ThermoLife Int'l LLC v. Neogenis Labs Inc.
| Decision Date | 14 April 2021 |
| Docket Number | No. CV-18-02980-PHX-DWL,CV-18-02980-PHX-DWL |
| Parties | ThermoLife International LLC, Plaintiff, v. Neogenis Labs Incorporated, Defendant. NeoGenis Labs, Incorporated, Counterclaimant, v. ThermoLife International, LLC and Ronald L. Kramer, Counterdefendants. |
| Court | U.S. District Court — District of Arizona |
ThermoLife International, LLC ("ThermoLife") and Human Power of N Company (formerly known as NeoGenis Labs, Inc.) ("HumanN") each hold patents related to the use of nitrate technology. In this action, ThermoLife alleges that HumanN engaged in false advertising and false marking by, among other things, marking three of its nitrate-related products with inapplicable patent numbers, in violation of state and federal law. (Doc. 68.) HumanN, in turn, asserts an array of counterclaims against ThermoLife and its founder, Ronald L. Kramer ("Kramer"), including counterclaims for attempted monopolization and tortious interference that were previously dismissed with leave to amend. (Doc. 113.) HumanN has now filed an amended pleading in an attempt to cure the deficiencies identified in the previous order (Doc. 117) and ThermoLife has again moved to dismiss (Doc. 122). For the following reasons, ThermoLife's motion is granted in part and denied in part.
To survive a motion to dismiss under Rule 12(b)(6), "a party must allege 'sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" In re Fitness Holdings Int'l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Iqbal, 556 U.S. at 678). "[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party." Id. at 1144-45 (internal quotation marks omitted). However, the court need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 679-80. The court also may dismiss due to "a lack of a cognizable legal theory." Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (internal quotation marks omitted).
"When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). However, a court may consider "certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment." Id. at 908.
As a preliminary matter, HumanN objects to the three exhibits that were attached to ThermoLife's motion. (Doc. 125 at 3-4.) Exhibits A and C purport to be printouts fromHumanN's website: Exhibit A is an article entitled "Top 9 Nitric Oxide Supplements and Benefits" (Doc. 122-1) and Exhibit C is what appears to be a product page for HumanN's "SuperGrapes Chews" product (Doc. 122-3). Exhibit B purports to be a letter dated February 26, 2019 that ThermoLife sent to Amazon accusing HumanN of patent infringement. (Doc. 122-2.)
HumanN argues that Exhibits A and C can't be considered for purposes of the pending Rule 12(b)(6) motion because website printouts are not, in general, subject to judicial notice and "[n]either was attached to or referenced in the Amended Counterclaims." (Doc. 125 at 3.) ThermoLife responds that the Court may consider Exhibits A and C because the printouts come from HumanN's own website and are being offered for the limited purpose of establishing HumanN's knowledge of "other supplements that economically compete with N-O supplements." (Doc. 134 at 7 n.4.)
Exhibits A and C were not attached to HumanN's amended counterclaims or incorporated by reference in that pleading, so ThermoLife may rely on those materials only to the extent they are subject to judicial notice. Under Federal Rule of Evidence 201(b), a court may judicially notice a "fact that is not subject to reasonable dispute" if it is "generally known within the trial court's territorial jurisdiction" or if it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."
The purported printouts from HumanN's website are not subject to judicial notice at this stage. Other courts have found that non-governmental website printouts are not judicially noticeable, even if they come from the non-movant's website. See, e.g., Victaulic Co. v. Tieman, 499 F.3d 227, 237 (3d Cir. 2007), as amended (Nov. 20, 2007) (district court erred by taking judicial notice of claims on non-movant's website when ruling on motion to dismiss, both because a corporate website is "a marketing tool . . . [often] full of imprecise puffery that no one should take at face value" and because "[t]aking a bare 'fact' that is reflected not in the pleadings, but on a corporate website, and then drawing inferences against the non-moving party so as to dismiss its well-pleaded claims on thebasis of an affirmative defense, takes us, as a matter of process, far too afield from the adversarial context of litigation"); Salazar v. Driver Provider Phx. LLC, 2020 WL 5748129, *4 (D. Ariz. 2020) (). See generally Silver v. Exec. Car Leasing Long-Term Disability Plan, 466 F.3d 727, 731 n.2 (9th Cir. 2006) ). Indeed, in at least two recent cases, ThermoLife successfully invoked these principles to fend off requests by adversaries to take judicial notice of party-website information. ThermoLife Int'l LLC v. BPI Sports LLC, 2021 WL 661981, *3 (D. Ariz. 2021); ThermoLife Int'l LLC v. Sparta Nutrition LLC, 2020 WL 248164, *1 (D. Ariz. 2020). ThermoLife makes no effort to explain why these restrictions on judicial notice should "apply to thee but not to me."
Nor is there merit to ThermoLife's argument that the exhibits are judicially noticeable for the limited purpose of assessing HumanN's knowledge of "other supplements that economically compete with N-O supplements." By ThermoLife's own admission, Exhibits A and C are being offered to "demonstrate[e] facts that are common sense because . . . there are other supplements that would help consumers train, increase blood flow or any of the other benefits also attributable to N-O supplementation." ThermoLife is thus not asking the Court to take judicial notice of HumanN's knowledge but "to assume the truth of the disputed factual assertions contained within" the websites. Cf. ThermoLife Int'l LLC v. NeoGenis Labs Inc., 2020 WL 6395442, *4 (D. Ariz. 2020). The Court declines the invitation. Whether the statements on HumanN's website actually contradict HumanN's theory of liability is a factual question to be resolved, if necessary, at a different stage of this litigation.
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ThermoLife seeks to dismiss HumanN's counterclaim for tortious interference with business expectancy. (Doc. 117 ¶¶ 77-89, 121-31.) That claim is predicated on the allegation that, "on or about March 8, 2019," Kramer and ThermoLife falsely "reported to" Amazon that several HumanN products listed on Amazon's website infringed a particular patent—the '531 patent—held by ThermoLife. (Id. ¶ 79.) HumanN alleges these reports of infringement were set forth in a "March 2019 letter." (Id. ¶ 83.)
Exhibit B is a letter that ThermoLife purportedly sent to Amazon. (Doc. 122-2.) It is dated February 26, 2019. (Doc. 122-2.) Significantly, although this letter accuses HumanN of infringing an array of other patents held by ThermoLife, there is no mention of the '531 patent. (Id.) ThermoLife argues this letter is subject to judicial notice because it "is the March 8, 2019 letter specifically referenced in Paragraph 79 of the Amended Counterclaims." (Doc 122 at 10 n.6.) ThermoLife further argues that the letter not only requires dismissal of HumanN's tortious interference claim, but also potentially subjects HumanN's counsel to Rule 11 sanctions, because it shows that ThermoLife never made any infringement allegations to Amazon related to the '531 patent (let alone false accusations offered in bad faith). (Doc. 122 at 1-2, 9-11; Doc. 134 at 9-11.) HumanN responds that Exhibit B can't be considered at the motion-to-dismiss stage because it "was not attached to the pleadings" and "is not accepted by all parties as authentic." (Doc. 125 at 2, 4-5, 16.)
As an initial matter, although ThermoLife argues the Court may consider Exhibit B via "judicial notice," its arguments are in essence that the letter was incorporated by reference. "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." Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). "[A] defendant may seek to incorporate a document into the complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." Id. (internal quotation marks omitted). ...
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