United States District Court, D. New Jersey
SPRINT SOLUTIONS, INC. and SPRINT COMMUNICATIONS COMPANY L.P., Plaintiffs,
J&S INVESTMENTS OF DELAWARE, INC. doing business as CELLUSALES, SARABJIT SINGH also known as SAM SINGH, FRANK J. ALTAMURA, KARAMJEET SINGH also known as RICKY SINGH, Defendants.
JARRETT KIRK VINE POLSINELLI PC JASON A. NAGI POLSINELLI PC
STACEY K. SUTTON JAMES B. BALDINGER JENNIFER YASKO CARLTON
FIELDS JORDEN BURT, P.A. GAIL E. PODOLSKY CARLTON FIELDS
JORDEN BURT, P.A. On behalf of Plaintiffs.
S. HILLIARD GENE MARKIN STARK & STARK, PC PRINCETON PIKE
CORPORATE CENTER On behalf of Defendants J&S Investments
of Delaware, Inc., doing business as CELLUSALES, Frank J.
Altamura, and Sarabjit Singh, also known as Sam Singh.
DHILLON LAW FIRM OF SABINA DHILLON, LLC On behalf of
Defendant Karamjeet Singh, also known as Ricky Singh
L. HILLMAN, U.S.D.J.
case involves claims concerning the illegal trafficking of
wireless phones overseas. Pending before the Court are two
motions. Plaintiffs, Sprint Solutions, Inc. and Sprint
Communications Company L.P. (hereinafter
“Sprint”) have moved to dismiss the counterclaims
lodged against it by Defendant Karamjeet Singh, also known as
Ricky Singh. Defendant Frank J. Altamura has moved to dismiss
four counts in Sprint's complaint against him for
Sprint's failure to properly plead those counts in
accordance with Federal civil Procedure Rules 9(b) and
12(b)(6). For the reasons expressed below, Sprint's
motion will be granted, and Altamura's motion will be
sells wireless handsets and other mobile devices under
various brands, including, Sprint, Sprint Prepaid, Boost
Mobile, Virgin Mobile, payLo, and Assurance Wireless, for use
on Sprint's wireless network at prices significantly
below the wholesale price of the phones to make them more
widely accessible to consumers. Briefly summarized from
Plaintiff's 48-page Complaint, Defendants J&S
Investments of Delaware, Inc. d/b/a Cellusales, Sarabjit
Singh a/k/a Sam Singh, Frank J. Altamura, and Karamjeet Singh
a/k/a Ricky Singh, as well as other co-conspirators, are
perpetrators of an unlawful scheme to profit from the illegal
acquisition and resale of new Sprint wireless handsets by
stealing the substantial financial investment that Sprint
makes in its phones, for their own profit and to the
detriment to Sprint and its customers.
Cellusales was initially identified as a potential trafficker
through its profile on the online marketplace CellPex,
offering new iPhones for sale. Sprint's undercover
investigators responded to the advertisement and contacted
Defendant Sam Singh, who is Cellusales's Director of
Global Distribution. At an in person meeting on January 13,
2016, Sam Singh confirmed to the investigator that Defendants
are handset traffickers who acquire new phones in bulk that
are unlocked and exported for resale overseas. During its
investigation, Sprint learned, inter alia, that
Defendants were actively looking to enter into an open
purchase order to buy 2, 000 new Sprint phones per week, all
of which they confirmed would be unlocked and exported, to be
used on wireless networks other than Sprint.
Sprint filed the instant suit against Defendants for common
law and statutory unfair competition, tortious interference
with existing and prospective business relations and existing
contract, conspiracy to commit fraud and fraudulent
misrepresentation, unjust enrichment, common law fraud and
fraudulent misrepresentation, violations of the Computer
Fraud and Abuse Act (“CFAA”), trademark
infringement and false advertising under the Lanham Act,
contributory trademark infringement, conversion, and
violations of the New Jersey Computer Fraud and Abuse Act.
The Complaint seeks monetary damages, attorneys' fees and
costs, and injunctive relief.
through previous counsel, filed their Answers to Sprint's
Complaint, denying Sprint's claims. In his Answer,
Defendant Ricky Singh lodged two counterclaims against Sprint
-“False and Malicious Allegations” and
“Frivolous Litigation.”Sprint has moved to dismiss
those counterclaims, arguing that they are not cognizable
claims. Singh has opposed Sprint's motion.
though Defendant Frank J. Altamura filed an Answer to
Sprint's Complaint, Altamura's current counsel has
moved to dismiss four counts in Sprint's Complaint
against him. Altamura also asks that the Court permit him to
file an amended Answer after the resolution of his motion to
dismiss. Sprint has opposed Altamura's motion as
procedurally improper, but Sprint also argues that if
Altamura's motion is considered by the Court, it should
be denied because Sprint's claims against Altamura are
properly pleaded and substantively viable.
Subject Matter Jurisdiction
Court has jurisdiction over this matter under 28 U.S.C.
§§ 1331 and 1338 because Sprint's claims for
violation of the United States Trademark Act, Title 15 of the
United States Code and the Computer Fraud and Abuse Act, 18
U.S.C. § 1030, et seq. arise under federal
This Court has supplemental jurisdiction pursuant to 28
U.S.C. § 1367 over Sprint's state law claims because
those claims are so related to the federal claims that they
form part of the same case or controversy.
Standard for Motion to Dismiss
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept
all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled that a pleading is sufficient if it
contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Under the liberal federal pleading
rules, it is not necessary to plead evidence, and it is not
necessary to plead all the facts that serve as a basis for
the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434,
446 (3d Cir. 1977). However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set
forth an intricately detailed description of the asserted
basis for relief, they do require that the pleadings give
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claim.'” Bell Atlantic v.
Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (“Iqbal . . . provides the
final nail-in-the-coffin for the ‘no set of facts'
standard that applied to federal complaints before
the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6). First, the factual and legal elements of a
claim should be separated; a district court must accept all
of the complaint's well-pleaded facts as true, but may
disregard any legal conclusions. Fowler, 578 F.3d at
210 (citing Iqbal, 129 S.Ct. at 1950). Second, a
district court must then determine whether the facts alleged
in the complaint are sufficient to show that the plaintiff
has a “‘plausible claim for relief.'”
Id. (quoting Iqbal, 129 S.Ct. at 1950). A
complaint must do more than allege the plaintiff's
entitlement to relief. Id.; see also Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough
factual matter (taken as true) to suggest' the required
element. This ‘does not impose a probability
requirement at the pleading stage, ' but instead
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of' the
necessary element”). A court need not credit either
“bald assertions” or “legal
conclusions” in a complaint when deciding a motion to
dismiss. In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears
the burden of showing that no claim has been presented.
Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005)
(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926
F.2d 1406, 1409 (3d Cir. 1991)).
in reviewing a Rule 12(b)(6) motion must only consider the
facts alleged in the pleadings, the documents attached
thereto as exhibits, and matters of judicial notice. S.
Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd.,181 F.3d 410, 426 (3d Cir. 1999). A court may
consider, however, “an undisputedly authentic document
that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiff's claims are based on the
document.” Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993). If any other matters outside the pleadings are