United States District Court, D. Arizona
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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