ORDER DENYING DEFENDANT‟S /OTION TO DISMISS
This matter comes before the Court on Defendant Trimedica International, Inc.‟s ("Defendant") Motions to Dismiss (Doc. 9 & Doc. 10) the Complaint (Doc. 1) filed by Plaintiff Michael Gonzales ("Plaintiff"). Plaintiff opposes the motion.*fn1
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is a California citizen who believes in the importance of a fair and competitive market for the manufacture, marketing, sale, and distribution of consumer products. Complaint ¶ 7. Plaintiff alleges that Defendant is 2 falsely claiming that "AlkaMAX Alkaline Booster" ("AlkaMAX"), a 3 purported pH balancing formula dietary supplement, is patented. 4
Defendant allegedly advertises that AlkaMAX is the "only 5 patented, doctor-recommended pH balancing formula on the 6 market." Complaint ¶ 1. Defendant allegedly marks each box of 7
AlkaMAX as patented and every retailer on the internet allegedly 8 claims that AlkaMAX is patented. Complaint ¶ 17. Plaintiff 9 avers that AlkaMAX is not, and has never been patented. He claims he exhaustively researched public records, including the records of the United States Patent & Trademark office and has confirmed that AlkaMAX is not patented. Id.
Plaintiff alleges that Defendant engaged in this false marking scheme to deceive the public, stifle legitimate competition, and gain a competitive advantage in the market. Complaint ¶ 19.
Plaintiff brings this suit to act in the public interest under 35 U.S.C. § 292, a false marking statute.
The Article III case or controversy requirement limits federal courts' subject matter jurisdiction by requiring that plaintiffs have standing. Allen v. Wright, 468 U.S. 737, 750 (1984). The party asserting federal subject matter jurisdiction bears the burden of proving its existence. Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 377 (1994). Standing addresses 2 whether the plaintiff is the proper party to bring the matter to 3 the court for adjudication. Chandler v. State Farm Mutual 4
Automobile Insurance Co., 598 F.3d 1115, 1122 (9th Cir. 2010). 5 Because standing pertains to federal courts‟ subject matter 6 jurisdiction, it is properly raised in a 12(b)(1) motion to 7 dismiss. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). 8 b. 12(b)(6)
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990) .
Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to ...