Zerorez v. U.S. Olympic Committee – Memorandum in Support of Motion to Dismiss



Case No.: 16-civ-02641

Shari L. J. Aberle #0306551
50 South Sixth Street
Suite 1500
Minneapolis, MN 55402


Susan A. Smith (D.C. Bar #455946) (pro hac vice) Erik C. Kane (VA Bar #68294) (pro hac vice)


Tel.: (612) 343-8267 1500 K Street, N.W.
Fax: (888) 214-4821 Washington, DC 20005
Tel.: (202) 220-4200
Fax: (202) 220-4201
Counsel for Defendant,
United States Olympic Committee

Defendant, the United States Olympic Committee (“USOC”), moves
pursuant to Federal Rule 12(b)(1) to dismiss the Complaint asserted by
Plaintiff, HSK LLC. The grounds for dismissal are set forth below.


Plaintiff is asking this Court to issue an advisory opinion that certain
statements Plaintiff “contemplated” making on social media during the
course of the recently concluded 2016 Olympic Games would have been
protected under the First and the Fourteenth Amendments. See Compl., ¶¶
11, 18-21 (ECF No. 1). In addition, Plaintiff would like this Court to make a
series of broad legal “declarations” (for example, “Speech is not commercial
in nature merely because it is on a business’s social media account”) that
would be divorced from the specific factual context of this case. See id.,
¶ 27. Plaintiff’s requests are improper, and the Complaint should be
dismissed for lack of subject matter jurisdiction.

A. There is No Concrete Dispute Between the Parties

The Declaratory Judgment Act provides that “In a case of actual
controversy within its jurisdiction,” a federal court may “declare the rights
and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a); see
also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007). The
Eighth Circuit has explained, however, that for there to be an actual
controversy, “There must be a concrete dispute between parties having
adverse legal interests[.]” Maytag Corp. v. International Union, 687 F.3d
1076, 1081 (8th Cir. 2012) (emphasis added); see also MedImmune, 549
U.S. at 127 (“[T]he question in each case is whether the facts alleged, under
all the circumstances, show that there is a substantial controversy, between
parties having adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.”) (quoting Maryland
Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).

In the present case, there is no “dispute,” let alone a “concrete” one.
Plaintiff merely alleges that before the start of the recently concluded 2016
Olympic Games (which ran from August 5 to 21) it “anticipated” and
“contemplated” posting several statements about the Olympic Games to its
social media accounts. See Compl. ¶¶ 10, 11, 28. Plaintiff does not allege
that it actually made any such statements, and in fact, it expressly
represented that it would not do so. See id., ¶ 18.

Moreover, Plaintiff does not allege that it had any pre-litigation
contact with the USOC about the proposed statements before Plaintiff filed
suit. Plaintiff does not claim that the parties had a prior contractual or
business relationship (formal or informal), nor does it suggest that the USOC
threatened to bring suit in the event Plaintiff posted the statements it
allegedly considered making. See generally Compl. Rather, Plaintiff’s
claim is that it chose not to post comments about the Olympic Games
because the USOC had issued corporate “Brand Usage Guidelines” that
Plaintiff believed would have applied to its social media postings, and
because it believed the USOC “has a track record” of enforcing its
trademark rights. See Compl., ¶¶ 12-21. Courts are in general agreement,
however, that the mere fact that a company regularly enforces its intellectual
property rights in the marketplace is not, without more, sufficient to confer
declaratory judgment jurisdiction on every party that wishes to obtain
judicial guidance as to whether its proposed actions would infringe. Cf.,
e.g., Edmunds Holding Co. v. Autobytel Inc., 598 F.Supp.2d 606, 610
(D. Del. 2009) (“[Defendant’s] suits against [others] and stated general
intent to enforce its rights, without more, are not sufficient to show the
existence of a real controversy between [the parties]. None of the facts
adduced by [Plaintiff] establishes that [Defendant] believes [Plaintiff] to be
infringing the … patent[.] [E]ven if never communicated to the alleged
infringer, such belief is fundamental to the existence of a real controversy
between the parties. Without it, the controversy exists in the mind of only
one side, which makes it speculative (as opposed to real) and one-sided (as
opposed to between the parties).”); First Quality Baby Products, LLC v.
Kimberly-Clark Worldwide, Inc., No. 1:cv09-0354, 2009 WL 1675088, *3-4
(M. D. Pa. 2009) (finding the lack of “overt, affirmative acts” targeting the
declaratory judgment plaintiff prior to suit to be a “significant hurdle” to the
finding of jurisdiction) (citing MedImmune, 549 U.S. at 127).

The threshold suggested by Plaintiff for obtaining declaratory
judgment relief is no threshold at all—any party could get into court so long
as it subjectively believed that it could theoretically be sued if it engaged in
certain acts. That is not, however, the purpose of the Declaratory Judgment
Act. Cf. 28 U.S.C. § 2201(a) (requiring that there be an “actual controversy”
between the parties); MedImmune, 549 U.S. at 127. Plaintiff’s claim for
declaratory judgment relief should therefore be denied because the Court
lacks subject matter jurisdiction to hear the matter.

B. Plaintiff Does Not Seek Specific Relief

In addition to requiring a “concrete dispute” (discussed above), the
Eighth Circuit has also held that a proper declaratory judgment plaintiff must
be seeking “specific relief through a decree of conclusive character, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.” Maytag, 687 F.3d at 1081 (quoting Aetna Life
Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937). Plaintiff fails to meet this
test as well.
Notably, Plaintiff does not seek a declaration concerning only the
specific statements it “contemplated” (but never made). Instead, Plaintiff
asks the Court to issue a series of vague judicial pronouncements about the
supposed rights of businesses in general; to make broad findings (such as
that the USOC supposedly “exaggerated the strength of its legal rights”); and
to add sweeping statements about the nature of commercial speech and the
constitutionality of the Ted Stevens Olympic and Amateur Sports Act
(36 U.S.C. §§ 220501 et seq.). See id.

Plaintiff’s requests typify the non-specific relief that the Eighth
Circuit has said cannot support the exercise of declaratory judgment
jurisdiction. Cf. Maytag, 687 F.3d at 1081. Even as to the most limited
relief Plaintiff seeks (about the statements), Plaintiff has by necessity posited
an incomplete set of hypothetical facts that divorces the statements from any
actual context, and then it further claims that the listed statements are mere
“examples.” See D.I. 1, ¶¶ 11, 27(a). And as to the remaining requests for
relief, Plaintiff either requests the issuance of declarations so vague they are
meaningless or it asks the Court to make legal pronouncements that have
nothing to do with the merits of the alleged “controversy” before it. In any
case, this Court’s role is to adjudicate the rights of the parties when an actual
controversy is presented. The relief Plaintiff requests is wholly inconsistent
with that role.


Plaintiff has failed to allege sufficient facts to show that an “actual
controversy” exists between the parties and has asked for vague, nonspecific
relief that is incompatible with the role of the Court when exercising
declaratory judgment jurisdiction. For those reasons, this Court lacks
subject matter jurisdiction to hear this action.
Respectfully submitted,
Dated: September 6, 2016 s/ Shari L. J. Aberle

Shari L. J. Aberle #0306551
50 South Sixth Street
Suite 1500
Minneapolis, MN 55402

Susan A. Smith (D.C. Bar #455946) (pro hac vice) Erik C. Kane (VA Bar #68294) (pro hac vice)


Tel.: (612) 343-8267 1500 K Street, N.W.
Fax: (888) 214-4821 Washington, DC 20005
Tel.: (202) 220-4200
Fax: (202) 220-4201
Counsel for Defendant,
United States Olympic Committee

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