Ariix, LLC v. Nutrisearch Corporation

• Court: District Court, S.D. California
• Decided: March 21, 2022
• Docket: 3:17-cv-00320
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARIIX, LLC, Case No.: 17CV320-LAB (BGS)

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS [Dkt. 54] 14 NUTRISEARCH CORPORATION, et al., 15 Defendants. 16 17 18 Plaintiff Ariix, LLC (“Ariix”) is a nutritional supplement company that brings 19 this suit against its competitor, USANA Health Sciences, Inc. (“USANA”), as well 20 as NutriSearch Corporation (“NutriSearch”), the publisher of the NutriSearch 21 Comparative Guide to Nutritional Supplements (“Guide”), and Lyle MacWilliam, the 22 Guide’s author. The Guide offers reviews of various companies’ products, like 23 those of both Ariix and USANA, and it is relied on by consumers and professionals, 24 including independent sales representatives who make decisions based in part on 25 ratings in the Guide. Ariix contends that NutriSearch and MacWilliam, despite 26 widely promoting the Guide as using an objective rating system, were in fact 27 directly funded by USANA so that it could achieve the Guide’s number-one rating. 28 Ariix’s Second Amended Complaint (“SAC”) brings a Lanham Act claim 1 against Defendants under a false advertising theory. USANA now moves to 2 dismiss the SAC for lack of personal jurisdiction and for failure to state a claim 3 upon which relief can be granted. For the following reasons, the Court GRANTS 4 USANA’s Motion to Dismiss for lack of personal jurisdiction. 5 I. MOTION TO DISMISS 6 A defendant may move to dismiss a complaint for lack of personal jurisdiction 7 pursuant to Federal Rule of Civil Procedure 12(b)(2). Once a defendant moves to 8 dismiss on this basis, it is the plaintiff’s burden to establish that jurisdiction is 9 proper. Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 10 2011). If there is no evidentiary hearing, the plaintiff need only make “a prima facie 11 showing of the jurisdiction facts” through pleadings and affidavits. Myers v. Bennett 12 Law Offices, 238 F.3d 1068, 1071 (9th Cir. 2001). Although “uncontroverted 13 allegations in the complaint must be taken as true,” and “[c]onflicts between parties 14 over statements contained in affidavits must be resolved in the plaintiff’s favor,” 15 Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002), “‘bare bones’ 16 assertions of minimum contacts with the forum or legal conclusions unsupported 17 by specific factual allegations will not satisfy a plaintiff’s pleading burden,” Swartz 18 v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007). 19 A forum state’s long-arm statute establishes the boundaries of a court’s 20 jurisdiction over non-residents. Mavrix, 647 F.3d at 1223. “California’s long-arm 21 statute, Cal. Civ. P. Code § 410.10, is coextensive with federal due process 22 requirements, so the jurisdictional analyses under state law and federal due 23 process are the same.” Id. To comport with due process, a court “may subject a 24 defendant to judgment only when the defendant has sufficient contacts with the 25 sovereign ‘such that the maintenance of the suit does not offend traditional notions 26 of fair play and substantial justice.’” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 27 873, 880 (2011) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). 28 Jurisdiction can be either “general” or “specific.” Mavrix, 647 F.3d at 1227. 1 The Court proceeds by assessing whether personal jurisdiction over USANA 2 comports with federal due process requirements under either general or specific 3 jurisdiction. 4 A. General Jurisdiction 5 “For general jurisdiction to exist, a defendant must engage in continuous and 6 systematic general business contacts that approximate physical presence in the 7 forum state.” Id. at 1223–24 (citations and internal quotation marks omitted). “The 8 standard is met only by ‘continuous corporate operations within a state [that are] 9 thought so substantial and of such a nature as to justify suit against [the defendant] 10 on causes of action arising from dealings entirely distinct from those activities.’” 11 King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579 (9th Cir. 2011) (quoting Int’l 12 Shoe Co., 326 U.S. at 318) (alterations in original). 13 Ariix doesn’t assert that USANA, a Utah-based company, is subject to 14 general jurisdiction, and it is evident from the facts alleged that USANA does not 15 have contacts “so continuous and systematic as to render [it] essentially at home 16 in [California].” Daimler AG v. Bauman, 571 U.S. 117, 127 (2014). Ariix has not 17 carried its burden to prove the Court has general jurisdiction over USANA. 18 B. Specific Jurisdiction 19 A closer question here is whether the Court has specific jurisdiction over 20 USANA. Specific jurisdiction exists where “the defendant’s suit-related 21 conduct . . . create[s] a substantial connection with the forum State.” Walden v. 22 Fiore, 571 U.S. 277, 284 (2014). The Ninth Circuit uses a three-part test to 23 determine whether specific jurisdiction applies in a particular case: 24 (1) the defendant must either ‘purposefully direct his activities’ toward the forum or ‘purposefully avail[ ] himself 25 of the privileges of conducting activities in the forum’; 26 (2) ‘the claim must be one which arises out of or relates to the defendant’s forum-related activities’; and (3) the 27 exercise of jurisdiction must comport with fair play and 28 substantial justice, i.e. it must be reasonable. 1 Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017) 2 (quoting Dole Food Co., Inc., 303 F.3d at 1111) (alteration in original). The plaintiff 3 bears the burden of satisfying the first two prongs. Id. “If any of the three 4 requirements is not satisfied, jurisdiction in the forum would deprive the defendant 5 of due process of law.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 6 2006). 7 1. Purposeful Direction 8 A plaintiff may satisfy the first prong in the analysis by demonstrating that the 9 defendant “purposefully directed” its conduct toward the forum state, or 10 “purposefully availed” itself of the privilege of doing business in the forum. 11 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). 12 Courts typically utilize the “purposefully directed” standard in tort cases, whereas 13 the “purposeful availment” test is most useful for contract-based claims. Id. To 14 establish the defendant “purposefully directed” its conduct toward the forum, the 15 plaintiff usually produces “evidence of the defendant’s actions outside the forum 16 state that are directed at the forum, such as the distribution in the forum state of 17 goods originating elsewhere.” Id. at 803. Thus, the court applies “an ‘effects’ test 18 that focuses on the forum in which the defendant’s actions were felt, whether or 19 not the actions themselves occurred within the forum.” CollegeSource, Inc. v. 20 AcademyOne, Inc., 653 F.3d 1066, 1077 (9th Cir. 2011) (quoting Yahoo! Inc. v. La 21 Ligue Contre Le Racisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en banc)). Derived 22 from Calder v. Jones, 465 U.S. 783 (1984), the “effects test” “requires that ‘the 23 defendant allegedly must have (1) committed an intentional act, (2) expressly 24 aimed at the forum state, (3) causing harm that the defendant knows is likely to be 25 suffered in the forum state.’” Id. (quoting Brayton Purcell LLP v. Recordon & 26 Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010)); see also Axiom Foods, Inc. v. 27 Acerchem Int’l, Inc., 874 F.3d 1064, 1069 (9th Cir. 2017). 28 Ariix fails to satisfy the effects test. Under the first requirement, courts 1 “construe ‘intent’ in the context of the ‘intentional act’ test as referring to an intent 2 to perform an actual, physical act in the real world, rather than an intent to 3 accomplish a result or consequence of that act.” Schwarzenegger, 374 F.3d at 4 806. Ariix alleges that USANA sells its product worldwide—including to residents 5 of California—through “independent sales representatives.” (SAC ¶ 82(d)). It also 6 alleges that the Guide “is marketed and sold throughout the United States and 7 around the world,” including in California, as an effort to promote the sale of its 8 products in California. (Id. ¶¶ 3, 5). Because USANA acted intentionally in 9 developing, promoting, and selling its products, the Court finds that Ariix has 10 carried its burden to show an intentional act by USANA. 11 The Court next looks to whether USANA’s intentional acts were “expressly 12 aimed at the forum state.” Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1142 (9th Cir. 13 2017). Express aiming “is satisfied when the defendant is alleged to have engaged 14 in wrongful conduct targeted at a plaintiff whom the defendant knows to be a 15 resident of the forum state.” Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 16 F.3d 1082, 1087 (9th Cir. 2000); see also Calder, 465 U.S. at 788. However, simply 17 placing a product into the stream of commerce does not constitute a purposeful 18 act directed toward the forum state. Asahi Metal Indus. Co. v. Superior Court, 480 19 U.S. 102, 112 (1987). Indeed, placing “a product into the stream of commerce”— 20 even if the defendant is aware “that the stream of commerce may or will sweep the 21 product into the forum state”—“does not convert the mere act of placing the 22 product into the stream of commerce into an act” of purposeful availment. Holland 23 Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 459 (9th Cir. 2007). 24 The crux of Ariix’s allegations is that NutriSearch and MacWilliam, despite 25 widely promoting the Guide as using an objective rating system, were in fact 26 directly funded by USANA so that it could achieve the Guide’s number-one rating 27 among numerous other nutritional supplement companies. (SAC ¶ 21). The SAC 28 advances two theories as to why USANA is subject to personal jurisdiction in 1 California: (1) “by virtue of its efforts to promote sales of its products in California, 2 including the sale and use of the [Guide] by USANA representatives in California”; 3 and (2) “due to its agency relationship with NutriSearch and MacWilliam.” (Id. ¶ 3). 4 As support for its first theory, Ariix alleges that USANA “sell[s] [its] 5 supplement products throughout the United States through independent sales 6 representatives,” (SAC ¶ 82(d)), and that the Guide “is marketed and sold 7 throughout the United States and around the world,” (id. ¶ 82(a)), “including in 8 California,” (id. ¶ 5). Ariix emphasizes in its Opposition that USANA sales 9 representatives, including “thousands of California-based associates,” were 10 actively encouraged to purchase and promote the Guide to help them sell USANA 11 products. (Dkt. 59 at 6–8).1 It argues that these constitute intentional acts that were 12 purposedly directed at California. 13 But a finding of purposeful direction cannot “be based on the mere fact that 14 [a company] provides services to customers nationwide, including but not limited 15 to California.” Caces-Tiamson v. Equifax, No. 20-CV-00387-EMC, 2020 WL 16 1322889, at *3 (N.D. Cal. Mar. 20, 2020). “‘The placement of a product into the 17 stream of commerce, without more, is not an act the defendant purposefully 18 directed toward the forum state.’” Id. (quoting Asahi Metal Indus. Co., Ltd., 480 19 U.S. at 112). Yet that is the essence of Ariix’s allegations, which, even if relevant 20 for a viable Lanham Act claim, don’t explain how USANA’s alleged activity was 21 specifically targeted at California. Noticeably lacking from Ariix’s complaint are any 22 allegations about USANA’s forum-specific conduct, such as, perhaps, any direct 23 efforts to sell or advertise its products in California, tailor its products or 24 25 1 The Opposition references USANA’s alleged annual sales in California, and 26 additionally states that USANA sales executives sell USANA products full-time, but 27 these assertions are unsupported by the cited record or any supporting declaration or affidavit. (Dkt. 59 at 6). The Court, therefore, does not consider these allegations 28 1 advertisements specifically for California audiences, or instruct its sales 2 representatives to focus on the California market. See Asahi Metal Indus. Co. v. 3 Superior Ct. of California, Solano Cty., 480 U.S. 102, 112 (1987) (“Additional 4 conduct of the defendant may indicate an intent or purpose to serve the market in 5 the forum State, for example, designing the product for the market in the forum 6 State, advertising in the forum State, establishing channels for providing regular 7 advice to customers in the forum State, or marketing the product through a 8 distributor who has agreed to serve as the sales agent in the forum State.”); Elliot 9 v. Cessna Aircraft Co., No. 820CV00378SBADSX, 2021 WL 2153820, at *3 (C.D. 10 Cal. May 25, 2021) (quoting AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1210 11 (9th Cir. 2020)) (“A defendant is required to do ‘something more’—namely, the 12 defendant must engage in ‘conduct directly targeting the forum,’ such as to display 13 content or advertisements that ‘appeal[ ] to, and profit[ ] from, an audience in a 14 particular state.’”) (alterations in original). 15 In response, USANA argues that worldwide distribution of its products, 16 without any allegations that its efforts were directed in any way towards California, 17 is insufficient to establish personal jurisdiction. (Dkt. 54 at 7–8). The Declaration of 18 Michael King, attached in support of its Motion to Dismiss, confirms that nearly all 19 900 of USANA’s U.S.-based employees are located in Utah, with only two of its 20 employees located in California. (Dkt. 54-1 ¶ 6).2 It also states that USANA 21 independently contracts with sales representatives (or “Associates”), operating in 22 all fifty states and across the world, to market and sell its products directly to 23 consumers, and that USANA does not direct or control the manner in which these 24 25 26 2 See Payrovi v. LG Chem Am., Inc., 491 F. Supp. 3d 597, 602 (N.D. Cal. 2020) 27 (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977)) (“The Court may consider evidence presented in affidavits and declarations 28 1 independent contractors choose to sell the products. (Id. ¶¶ 8–9). USANA 2 contends that it simply placed its products “into the stream of commerce” but did 3 not take any actions aimed at California in particular or make any efforts to promote 4 the Guide specifically among its California sales representatives. (Id. at 7–8 (citing 5 Asahi Metal Indus. Co., 480 U.S. at 112; Walsh v. LG Chem Ltd., 834 F. App’x 6 310, 311–12 (9th Cir. 2020))). Accordingly, the Court finds that Ariix’s first theory 7 in support of a finding of personal jurisdiction is not enough to satisfy the express 8 aiming requirement. See Baton v. Ledger SAS, No. 21-CV-02470-EMC, 2021 WL 9 5226315, at *9 (N.D. Cal. Nov. 9, 2021) (“Plaintiff’s bare allegation that [Defendant] 10 ‘solicits customers in the United States and California,’ . . . and evidence . . . that 11 7.03% of [Defendant]’s worldwide revenue comes from California, is not enough 12 to establish [Defendant] ‘anticipated, desired, and achieved a substantial’ 13 customer-base in California like the defendant in Mavrix[,] 647 F.3d at 1230. Nor 14 does it demonstrate [Defendant]’s forum-specific focus on California, given that the 15 market for its hardware products is global.”) (alterations omitted); Elliot, 2021 WL 16 2153820, at *3 (“The question is not whether California consumers have 17 purchased engines from Defendant generating significant revenue; rather, the 18 question is whether Defendant specifically targeted California consumers. There 19 is no indication that Defendant engages in any sort of advertising or marketing in 20 California to accomplish its sales here.”). 21 Ariix’s second theory based on an agency relationship between Defendants 22 is even more attenuated. It is well-established that the “unilateral activity of another 23 party or a third person is not an appropriate consideration when determining 24 whether a defendant has sufficient contacts with a forum State to justify an 25 assertion of jurisdiction.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 26 U.S. 408, 417 (1984). Nevertheless, and notwithstanding the uncertainty in the 27 Ninth Circuit concerning whether an agency theory can even establish specific 28 jurisdiction, such a theory would first “require[] a showing that the principal 1 maintained control over the agent’s actions” such that the actions of the agent can 2 be attributed to the principal. Sivilli v. Wright Med. Tech., Inc., No. 18-CV-2162- 3 AJB-JLB, 2019 WL 2579794, at *5 (S.D. Cal. June 24, 2019) (citing Williams v. 4 Yamaha Motor Co. Ltd., 851 F.3d 1015, 1024 (9th Cir. 2017)). Here, Ariix alleges 5 that USANA provides consideration to NutriSearch and MacWilliam to give it a top 6 rating in the Guide, namely by paying them “hundreds of thousands of dollars per 7 year” and by promoting the Guide to its sales representatives. (SAC ¶¶ 26–27). 8 But these allegations merely demonstrate that the parties may not have actually 9 been independent from one another—not that USANA substantially controlled the 10 activities of NutriSearch and MacWilliam or that they were agents of USANA. 11 Because Ariix has failed to show that USANA exercises substantial control over 12 NutriSearch and MacWilliam’s activities, Ariix’s agency theory fails to confer 13 specific jurisdiction over USANA. See Born v. Celtic Mktg. LLC, No. 8:19-CV- 14 01950-JLS-ADS, 2020 WL 3883273, at *4 (C.D. Cal. May 20, 2020) (rejecting 15 agency theory for imputing forum contacts of agent to principal where the plaintiff 16 failed to show “the principal’s right of control” over the agent’s activities); AirWair 17 Int’l Ltd. v. Pull & Bear Espana SA, No. 19-CV-07641-SI, 2020 WL 2113833, at *4 18 (N.D. Cal. May 4, 2020) (same); Delacruz v. Serv. Corp. Int’l, No. 19 118CV00154LJOEPG, 2018 WL 2287962, at *7 (E.D. Cal. May 18, 2018) (same). 20 Moreover, although the SAC states that USANA must be subject to 21 jurisdiction because NutriSearch and MacWilliam have already consented to the 22 jurisdiction of this Court, (SAC ¶ 3), the Opposition does not pursue this faulty line 23 of argument. Instead, Ariix contends that personal jurisdiction may be established 24 based on the alleged conspiracy between the Defendants, wherein “NutriSearch 25 and MacWilliam agreed to help U[SANA] juice its sales through a sophisticated 26 marketing ploy in exchange for money while cloaking themselves as objective and 27 independent product reviewers.” (Dkt. 59 at 19). However, not only is this theory 28 for establishing jurisdiction tenuous in this Circuit, but, as Ariix concedes, 1 “substantial acts in furtherance of the conspiracy” must have been performed in 2 the forum state, and “the co-conspirator knew or should have known that the acts 3 would be performed in the forum state.” (Id. at 18–19 (quoting Underwager v. 4 Channel 9 Austl., 69 F.3d 361, 364 (9th Cir. 1995)). As previously discussed, the 5 Court finds Ariix’s allegations lacking with respect to USANA’s forum-related

6 conduct, and Ariix may not rely on this theory of conspiracy to confer jurisdiction 7 on USANA. See In re Automobile Antitrust Cases I and II, 135 Cal. App. 4th 100, 8 113, 37 Cal. Rptr. 3d 258 (2005) (“Allegations of a conspiracy do not establish as 9 a matter of law that if one conspirator comes within the personal jurisdiction of our 10 courts, then California may exercise jurisdiction over other non-resident 11 defendants who are alleged to be part of that same conspiracy. Personal 12 jurisdiction must be based on forum-related acts that were personally committed 13 by each non-resident defendant.”). 14 The Court finds that the second prong of the Calder effects test is not 15 satisfied and Ariix has failed to make a prima facie showing of specific personal 16 jurisdiction over USANA. 17 2. Arising Out of or Relating to Forum Activities 18 Even if Ariix had demonstrated that USANA purposefully directed its sale 19 activities to California, it fails to satisfy the second prong of the specific jurisdiction 20 analysis: the claims must “arise out of” USANA’s forum-related activities. See 21 Morrill, 873 F.3d at 1142. The Ninth Circuit applies a “but for” test to analyze this 22 question. In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 742 23 (9th Cir. 2013). Under this test, “a lawsuit arises out of a defendant’s contacts with 24 the forum state if a direct nexus exists between those contacts and the cause of 25 action.” Id. In other words, “[t]he plaintiff must show that but for the defendant[’s] 26 contacts with the forum state, the plaintiff’s claims would not have arisen.” Rippey 27 v. Smith, 16 Fed. Appx. 596, 599 (9th Cir. 2001). In Rippey, the plaintiff filed an 28 action for investment fraud in a California court against a British solicitors’ firm. Id. 1 at 597. Plaintiff alleged that the defendants had sent a fraudulent opinion letter 2 which prompted him to make a bad investment. Id. at 599. Under these facts, the 3 court found that the plaintiff had successfully met the second prong of the test, 4 given that the plaintiff’s claim for investment fraud would not have arisen but for 5 defendant’s fraudulent conduct in the forum. Id. 6 The question in the present action is whether Ariix’s claim would have arisen 7 but for USANA’s activity in California. See id. Ariix’s Lanham Act claim is based on 8 allegations that USANA financially influenced NutriSearch and MacWilliam to 9 make false and misleading representations about USANA’s products, despite 10 claims that the Guide is not influenced by any manufacturer or product. Ariix 11 contends that these “misstatements directly reduced Ariix’s revenues by causing 12 both consumers and professionals to select U[SANA] over Ariix.” (SAC ¶ 85). 13 Despite Ariix’s assertions that it conducted over $5 million in sales in California in 14 2016, (Dkt. 59 at 9 n.3), there is no suggestion that Ariix’s Lanham Act claim is 15 inextricably tied to California, or that the claim would not have arisen but for 16 USANA’s conduct in California. Indeed, as previously discussed, there is hardly 17 even mention in the SAC of USANA’s alleged conduct in California. Ariix’s 18 argument is even more attenuated given its admission that the Guide is marketed 19 and sold throughout the United States and worldwide, and both USANA and Ariix 20 also sell their supplement products throughout the United States. (SAC ¶ 82). The 21 SAC in no way ties the Lanham Act claim to California and instead directs the 22 allegations to wrongful conduct affecting Ariix’s nationwide sales. 23 The Court concludes that the first two prongs of the jurisdictional test are not 24 met, and Ariix has failed to establish specific personal jurisdiction over USANA. 25 The Court therefore doesn’t reach the issue whether exercising jurisdiction over 26 USANA in this District would be reasonable. See In re Cathode Ray Tube (CRT) 27 Antitrust Litig., 27 F. Supp. 3d 1002, 1011 (N.D. Cal. 2014) (citing Sher v. Johnson, 28 911 F.2d 1357, 1361 (9th Cir.1990)) (“The plaintiff bears the burden of satisfying 1 the first two prongs, and if he or she fails to satisfy either, specific jurisdiction is not 2 established.”). 3 II. REQUESTS TO SEEK DISCOVERY, AMEND, OR TRANSFER 4 The Court next turns to Ariix’s alternative requests in its Opposition brief. 5 First, having concluded that the Court lacks personal jurisdiction over USANA in 6 this case, Ariix seeks leave to conduct jurisdictional discovery. (Dkt. 59 at 12–15). 7 The decision whether to grant jurisdictional discovery is typically within the 8 discretion of the district court. Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 9 406, 430 n.24 (9th Cir. 1977). “[W]here pertinent facts bearing on the question of 10 jurisdiction are in dispute, discovery should be allowed.” American West Airlines, 11 Inc. v. GPA Group, Ltd., 877 F.2d 793, 801 (9th Cir. 1989). However, “where a 12 plaintiff’s claim of personal jurisdiction appears to be both attenuated and based 13 on bare allegations in the face of specific denials made by the defendants, the 14 Court need not permit even limited discovery.” Pebble Beach Co., 453 F.3d at 1160 15 (quoting Terracom v. Valley Nat. Bank, 49 F.3d 555, 562 (9th Cir. 1995)). 16 In the present case, Ariix does not identify any factual dispute warranting 17 discovery,3 nor does there appear to be a reasonable likelihood that additional 18 facts may be uncovered to support jurisdiction. Indeed, Ariix does not even state 19 what information it hopes to uncover in discovery that would cure the deficiencies 20 identified in this Order. Other than its bare suggestion that discovery is warranted 21 here, Ariix fails to show discovery is likely to help cure these deficiencies. The 22 Court DENIES the request. See Frank Valli & The Four Seasons v. EMI, Music 23

24 25 3 The Court has considered the declaration attached in support of USANA’s Motion to Dismiss, (Dkt. 54-1), as well as USANA’s declaration filed in a separation action 26 in the Eastern District of California and attached as Exhibit A to Ariix’s Opposition 27 brief, (Dkt. 59-1). The Court concludes that the statements contained therein are not contradictory, nor do they raise a factual dispute warranting jurisdictional 28 1 Publ'g Ltd., No. CV 17-7831-MWF (JCx), 2018 WL 6136818, *8 (C.D. Cal. May 22, 2 2018) (denying jurisdictional discovery where the “evidence already before the 3 court demonstrates” that personal jurisdiction does not exist). 4 In the alternative, Ariix requests that the Court grant it leave to amend its 5 complaint to include additional facts related to Defendants’ specific contacts with 6 California. Ariix identifies six topics of information it would add in support of a 7 finding of personal jurisdiction, but these topics mainly relate to Defendants 8 generally, not USANA in particular, and none are suggestive of information that 9 would establish personal jurisdiction over USANA. Nevertheless, the Court will 10 grant Ariix the opportunity to file a motion for leave to amend its complaint by April 11 1, 2022. The motion must demonstrate that further amendment would not be futile 12 and would cure the deficiencies identified herein. It is not to exceed five (5) pages 13 and is to be filed in accordance with the Southern District’s CivLR 15.1. 14 Finally, Ariix requests in its Opposition that, to the extent it cannot exercise 15 personal jurisdiction over USANA in this District, the Court should sever the claim 16 against USANA and transfer it to the District of Utah pursuant to Rules 20(b) and 17 21 of the Federal Rule of Civil Procedure and 28 U.S.C. §§ 1404, 1406, or 1631. 18 Ariix cites the language in Sections 1404, 1406, and 1631, which permit the Court 19 to transfer a case “in the interest of justice” if the Court finds that jurisdiction would 20 be appropriate elsewhere. However, absent a showing that the interest of justice 21 require transfer of the case, the Court has discretion to dismiss. Costlow v. Weeks, 22 790 F.2d 1486, 1488 (9th Cir. 1986). Beyond a conclusory statement otherwise, 23 Ariix has not shown that the interest of justice requires it here. Its Opposition 24 provides hardly any analysis or discussion about why severance and transfer of 25 the claim against USANA is warranted. The Court therefore denies the request. 26 III. CONCLUSION 27 Because this Court doesn’t have personal jurisdiction over USANA, 28 USANA’s Motion to Dismiss is GRANTED and Ariix’s claims against USANA are 1 DISMISSED WITHOUT PREJUDICE. Ariix may file a motion for leave to amend 2 complaint by April 1, 2022. 3 IT IS SO ORDERED. 4 ||Dated: March 21, 2022 lau A. (Buywy 5 Hon. Larry Alan Burns 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28