Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Loomis v. Slendertone Distribution, Inc.

United States District Court, S.D. California

November 4, 2019

JANE LOOMIS, on behalf of herself, all others similarly situated, and the general public, Plaintiff,
v.
SLENDERTONE DISTRIBUTION, INC., Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [DOC. NO. 8]

          Hon. Michael M. Anello United States District Judge

         Jane 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.”).[1] 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.

         Background [2]

         This 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.

         Plaintiff 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.

         Defendant 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.” Id.

         Plaintiff 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.

         Plaintiff points to numerous quotations from Defendant's Flex Belt marketing:

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 shape.
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 results.
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.[3] Defendant's website also states the following:

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.

         Additionally, 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.

         Defendant's 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 muscles[.]
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 healthy lifestyle.
Our Motto is Eat Right, Exercise and use The Flex Belt.
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.

         Request for Judicial Notice

         A. Legal Standard

         Generally, 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)).

         B. Discussion

         Defendant 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.

         Plaintiff 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)).

         Despite 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.

         Incorporation-by-Reference

         A. Legal Standard

         “Unlike 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 claims.

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)).

         B. Discussion

         Incorporation-by-reference 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 1003.

         Similarly, 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.

         Motion to Dismiss for Lack of Personal Jurisdiction

         Rule 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)).

         There 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 (1945).

         The Court proceeds by assessing whether personal jurisdiction over Defendant comports with federal due process requirements under either general or specific jurisdiction.

         A. General Jurisdiction

         General 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 (1988)).

         The 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).

         To 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.

         The 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.”).

         Here, 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.

         Given 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 analysis.[4]

         Plaintiff 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.