United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
[DKT. NO. 6.]
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
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.
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
createspace.com, a subsidiary of
Amazon.com. 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.”
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
Amazon.com. 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.
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.
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,
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).
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.
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 ...