United States District Court, S.D. California
MOJDEH OMIDI and AURORA TELLERIA, individually and on behalf of others similarly situated, Plaintiff,
WAL-MART STORES, INC., A Delaware corporation, et. al., Defendant.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
[DOC. NOS. 22, 25]
A. HOUSTON United States District Judge.
before the Court are Wal-Mart Stores, Inc.'s motion to
dismiss (Doc. No. 22) and Defendant FirstSight Vision
Services' motion to dismiss (Doc. No. 25). Plaintiff
opposes the motions. After a thorough review of the
parties' submissions and for the reasons discussed below,
the Court GRANTS Defendants' motions.
originally filed a class action complaint in Superior Court
of the State of California, County of San Diego on November
5, 2013. Defendant Wal-Mart removed the action to federal
court on April 9, 2014. Plaintiff filed a First Amended
Complaint (“FAC”) on January 29, 2016, against
Wal-Mart Stores, Inc. and FirstSight Vision Services, Inc.
asserting claims for unlawful, fraudulent and unfair business
practices in violation of California's Unlawful Business
Practices Law (“UCL”), Business and Professions
Code section 17200; violation of California False Advertising
Law (“FAL”), California Business and Professions
Code section 17500; and violation of California's
Consumer Legal Remedies Act (“CLRA”), California
Civil Code section 1750.
Wal-Mart and FirstSight filed separate motions to dismiss the
FAC for lack of standing and failure to sufficiently allege
facts to state a claim. Plaintiff filed separate oppositions
to the motions and Defendants filed separate replies. The
motions were set for hearing but were taken under submission
without oral argument pursuant to Local Rule 7.1.
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
defendant may seek to dismiss a complaint for lack of
jurisdiction over the subject matter. The federal court is
one of limited jurisdiction. See Gould v. Mutual Life
Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986).
As such, it cannot reach the merits of any dispute until it
confirms its own subject matter jurisdiction. See Steel
Co. v. Citizens for a Better Environ., 523 U.S. 83, 95
(1998). When considering a Rule12(b)(1) motion to dismiss,
the district court is free to hear evidence regarding
jurisdiction and to rule on that issue prior to trial,
resolving factual disputes where necessary. See Augustine
v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
In such circumstances, “[n]o presumptive truthfulness
attaches to plaintiff's allegations, and the existence of
disputed facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Id. (quoting Thornhill Publishing
Co. v. General Telephone & Electronic Corp., 594
F.2d 730, 733 (9th Cir. 1979)). Plaintiff, as the party
seeking to invoke jurisdiction, has the burden of
establishing that jurisdiction exists. See Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
12(b)(6) tests the sufficiency of the complaint. Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal
is warranted under Rule 12(b)(6) where the complaint lacks a
cognizable legal theory. Robertson v. Dean Witter
Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984);
see Neitzke v. Williams, 490 U.S. 319, 326 (1989)
(“Rule 12(b)(6) authorizes a court to dismiss a claim
on the basis of a dispositive issue of law.”).
Alternatively, a complaint may be dismissed where it presents
a cognizable legal theory yet fails to plead essential facts
under that theory. Robertson, 749 F.2d at 534. While
a plaintiff need not give “detailed factual
allegations, ” he must plead sufficient facts that, if
true, “raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 545 (2007).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 547). A claim is facially plausible when
the factual allegations permit “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In other words,
“the non-conclusory ‘factual content, ' and
reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to relief.
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). “Determining whether a complaint states a
plausible claim for relief will ... be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
reviewing a motion to dismiss under Rule 12(b)(6), the court
must assume the truth of all factual allegations and must
construe all inferences from them in the light most favorable
to the nonmoving party. Thompson v. Davis, 295 F.3d
890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal
conclusions need not be taken as true merely because they are
cast in the form of factual allegations. Ileto v. Glock,
Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.
1981). When ruling on a motion to dismiss, the Court may
consider the facts alleged in the complaint, documents
attached to the complaint, documents relied upon but not
attached to the complaint when authenticity is not contested,
and matters of which the Court takes judicial notice. Lee
v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.
2001). If a court determines that a complaint fails to state
a claim, the court should grant leave to amend unless it
determines that the pleading could not possibly be cured by
the allegation of other facts. See Doe v. United
States, 58 F.3d 494, 497 (9th Cir. 1995).
Wal-Mart argues Plaintiffs fail to allege facts establishing
harm or causation to support Article III standing and
statutory standing, fail to satisfy rule 9(b), fail to allege
likelihood of future injury for injunctive relief, and ...