United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO
AMEND COMPLAINT, GRANTING DEFENDANT'S MOTION TO DISMISS
AND DENYING DEFENDANT'S MOTION TO STRIKE
Ted Moskowitz, Chief Judge United States District Court.
the Court are Defendant New Health Ventures, LLC's motion
to dismiss and motion to strike, as well as Plaintiff
Nutrition Distribution, LLC's motion for leave to file an
amended complaint. (ECF Nos. 5-6, 13.) For the reasons
discussed below, Plaintiff's motion for leave to amend is
denied, Defendant's motion to dismiss is granted and its
motion to strike certain portions of the Complaint is denied
September 15, 2016, Plaintiff filed a Complaint against
Defendant alleging a single cause of action of false
advertisement in violation of Section 43(a)(1)(B) of the
Lanham Act. (ECF No. 1 (“Compl.”).) Plaintiff
alleges that Defendant falsely advertised and marketed
products containing various “Selective Androgen
Receptor Modulators (“SARMS”)” such as
“Ostarine.” (Compl. ¶ 27.) On October 26,
2016, Defendant filed a motion to dismiss for failure to
state a claim and a motion to strike Plaintiff's request
for injunctive relief. In response, on December 12, 2016,
Plaintiff filed a proposed First Amended Complaint (ECF No. 8
(“FAC”)) asserting three causes of action
including a violation of the Lanham Act, a violation of the
Civil Racketeer Influenced and Corrupt Organizations Act
(“RICO”), and a violation of the California
Business and Professions Code Section 17200. Unlike
Plaintiff's original Complaint, its proposed FAC is based
on Defendant's sale of products containing Dimethazine
subsequently filed a request for entry of dismissal with
prejudice, arguing that because Plaintiff did not oppose the
motion to dismiss and instead filed an untimely FAC without
leave from the Court, the case should be dismissed with
prejudice. (ECF No. 9.) On January 3, 2017, Plaintiff filed a
motion for leave to amend its Complaint.
Leave to Amend
to Federal Rule of Civil Procedure 15(a)(2), “a party
may amend its pleading only with the opposing party's
written consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). “The court should freely give leave when
justice so requires.” Id. “Liberality in
granting a plaintiff leave to amend is subject to the
qualification that the amendment not cause undue prejudice to
the defendant, is not sought in bad faith, and is not
futile.” Bowles v. Reade, 198 F.3d 752, 757
(9th Cir. 1999). Additionally, a court may consider the
factor of undue delay. Id. at 757-58.
factors are not given equal weight. Bonin v.
Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
“Futility of amendment can, by itself, justify the
denial of a motion for leave to amend.” Id.
The test for futility is the same one used when considering
the sufficiency of a pleading under Rule 12(b)(6). Miller
v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) should be granted only where a plaintiff's
complaint lacks a "cognizable legal theory" or
sufficient facts to support a legal claim. Balistreri v.
Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1988). When reviewing a motion to dismiss, the allegations of
material fact in plaintiff's complaint are taken as true
and construed in the light most favorable to the plaintiff.
Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480,
1484 (9th Cir. 1995). Although detailed factual allegations
are not required, factual allegations “must be enough
to raise a right to relief above the speculative
level.” Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007). “A plaintiff's obligation to prove
the ‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but it has not show[n] that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks omitted). Only a complaint
that states a plausible claim for relief will survive a
motion to dismiss. Id.
Federal Rule of Civil Procedure 9(b), a plaintiff “must
state with particularity the circumstances constituting fraud
or mistake.” Fed. R. Civ. Proc. 9(b). A plaintiff
alleging fraud “must state the time, place, and
specific content of the false representations as well as the
identities of the parties to the misrepresentations.”
Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388,
1392-93 (9th Cir. 1988) (quoting Schreiber Distrib. Co.
v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th
Plaintiff's Motion to Amend
opposes Plaintiff's motion for leave to file its FAC on
grounds of bad faith, undue prejudice, and futility. First,
Defendant argues that Plaintiff acted in bad faith because it
completely abandoned its original claim and evaded an
unfavorable ruling and possible attorney's fees. Second,
Defendant argues that it would be prejudiced if an amendment
is permitted because the original claims will never be
adjudicated and it would be deprived of seeking its
attorneys' fees. Finally, Defendant contends that the
Court should deny Plaintiff leave to amend because the
proposed amendments are futile.
juncture, no ENE has taken place and discovery has not yet
commenced. Though the motion is procedurally defective, given
the early stage of this litigation, the Court does not find
that Plaintiff acted in bad faith, caused undue delay, or
that granting Plaintiff leave to file an FAC would prejudice
Defendants. Therefore, leave to amend turns on whether the
proposed amendments would be futile.
Lanham Act Claim
argues that Plaintiff's Lanham Act claim is futile
because it is barred under the primary jurisdiction doctrine