Thermolife International, LLC v. Am. Fitness Wholesalers, LLC ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERMOLIFE INTERNATIONAL, LLC, No. 20-15163
an Arizona limited liability company, 20-15807
Plaintiff-Appellant, D.C. No. 2:18-cv-04189-JAT
v.
MEMORANDUM*
AMERICAN FITNESS WHOLESALERS,
L.L.C., DBA A1Supplements, a Tennessee
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted December 11, 2020**
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Appellant ThermoLife International LLC (ThermoLife) appeals dismissal of
its Lanham Act (15 U.S.C. § 1125), common-law unfair-competition, and false-
patent-marking (35 U.S.C. § 292) claims against Appellee American Fitness
Wholesalers LLC, d/b/a A1Supplements (A1). Because the parties are familiar
with the facts, we do not recount them here, except as necessary to provide context
to our ruling. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6). Gingery
v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 2016). We AFFIRM.1
ThermoLife alleges that A1 unfairly competed and violated the Lanham Act
by advertising and selling allegedly illegal dietary supplements on A1’s website.
A1 also sells products that contain ThermoLife ingredients on its website, which
ThermoLife refers to as “ThermoLife Component Products.” ThermoLife claims
that its overall sales dropped in 2016 as a result of A1’s sale of illegal products.
However, ThermoLife offers only conclusory allegations and fails to
plausibly connect its 2016 drop in sales of component ingredients to A1’s alleged
advertising and sale of allegedly illegal products. Therefore, the district court
1
We deny Natural Products Association’s motion for leave to file an amicus brief
because it is untimely by almost three months and offers no explanation as to why
the court should excuse the late filing. See Marbled Murrelet v. Babbitt, 83 F.3d
1060, 1062 n.1 (9th Cir. 1996) (denying motion to file amicus brief because the
“motion was filed late and there was no attempt to show good cause for the late
filing”).
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properly dismissed ThermoLife’s Lanham Act claim because ThermoLife has not
shown that its injury was proximately caused by any alleged Lanham Act violation.
See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 132–34
(2014).
In addition, because ThermoLife’s common-law unfair-competition and
Lanham Act claims are substantially similar, ThermoLife’s unfair-competition
claim fails for the same reasons. See Cleary v. News Corp., 30 F.3d 1255, 1263
(9th Cir. 1994).
The district court also properly dismissed ThermoLife’s false-marking claim
because ThermoLife failed to plead facts to particularly or plausibly establish a
competitive injury, a false marking, or an intent to deceive the public. Importantly,
ThermoLife does not allege facts about the patent rights of APS Nutrition—the
alleged manufacturer of the product at issue—nor does ThermoLife sufficiently
allege knowledge by A1 of APS Nutrition’s patent rights. Instead, ThermoLife
alleges that A1 lacks purported patent rights to APS Nutrition’s product, which
fails to satisfy Federal Rule of Civil Procedure 9(b)’s heightened pleading
standard. See Juniper Networks, Inc. v. Shipley, 643 F.3d 1346, 1350 (Fed. Cir.
2011).
Finally, the district court did not abuse its discretion by concluding this was
an “exceptional case” that authorized awarding A1 its attorney’s fees relating to its
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second successful motion to dismiss. Despite specific instructions from the district
court when it dismissed the first complaint, ThermoLife failed to cure the
deficiencies in its proximate-cause allegations to plausibly connect its alleged drop
in overall sales to A1’s advertising and sale of allegedly illegal dietary
supplements. Instead, ThermoLife’s conclusory allegations that its sales dropped in
2016, and that the drop must be attributed to A1’s advertising and sale of allegedly
illegal dietary supplements, ignore the obvious alternative explanations identified
by the district court such as other legal dietary supplements cutting into
ThermoLife’s profits or an industry-wide drop in dietary-supplement sales. By
failing to correct the deficiencies identified by the district court, ThermoLife
proceeded unreasonably in the litigation by filing its Amended Complaint, and as
the district court concluded, had no reasonable or legal basis to believe in success
on the merits of its claims. See Octane Fitness, LLC v. ICON Health & Fitness,
Inc., 572 U.S. 545, 554 (2014); SunEarth, Inc. v. Sun Earth Solar Power Co., Ltd.,
839 F.3d 1179, 1181 (9th Cir. 2016) (en banc) (per curiam).
AFFIRMED.
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