Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kavanagh v. Tuller

United States District Court, S.D. California

April 26, 2017

TINA KAVANAGH, Plaintiff,
v.
JEFF TULLER; SAVVIER INC.; and SAVVIER LP, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH PREJUDICE [DOC. NO. 23.]

          MARILYN L. HUFF, DISTRICT JUDGE.

         On 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.

         Background

         In the 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.)

         Plaintiff 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.)

         Plaintiff 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 at 5.)

         On 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.)

         On 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.)

         On February 15, 2017, Plaintiff filed a first amended complaint alleging a single state law cause of action for misappropriation of trade secrets.[1] (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. 23.)

         Discussion

         I. Legal Standards for a Rule 12(b)(6) Motion to Dismiss

         A 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).

         A 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. 2008).

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.