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Dabish v. Infinitelabs, LLC

United States District Court, S.D. California

September 2, 2014

DARICK DABISH, Individually and on Behalf of All Others Similarly Situated Plaintiff,
v.
INFINITELABS, LLC, Defendant.

ORDER DENYING DEFENDANT'S MOTION TO TRANSFER VENUE

BARRY TED MOSKOWITZ, Chief District Judge.

Defendant Infinitelabs, LLC, has moved to transfer this case frOM THE Southern District of California to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). For the following reasons, Defendant's motion is DENIED.

I. BACKGROUND

Defendant is a Florida limited liability company with its principle place of business in Orlando, Florida. ¶ 30[1] Defendant manufactures, markets, advertises, sells, and distributes the dietary supplement "Infinite Labs Pro Tribulus, " which is used to enhance testosterone levels and muscle development. ¶¶ 1, 3, 8. The sole ingredient is Tribulus Terrestris. ¶ 8. Defendant is authorized to do business in California and is doing so. ¶ 30. All decisions regarding the formulation, marketing, and packaging of Defendant's products are made at Defendant's offices in Orlando. (Motion to Dismiss, Declaration of SiaMack Alavi ("Alavi Decl.") ¶ 5). All documents and personnel relating to the formulation, marketing, and packaging of Defendant's products are located in Orlando. (Alavi Decl. ¶¶ 6-7).

Bodybuilding.com is an online retailer of Defendant's supplement. ¶ 4. Defendant provides Bodybuilding.com and other online retailers with advertising and marketing language and label images for its Pro Tribulus supplement.¶ 5. Plaintiff alleges that Defendant also sells the supplement through brick and mortar retailers throughout the United States. ¶ 28.

Plaintiff is a resident of San Diego County, California. ¶ 29. In May 2013, Plaintiff was in San Diego when he purchased Defendant's product from Bodybuilding.com. ¶ 29. Plaintiff alleges that Defendant uses several false, fraudulent, misleading, unfair, and deceptive claims on its website and Bodybuilding.com. ¶¶ 18-19. Plaintiff reviewed the product's labeling and marketing material and relied on both in deciding to purchase Defendant's supplement. ¶¶ 32-33. Plaintiff alleges that, absent Defendant's false and misleading advertising, he would not have purchased Defendant's product. ¶ 49.

Plaintiff alleges that Defendant's false claims can be divided into two categories: claims regarding enhanced testosterone production and claims regarding increased muscle mass. Regarding testosterone, defendant claims that its supplement provides "Advanced LH Production Support, " and will "Support Natural Testosterone Production, " and "Support LH Production." ¶ 36; Exhibits A, B. Regarding muscle mass, Defendant claims that its supplement will "Increase Lean Muscle Naturally, " provides "Growth & Recovery, " and is "The Athlete's Performance Aid." ¶ 41; Exhibits A, B. Plaintiff contends that both sets of claims are contrary to medical studies on animals and humans. ¶¶ 37-40, 42-44.

Plaintiff subsequently sued Defendant, individually and on behalf of a putative California and national class, asserting claims for violations of the California Business and Professions Code § 17200 et seq.; California Civil Code § 1750 et seq.; California Business and Professions Code § 17500 set seq.; and breach of express warranty. Defendant now moves that this case be transferred to the Middle District of Florida. Plaintiff opposes the motion.

II. LEGAL STANDARD

28 U.S.C. § 1391(b) provides:

[a] civil action may be brought in-
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's ...

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