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Salois v. Medifast, Inc.

United States District Court, S.D. California

February 28, 2018

TED SALOIS, Pro Se, Plaintiff,




         Pending before the Court is Defendant Medifast Inc., Defendant Jason Enterprises, Inc., and Defendant Jason Pharmaceuticals, Inc.'s (collectively “Defendants”) Motion to Dismiss Plaintiff Ted Salois's (“Plaintiff”) Complaint (“Complaint”) pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 6. Plaintiff filed a Response in Opposition to Defendant's Motion (“Response”). Dkt. No. 8. Having reviewed the moving papers and applicable law, and for the reasons set forth below, the Court GRANTS Defendants' Motion to Dismiss.


         Plaintiff completed the Medifast diet plan and wrote a book reviewing his experiences titled Medifast & Me & You in September 2015. Dkt. No. 1 (“Compl.”) ¶ 24. Plaintiff put his book up for sale on, a subsidiary of Id. In December 2015, counsel for Medifast sent Plaintiff a letter claiming that Plaintiffs use of the word “Medifast” in the book amounted to trademark infringement and demanded that Plaintiff remove the word “Medifast” from the book's title. Id. ¶ 31. Specifically, the letter contended that (1) the word “Medifast” was being used without permission, (2) plaintiff failed to include a trademark symbol after the word “Medifast”; and (3) the words “unauthorized evaluation” could not be easily seen. Id. Plaintiff remedied the latter two grievances by adding a trademark symbol and using a brighter font for the words “unauthorized evaluation, ” but Plaintiff insisted the word “Medifast” remain in the book's title. Id. ¶ 32. In March 2016, Plaintiff received a letter from an attorney at Defendant's law firm, Norton Rose Fulbright, alleging that Plaintiffs use of the trademark was improper. Id. ¶ 34. The letter demanded that Plaintiff stop offering the book to the public. Id. Plaintiff modified the book by modifying the cover and received a letter from another attorney at Norton Rose Fulbright demanding the newer version of the book be removed from the market as well. Id. ¶ 38. Counsel for Medifast contacted Plaintiff in spring of 2017 by phone and requested that Plaintiff change the book cover's font and wording. Id. ¶ 42. On April 27, 2017, counsel for Medifast sent Plaintiff a letter stating that Medifast did not and would not threaten to sue Plaintiff over Plaintiffs book. Dkt. No. 6-3 at 3. Specifically, Medifast's counsel clarified to Mr. Salois that Medifast “has never threatened to sue you [Mr. Salois] and to further assure you that Medifast has no current intention to pursue you over your book.” Id.

         Further, Defendants allegedly obstructed the availability of Salois's book to the buying public by issuing a DMCA claim that resulted in the removal of his book from Compl. ¶ 33, 135. Plaintiff alleges this resulted in lost revenue and damage to the author's goodwill and reputation. Id. ¶ 136. Plaintiff also alleges that Defendants threat of legal action resulted in the termination of a marketing contract with Michael Sedge, a marketing expert. Id. ¶ 141. This allegedly resulted in loss of income and damage to good will and reputation. Id.

         On September 7, 2017, Plaintiff filed his Complaint against Defendants. Dkt. No. 1. Defendants filed the Motion to Dismiss Plaintiff's Complaint on November 16, 2017. Dkt. No. 6. Plaintiff filed the Response to Defendants' Motion on December 15, 2017. Dkt. No. 8. Defendants filed a Reply on January 4, 2018. Dkt. No. 9.


         A. 12(b)(1)

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek to dismiss a complaint for lack of subject matter jurisdiction. 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). 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).

         B. 12(b)(6)

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule12(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) (“Rule12 (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, ” a plaintiff 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).

         “To 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, 129 S.Ct. 1937, 1949 (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, 129 S.Ct. at 1950.

         In 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). Legal conclusions, however, 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); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, a court may consider the facts alleged in the complaint, documents attached to the complaint, documents ...

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