United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
FIRST AMENDED COMPLAINT WITH PREJUDICE [DOC. NO.
MARILYN L. HUFF, DISTRICT JUDGE.
March 1, 2017, Defendants Jeff Tuller, Savvier Inc., and
Savvier LP filed a motion to dismiss Plaintiff Tina
Kavanagh's first amended complaint. (Doc. No. 23.) On
April 3, 2017, the Court took the matter under submission.
(Doc. No. 25.) On April 10, 2017, Plaintiff filed a response
in opposition to Defendants' motion to dismiss. (Doc. No.
29.) On April 21, 2017, Defendants filed a reply. (Doc. No.
30.) For the reasons below, the Court grants Defendants'
motion to dismiss with prejudice.
present first amended complaint, Plaintiff alleges a single
cause of action for misappropriation of trade secrets against
the Defendants. (Doc. No. 22, FAC at 1.) Plaintiff's
claim for misappropriation of trade secrets is based on her
product called “Tummy Tuck, ” which she describes
as a two-step method to achieve a flatter stomach of first
using a mixture of herbs and essential oils placed on the
abdomen and then wrapping the area in tensor bandages.
(Id. at 3.)
alleges that in October 2008, she began to market her
“Tummy Tuck” product in Canada through word of
mouth. (Id. at 4-5; see also Doc. No. 29 at
4.) Plaintiff further states that, in November 2010, she was
featured on a local television program in order to market her
product where she disclosed her product name, “Tummy
Tuck, ” and her method of using herbs and essential
oils with a tensor bandage. (Doc. No. 29 at 4; see
also Doc. No. 22, FAC at 8.)
alleges that in August 2013, a client told her that she saw
an infomercial for a “Tummy Tuck” product while
she was vacationing in Florida. (Doc. No. 22, FAC at 6.)
Plaintiff alleges that she began researching the product and
discovered that Defendant Savvier Inc., Defendant Jeff
Tuller's company, had been marketing a product called
“Tummy Tuck.” (Id.) Plaintiff alleges
that Defendants' product uses the same name as her
product and also utilizes a method similar to her product for
slimming the abdomen. (Id.) Plaintiff explains that
Defendants did not know the precise herbs and essential oils
that she uses in her method. (Doc. No. 29 at 6-7.) Plaintiff
alleges that an invention help company, Davison Design, in
2009 had previously told her that it would make a formal
presentation of her product to Mr. Tuller. (Doc. No. 22, FAC
August 2, 2016, Plaintiff, proceeding pro se, filed
a complaint against Defendants alleging state law causes of
action for: (1) misappropriation of trade secrets; and (2)
unjust enrichment. (Doc. No. 1.) On August 2, 2016, Plaintiff
also filed a motion for leave to proceed in forma
pauperis. (Doc. No. 2.) On August 22, 2016, Plaintiff
filed a new motion for leave to proceed IFP. (Doc. No. 5.)
September 1, 2016, the Court granted Plaintiff's IFP
motion, sua sponte reviewed the allegations in the
complaint pursuant to 28 U.S.C. § 1915(e)(2), and
declined to dismiss the complaint under 28 U.S.C. §
1915(e)(2). (Doc. No. 6.) On December 8, 2016, Defendants
filed a motion to dismiss Plaintiff's complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 13.)
On January 10, 2017, the Court granted Defendants' motion
and dismissed Plaintiff's complaint with leave to amend.
(Doc. No. 18.)
February 15, 2017, Plaintiff filed a first amended complaint
alleging a single state law cause of action for
misappropriation of trade secrets. (Doc. No. 22.) By the
present motion, Defendants move pursuant to Federal Rule of
Civil Procedure 12(b)(6) to dismiss Plaintiff's first
amended complaint for failure to state a claim. (Doc. No.
Legal Standards for a Rule 12(b)(6) Motion to
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the pleadings and
allows a court to dismiss a complaint if the plaintiff has
failed to state a claim upon which relief can be granted.
See Conservation Force v. Salazar, 646 F.3d 1240,
1241 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2)
requires that a pleading stating a claim for relief contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” The function of
this pleading requirement is to “give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007).
complaint will survive a motion to dismiss if it contains
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Id. (quoting
Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). Accordingly, dismissal
for failure to state a claim is proper where the claim
“lacks a cognizable legal theory or sufficient facts to
support a cognizable legal theory.” Mendiondo v.
Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.
reviewing a Rule 12(b)(6) motion to dismiss, a district court
must accept as true all facts alleged in the complaint, and
draw all reasonable inferences in favor of the plaintiff.
See Retail Prop. Trust v. United Bhd. of Carpenters &
Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). But a
court need not accept “legal conclusions” as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Further, it is improper for a court to assume the plaintiff
“can prove facts which it has not alleged or that the
defendants have violated the . . . laws in ways that have not
been alleged.” Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519,
526 (1983). In addition, a court may ...