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World Nutrition Inc. v. Advanced Enzymes USA

United States District Court, D. Arizona

November 7, 2019

World Nutrition Incorporated, Plaintiff,
v.
Advanced Enzymes USA, et al., Defendants.

          ORDER

          G. Murray Snow Chief United States District Judge

         Pending before the Court is Defendant Advanced Supplementary Technologies Corp.'s (“Defendant”)[1] Motion to Dismiss Plaintiff's First Amended Complaint (Doc 35). For the following reasons, the motion is denied.[2]

         BACKGROUND

         Plaintiff World Nutrition, Inc. (“Plaintiff”) is engaged in the business of selling nutraceuticals, including Vitalzym, an enzyme product. Defendant is similarly engaged in the manufacture and selling of enzyme products. Both Plaintiff and Defendant sell their respective products in health food stores and online. Plaintiff and Defendant are direct competitors.

         On its website, Defendant advertises that its products contain enterically coated Serrapeptase-an element required for the product to be effective. Plaintiff asserts that Defendant's products do not contain the enterically coated Serrapeptase or any other enterically coated blend.

         Plaintiff brings this action asserting false advertising in violation of the Lanham Act and unfair competition. Defendant moves to dismiss Plaintiff's complaint because (1) it is barred by the applicable statute of limitations; (2) it is barred by the equitable doctrine of laches; and (3) it fails to meet the requisite pleading standard. Defendant also argues that dismissal of the federal claim justifies dismissal of the remaining state law claim for lack of subject matter jurisdiction.

         DISCUSSION

         I. Judicial Notice

         In support of its Motion to Dismiss, Defendant asks the Court to take judicial notice of twelve documents. The documents consist of public court documents from cases in which Plaintiff was involved in this District[3] and documents published on the internet and retrieved by the Wayback Machine.[4] All documents are offered, not to prove the truth of facts contained therein, but to show Plaintiff had notice of Defendant's alleged misconduct in 2009 or earlier.

         A district court generally will not consider evidence or documents beyond the complaint in the context of a 12(b)(6) motion to dismiss. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”). However, courts 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.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (emphasis added). Such documents may be treated as part of the complaint. Id.

         Under Federal Rule of Evidence 201, “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Plaintiff claims the court documents presented for judicial notice are irrelevant. Defendant was not a party to the prior actions, and the documents presented do not clearly establish that Plaintiff knew or should have known of Defendant's alleged misconduct outside the limitations period. Accordingly, the Court declines to take judicial notice of the court documents because they are irrelevant at this stage of the proceeding.

         With respect to the website articles, Plaintiff argues that it is inappropriate to take judicial notice of website activity to establish when Plaintiff became aware of Defendant's alleged misconduct. Children's Miracle Network v. Miracles for Kids, Inc., 8:18-cv-01227-JLS-KES, 2018 WL 8243998, at *3 (C.D. Cal Dec. 6, 2018) (declining to take judicial notice of the defendant's social media activity about the defendant to prove that the plaintiff should have been aware of the defendant's alleged misconduct on a certain date). However, Defendant asks the Court to take judicial notice of online articles published by Plaintiff and Plaintiff's counsel.[5] The Court agrees that a defendant's online activity being offered to prove a plaintiff's knowledge is a question of fact improper for judicial notice. Id. However, it does not necessarily follow, and Plaintiff does not argue, that it is similarly inappropriate to take judicial notice of a plaintiff's own public internet activity to show that the plaintiff had knowledge of certain facts at a particular time. Thus, the Court takes judicial notice of plaintiff's online articles, not for the truth of the facts contained therein, but for the purpose of establishing when Plaintiff was aware, or should have been aware, of Defendant's alleged misconduct. See UL LLC v. Space Chariot, Inc., 250 F.Supp.3d 596, 616 n.2 (C.D. Cal. 2017) (taking judicial notice of historic websites captured on the Wayback Machine “because they can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”) (internal quotations omitted).

         II. Motion to Dismiss

         A. ...


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