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Elson v. Black

United States District Court, C.D. California

September 25, 2019

EMILY ELSON, et al., Plaintiff,
ASHLEY BLACK, et al., Defendants.

          ORDER ON MOTIONS TO DISMISS [45], [46], [47], [48], [63], AND [64]



         Presently before the Court are Motions to Dismiss and a Motion to Strike filed by Defendants ADB Innovations, ADB Interests, LLC, and Ashley Diana Black International Holdings (collectively “Defendants”). In the interest of judicial economy, the Court resolves only Defendants’ motions to dismiss concerning 12(b)(2) and (4)–(5). For the reasons to follow, the Court STRIKES[1] Defendants’ motion to dismiss (ECF No. 63) and motion to strike (ECF No. 64); DENIES Defendants’ motion to dismiss for insufficient process and failure to timely serve (ECF No. 47); DENIES Defendants’ motion to dismiss for lack of personal jurisdiction (ECF No. 46); and TRANSFERS the matter to the Southern District of Texas to cure want of personal jurisdiction and in the interest of justice.


         The instant matter is a putative class action involving the FasciaBlaster, a self-care product. According to Plaintiffs, Defendants market the product on, which contains statements indicating that use of the FasciaBlaster “lessens the look of cellulite, ” “[i]mproves blood flow, ” “[h]elps reduce pain, ” and “accelerates muscle recovery.” (Consolidated Am. Compl. (“CAC”) ¶ 181, ECF No. 37.) Moreover, Plaintiffs maintain members of the class read the following statement prior to purchasing a FasciaBlaster online: “FasciaBlaster® is designed for self-treatment and can be used by anyone on any area of the body. With regular use of the FasciaBlaster®, one can expect pain reduction and improved flexibility, joint function, circulation, muscle definition and performance, nerve activity, posture, and enhanced beauty including the virtual elimination of CELLULITE.” (CAC ¶ 4.)

         Defendant Ashley Black is “an individual who is the founder and principal owner of the corporate entity defendants and is the person primarily responsible for the wrongdoing alleged herein.” (CAC ¶ 168.) At the time of filing, Plaintiffs maintained Black resides in California and in the Central District. (Id.) Ms. Black is actively involved as the spokesperson extolling the virtues of the FasciaBlaster. (Id.)

         Plaintiffs maintain that all other defendants are corporate entities owned and controlled by Ms. Black, but the precise role of each defendant in the alleged wrongdoing is unclear, and hence will be the subject of discovery. (CAC ¶ 169.)

         Ashley Black Company (“ABC”) is a corporation with its principal place of business in Texas, and “is jointly responsible for the manufacture, marketing, advertising[, ] and distribution of the FasciaBlaster throughout the United States. [ABC] created and/or authorized the false, misleading[, ] and deceptive statements about the FasciaBlaster.” (CAC ¶ 170.)

         Defendant ADB Interests, LLC (“ADB Interests”) is a Texas company based in Pearlman[sic], Texas. (CAC ¶ 171.) ADB is “identified as the owner of the Ashley Black website that carries the misrepresentations.” (CAC ¶ 171.)

         Defendant ADB Innovations, LLC (“ADB Innovations”) “identifies itself in corporate literature as the source of some of the Ashley Black products and is the source of one of the disclaimers about the products.” (CAC ¶ 172.)

         Defendant Ashley Black Guru is also located in Pearland, Texas, and “identifies itself as a copyright holder on certain corporate literature on the Ashley Black website.” (CAC ¶ 173.)

         Defendant Ashley Diana Black International Holdings, LLC, (“ADBIH”) is a Delaware corporation, “based, on information and belief, in Pearland, Texas.” ADBIH “is the holder of certain intellectual property concerning the FasciaBlaster.” (CAC ¶ 174.)

         Defendant Ashley Black Fasciology, LLC, is “another corporate entity controlled by Ashley Black.” The exact role of this entity in marketing and sale of the FasciaBlaster is unknown. (CAC ¶ 175.)

         Plaintiffs filed this suit in California State Court on October 23, 2017. (Notice of Removal Ex. A, ECF No. 1-3.) Defendants removed the matter on January 5, 2018. Plaintiffs filed a consolidated complaint under the Class Action Fairness Act on April 17, 2018, alleging thirty-five causes of action, which include violations of the Magnuson-Moss Warranty Act, Song-Beverly Act, California Business and Professions Code, Consumer Legal Remedies Act, as well as express and implied warranty violations under the laws of at least eight states. (CAC ¶¶ 249–578.) On August 14, 2018, Defendants filed their Motions to Dismiss (ECF Nos. 45–48) and added another Motion to Dismiss and Strike on August 16, 2018. (ECF Nos. 63–64.) The Motions were taken under submission on December 4, 2018. (ECF No. 93.)


         A. Subject Matter Jurisdiction

         Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction only over matters authorized by the Constitution and Congress. See e.g., U.S. Const. Art. III, § 2, cl. 1; Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts have original jurisdiction where an action arises under federal law, or where each plaintiff’s citizenship is diverse from each defendant’s citizenship and the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332(a). Also, a court has subject matter jurisdiction pursuant to Class Action Fairness Act (“CAFA “) when any civil action in which the matter in controversy exceeds the sum or value of $5, 000, 000, exclusive of interest and costs, and is a class action in which any member of a class of plaintiffs is a citizen of a State different from any defendant. 28 U.S.C. § 1332(d).

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). A facial attack is based on the challenger’s assertion that the allegations in the complaint are “insufficient on their face to invoke federal jurisdiction.” Id. A factual attack disputes the validity of allegations that, if true, would invoke federal jurisdiction. Id. In resolving a facial attack, a court must consider the allegations of the complaint as true. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air, 373 F.3d at 1039) (“A ‘facial’ attack accepts the truth of the plaintiff’s allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.’”).

         Here, the Court determines facially that it has subject matter jurisdiction. Plaintiffs assert that the Court has subject matter jurisdiction under the Magnuson-Moss Warranty Act and CAFA because: (1) this is a class action involving thousands of class members; (2) Plaintiffs are citizens of the States of California, Florida, Nevada, Arizona, Louisiana, Mississippi, New York and Ohio; Defendants are citizen of the States of Texas and California; and on information and belief more than two-thirds of class members reside outside of California; and (3) the amount in controversy is in excess of $5, 000, 000, exclusive of interests and costs. (CAC ¶ 9); 15 U.S.C. § 2301; 8 U.S.C. § 1332(d). Moreover, Defendants removed this case from Los Angeles Superior Court under CAFA; accordingly, Defendants do not challenge the Court’s jurisdiction under CAFA. (See Notice of Removal ΒΆ 3.) Hence, for purposes of ...

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