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In Re Hydroxycut Marketing and Sales v. Muscletech Research and Development

May 24, 2011

IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION VELMA J. CARTER, AN INDIVIDUAL; SUREE WANDA BRYSON, AN INDIVIDUAL;
RAYMOND C.LEE, AND INDIVIDUAL;
PLAINTIFFS,
v.
MUSCLETECH RESEARCH AND DEVELOPMENT, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge

ORDER GRANTING MOTION TO DISMISS FOR LACK OF JURISDICTION AS TO IOVATE COPYRIGHT LTD.; DENYING MOTION TO DISMISS; AND DENYING AS MOOT MOTION TO AMEND COMPLAINT

Defendant Iovate Copyright Ltd. ("Copyright") has filed a motion to dismiss for lack of personal jurisdiction. The other defendants ("Defendants") have filed a motion to dismiss Plaintiffs' Complaint for failure to state a claim. Plaintiffs have filed a motion to file an amended complaint that adds factual allegations in support of their fraud claims. For the reasons discussed below, Copyright's motion to dismiss is GRANTED, Defendants' motion to dismiss is DENIED, and Plaintiffs' motion for leave to amend is DENIED AS MOOT.

I. BACKGROUND

On September 30, 2010, Plaintiffs filed their complaint in the Northern District of Alabama (Alabama Civil Case No. 10-cv-2655-AKK). On December 15, 2010, the case was transferred to the Southern District of California as a tag-along action to the In re Hydroxycut Marketing and Sales Practices multi-district litigation currently pending before the Court. Upon transfer, the case was assigned a separate civil case number in the Southern District of California (Case No. 10cv2580 BTM(CAB)).

Plaintiff Velma J. Carter is a resident of Mississippi. Plaintiff Suree Wanda Vryson is a resident of South Carolina. Plaintiff Raymond C. Lee is a resident of Washington, D.C. According to the Complaint, Plaintiffs purchased "Hydroxycut products" at Wal-mart and suffered physical injury as a result of the consumption of such products.

Plaintiffs assert the following claims against the defendants: (1) negligence/wantonness; (2) product liability; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) breach of express warranty; (6) breach of implied warranty of merchantability; (7) breach of implied warranty of fitness for particular purpose; (8) unjust enrichment; and (9) fraud and misrepresentation.

After Defendants filed their motions to dismiss, Plaintiffs filed a First Amended Complaint (mislabeled "Second Amended Complaint") pursuant to a stipulation of the parties. The First Amended Complaint ("FAC") adds new defendants as well as more factual allegations in support of Plaintiffs' fraud claim. The Court construes the motion to dismiss for failure to state a claim to apply to the FAC.

II. DISCUSSION

A. Copyright's Motion

Copyright has filed a motion to dismiss for lack of personal jurisdiction. Because this case was originally filed in the Northern District of Alabama, this Court can exercise personal jurisdiction over Copyright only to the extent that the Northern District of Alabama could have. In re Dynamic Random Access Memory, 2005 WL 2988715, at * 2 (N.D. Cal. Nov. 7, 2005).

Copyright contends that Plaintiffs have not made out a prima facie case of either general or specific jurisdiction, as needed to satisfy federal due process. See Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 (1984). According to the declaration of Jo-Ann Heikkila, Copyright is a Canadian corporation which has never been licensed to do business in the United States, has never maintained an office or bank account in the United States, has never maintained a website accessible by United States citizens, and has not had any involvement in the manufacture, sale, or advertisement of Hydroxycut-branded products.

Plaintiffs did not file an opposition to Copyright's motion. Plaintiffs' Complaint itself merely states that "[a]t all times relevant hereto, Iovate Copyright, Ltd. was and is doing business within this judicial district." (Compl. ¶ 10.) The Complaint does not set forth any factual allegations supporting this conclusory statement.

When a defendant brings a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). If the district court decides the motion without holding an evidentiary hearing, "the plaintiff need only make a prima facie showing of the jurisdictional facts." Id.

Plaintiffs have not alleged any facts tending to show that the Northern District of Alabama has general or specific jurisdiction over Copyright. Therefore, Plaintiffs have failed to make out a prima facie showing of personal jurisdiction, and the Court ...


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