United States District Court, D. Arizona
Dominic W. Lanza United Slates District Judge
before the Court are three motions to dismiss: (1) the Motion
of Tom and Bethany Alkazin to Dismiss for Lack of Personal
Jurisdiction Or, in the Alternative, to Compel Arbitration
(Doc. 112), (2) Defendant Vemma International Holdings,
Inc.'s Motion to Dismiss Second Amended Complaint (Doc.
114), and (3) Former Defendant Haresh Mehta's Motion to
Clarify Dismissal and Alternative Renewal of Motion to
Dismiss (Doc. 131). As discussed below, all three motions
will be granted.
The First Amended Complaint
3, 2017, Plaintiff John Edwards brought this copyright
infringement action. (Doc. 1.)
August 25, 2019, Edwards filed his First Amended Complaint
(“FAC”), naming as defendants (1) Vemma
Nutrition, Inc., (2) Vemma International Holdings, Inc., (3)
Vemma Vitamins Pty. Ltd., (4) Tom and Bethany Alkazin, (5)
Haresh Mehta, (6) Tarak Mehta, and (7) Roes I through X.
The Dismissal As To Vemma Nutrition
September 15, 2017, Vemma Nutrition Company (“Vemma
Nutrition”)-the only Defendant served at that
time-filed a Motion to Compel Arbitration and Dismiss Action
(Doc. 18), arguing that “the parties' contract
included a broad arbitration clause requiring arbitration of
any dispute relating to the parties'
‘relationship.'” (Doc. 18 at 1-2.)
January 31, 2018, the Court issued a 16-page opinion granting
the motion, holding that Edwards's claims against Vemma
Nutrition were subject to arbitration and thus dismissing
those claims without prejudice. (Doc. 61.)
The Dismissal As To The Alkazins, Mehta, And Vemma
November 29, 2017, Tom and Bethany Alkazin (“the
Alkazins”) and Vemma International Holdings, Inc.
(“Vemma Holdings”) waived service. (Doc. 37.)
Service was executed on Haresh Mehta
(“Mehta”) on December 11, 2017. (Doc. 39.)
January 17, 2018, Mehta filed a motion to dismiss the FAC for
lack of personal jurisdiction. (Doc. 57.)
February 21, 2018, the Alkazins filed a motion to dismiss the
FAC for lack of personal jurisdiction. (Doc. 74).
February 21, 2018, Vemma Holdings filed a motion to dismiss
the FAC for failure to state a claim. (Doc. 70).
20, 2018, the Court issued an opinion granting all three
motions. (Doc. 99.) As for the two motions to dismiss for
lack of personal jurisdiction, the Court noted that Edwards
asserted specific jurisdiction, as opposed to general
jurisdiction, and determined that the “purposeful
direction” test applied, as opposed to the
“purposeful availment” test. Id. at 4.
Under the purposeful direction test, jurisdiction exists when
the defendant has “(1) committed an intentional act,
(2) expressly aimed at the forum state, (3) causing harm that
the defendant knows is likely to be suffered in the forum
state.” Id. at 5 (quoting Morrill v. Scott
Fin. Corp., 873 F.3d 1136, 1142 (9th Cir. 2017)).
Court noted that the FAC “broadly alleges that Mr.
Alkazin has ‘transacted business in this district and
throughout the United States,' but it does not allege . .
. any potential harm in Arizona that would be anything more
than random, fortuitous, or attenuated.” Id.
at 6. The Court therefore determined that the FAC did not
allege facts demonstrating the Alkazins had caused any harm
suffered in Arizona and therefore dismissed the FAC as to the
Alkazins, with leave to amend within 30 days “[i]f Dr.
Edwards has such facts.” Id. at 6-7.
Court similarly determined the FAC did not allege facts
demonstrating that Mehta-a resident of South Carolina who
allegedly hid one of Edwards' book scripts in South
Carolina and used Edwards' copyrighted materials to
expand Vemma Nutrition's presence into India-had caused
any harm suffered in Arizona. Id. at 7. The Court
dismissed the FAC as to Mehta without leave to amend.
in granting Vemma Holdings's motion to dismiss, the Court
concluded that “the FAC impermissibly refers to the
Vemma corporate defendants without differentiation, ”
noting that the FAC “specifically defines
‘Vemma' to include both Vemma Nutrition and [Vemma
Holdings].” Id. at 9. The Court found that the
lack of differentiation “results in confusion as to
which claims and theories remain against [Vemma Holdings],
” considering that Vemma Nutrition had been dismissed
due to the binding arbitration agreement, and “the FAC
neither alleges that [Vemma Nutrition and Vemma Holdings] are
alter egos, nor does it allege separate facts against Vemma
Holdings that would give rise to independent
liability.” Id. The Court granted Edwards
leave to amend as to Vemma Holdings within 30 days, adding
that “[t]he Second Amended Complaint should clearly set
out which allegations apply to [Vemma Holdings].”
Id. at 10.
Court concluded the opinion with the summation, “The
Court grants the motions to dismiss and allows Plaintiff to
amend the complaint to plead facts showing whether he
suffered harm in Arizona based on the Alkazins' conduct
and to clarify which allegations apply to Defendant [Vemma
Holdings].” Id. at 10-11. The Court then
issued the following orders:
1. Defendant Haresh Mehta's Motion to Dismiss, (Doc. 57),
2. Defendants Tom and Bethany Alkazin's Motion to
Dismiss, (doc. 74), is GRANTED with leave to amend
within 30 days.
3. Defendant Vemma International Holdings Inc.'s Motion
to Dismiss, (doc. 70), is GRANTED with leave to amend
within 30 days.
4. Plaintiff John Edwards may amend the complaint to clarify
which allegations and claims apply to Vemma International
Holdings and to state facts, if any, which suggest that
Plaintiff was harmed in Arizona by the conduct of the
(Doc. 99 at 11.)
The Second Amended Complaint
August 19-20, 2018, Edwards filed his Second Amended
Complaint (“SAC”). (Doc. 106-1.) The SAC names all
the non-fictitious Defendants named in the FAC. Relevant
amendments include (1) the allegation that “[o]n
information and belief, . . . Vemma Nutrition . . . was
formed as a wholly-owned subsidiary of Vemma Holdings[;] . .
. Vemma Holdings has always been owned by the Boreyko family,
including B.K. Boreyko, who is also the Chief Executive
Officer of Vemma Nutrition” (Doc. 106-1 ¶ 8), (2)
the allegation that “[o]n information and belief, Vemma
Holdings is the alter-ego of Vemma Nutrition”
(id. ¶ 9),  (3) the allegation that the Alkazins
have connections to Arizona (id. ¶ 15), (4) the
legal conclusion that “personal jurisdiction . . .
exists over the Alkazins in Arizona under principles of
general and/or specific jurisdiction” (id.
¶ 16), (5) the allegation that Mehta “is a foreign
national, domiciled in India and presently living in South
Carolina, ” and (6) the legal conclusion that
“[o]n information and belief, and pursuant to 
U.S.C. § 1391(c)(3), personal jurisdiction is proper
against Haresh Mehta . . . in the District of Arizona”
(id. ¶ 18).
also alleges that Vemma Nutrition and Vemma Holdings
“have operated as a common enterprise” and
collectively refers to the two companies as
“Vemma.” (Id. ¶ 21). Furthermore,
the SAC adds three new claims for relief: “civil
conspiracy” between Vemma Holdings and Vemma Nutrition
(id. ¶¶ 103-105), “preliminary and
permanent injunction” against all Defendants
(id. ¶¶ 107-110), and “punitive
damages” against “Vemma” (id.
The Further ...