United States District Court, S.D. California
JANE LOOMIS, on behalf of herself, all others similarly situated, and the general public, Plaintiff,
SLENDERTONE DISTRIBUTION, INC., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS [DOC. NO. 8]
Michael M. Anello United States District Judge
Loomis, on behalf of herself and others similarly situated,
(“Plaintiff”) filed a putative class action
complaint against Slendertone Distribution, LLC
(“Defendant”), alleging five causes of action
under California law: (1) violations of the Unfair
Competition Law (“UCL”); (2) violations of the
False Advertising Law (“FAL”); (3) violations of
the Consumer Legal Remedies Act (“CLRA”); (4)
breach of express warranty; and (5) breach of the implied
warranty of merchantability. See Doc. No. 1
(“Compl.”). On July 12, 2019, Defendant filed a
motion to dismiss the class action complaint pursuant to
Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(2), and
12(b)(6). See Doc. No. 8. Plaintiff filed an
opposition to Defendant's motion, and Defendant replied.
See Doc. Nos. 13, 15. The Court found the matter
suitable for determination on the papers and without oral
argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 16.
For the reasons set forth below, the Court GRANTS IN
PART and DENIES IN PART
Defendant's motion to dismiss.
action arises out of the sale of the Flex Belt by Defendant
to Plaintiff on or about April 22, 2016. Compl. ¶ 24.
The central issues arise from statements and representations
made in Defendant's Flex Belt advertisements.
is an individual domiciled in San Diego, California and
brings the action on behalf of herself and a potential class
of similarly situated individuals. Id. ¶ 5, 34.
Defendant is incorporated in and has its principal place of
business in New Jersey. Id. ¶ 6.
markets and sells the Flex Belt, an electrical muscle
stimulator (EMS). Id. ¶ 3. EMS devices are
considered Class II Medical Devices by the Food and Drug
Administration (“FDA”). The FDA has cleared the
Flex Belt as a device that “may be able to temporarily
strengthen, tone or firm a muscle.” Id. ¶
3; Doc. No. 8-8 at 2. However, the FDA has
“specifically disapproved such devices to assist with
weight loss, contour the body, develop visible
“six-pack” abs, or otherwise to replace
traditional exercise.” Id. ¶ 3. Moreover,
the Federal Trade Commission (“FTC”) “has
already determined that any claims that such ab devices cause
fat loss and inch loss, will give users well-defined
abdominal muscles (e.g., ‘rock hard,' ‘six
pack' or ‘washboard' abs), or that use of the
ab devices is equivalent to conventional abdominal exercises,
such as sit-ups or crunches, are false and misleading.”
alleges Defendant advertised that the Flex Belt would help
consumers achieve the benefits of traditional exercise
without traditional exercise. Plaintiff claims she relied on
Flex Belt's website and Amazon.com listing before
purchasing a Flex Belt and, later, replacement gel pads.
Id. ¶ 3, 24. Essentially, Plaintiff alleges
that Defendant's advertisements were false or misleading
because Defendant advertises that using the Flex Belt
“would assist in weight loss, body contouring, develop
visible ‘six-pack' abs, and could be used
effectively as a replacement for abdominal exercises.”
Id. ¶ 4. In addition to Defendant's website
and Amazon.com listing, Plaintiff claims she also relied on
information from Defendant's Facebook advertisements and
television commercials. Defendant's other advertising
initiatives include “celebrity endorsements,
paid-advertisement articles, paid bloggers, social media . .
. and third-party retailers. Id. ¶ 11.
points to numerous quotations from Defendant's Flex Belt
GREAT ABS START HERE[.]
Rid Belly Fat with The Flex Belt[.]
The perfect abdominal contraction[.]
The Ultimate Workout for Abs[.]
The Flex Belt helps me stay fit[.]
The Flex Belt will stimulate all your major stomach muscles
at the same time providing you with the perfect abdominal
contraction-that means your upper abs, the lower abs and even
your obliques are going to get worked from The Flex Belt . .
. and it does all the work for you.
I can make dinner, I can do the laundry, read a book, sit on
the couch or check e-mail. I put on The Flex Belt, it does
all the work, and I get the result.
The Flex Belt is the first Ab Belt Toning system cleared by
the FDA for Toning, Firming and Strengthening the stomach
muscles. With The Flex Belt, you can train your abs even if
you're too busy or too tired for a traditional workout.
Just slip on the comfortable toning ab belt and the
clinically demonstrated, patented medical-grade technology
stimulates the nerves that make your muscles contract and
relax. As a result, you get an effective abdominal workout
that targets all the muscles in your abdomen- all in just 30
minutes a day.
You don't have to worry about your form or come up with
the time to get it done. The Flex Belt is clinically
demonstrated to deliver firmer, stronger and more toned
abdominal muscles while you are: at home, at work, watching
TV, exercising, folding laundry, helping your kids with their
homework, taking a walk . . . [.]
My abs look great and when you look good, you feel good. I
would have to do so many different exercises to get all my
abs, but with The Flex Belt it works all the ab muscles at
the same time.
I don't have to worry about my abs - they will be in
Everybody I know wants the same thing: Great abs. The look,
the confidence it gives us. The truth is, abs are a pain to
work out. The Flex Belt saves you time, because it works all
your abs at the same time. Just look how easy this is.
My abs feel like I have had the most amazing work out and
I've just worn the belt around the house for 30 minutes.
. . . It works.
I would do so many different exercises to get all of my abs,
but with the Flex Belt it works all of the ab muscles at the
same time. With the Flex Belt I don't have to worry about
my abs-this does work.
I just have to put it on, it does the work, and I get the
Being an athlete and fitness model for most of my life I know
that good abs come from a lot of hard work. As my schedule
kept getting busier I was having a tough time fitting in my
ab workouts because I was spending my exercise time on other
things, which is when I decided to give this ab belt a try. I
was blown away by how intense the contractions were on my abs
and how unbelievable they felt after my first Flex Belt
abdominal workout. What was even more incredible was the
convenience of it. I could put The Flex Belt®
on and continue my day.
Before I experienced The Flex Belt, I had a difficult time
training my abs due to a car accident that left me with a bad
back. Abdominal exercises hurt my lower back. Thanks to The
Flex Belt, I am able to take my ab workout to a whole new
level. The best part is I get a great, pain free ab workout
in while helping the kids with their homework, making dinner
or watching a movie.
Maximum Core Strength[.]
Ultimate Toning Technology[.]
Id. ¶ 20. Defendant's website also states the
Who Should Use the Flex Belt®? . . . Anyone
that wants more attractive abs, regardless of current fitness
levels . . . . * The Flex Belt® does not remove inches of
fat but it tones, tightens and strengthens your stomach
muscles Build a strong foundation for any exercise
program-The Flex Belt's®technology will
work for you quickly and effectively. If you
haven't exercised in a while, you know how hard it can be
to motivate yourself to start again. And if you do have a
regular exercise program, you know how hard it can be to find
the time to get to the gym with your busy schedule. With The
Flex Belt®, it doesn't matter what your
current exercise status is because there will always
be time to build firmer, stronger abs. This product
is perfect for Casual Exercisers, Fitness Enthusiasts who are
already in great shape, Executives who don't have time to
make it to the gym, Seniors, Mothers, People with sore backs,
and anyone that wants more attractive abs, regardless
of current fitness levels.
The Flex Belt® can work for you too . . . For
those looking for a convenient way to tone, strengthen and
flatten the abdominal area, you couldn't make a more
solid choice than The Flex Belt®. No matter
what else you are doing to work on your stomach area-The Flex
Belt® will enhance it. Ab workouts are usually
the type of exercise that take a lot of time, dedication, and
effort. The Flex Belt® is ideal for everyone
who feels he or she doesn't have the time to fit enough
ab exercises into their routine. It is also great for fitness
enthusiasts who want to take their workouts to the next
level. Additionally, The Flex Belt® intensity
can be adjusted from level 1-150. As you use this effective
ab belt, your muscle strength continually increases. As your
abs get stronger you can keep increasing the intensity to
always keep yourself advancing.
Doc. No. 8-5 at 6, 8, 9.
Plaintiff's Complaint includes screenshots from
Defendant's website and Amazon.com listing. Id.
¶ 21-24. Plaintiff relies upon testimonials from Flex
Belt users to support her claims. See Id. ¶ 21;
Doc. No. 8-5 at 5. Moreover, Defendant's advertising
contains several images throughout its Website and Amazon.com
listing of individuals with “flat, toned,
‘six-pack' abdominal muscles on celebrities and
models to convey that such results can be achieved through
use of the Flex Belt.” Compl. ¶ 23; see also
Id. ¶ 22; Doc. No 8-5 at 3-10; Doc. No. 8-6 at 2-5.
website and Amazon.com listing also contain language designed
to mitigate expectations of consumers using the Flex Belt:
Here at The Flex Belt® we believe that having
a healthy diet and getting exercise are key to a balanced
lifestyle. All of our endorsers use The Flex Belt in addition
to their healthy lifestyle to give them an edge and take
their results to the next level. The Flex Belt does not
remove inches of fat but it tones, tightens and strengthens
your stomach muscles. Using The Flex Belt in conjunction with
your dedication to Diet, Nutrition and Exercise can help you
achieve your goals of a more attractive stomach as well!
Our Motto is Eat Right, Exe1rcise and Use The Flex Belt . . .
The Flex Belt® does not remove inches of fat
but it tones, tightens and strengthens your stomach
Winner of the 2012 World Bodybuilding & Fitness
Federation Championship! Jill has been a Flex Belt
Spoke[s]pers[o]n for the last few years and we proudly
sponsored her for this WBFF competition. Jill also won the Ms
Universe Figure Championships a Few Years ago. Since then she
hasn't competed and she came out of retirement to compete
in the WBFF 2012 championships. In conju[n]ction with her
grueling workout regimen, Jill used The Flex
Belt® and Flex Mini (our Butt Toning Product)
daily to supplement her program. Congratulations Jill - We
Knew You Would Win!!
Our Motto - Live Healthy.
Here at The Flex Belt we believe in living a
healthy lifestyle. Having a healthy diet and getting exercise
are key to a balanced life. We have aligned ourselves with
Celebrities and Professional Athletes who believe the same.
All of our endorsers use The Flex Belt in addition to their
Our Motto is Eat Right, Exercise and use The Flex
The Flex Belt is not a weight loss or fat
reduction product. You will need a proper diet and regular
exercise for that!
Doc. No. 8-5 at 4, 6, 7; Doc. No. 8-6 at 5. Regardless of the
somewhat mitigating statements, Plaintiff alleges
Defendant's advertising falsely and misleadingly suggests
Flex Belt consumers will gain the health and appearance
benefits of traditional exercise. See Compl. ¶
4, 16, 20, 22, 23, 24, 25.
for Judicial Notice
a district court's review on a 12(b)(6) motion to dismiss
is “limited to the complaint.” Lee v. City of
Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001),
overruled on other grounds by Galbraith v. Cnty. Of Santa
Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002) (quoting
Cervantes v. City of San Diego, 5 F.3d 1273, 1274
(9th Cir. 1993)). However, “a court may take judicial
notice of matters of public record, ” id. at
689 (internal quotations omitted), and of “documents
whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically
attached to the pleading, ” Branch v. Tunnell,
14 F.3d 449, 454 (9th Cir. 1994), overruled on other
grounds by Galbraith, 307 F.3d at 1125-26; see
also Fed. R. Evid. 201. “A judicially noticed fact
must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b);
see also Mack v. South Bay Beer Distributors, 798
F.2d 1279, 1282 (9th Cir. 1986) (citing Sears, Roebuck
& Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67,
70 (9th Cir. 1956)).
requests the Court to take judicial notice of a printout from
the FDA's website entitled “Electronic Muscle
Stimulators.” See Doc. No. 8-1 at 2; Doc. No.
8-8 at 2-4. Plaintiff does not address or oppose this
request. The Court finds judicial notice of these documents
is proper pursuant to Federal Rule of Evidence 201(b).
Tri-Union Seafoods, LLC v. Starr Surplus Lines Ins.
Co., 88 F.Supp.3d 1156, 1159 (S.D. Cal. 2015) (granting
plaintiff's and defendant's requests for judicial
notice of two printouts from the FDA's website); In
re Amgen Inc. Sec. Litig., 544 F.Supp.2d 1009, 1023
(C.D. Cal. 2008) (granting judicial notice of labels from the
FDA's website because the documents are “capable of
accurate and ready determination” and “not
subject to reasonable dispute”); see also
Interstate Nat. Gas Co. v. S. California Gas Co., 209
F.2d 380, 385 (9th Cir. 1953) (“[The court] may take
judicial notice of records and reports of administrative
bodies.”). Therefore, the Court GRANTS
Defendant's request for judicial notice.
incorporates Defendant's online advertising into her
Complaint. See, e.g., Compl. ¶ 20-26. Defendant
argues that “Plaintiff cherry-picks quotes from
Slendertone's online advertising to create the appearance
of a misleading narrative.” Doc. No. 8 at 20. Defendant
argues its advertisements “are neither false nor
misleading when read in context.” Id.
Defendant attaches exhibits to its motion to give the full
picture of Defendant's website and Amazon.com listing in
the Complaint. See Doc. No. 8-4. However, Defendant
does not request the Court to take judicial notice of these
exhibits. See Doc. No. 8-1. Plaintiff does not
directly address Defendant's cherry-picking argument or
challenge the authenticity of Defendant's proffered
exhibits. Instead, she rests on the facts pleaded in her
Complaint, emphasizing “the Court ‘must accept as
true all the factual allegations in the
complaint.'” Doc. No. 13 at 20 (quoting
Leatherman v. Tarrant Cty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993)).
Defendant failing to request judicial notice, the Court has
the power to grant judicial notice sua sponte. Fed.R.Evid.
201(c)(1). Several district courts have found judicial notice
proper over publicly available websites. See Perkins v.
LinkedIn Corp., 53 F.Supp.3d 1190, 1204 (N.D. Cal. 2014)
(noting that publicly available website are proper subjects
of judicial notice); Caldwell v. Caldwell, No. C
05-4166 PJH, 2006 WL 618511, at *3 (N.D. Cal. Mar. 13, 2006)
(finding websites as proper subjects of judicial notice but
denying the request for judicial notice where the parties did
not supply the Court with copies of the website and the
parties failed to agree on the content of the website);
Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965
(C.D. Cal. 2005) (granting judicial notice over two
Amazon.com webpages). Accordingly, given Defendant's
advertisements are on publicly available websites and
Plaintiff does not dispute their contents, the Court sua
sponte takes judicial notice of the printouts from
Defendant's website and its Amazon.com listing.
rule-established judicial notice, incorporation-by-reference
is a judicially created doctrine that treats certain
documents as though they are part of the complaint itself.
The doctrine prevents plaintiffs from selecting only portions
of documents that support their claims, while omitting
portions of those very documents that weaken-or doom-their
Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988,
1002 (9th Cir. 2018) (citing Parrino v. FHP, Inc.,
146 F.3d 699, 706 (9th Cir. 1998), superseded by statute
on other grounds as recognized in Abrego Abrego v. Dow Chem.
Co., 443 F.3d 676, 681-82 (9th Cir. 2006)). The Ninth
Circuit has noted that there is a “policy concern
underlying the rule: Preventing plaintiffs from surviving a
Rule 12(b)(6) motion by deliberately omitting references to
documents upon which their claims are based.”
Parrino, 146 F.3d at 706; see also Khoja,
899 F.3d at 1003 (“[T]he the incorporation-by-reference
doctrine is designed to prevent artful pleading by
plaintiffs.”). “Even if a document is not
attached to a complaint, it may be incorporated by reference
into a complaint if the plaintiff refers extensively to the
document or the document forms the basis of the
plaintiff's claim.” United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also
Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)
(“The rationale of the “incorporation by
reference” doctrine applies with equal force to
internet pages as it does to printed material.”).
Incorporation-by-reference allows a court to “treat
such a document as part of the complaint, and thus may assume
that its contents are true for purposes of a motion to
dismiss under Rule 12(b)(6).” Ritchie, 342
F.3d at 908. While a court “unlike judicial notice . .
. may assume an incorporated document's contents are true
for purposes of a motion to dismiss under Rule 12(b)(6). . .
. it is improper to assume the truth of an incorporated
document if such assumptions only serve to dispute facts
stated in a well-pleaded complaint.” Khoja,
899 F.3d at 1003 (quoting Marder v. Lopez, 450 F.3d
445, 448 (9th Cir. 2006)).
is a proper vehicle to allow the Court to consider the
exhibits containing printouts from Defendant's website
and Amzon.com listing. Plaintiff refers and uses screenshots
from both webpages to support her Complaint. See
Compl. ¶ 20-26. Defendant's motion relies
extensively upon the same materials. See Doc. No.
8-4. Therefore, the Court finds the printouts of
Defendant's website and Amazon.com listing-as supplied by
Defendant-proper subjects of incorporation-by-reference to
the extent that the website printouts are not a means to
“short-circuit the resolution of a well-pleaded
claim” by “serv[ing] to dispute facts stated in a
well-pleaded complaint.” Khoja, 899 F.3d at
incorporation-by-reference is proper for the Flex Belt
warranty. See Doc. No. 8-3 at 3. Plaintiff's
fourth cause of action is breach of an express warranty.
Compl. ¶ 73-78. Plaintiff does not dispute the
authenticity or challenge the existence of the product
warranty. Importantly, because an element of breach of
express warranty is “an affirmation of fact or promise
or provided a description of its goods, ” Viggiano
v. Hansen Nat. Corp., 944 F.Supp.2d 877, 893 (C.D. Cal.
2013) (quoting Rodarte v. Philip Morris, Inc., No.
03-0353FMC, 2003 WL 23341208, *7 (C.D. Cal. June 23, 2003),
an actual product warranty could be the basis of the
plaintiff's claim. See Tietsworth v. Sears, 720
F.Supp.2d 1123, 1131 (N.D. Cal. 2010) (finding a limited
warranty subject to incorporation-by-reference when the
plaintiff alleged the defendant made a representation going
to the breach of express warranty cause of action).
Therefore, the Court finds the Flex Belt warranty supplied by
Defendant as incorporated by reference into the Complaint.
to Dismiss for Lack of Personal Jurisdiction
12(b)(2) allows a Defendant to move to dismiss a complaint
for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2).
Upon a motion to dismiss, Plaintiff carries the burden to
demonstrate proper jurisdiction. Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)
(citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th
Cir.1990)). In opposing such a motion, a plaintiff relying
solely on written materials must only make a prima facie
showing that jurisdiction is appropriate. Id.
(citing Sher, 911 F.2d at 1361). In assessing
personal jurisdiction, the plaintiff “need only
demonstrate facts that if true would support jurisdiction
over the defendant.” Ballard v. Savage, 65
F.3d 1495, 1498 (9th Cir.1995). The Court resolves conflicts
between the parties' affidavits in the plaintiff's
favor. Schwarzenegger, 374 F.3d at 800 (citing
AT&T v. Compagnie Bruxelles Lambert, 94 F.3d
586, 588 (9th Cir.1996)).
are two independent limitations on a court's power to
exercise personal jurisdiction over a nonresident defendant:
the applicable state personal jurisdiction rule, and
constitutional principles of due process. Sher, 911
F.2d at 1361. California's jurisdictional statute is
coextensive with federal due process requirements; therefore,
jurisdictional inquiries under state law and federal due
process standards merge into one analysis. Daimler AG v.
Bauman, 571 U.S. 117, 125 (2014); Rano v. Sipa
Press, Inc., 987 F.2d 580, 587 (9th Cir. 1993); see
also Cal. Civ. Proc. Code § 410.10. The exercise of
jurisdiction over a nonresident defendant violates the
protections created by the due process clause unless the
defendant has “minimum contacts” with the forum
state so that the exercise of jurisdiction “does not
offend traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. Wash., Office of
Unemployment Comp. & Placement, 326 U.S. 310, 316
Court proceeds by assessing whether personal jurisdiction
over Defendant comports with federal due process requirements
under either general or specific jurisdiction.
jurisdiction-as applied to a corporation-arises when a
foreign corporation's “affiliations with the State
are so ‘continuous and systematic' as to render
[it] essentially at home in the forum State.”
Daimler AG, 571 U.S. at 139 (citing Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011)); see also Int'l Shoe Co., 326 U.S.
at 318. “[T]he place of incorporation and principal
place of business are ‘paradig[m] . . . bases for
general jurisdiction.'” Daimler, 571 U.S.
at 137 (quoting Lea Brilmayer Jennifer, et al., A General
Look at General Jurisdiction, 66 Tex. L. Rev. 721, 735
place of incorporation and principal place of business are
not the only means to achieve general jurisdiction for a
corporation. Id. However, “[o]nly in an
‘exceptional case' will general jurisdiction be
available anywhere else.” Martinez v. Aero
Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (quoting
Daimler AG, 571 U.S. at 139 n.19). The
“exceptional case” centers upon “whether
that corporation's ‘affiliations with the State are
so “continuous and systematic” as to render it
essentially at home in the forum
State'”-not whether the contacts are merely
“continuous and systematic.” Daimler AG,
571 U.S. at 138-39 (quoting Goodyear Dunlop Tires
Operations, S.A., 564 U.S. at 919) (emphasis added);
see also Martinez, 764 F.3d at 1070. “The
standard for general jurisdiction ‘is an exacting
standard, as it should be, because a finding of general
jurisdiction permits a defendant to be haled into court in
the forum state to answer for any of its activities anywhere
in the world.'” Mavrix Photo, Inc. v. Brand
Techs., Inc., 647 F.3d 1218, 1224 (9th Cir. 2011)
(citing Schwarzenegger, 374 F.3d at 801).
determine whether a corporation is “essentially at
home, ” sufficient to trigger the exceptional case,
courts examine the “[l]ongevity, continuity, volume,
[and] economic impact” of those contacts, as well as
the defendant's “physical presence and
integration into the state's regulatory or economic
markets.” See Mavrix Photo, Inc, 647 F.3d at
1224. Importantly, a general jurisdiction analysis requires
“an appraisal of a corporation's activities in
their entirety, nationwide and worldwide. A corporation that
operates in many places can scarcely be deemed at home in all
of them. Otherwise, ‘at home' would be synonymous
with ‘doing business' tests framed before specific
jurisdiction evolved in the United States.” Daimler
AG, 571 U.S. at 139 n.20.
Ninth Circuit found a corporation not subject to general
jurisdiction in California where it had its principal place
of business outside the forum state; had no office, staff, or
physical presence in the forum state; and was not licensed
within the forum state. Martinez, 764 F.3d at 1070.
Further, the Ninth Circuit did not find general jurisdiction
in California proper where a defendant indirectly made
purchases of items imported by California entities, had a
California choice-of-law provision with some of his sales
contracts, used a California direct-mail marketing company,
hired a California-incorporated sales training company for
consulting, and had a “website accessible by anyone
capable of using the Internet, including people living in
California.” Schwarzenegger, 374 F.3d at 801;
see also Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 418 (1984) (“[M]ere purchases,
even if occurring at regular intervals, are not enough to
warrant a State's assertion of in personam jurisdiction
over a nonresident corporation in a cause of action not
related to those purchase transactions.”).
Plaintiff claims the Court has general jurisdiction over
Defendant. Doc. No. 13 at 12-14. Defendant counters that it
is not “essentially at home” for the purpose of
general jurisdiction. Doc. No. 8 at 5-6. Defendant is
incorporated in and has its principal place of business in
New Jersey, and it is organized under Delaware Law. Compl.
¶ 2; Doc. No. 6-2 at 2. Thus, there is no
“paradigm basis” for general jurisdiction over
Defendant. See Daimler, 571 U.S. at 137.
the lack of the paradigm basis for general jurisdiction,
Plaintiff continues to carry the burden to demonstrate-under
an “exacting standard” only found in exceptional
cases-whether Defendant “engages in a substantial,
continuous, and systematic course of business” to
render it “essentially at home” in California.
Daimler AG, 571 U.S. at 139. Plaintiff does not meet
her burden. As a preliminary matter, Plaintiff overlooks
Supreme Court precedent emphasizing the “essentially at
home” portion of the general jurisdiction
argues that general jurisdiction is satisfied because
“Slendertone sells, solicits, and engages in business
in California, serving the state's market, has designated
an agent for service of process in California, and is
registered with the California Secretary of State. Doc. No.
13 at 13; see also Doc. No. 13-1 at 2; Doc. No 13-2
at 2; Doc. No 13-3 at 2. Plaintiff also highlights that
Defendant uses “television commercials, ”
“a website, celebrity endorsements, paid-advertisement
articles, paid bloggers, social media (including Facebook)[,
] and third party retailers.” Compl. ¶ 11, 24.
Supplying supporting exhibits from advertisements on
Defendant's website, Plaintiff argues Defendant
specifically targets California residents:
Slendertone targets, specifically, California residents
through its own website, claiming “We put The Flex
Belt® in [the] hands of some of best Trainers
in Los Angeles. These are people that are in peak physical
shape and understand how to work their abs.” . . . .
Slendertone also touts that it has “2 Million users
worldwide.” . . . . The Slendertone website even
includes a broad banner stating “Hear what some of the
biggest Disc Jockeys in America have to say . . .” and
includes a link to a radio broadcast from “Ellen K from
the Ryan Seacrest Show” and advertises that she is ...