusion as to the source,
sponsorship, affiliation, or endorsement of the site;
(6) the person's offer to transfer, sell, or otherwise
assign the domain name to the mark owner or any
third party for financial gain without having used,
or having an intent to use, the domain name in
the bona fide offering of any goods or services,
or the person's prior conduct indicating a pattern
of such conduct; (7) the person's provision of
material and misleading false contact information
when applying for the registration of the domain
name, the person's intentional failure to maintain
accurate contact information, or the person's prior
conduct indicating a pattern of such conduct;
(8) the person's registration or acquisition of
multiple domain names which the person knows
are identical or confusingly similar to marks of
others that are distinctive at the time of registration
of such domain names, or dilutive of famous marks
of others that are famous at the time of registration
of such domain names, without regard to the goods
or services of the parties; and (9) the extent to
which the mark incorporated in the person's domain
name registration is or is not distinctive and famous
within the meaning of subsection (c)(1) of section
43. 15 U.S.C. § 1125(d)(1)(B)(i)(I)-(IX).
After considering the facts of the case, the Court finds
that Defendant did, most likely, have a bad faith intent to
capitalize on the reputation and goodwill of Plaintiff when
he registered the Bukstel Domain. First, Defendant did not
have any cognizable intellectual property or trademark rights
in freedomcalls.us at the time of its registration. See 15 U.S.C.
§ 1125(d)(1)(B)(I). In contrast, Plaintiff had a protectable
intellectual property interest in the Marks and their use
because it has exclusively and continuously used the Marks
and the “freedomcalls.org” domain since September 2003. As
a board member at the time he registered the Bukstel Domain,
Defendant was fully aware of these facts.
The second and third ACCPA factors also likely weigh in
favor of Plaintiff. With respect to the second factor, that is, the
extent to which the domain name consists of the legal name
of the person or a name that is otherwise commonly used to
identify that person, it is clear that the Bukstel Domain name
does not consist of the legal name of Defendant. The third
factor, prior use of the domain name in connection with the
bona fide offering of any goods or services, also cuts against
Defendant because he did not create and use the site until
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well after Plaintiff established and used the Marks and the
“freedomcalls.org” domain.
As to the fourth factor, the person's bona fide noncommercial
or fair use of the mark in a site accessible under the domain
name, Defendant contends that his use of the Marks in the
Bukstel Website is non-commercial. As of the date of this
opinion, the Bukstel Website contains absolutely no text,
much less the offering of products or services that give rise to
commercial activity. However, as the Court previously noted,
the prior version of the Website seemed to suggest that visitors
could schedule video- and tele-conferences by using the site,
thus giving rise to an inference of commercial activity. At
best, this factor is neutral as to Plaintiff and Defendant.
The fifth ACCPA factor, the person's intent to divert
consumers from the mark owner's online location to a site
accessible under the domain name that could harm the
goodwill represented by the mark, also likely tips in favor
of Plaintiff. As previously noted, Defendant admitted that
he created the Bukstel Domain Website to provide a space
that would be more suitable to complaining Supporters and
Clients. This statement makes clear that Defendant intended
to divert Supporters and Clients from Plaintiff's website to his
own. Moreover, this diversion has the potential to harm the
goodwill represented by Plaintiff's Marks because it creates
a likelihood of confusion as to the source, sponsorship,
affiliation, or endorsement of the Bukstel Domain and
Website. Although the Bukstel Website, at the time this action
was brought, did not contain any text or other materials that
were necessarily “tarnishing” or “disparaging,” 15 U.S.C.
§ 1125(d)(1)(B)(V), and it is unclear whether Defendant
realized any “commercial gain,” id., the Court does not
naively believe, given the acrimony between Plaintiff's board
of directors and Defendant, that there is no possibility that
either situation could occur in the very near future. In light
of these considerations, the Court finds that Defendant, most
likely, created the Bukstel Domain and Website with a bad
faith intent to divert users from Plaintiff's website to his own.
*14 Based on the foregoing, this Court finds that Plaintiff
has produced sufficient evidence that it is likely to succeed on
its ACCPA claim.
c. New York General Business Law (Count Four)
Plaintiff alleges that Defendant's use of the Marks injured
Plaintiff's business reputation and subjected the Marks to
dilution, in violation of New York General Business Law §
360–1. To succeed on this claim, Plaintiff must show (1) that
the trademark is truly distinctive or has acquired secondary
meaning and (2) a likelihood of dilution either as a result of
blurring or tarnishment. Strange Music, Inc. v. Strange Music,
Inc., 326 F.Supp.2d 481, 496 (S.D.N.Y.2004).
“Dilution by ‘blurring’ may occur where the defendant
uses or modifies the plaintiff's trademark to identify the
defendant's goods and services, raising the possibility that
the mark will lose its ability to serve as a unique identifier
of the plaintiff's product.” Tommy Hilfiger Licensing Inc. v.
Nature Labs LLC, 221 F.Supp.2d 410, 421 (S.D.N.Y.2002)
(citation omitted). It typically involves “the whittling away
of an established trademark's selling power through its
unauthorized use by others upon dissimilar products.” Id.
at 421–22 (citation omitted). Blurring under New York law
is assessed by a six factor test: (1) similarity of the marks,
(2) similarity of the products covered; (3) sophistication of
consumers; (4) predatory intent; (5) renown of the senior
mark; and (6) renown of the junior mark. Katz v. Mordiri, 283
F.Supp.2d 883, 901 (S.D.N.Y.2003). Although a likelihood
of confusion is not necessary to find dilution, and indeed
may be inconsistent with such a finding, 15 many of the
factors relevant to likelihood of confusion are also relevant
to likelihood of dilution. Tommy Hilfiger Licensing, 221
F.Supp.2d at 422.
15 “The state of mind required for confusion and
dilution are distinct and inconsistent. Confused
consumers believe that the actor's use of the mark
indicates a connection with the trademark owner,
and thus for those consumers, the actor's use does
not dilute the distinctiveness of the mark.” Tommy
Hilfiger Licensing, 221 F.Supp.2d at 422 (citation
omitted).
Here, the Court has already determined that the Marks have
secondary meaning. Further, the Court also finds that there is
a likelihood of dilution as a result of blurring because each of
the blurring factors have been discussed both in the context
of the Polaroid analysis and in the ACCPA analysis and both
have been resolved in Plaintiff's favor. Therefore, the Court
finds that Plaintiff is likely to succeed on its New York law
claim for injury to business reputation or dilution.
d. Misappropriation of Trade Secrets (Count VIII)
Plaintiff alleges that Defendant misappropriated a trade secret
when he “possessed, used, and exploited the Supporter &
Client List and the information contained therein” by using
it to obtain the e-mail addresses of Plaintiff's Supporters
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and Clients and, thereafter, e-mailing those individuals.
(Am.Compl. ¶ 67.) To date, Plaintiff has presented evidence
that Defendant contacted Supporters and Clients, from
the Bukstel E-mail, on November 23, 2005, December 6,
2005, and January 13, 2006. (Harlow Decl., Ex. J; Pl.'s
1/18/2006 Ltr., Ex. A.) In the November 23, 2005 e-
mail, Defendant contacts more than 20 individuals regarding
the allegedly unlawful acts of Harlow. (Harlow Decl.,
Ex. J.) Specifically, this message included accusations that
Harlow threatened to cancel various scheduled videoand/
or tele-conferences, embezzled monies from Plaintiff, made
derogatory statements about military personnel, and held
less-than-successful fundraisers. (Id.) The December 6, 2005
e-mail made similar accusations. (Id.) The January 13,
2006 message, sent to two individuals, accused Harlow of
providing perjurious testimony at the January 12 evidentiary
hearing. (Pl.'s 1/18/2006 Ltr., Ex. A.)
*15 At the evidentiary hearing, Harlow testified that the
identities of the Supporters and Clients are only revealed to
“[p]eople associated with [Plaintiff] internally and external
parties ... on a need-to-know basis” and thus are trade secrets.
(Hr'g Tr. 75:20–21.) Defendant counters on the ground that
third-parties had access to the list of Supporters and Clients.
(Def.'s Opp'n Mot. at 5.) For this proposition, Defendant avers
that Supporters and Clients often referred third-parties to
Plaintiff, which demonstrates that the Supporter & Client List
is not a trade secret. (Id.) Defendant also argues that, because
Plaintiff's website lists locations and contact persons that have
volunteered or supplied equipment to Plaintiff, Plaintiff has
made the contents of the Supporter & Client List public and
therefore cannot claim that the list is a trade secret. (Def.'s
Opp'n Mot. at 5.)
Under New York law, a trade secret is “any formula, pattern,
device or compilation of information which is used in one's
business, and which gives the owner an opportunity to obtain
an advantage over competitors who do not know or use it.”
North Atlantic Instruments, Inc. v. Haber, 188 F.3d 38, 44 (2d
Cir.1999) (citations and internal quotation marks omitted). In
determining whether information constitutes a trade secret,
New York courts have considered the following factors: (1)
the extent to which the information is known outside of the
business; (2) the extent to which it is known by employees
and others involved in the business; (3) the extent of measures
taken by the business to guard the secrecy of the information;
(4) the value of the information to the business and its
competitors; (5) the amount of effort or money expended by
the business in developing the information; and (6) the ease
or difficulty with which the information could be properly
acquired or duplicated by others. Id. (citation omitted).
“A customer list developed by a business through substantial
effort and kept in confidence may be treated as a trade secret
and protected at the owner's instance against disclosure to
a competitor, provided the information it contains is not
otherwise readily ascertainable.” North Atlantic Instruments,
Inc., 188 F.3d at 44 (citations and internal quotation marks
omitted). “The question of whether or not a customer list is a
trade secret is generally a question of fact.” Id.
Based on the North Atlantic Instruments factors, this
Court finds that Plaintiff's likelihood of success on its
misappropriation claim is considerable because the personal
information contained in the Supporter & Client List likely
constitutes a trade secret. Four of the six factors weigh in
favor of such a conclusion. With respect to the first factor,
the contact information contained in the Supporter & Client
List, that is, the telephone numbers, e-mail addresses, and
other personal information for families, soldiers, and others,
is not known outside of the business, which weighs in favor of
a trade secret determination. (Hr'g. Tr. 73:16–18.) Although
Plaintiff provides a list of Supporter and Client entities that
can be found on the public website, the personal contact
information for individuals at these Supporter and Client
organizations is not disclosed. Cf. Leo Silfen, Inc. v. Maurice
C. Cream et al., 29 N.Y.2d 387, 328 N.Y.S.2d 423, 278 N.E.2d
636 (N.Y.1972) (holding that preliminary injunction should
not issue because, inter alia, plaintiff's customers were readily
ascertainable as likely prospects).
*16 When considering the fourth factor, it is clear that
Supporter and Client contact information is critical to
Plaintiff's business, as it allows Plaintiff to solicit support
to carry out its mission. Moreover, consideration of the
fifth factor reveals that Plaintiff has expended a great
deal of resources in developing its network of Supporters
and Clients, as evidenced by the products of its efforts.
Plaintiff has had to develop a reputation with both military
officials and families in order to acquire the video- and tele-
conferencing equipment, locations, and participants needed
for its activities. Finally, with respect to the sixth factor,
it would be rather difficult for one to acquire or duplicate
Plaintiff's efforts because the personal contact information for
individuals within the Supporter & Client List is not publicly
available.
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The remaining two North Atlantic Instruments factors,
although not weighing in favor of a trade secret finding,
do not require the opposite result. For the second factor,
Plaintiff affirmed that contact information for Supporters and
Clients were only distributed on a “need to know” basis,
therefore, information was readily available to those involved
in Plaintiff's business. (Hr'g Tr. 88:15–20.) However,
Plaintiff did not require that employees sign confidentiality
agreements, which cuts against a trade secret finding. With
respect to the third factor, it is unclear whether Plaintiff
used security measures to guard its Supporter & Client
List; however, it is clear that the contents were not widely
published and dissemination of such information was bridled.
Of course, Defendant's contacts may have been the product
of “casual memory,” Leo Silfen, Inc., 328 N.Y.S.2d 423, 278
N.E.2d at 639, which cuts against a trade secret finding;
however, such a finding in this case would not exempt
Defendant's actions from potential liability.
In light of the fact that the November 23, 2005, December 6,
2005, and January 13, 2005 e-mail messages were sent from
the Busktel E-mail, which the Court has established is likely
to cause confusion about Defendant's affiliation with Plaintiff,
and the North Atlantic factors considered above, the Court
considers its finding that Plaintiff will likely succeed on its
trade secret claim to be valid.
e. Breach of Fiduciary Duty (Count VII)
Plaintiff also alleges that Defendant breached his fiduciary
duties while serving as an officer, director, and employee
of Plaintiff by engaging in conduct that was not in
Plaintiff's best interests. Specifically, Plaintiff asserts that
Defendant breached his fiduciary duties by registering and
using the Bukstel Website; using information from the
Supporter & Client List; diverting business relationships from
Plaintiff; and defaming Plaintiff and members of the Board.
(Am.Compl.¶ 60.)
Generally, shareholders, officers, and employees of a
corporation have a “duty to deal fairly, in good faith, and
with loyalty to the corporation and other shareholders.” Am.
Fed. Group, Ltd. v. Rotherberg, No. 91 CV 7860, 2003
WL 22349673, *1, *10 (S.D.N.Y. Oct.14, 2003). New York
law codifies these common law fiduciary duties for non-
profit organizations and provides that “directors and officers
shall discharge the duties of their respective positions in
good faith and with that degree of diligence, care and skill
which ordinarily prudent men would exercise under similar
circumstances in like positions.” N.Y. NOT–FOR–PROFIT
CORP. § 717(a).
*17 An employee's fiduciary duty may continue after
termination of the employment relationship. Am. Fed. Group,
Ltd., 2003 WL 22349673, at *13. Such a continuing duty
may, in appropriate circumstances, include the specific duty
not to divert business in which a former employer has the
requisite “tangible expectancy,” and the duty not to exploit
to the former employer's detriment specific information
obtained during the employment that was either technically
confidential or that was available to the fiduciary only
because of the employment. Am. Fed. Group, Ltd., 2003 WL
22349673, at *13 (citations omitted).
In this case, Plaintiff is likely to succeed on its breach of
fiduciary duty claim as it relates to Defendant's ongoing
actions. Although Defendant has a right to “compete with
his former employer as to matters for which he has been
employed,” AGA Aktiebolag v. ABA Optical Corp., 441
F.Supp. 747, 754 (E.D.N.Y.1977), he is “not free to exploit
the same trade if the opportunity was facilitated by acts
of preparation and disloyalty during his employment” and
before his termination and “by the breach of his obligation
to use his best efforts in the interest of his employer,” id.
At the very least, by (1) registering and using the Bukstel
Website prior to his termination, thus potentially diverting
website users from Plaintiff's website to his own and (2) using
the contact information obtained from the Supporter & Client
List while still employed by Plaintiff to disseminate, post-
termination, information about Plaintiff's alleged operational
difficulties and the alleged unlawful activities of Plaintiff's
directors, Defendant has at the very least challenged Plaintiff's
efforts to carry out its mission. Indeed, Plaintiff has had to
engage in “damage control” with its Supporters and Clients
as a result of Defendant. (Pl.'s Mem. Law. Supp. Mot. Prelim.
Injunc. at 18.) Therefore, Defendant has demonstrated a lack
of good faith and fair dealing.
e. Defamation (Count X)
Plaintiff alleges that Defendant is liable for defamation per se
because he conducted an “ongoing campaign” of distributing
“knowingly false, fraudulent, libelous, and defamatory
statements” about Plaintiff and Harlow to Supporters and
Clients. (Am.Compl.¶ 82.) In order to succeed on this claim,
Plaintiff must show the following elements: (1) a false
statement, (2) published without privilege or authorization
to a third party, (3) constituting fault as judged by, at a
minimum, a negligence standard, and (4) that such publishing
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either caused special harm or constituted defamation per se.
Dillon v. City of New York, 261 A.D.2d 34, 704 N.Y.S.2d
1, 7 (N.Y.App.Div.1999). Under New York law, truth is a
complete defense to a defamation claim. Diaz v. Espada, 8
A.D.3d 49, 778 N.Y.S.2d 38, 40 (N.Y.App.Div.2004).
Whether a statement is susceptible of a defamatory
construction is a question of law. Van–Go Transp. Co. v. New
York City Bd. of Educ., 971 F.Supp. 90, 98 (E.D.N.Y.1997)
(citations omitted). In making this determination, the court is
not to seek out a defamatory meaning:
*18 The words must be construed
in the context of the entire
statement or publication as a whole,
tested against the understanding
of the average reader, and if
not reasonably susceptible of a
defamatory meaning, they are not
actionable and cannot be made so by
a strained or artificial construction.
Id.
Reputational injury to a person's business, or to a company,
consists of a statement that either imputes some form of fraud
or misconduct or a general unfitness, incapacity, or inability
to perform one's duties. Id. Because a statement impugning
the plaintiff's business reputation is the libel per se form of
defamation, special damages need not be pled. Id.
In this case, the Court finds that Plaintiff is likely to
succeed on its defamation claim because Defendant issued
statements that likely constitute libel per se. In order to
analyze the defamation claim, the Court will consider each of
the challenged e-mail communications in turn.
(1) November 23, 2005 E-mail
On November 23, 2005, Defendant sent an e-mail to
a distribution list containing approximately 22 e-mail
addresses. Defendant stated that “Harlow decided to cancel
a[n] xMas party for families” and that during the previous
year “Harlow threatened to cancel family connections and
denigrated the Oregon National Guard.” (Harlow Decl .,
Ex. J.) Defendant also states that Harlow has “used the
emotions of families and military folks to wield leverage in an
unconscionable manner,” has made “denigrating comments”
and engaged in denigrating “treatment of [ ] troops and
families.” (Id.) In this same message, Defendant also asserts
that Harlow canceled other family connections and that
Harlow deemed a fund-raising event a failure because it
raised less than $1,000 in donations. (Id.) Finally, Defendant
says that his vision has been “perverted by Harlow.” (Id.)
Defendant closes the November 23, 2005 message by signing
off as “Founder” of Plaintiff. (Id.)
Taken as a whole, this e-mail is defamatory because it
impugns Plaintiff's business. Specifically, the cancellation
allegations create a perception among Plaintiff's Supporters
and Clients that Plaintiff is either unwilling or unable to
provide its promised services. Further, the e-mail imputes
fraud and other misconduct to Plaintiff's directors. Plaintiff
has not, to date, produced credible evidence going to the
truth of these allegations. Additionally, Defendant published
this message to third-parties without Plaintiff's authorization,
without an investigation into the accuracy of the statements,
and (seemingly) with an intent to inflict harm on Plaintiff
and its directors. Therefore, it is reasonable for this Court to
find that Defendant most likely acted maliciously. See World
Wrestling Fed'n Entm't, Inc. v. Bozell, 142 F.Supp.2d 514, 528
(S.D.N.Y.2001) (defining common law malice as acting with
“spite, ill will, hatred, or the intent to inflict harm”). Finally,
as discussed above, the statements contained in the November
23, 2005 e-mail constitute libel per se because they relate to
Plaintiff's business reputation. Based on this analysis, Plaintiff
is likely to succeed on its defamation claim as to this e-mail.
(2) December 6, 2005 E-mail
*19 On December 6, 2005, Defendant sent an e-mail
containing additional allegations about Plaintiff and its
directors to two individuals, both of whom appear to be
Supporters. (Harlow Decl., Ex. J.) In addition to referencing
cancelled family connections, similar to the November 23 e-
mail, Defendant distributed a memorandum of understanding
(the “MOU”) sent by Harlow, on behalf of Plaintiff, to
another non-profit organization. Defendant admonished the
contents of the MOU, stating that it “request[ed] 90% of
Operation America's donation in exchange for [Plaintiff's]
services.” (Id.) Defendant goes on to say the following:
Just as I thought the taking of
Cash out of the Freedom Calls Bank
account and the auditors declining to
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certify the foundations financials was
questionable. I cannot believe these
latest actions. [sic]
(Id.)
The Court's analysis with respect to the November 23 e-mail
applies with equal force here. Therefore, the Court finds that
Plaintiff is likely to succeed on its defamation claim as to the
December 6, 2005 message.
(3) January 13, 2006 E-mail
Finally, on January 13, 2006, one day after Defendant
appeared before this Court for an evidentiary hearing on
the pending preliminary injunction motions, Defendant again
contacted the same two Supporters that were the recipients
of the December 6, 2005 e-mail. In this communication,
Defendant informed the e-mail recipients that “Harlow lied
his way through court and told the Judge that troops didn't
mind that he said KIA's would help them (military families)
wake up and smell the coffee.” (Pl.'s 1/18/2006 Ltr to Court,
Ex. A.) In this message, Defendant also forwarded an e-
mail sent from Harlow to Defendant and to three other mail
recipients regarding contributions and operations. (Id.) The
message from Harlow was sent on March 10, 2005 and, inter
alia, informed its recipients that Defendant would be focusing
on marketing rather than operations and provided detailed
information on corporate contributions and new technology
installations. (Pl.'s 1/18/2006 Ltr to Court, Ex. A.) Defendant
stated that the “e-mail is what one can expect to receive from
[Harlow] as a board member” and further alleges that the
contents of the e-mail are not true and that Harlow “does not
care about military families” and will “lie as he did in [ ]
court.” (Id.)
The analysis for the November 23, 2005 and December 6,
2005 e-mails applies with equal force here. Therefore, the
Court finds that Plaintiff is likely to succeed on its defamation
claim as to the January 13, 2006 message. Moreover, given the
recency of Defendant's communications, the Court finds that
there is a risk that Defendant's defamatory communications
will occur on an ongoing basis.
Plaintiff also brings a separate defamation cause of action
based on trade libel. This form of defamation relates to
the disparagement of a business' goods or services. World
Wrestling Fed'n Entm't, Inc., 142 F.Supp.2d at 532. To state a
claim for trade libel, the plaintiff must allege that a defendant
(1) made false, defamatory statements, (2) to a third party, (3)
with malice, and (4) that it suffered special damages. Id. To the
extent the claim alleges an injury to the business's reputation
and not the product, it is the libel per se form of defamation
and special damages need not be shown. Aequitron Med.
v. Dyro, 999 F.Supp. 294, 297 (E.D.N.Y.1998). Given the
similarities between the libel per se and trade libel elements
of proof, the defamation analysis for reputational injury
provided above applies with equal force to Plaintiff's trade
libel claim. Therefore the Court finds that Plaintiff is likely to
succeed on its trade libel claim.
f. Tortious Interference with Business Relations (Count
IX)
*20 In this count of the Complaint, Plaintiff alleges that
Defendant unlawfully interfered and continues to interfere
with Plaintiff's business relationships with Supporters and
Clients by (1) using the Supporters & Client List and
other trade secrets and (2) defaming Plaintiff's goodwill,
reputation, and operations during his solicitations to Plaintiff's
Supporters and Clients. (Am.Compl.¶ 75.) These allegations
give rise to two separate causes of action: tortious interference
with prospective business relations and tortious interference
with existing contractual relations.
(1) Tortious Interference with Prospective Business
Relations
To establish a claim for tortious interference with prospective
business relations, a plaintiff must prove: (1) there was
a business relationship with a third party; (2) defendants
knew of that relationship and intentionally interfered with it;
(3) defendants either acted “solely out of malice” or used
“wrongful means;” and, (4) defendants' interference caused
injury to the relationship with the third-party. Carvel Corp. v.
Noonan, 350 F.3d 6, 17 (2d Cir.2003).
With respect to the first factor provided in Carvel, the Court
finds that Plaintiff did have business relationships with the
parties to whom Defendant sent the challenged e-mails.
Based on the Court's review of these e-mails, Defendant
contacted Supporters and Clients that have a vested interest
in the mission and the products and services offered by
Plaintiff. With respect to the second factor, Defendant, as a
former board member, officer, and employee of Plaintiff, had
knowledge of these business relationships. Indeed, Defendant
used his knowledge of Plaintiff's relationships with certain
Supporters and Clients to determine his target audience and to
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craft the text of the November 23, 2005, December 6, 2005,
and January 13, 2006 e-mails. Defendant also likely interfered
with Plaintiff's business by establishing a confusingly similar
website.
For the third factor, there is a distinction between generic
instances of interference and those special (although more
frequently encountered) instances in which the plaintiff and
defendant are market competitors. Carvel Corp., 350 F.3d
at 18 (citation omitted). If the plaintiff claims that a non-
competitor interfered with its prospective economic relations,
then the defendant should be liable where its interference
was merely “improper.” Id. (emphasis added and citation
omitted). The factors in determining whether interference
is improper include the nature of the defendant's conduct,
the defendant's motive, the interests of both parties, the
social interests in competition and the sanctity of contract,
the degree to which the defendant's conduct caused the
interference, and the relationship between the parties. Carvel
Corp., 350 F.3d at 18 (citation omitted). In further defining the
“nature of defendant's conduct” factor, the commentary to the
Restatement (Second) of Torts, § 767, lists several different
examples of improper conduct. Id. Of particular relevance
to this case is the specific suggestion that a defendant's
conduct is improper when it is in “violation of recognized
ethical codes for a particular area of business activity or
of established customs or practices regarding disapproved
actions or methods.” Id.
*21 In contrast, if the plaintiff claims that a competitor
interfered with its prospective economic relations, then the
liability should only attach where the defendant employed
wrongful means. Id. at 19. In this context, wrongful
means include physical violence, fraud or misrepresentation,
civil suits and criminal prosecutions, and some degrees of
economic pressure; they do not, however, include persuasion
alone although it is knowingly directed at interference with
the contract. Id.
Here, an analysis as to whether Defendant is a “competitor”
or not would be academic, as his communication with
Plaintiff's Supporters and Clients are tortious under both
the “improper conduct” and the less stringent “wrongful
means” standard. After considering the guidance provided
by the Second Circuit in Carvel, this Court determines
that Defendant's conduct is improper because Defendant
violated recognized ethical codes for a particular area, that
is, non-profit organizations. As established in Section I.B.
(1)(d), Defendant owed duties of good faith and fair dealing
to Plaintiff as both a current and former director; these
duties were debunked by Defendant. Even if Defendant
were truly concerned about the management of Plaintiff,
distribution of such information using a confusingly similar
e-mail address (the Bukstel E-mail), post-termination, and
establishment of a confusingly similar website (the Busktel
Website) demonstrate that Defendant's course of action was
not the most prudent. Further, Defendant's actions are, most
likely, wrongful because he misrepresented the operational
and financial viability of Plaintiff in the November 23, 2005,
and December 6, 2005 e-mails.
Finally, Plaintiff alleges that Defendant has injured its
prospective business relationships because of the denigrating
e-mails that have been sent to Supporters and Clients.
Although Plaintiff has averred that it has had to engage
in “damage control” by explaining and/or responding to
comments made by Defendant, Compl. ¶ 77, which is
sufficient for pleading purposes, Plaintiff has produced
insufficient evidence of injury. To date, Plaintiff has not
demonstrated that any Supporters or Clients have withdrawn
their support, in part or in full. To the extent that Defendant
ever offered services similar to Plaintiff's on the Bukstel
Website, Plaintiff has not shown a loss of sales or business
as a result of Defendant's actions. At present, there is only
one allegation that even remotely constitute “injury”—that
Plaintiff has had to answer “certain calls from Supporters
in Kentucky who were concerned about the content of
[Defendant's] e-mail.” (Harlow Decl. ¶ 18.) Accordingly,
Harlow has had to explain to the callers that Defendant no
longer works for Plaintiff and is no longer authorized to send
e-mails on behalf of Plaintiff. (Id.) Although inconvenient,
it appears to this Court that Plaintiff has managed, thus
far, to mitigate any injury that could have been caused by
Defendant's actions. See, e.g., Unique Sports Generation, Inc.
v. LGH–III, LLC, 03 CV 8324, 2005 U.S. Dist. LEXIS 22133,
*1 (S.D.N.Y. Sept. 30, 2005) (noting that allegations of lost
sales and loss of one customer sufficient to show injury);
Highland Capital Mgmt., L.P. v. Schneider, No. 02 CV 8098,
2005 U.S. Dist. LEXIS 14912, *1, *74 (S.D.N.Y. July 26,
2005) (“[The] interference must be direct interference with a
third party, that is, the defendant must direct some activities
towards the third party and convince the third party not to
enter into a business relationship with the plaintiff.”)
(2) Tortious Interference with Existing Contractual
Relations
*22 To prove tortious interference with existing contractual
relations, Plaintiff must show that a defendant intentionally
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procured a third-party's breach of an existing contract with
Plaintiff. See Atla–Medine v. Crompton Corp., No. 00 Civ.
5901, 2001 U.S. Dist. LEXIS 1621, *1, *7 (S.D.N.Y. Feb. 21,
2001) (citations omitted). Plaintiff has not met this burden, as
it has produced no evidence that parties to existing contracts
have breached their obligations as a result of Defendant's
allegedly unlawful conduct. Therefore, Plaintiff is not likely
to succeed on this claim.
Given the evidence currently available for its review, the
Court finds that Plaintiff is not likely to succeed on its claim
for tortious interference with prospective business relations.
However, there are, arguably, sufficient questions going to
the merits to make this claim a fair ground for litigation,
especially given that Plaintiff can rebut the Court's finding on
the injury prong with a showing of contrary proof.
2. Immediate Irreparable Injury
In considering Plaintiff's request for a preliminary injunction
based on its Lanham Act unfair competition claim, the
requirement of irreparable harm is unnecessary because
a showing of likelihood of confusion establishes both a
likelihood of success on the merits and irreparable harm.
See Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70, 73 (2d
Cir.1988). Here, the Court has established that a likelihood
of confusion exists; thus, irreparable harm has also been
established. Therefore, a preliminary injunction shall issue
with respect to this claim.
Following other district courts of the Second Circuit, this
Court also finds that irreparable harm may be presumed
for the Lanham Act cyber-squatting claim because Plaintiff
has shown a likelihood of success on the merits. See 1–
800 Contacts, Inc. v. WhenU.com, 309 F.Supp.2d 467, 506–7
(S.D.N.Y.2003), rev'd on other grounds, 414 F.3d 400, 2005
(2d Cir.2005).
In light of the analytical similarities between the Lanham
Act unfair competition claim and the New York state law
dilution claim, and the fact that there is a presumption of
irreparable harm in favor of Plaintiff from the Lanham Act
claim unfair competition claim, the Court finds that Plaintiff
has established irreparable harm with respect to the analogous
state law claim.
The activities that Plaintiff challenges in its breach of
fiduciary duty claim, namely, registering and using the
Bukstel Website; using information from the Supporter &
Client List; diverting business relationships from Plaintiff;
and defaming Plaintiff and members of the Board, are each
addressed separately herein. Therefore, the Court shall not
engage in an independent analysis of harm for this claim.
As to Plaintiff's defamation claim, “for almost a century
the Second Circuit has subscribed to the majority view
that, absent extraordinary circumstances, injunctions should
not ordinarily issue in defamation cases.” Metropolitan
Opera Ass'n v. Local 100, Hotel Emples. & Restaurant
Emples. Int'l Union, 239 F.3d 172, 177 (2d Cir.2001).
Even when such extraordinary circumstances are present, the
Second Circuit has recognized that “current First Amendment
principles may prohibit granting an injunction” because
“prior restraints [on expression] are the most serious and
the least tolerable infringement on First Amendment rights.”
Metropolitan Opera Ass'n, 239 F.2d at 176–7 (citations
omitted). Courts are therefore reticent to grant injunctions
based on defamation because “prior restraint [in] the form
of a court-issued injunction [increases] the risk of infringing
on speech protected under the First Amendment.” Id. at 176
(citations omitted). In this case, the fact that Defendants false
statements about Plaintiff's business and about its directors
may injure Plaintiff does not alone constitute a sufficient
ground for issuance of an injunction because Plaintiff has an
adequate remedy at law. See Bynog v. SL Green Realty Corp.,
No. 05 CV 0305, 2005 U.S. Dist. LEXIS 34617, *1, *10
(S.D.N.Y. Dec. 22, 2005) (citations omitted).
*23 For Plaintiff's claim for misappropriation of trade
secrets, irreparable harm is presumed where a trade secret has
been misappropriated, even in the absence of an employment
agreement. Johnson Controls, Inc. v. A.P.T. Critical Sys., 323
F.Supp.2d 525, 533 (S.D.N.Y.2004). Therefore, a preliminary
injunction shall issue with respect to this claim.
As to the claim of tortious interference with existing
contractual relations, the Court declines to issue a preliminary
injunction at this juncture because Plaintiff has not
established a likelihood of success. For tortious interference
with prospective business relations, Plaintiff has presented
sufficient questions going to the merits of this count and the
balance of hardships tips in Plaintiff's favor. However, the
paucity of evidence regarding Plaintiff's actual loss vitiates
a finding of irreparable harm and therefore a preliminary
injunction shall not issue.
3. Unclean Hands
In response to Plaintiff's preliminary injunction motion,
Defendant asserts the affirmative defense of unclean hands
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and accordingly alleges that Plaintiff acted in bad faith
by committing its own Lanham Act violations. (Def.'s
Opp'n Mot. at 3.) Specifically, Defendant alleges that
Plaintiff modified and placed articles copyrighted by news
publications on Plaintiff's website, to the detriment of
Defendant. (Hr'g Tr. 124–128.) For example, Defendant
contends that Harlow took an article that was originally
printed in the Akron Beacon Journal and that identified
Defendant as a “founder” of Plaintiff, changed Defendant's
description to “co-founder,” and then placed the modified
article on Plaintiff's website. (Hr'g Tr. 125–127.) Defendant
also testified that Harlow admitted that such modifications
took place. Defendant asserts that such changes occurred in
order that Plaintiff minimize his involvement in Plaintiff's
founding.
Because a court sitting in equity is a vehicle for affirmatively
enforcing the requirements of conscience and good faith, a
party who comes into equity must come with clean hands if
relief is to be granted. Gidatex v. Campaniello Imports, Ltd.,
82 F.Supp.2d 126, 130 (S.D.N.Y.1999) (citations and internal
quotation marks omitted). The defendant who invokes the
doctrine of unclean hands has the burden of proof. Id.
Typically, courts that have denied injunctive relief due
to plaintiff's unclean hands have found plaintiff guilty of
truly unconscionable and brazen behavior. Id. at 131; see,
e.g., Goldstein v. Delgratia Mining Corp., 176 F.R.D. 454,
458 (S.D.N.Y.1997) (stating that unclean hands defense
successful where plaintiff made multiple misrepresentations
to court regarding law and facts); Aris–Isotoner Gloves,
Inc. v. Berkshire Fashions, Inc., 792 F.Supp. 969, 970
(S.D.N.Y.1992), aff'd by summary order, 983 F.2d 1048 (2d
Cir.1992) (finding that defendant's unclean hands barred
laches defense in trademark dispute where defendant's
president fabricated testimony to create impression that he
detrimentally relied on plaintiff's acquiescence). However,
the alleged unconscionable behavior must be related to
the matter at issue to the detriment of the party opposing
the motion for injunctive relief. Id. (citations and internal
quotation marks omitted).
*24 The Court finds that Defendant has not met his burden
of proof with respect to the unclean hands defense. First,
even if Defendant's allegations regarding Plaintiff's alleged
copyright infringement were true, they do not rise to the level
of bad faith or unconscionability contemplated by the unclean
hands defense. Plaintiff's alleged unlawful actions do not
involve fabrications under oath or misrepresentations to the
Court. 16 Moreover, Defendant's allegations of bad faith are
not sufficiently related to Plaintiff's unfair competition claim
to justify an unclean hands defense. First, Defendant does not
allege that Plaintiff's alleged inequitable conduct relates to
Plaintiff's development and use of the FREEDOM CALLS
and FREEDOM CALLS FOUNDATION marks. The claim
asserted by Plaintiff is that of an owner with the exclusive
right to use its marks. Rather, Defendant's allegations relate
to Plaintiff's allegedly unlawful modification of copyrighted
material belonging to other businesses. Consequently, even
if Plaintiff has unclean hands, Defendant cannot prove that
Plaintiff tainted its hands in its use of the Marks or in bringing
this suit to enforce its rights against Defendant. See Gidatex,
82 F.Supp.2d at 132.
16 On January 18, 2006, Defendant filed an Order
to Show Cause Contempt of Court and Perjury
(the “Contempt Motion”), alleging that Harlow
fabricated testimony regarding his technology
certifications during the evidentiary hearing held
before this Court. Defendant subsequently filed
a Supplement to Contempt of Court Motion for
Perjury, which alleged that Harlow also fabricated
the date on which he became an employee of
Plaintiff. Although the Court has not issued
its opinion on the Contempt Motion and its
supplement, the Court notes that Defendant's
allegations, even if true, do not undermine the
credibility of the evidence produced by Plaintiff in
support of its motion for a preliminary injunction.
In contrast to the fabricated testimony presented
to the Aris–Isotoner Gloves, Inc. court and the
misrepresentations made to the Goldstein court,
any untruths related to Harlow's technological
expertise and the start date of his employment
will have no impact on the procedural posture and
substantive merits of Plaintiff's case. Therefore, the
outstanding nature of the Contempt Motion and
its supplement do not affect this Court's finding
that Defendant has failed to meet his burden with
respect to the unclean hands defense.
For the foregoing reasons, Plaintiff's motion for a preliminary
injunction is hereby granted in part and denied in part.
II. DEFENDANT'S MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Defendant moves for a temporary restraining order (“TRO”)
and preliminary injunction based on his counterclaims
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against Plaintiff and third-party claims against Harlow and
Kate Green (“Green”), a director, Secretary, and Treasurer
for Plaintiff. Specifically, Defendant asks this Court to
(1) restrain Plaintiff, Harlow and Green from making
cash withdrawals from Plaintiff's account and utilizing the
ebukstel@freedomcalls.org e-mail account and (2) require
Plaintiff to turn over to Defendant (a) all e-mails sent
to and from the ebukstel@freedomcalls.org e-mail account
since November 8, 2005; (b) all e-mails received and sent
from the jharlow@freedomcalls.org e-mail account since
October 4, 2005; and (c) evidence of cash withdrawals
from Plaintiff's bank account from 2004 to December
2005. Defendant's TRO and preliminary injunction requests
are based on allegations that (1) Harlow and Greene are
subject to liability for embezzlement, misappropriation, filing
fraudulent tax returns, and breach of fiduciary duty and (2)
Harlow is liable for defamation for improperly using the
ebukstel@freedomcalls.org e-mail account to distribute the
fraudulent tax documents.
A. Standard for Granting a Temporary Restraining Order
and Preliminary Injunction
The standards for issuing a TRO is the same as that governing
the granting of preliminary injunctive relief. Harris v. Diaz,
No. 04 CV 9124, 2004 U.S. Dist. LEXIS 25256, *1, *8
(S.D.N.Y. Dec.13, 2004) (citations omitted). The standard
for granting preliminary injunctive relief, discussed supra in
Section I, applies with equal force here.
B. Application of the TRO and Preliminary Injunction
Standard
1. Likelihood of Success on the Merits
*25 Defendant contends that Harlow and Green conspired
to file, and knowingly filed, a 2004 tax return with the
Internal Revenue Service on behalf of Plaintiff that contained
fraudulent statements and material omissions, in violation of
26 U.S.C. § 7206(1). (Def.'s TRO Mot. 17 ¶¶ 1, 21, 22.)
Defendant also contends that Harlow and Green untimely
filed Plaintiff's 2004 tax return with the Charities Bureau
of the New York Attorney General's Office. (Id. at ¶ 12.)
Defendant further alleges that Harlow and Green conspired
to embezzle money from Plaintiff, engaged in acts of self-
dealing, and withheld documentation from Defendant while
he served on Plaintiff's board of directors, in breach of their
fiduciary duties. (Id. ¶ 23, 32.)
17 Citations to “Def.'s TRO Mot.” refer to Defendant's
Motion for Temporary Restraining Order and
Preliminary Injunction, unless otherwise noted.
Defendant also contends that Plaintiff, Harlow, and
Green are liable for defamation because they used the
ebukstel@freedomcalls.org account after his termination to
respond to e-mail messages and to disseminate the allegedly
fraudulent tax returns after his termination. (Def.'s TRO Mot.
at ¶ 14.) Defendant also avers that “Harlow is misleading the
public by sending out misleading information from his e-mail
account at [ ] jharlow @freedomcalls.org.” (Id. at ¶ 26.)
a. Misappropriation, Embezzlement, and Breach of
Fiduciary Duty
To meet Article III's constitutional requirements for standing,
a plaintiff must allege an actual or threatened injury to himself
that is fairly traceable to the allegedly unlawful conduct of the
defendant. Lamar Adver. of Penn., LLC v. Town of Orchard
Park, 356 F.3d 365, 373 (2d Cir.2004) (citations and internal
quotation marks omitted). Furthermore, it must be likely,
as opposed to merely speculative, that the injury will be
redressed by a favorable decision. Id.
The Court finds that Defendant does not have Article III
standing to bring the misappropriation, embezzlement, and
breach of fiduciary duty claims described herein because
he has not sufficiently pled injury. Defendant has not
demonstrated how the allegedly unlawful actions of Harlow
and Green have resulted in any actual or threatened injury
to Defendant. Although Defendant's allegations, if true,
would almost certainly give rise to reputational damage with
respect to Plaintiff, Harlow, and Green, no such injury can
accrue to Defendant when he is no longer affiliated with
Plaintiff. Therefore, Defendant is not likely to succeed on
the merits of these claims. Moreover, without standing, there
are insufficient questions regarding the merits of Defendant's
claims to make them a fair ground for litigation.
Moreover, New York law provides that directors and officers
may only bring an action against another director or officer
for certain violations of duties if the director making the
allegations occupies his office at the time the action is
brought. See N.Y. NOT–FOR–PROFIT CORP. § 720(b)
(1) (“[A]n action may be brought for the relief ... in the
right of the corporation, by ... [a] director or officer of
the corporation[.]”); Tenney v. Rosenthal, 6 N.Y.2d 204,
189 N.Y.S.2d 158, 160 N.E.2d 463, 468 (N.Y.1959) (“[T]he
action, properly commenced by the plaintiff when he was
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a director, may not be defeated, either on the theory of
abatement or of lack of capacity to sue, by effecting the
plaintiff's ouster as director.”) (emphasis added). When
Defendant filed his counterclaims in this action on December
14, 2005, he was no longer affiliated with Plaintiff and thus
cannot bring an action based on Harlow and Green's alleged
misappropriation, embezzlement, and breach of fiduciary
duty claims. Additionally, because Defendant was not a
member, holder or owner of the corporation at the time the
action was brought, he is also unable to bring these claims
under the auspices of a member's derivative action. See N.Y.
NOT–FOR–PROFIT CORP. § 720(b)(3) (“[A]n action may
be brought for the relief ... in the right of the corporation, by ...
one or more of the members thereof.”).
b. Defamation
*26 After analyzing the elements of a claim for defamation,
as set out in Section I.B.(1)(e) above, the Court finds that
Defendant is not likely to succeed on his defamation claim.
Defendant has not alleged that Plaintiff has made any false
statement about him. As discussed above, an aggrieved
party must prove the existence of a false and defamatory
statement concerning the aggrieved party to create liability
for defamation. See Restatement (Second) of Torts § 558,
564 cmt. a (1977). Although Harlow admitted using the
enbukstel@freedocmcalls.org account to send tax returns to
a donor on November 11, 2005, there is no indication that
the e-mail contained a false statement about Defendant.
Even if true, Defendant's allegations about the falsity of the
tax returns, without a statement regarding Defendant, are
insufficient to support a defamation claim based on Harlow's
use of Defendant's former e-mail account.
Defendant has also failed to show that the message
sent by Harlow on November 9, 2005, from
the ebukstel@freedomcalls.org account contained false
statements about him. The e-mail stated that “the board
of directors of the foundation took action ... to terminate
[Defendant's] employment” and that “[Defendant] no longer
has authority to act on the [Plaintiff's] behalf.” (Def.'s Resp.
Mem. Def.'s PI Mot. at 6.) Defendant does not challenge
the fact that he was, in fact, terminated. He does, however,
challenge the effective date of his termination by stating that
it is the date on which he received notice (November 10,
2005), not the date on which the board actually decided to
terminate him (November 8, 2005). (Def.'s Resp. Mem. Def.'s
PI Mot. at 4.) Notwithstanding the date on which Defendant
received notice, there is nothing in the record that indicates
that Defendant was not in fact terminated at a November
8, 2005 board meeting, thus undermining any allegations of
falsity as to this statement. Although the date on which an
employee receives official notice of termination is relevant
in certain circumstances, such as when a claim for wrongful
termination accrues, see, e.g., Delaware State Coll. v. Ricks,
449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), this
date has no significance in determining the viability of a
defamation claim.
In light of the absence of a showing that Plaintiff used the
account for defamatory purposes, the Court also finds that
Defendant has no legitimate challenge to Plaintiff's ongoing
monitoring of the ebukstel@freedomcalls.org e-mail.
Through the enactment of the Electronic Communications
Protection Act (the “ECPA”), Congress “update[d] and
clarif[ied] Federal privacy protections and standards
in light of dramatic changes in new computer and
telecommunications technologies.” Sen. Rep. No. 99–541, at
1 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3555. The
ECPA is divided into Title I, which governs unauthorized
interception of electronic communications, 18 U.S.C. §§
2510–2522, and Title II, which governs unauthorized
access to stored communications, 18 U.S.C. §§ 2701–2711.
Defendant's challenge to continued monitoring of his former
business e-mail account, although not expressly alleged,
potentially implicates both Title I and Title II.
*27 Title I of the ECPA creates liability for the interception
of communications. 18 U.S.C. § 2511(1) (emphasis added).
ECPA defines the term “intercept” as “the aural or other
acquisition of the contents of any electronic ... communication
through the use of any electronic, mechanical, or other
device.” 18 U.S.C. § 2510(4) (emphasis added). As in the
case of electronic storage, the ECPA creates an exception for
business that allows an
“officer, employee, or agent
of a provider of wire or
electronic communication service,
whose facilities are used in the
transmission of a wire or electronic
communication, to intercept, disclose,
or use that communication in the
normal course of his employment
while engaged in any activity which is
a necessary incident to the rendition of
his service or to the protection of the
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rights or property of the provider of
that service.”
18 U.S.C. § 2511(2).
Title II of the ECPA also creates civil liability for unlawful
access to stored communications. 18 U.S.C. § 2701(a).
However, Title II excepts from its broad reaching provisions
seizures of e-mail authorized “by the person or entity
providing a wire or electronic communications service.” 18
U.S.C. § 2701(c)(1).
In this case, Plaintiff meets both of the employer exceptions
provided in the electronic storage and interception provisions
of the ECPA. To the extent that prior e-mails sent to
Defendant's ebukstel@freedomcalls.org e-mail account are
stored on Plaintiff's computer system, Plaintiff has the right
to search these stored e-mails as the need arises because
Plaintiff provided Defendant with the ability to send and
receive electronic communications. See Fraser v. Nationwide
Mut. Ins. Co., 352 F.3d 107 (3d Cir.2003) (holding that
because the employee's e-mail was stored on the employer's
system, the search of e-mails falls within the 18 U.S.C.
§ 2701(c) exception); Bohach v. Reno, 932 F.Supp. 1232
(D.Nev.1996) (holding that police department was allowed
to retrieve electronic communications because it was the
provider). Further, Plaintiff has the right to “intercept,”
that is, receive and review future e-mails sent to the
ebukstel@freedomcalls.org account, so long as it does so
in the normal course of business, because Plaintiff is an
employer and monitoring is necessary to ensure that current
and prospective Supporter and Client email messages are
answered in a timely fashion.
Based on the foregoing, the Court finds that Defendant is not
likely to succeed on his claim for defamation and there are
insufficient questions going to the merits to make this claim
a fair ground for litigation.
c. Filing of Fraudulent Tax Returns
Defendant also alleges that Harlow and Green are liable for
filing fraudulent tax returns on behalf of Plaintiff, in violation
of 26 U.S.C. § 7206(1). Section 7206(1) of Title 26 provides
in relevant part:
Any person who [w]illfully makes and
subscribes any return, statement, or
other document, which contains or is
verified by a written declaration that it
is made under the penalties of perjury,
and which he does not believe to be
true and correct as to every material
matter ... shall be guilty of a felony.
*28 26 U.S.C. § 7206(1).
The Court finds that Defendant has no standing to bring this
claim. Generally, a private citizen has no authority to initiate
a federal criminal prosecution. See Linda R.S. v. Richard D.,
410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).
Furthermore, criminal statutes do not create private rights
of action, unless Congress so provides. Cok v. Cosentino,
876 F.2d 1, 2 (1st Cir.1989). At present, there is no private
right of action available to Defendant under 26 U.S.C. §
7206. Johnson v. Cullen, 925 F.Supp. 244, 251 (D.Del.1996).
Therefore, Defendant is not likely to succeed on this claim and
there are insufficient questions going to the merits to make
this claim a fair ground for litigation.
2. Irreparable Harm
The Court finds that Defendant has not shown that he will
suffer irreparable harm if a TRO or a preliminary injunction
does not issue. As previously discussed, Defendant does not
have standing to bring the embezzlement, misappropriation,
and breach of fiduciary duty claims. Moreover, the
defamation claims are meritless because, with respect to
the November 11, 2005 email, any false statements made
were not made regarding Defendant and, with respect to the
November 9, 2005 e-mail, Defendant has not shown that the
proffered statements were in fact false. Finally, Defendant
has failed to show that he has standing to bring a claim for
fraudulent tax documentation under 26 U.S.C. § 7206(1).
Based on the foregoing, Defendant's motion for a TRO and
preliminary injunction is hereby denied.
III. DEFENDANT'S MOTION FOR APPOINTMENT OF A
TEMPORARY RECEIVER
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In addition to a TRO and preliminary injunction, Defendant
also moves this court to appoint a temporary receiver for
Plaintiff. Defendant bases this request on his desire to “clear
his name from defamatory distribution of fraudulent tax
return documents to donors in a public charity.” (Def.'s
Mot. Prelim. Injunc. at 18.) Defendant also contends that a
receiver is needed to “ensure that corporate assets are not
squandered and there will be monies available to attempt to
affect remediation if at all possible.” (Id.)
A district court may appoint a receiver to manage a
defendant's assets during litigation. Rosen v. Siegel, 106 F.3d
28, 33 (2d Cir.1997) (citations omitted). The appointment of
a receiver is considered to be an extraordinary remedy, and
should be employed cautiously and granted only when clearly
necessary to protect the movant's interests in the property. Id.
(citations omitted)
Because Defendant has not demonstrated that he has standing
to bring any of his claims, Defendant has no cognizable
interest in Plaintiff's assets that justifies appointment of a
receiver in this action. Defendant's desire to “clear his name”
and to protect corporate assets from “squandering” when he
is no longer affiliated with Plaintiff cannot serve as a basis for
Defendant's requested relief.
IV. MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT
*29 Plaintiff has also filed a motion for leave to file
an amended complaint, pursuant to Rule 15(a) of the
Federal Rules of Civil Procedure. Plaintiff has not filed any
amendments prior to this request. It is well settled that “leave
to file an amended complaint shall be freely given when
justice so requires,” Fed.R.Civ.P. 15(a), and “should not be
denied unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.” Milanese v.
Rust–Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001).
The Court hereby finds that Plaintiff's request to amend
its complaint is not made in bad faith and that Defendant
will suffer no prejudice as a result of the amendment, as
Defendant has been on notice of the proposed amended
complaint since December 8, 2005. Since that date, Defendant
has filed numerous pleadings that address the allegations
contained in the amended complaint and has also appeared
at an evidentiary hearing regarding the allegations contained
therein. Therefore, Plaintiff's request to file an amended
complaint is hereby granted.
CONCLUSION
For the reasons stated herein, Plaintiff's motion for a
preliminary injunction on the grounds of unfair competition
under the Lanham Act, cyber-squatting under the Lanham
Act, dilution, and misappropriation of trade secrets is hereby
GRANTED. Plaintiff's motion for a preliminary injunction
on the grounds of defamation and tortious interference
with existing contractual and prospective business relations
is hereby DENIED. Defendant's motion for a TRO and
preliminary injunction is hereby DENIED. Defendant's
motion for appointment of a temporary receiver is hereby
DENIED. Plaintiff's motion for leave to file an amended
complaint is hereby GRANTED.
IT IS FURTHER ORDERED that a preliminary injunction
shall issue, as follows:
A. Bukstel, directly or indirectly, during the pendency of this
case and until such time as permanent injunctive relief is
entered, if at all, is enjoined from: (1) distributing, marketing,
selling, advertising, using or rendering services bearing
the Marks, or any colorable imitation thereof; (2) using
the Marks, or any colorable imitation thereof, alone or in
combination with other words or designs, in connection with
any product or service; (3) infringing Plaintiff's proprietary
rights in the Marks, including but not limited to its rights
at common law with respect thereto; (4) unfairly competing
with Plaintiff in any manner whatsoever; (5) diluting the
distinctiveness of Plaintiff's proprietary rights in the Marks;
(6) continuing to operate any website(s) or to use any e-mail
or instant message account that include as part of the domain
or other identifying name “freedomcalls” or any colorable
imitation thereof; (7) destroying, altering, hiding, transferring
or advising or in any way participating (actively or passively)
in the destruction, alteration, hiding or transfer of any and
all documents, agreements, website development documents,
books of accounts, journals, check registers, bank account
statements, computer programs, e-mail computer diskettes,
discs or software (and/or the information contained thereon),
together with and including all other records of any kind or
character whatsoever that reflect the operations of Defendant
in which the Marks are or have been reflected; and (8)
using, retaining, copying, distributing, or causing to be used,
retained, copied, or distributed all or any part of the Supporter
& Client List, or any other trade secret of Plaintiff.
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*30 B. Defendant is directed to file with the Court and serve
Plaintiff within fifteen (15) business days after the date of
entry of this Order, a report in writing under oath setting
forth in detail the manner and form in which Defendant has
complied with the injunction.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2006 WL 845509
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01779-ECC-MJK Document 7 Filed 02/17/26 Page 37 of 40

Freedom Calls Foundation v. Bukstel
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (10)
Title PDF Court Date Type
1. Answer and Affirmative Defenses to Counterclaims
and Third-Party Claims by Freedom Calls Foundation,
Harlow and Green
FREEDOM CALLS FOUNDATION, a New York
corporation, Plaintiff, v. Edward BUKSTEL, an individual,
Defendant; Edward Bukstel, Counterplaintiff/Third-Party
Plaintiff, v. Freedom Calls Foundation, Counterdefendant,
and John Harlow III, Kate Green, Warren Sherman, Daniel
Kurtz and J.J. Leitner, Third-Party Defendants.
2006 WL 368678
E.D.N.Y. Jan. 13, 2006 Pleading
2. Complaint
FREEDOM CALLS FOUNDATION, a New York
corporation, Plaintiff, v. Edward BUKSTEL, an individual,
Defendant.
2005 WL 3777788
E.D.N.Y. Nov. 18, 2005 Pleading
3. Defendant Bukstel's Motion for Summary
Judgment for Illegal Removal from the Board of
Directors
FREEDOM CALLS FOUNDATION, Plaintiff, v. Edward
BUKSTEL, Defendant, v. Counterclaim, Defendants.
2006 WL 1339347
E.D.N.Y. Mar. 30, 2006 Motion
4. Motion to Reconsider
FREEDOM CALLS FOUNDATION, Plaintiff, v. Edward
BUKSTEL, Defendant.
2006 WL 1020145
E.D.N.Y. Mar. 15, 2006 Motion
5. Memorandum of Law in Support of Third-Party
Defendants, Daniel Kurtz's, J.J. Leitner's and Warren
Sherman's, Motion to Dismiss
FREEDOM CALLS FOUNDATION, a New York
corporation, Plaintiff, v. Edward BUKSTEL, an individual,
Defendant; Edward Bukstel, Counterplaintiff/Third-Party
Plaintiff, v. Freedom Calls Foundation, Counterdefendant,
John Harlow II, Kate Green, Warren Sherman, Daniel
Kurtz and J.J. Leitner, Third-Party Defendants.
2006 WL 374375
E.D.N.Y. Jan. 13, 2006 Motion
6. Defendant Bukstel's Response Memorandum to
Freedom Calls Motion in Opposition to Bukstel's
Motion for Temporary Restraining Order and
Appointment of a Receiver
FREEDOM CALLS FOUNDATION, Plaintiff, v. Edward
BUKSTEL, Defendant, v. Counterclaim Defendants.
2006 WL 374373
E.D.N.Y. Jan. 12, 2006 Motion
7. Defendant Bukstel's Response Memorandum in
Support of Bukstel's Motion to Dismiss Freedom Calls
Foundation Order Show Cause Motion
FREEDOM CALLS FOUNDATION, Plaintiff, v. Edward
BUKSTEL, Defendant, v. Counterclaim Defendants.
2006 WL 374374
E.D.N.Y. Jan. 12, 2006 Motion
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Freedom Calls Foundation v. Bukstel
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
8. Memorandum of Law in Opposition to Defendant
Edward Bukstel's Motion for a Temporary Restraining
Order, Preliminary Injunction and Appointment of
Temporary Receiver
FREEDOM CALLS FOUNDATION, a New York
corporation, Plaintiff, v. EDWARD BUKSTEL, an
individual, Defendant; Edward Bukstel, Counterplaintiff/
Third-Party Plaintiff, v. Freedom Calls Foundation,
Counterdefendant, John B. Harlow II, Kate Green, Warren
Sherman, Daniel Kurtz and J.J. Leitner, Third-Party
Defendants.
2006 WL 374370
E.D.N.Y. Jan. 05, 2006 Motion
9. Motion for Temporary Restraining Order,
Appointment of Receiver, and Preliminary Injuction
for Breach of Fiduciary Responsibility and Violation
of New York Non-Profit Law and the By Laws of the
Corporation
FREEDOM CALLS FOUNDATION, Plaintiff, v. Edward
BUKSTEL (Pro Se), Defendant, v. John Harlow III, Kate
Green Freedom Calls Foundation Warren Sherman,
Counter Claim Defendants.
2006 WL 374371
E.D.N.Y. Jan. 04, 2006 Motion
10. Motion for Temporary Restraining Order,
Appointment of Receiver, and Preliminary Injuction
for Breach of Fiduciary Responsibility and Violation
of New York Non-Profit Law and the By Laws of the
Corporation
FREEDOM CALLS FOUNDATION, Plaintiff, Edward
Bukstel (Pro Se), Defendant, v. John HARLOW III, Kate
Green Freedom Calls Foundation Warren Sherman Dan
Kurtz JJ Leitner Counter Claim Defendants.
2006 WL 374372
E.D.N.Y. Jan. 04, 2006 Motion
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Freedom Calls Foundation v. Bukstel
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. Freedom Calls Foundation v. Bukstel
2006 WL 845509 , E.D.N.Y. , Mar. 03, 2006
Reconsideration Denied by
2. Freedom Calls Foundation v. Bukstel
2006 WL 2620648 , E.D.N.Y. , Sep. 12, 2006
Related References (1)
3. Freedom Calls Foundation v. Bukstel
2006 WL 2792762 , E.D.N.Y. , Sep. 07, 2006
Case 5:25-cv-01779-ECC-MJK Document 7 Filed 02/17/26 Page 40 of 40