Temming v. Summus Holdings, LLC

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 STEVE TEMMING, Case No. 21-cv-04858-LB 12 Plaintiff, ORDER GRANTING IN PART MOTION TO DISMISS 13 v. Re: ECF No. 35 14 SUMMUS HOLDINGS, LLC, et al., 15 Defendants. — 16 — 17 INTRODUCTION 18 The plaintiff leased a medical laser (allegedly falsely branded as a K-Laser product) at a 19 veterinary trade show in San Francisco through a lease agreement with an equipment supplier and 20 financer, Beneficial Equipment Finance Corporation. He thought it was manufactured by Eltech K21 Laser, an Italian company, in part because an employee of Summus Medical Laser (the supplier) told 22 him that it was, and the branding was deceptively similar. Toward the end of his lease, he determined 23 that the laser was (allegedly) counterfeit, and he sued Summus Medical Laser, its holding company 24 Summus Holdings, and its principal Richard Albright for trafficking in counterfeit goods and fraud, 25 in violation of the federal RICO statute, and false advertising and fraud under state law. 26 The court previously determined that there was personal jurisdiction only against Summus 27 Medical (and not Summus Holdings and Dr. Albright). It also granted the defendants’ motion to 1 plausibly plead them. The defendants moved to dismiss the amended complaint on the same 2 grounds: the plaintiff’s failure to (1) establish personal jurisdiction over Summus Holdings and 3 Dr. Albright and (2) plausibly plead claims. They also moved to transfer the case to Pennsylvania 4 under a forum-selection clause in the plaintiff’s lease with Beneficial. 5 First, there is no personal jurisdiction over Summus Holdings and Dr. Albright. The plaintiff 6 asks for jurisdictional discovery to test the jurisdictional facts in Dr. Albright’s declaration, but 7 because discovery would not yield jurisdictionally relevant facts, the court denies the motion. 8 Second, the claim under California’s False Advertising Law (FAL) survives because it is 9 based on the employee’s allegedly false statement that Eltech manufactured the laser. Otherwise, 10 the court grants the motion to dismiss: (1) the RICO claim fails because the plaintiff did not 11 plausibly plead investment injury and two RICO predicate acts, and (2) the plaintiff did not 12 oppose the motion to dismiss the common-law fraud claim (because he thought it unnecessary 13 given the court’s earlier order). (The court orders supplemental briefing on the fraud claim.) The 14 court denies the motion to transfer: the defendants did not meet their burden to show that that they 15 are a third-party beneficiary of the plaintiff’s lease agreement with Beneficial. — 16 — 17 STATEMENT 18 The allegations in the amended complaint are largely unchanged.1 In sum, the plaintiff leased a 19 medical laser branded as a K-Laser Platinum after seeing it at a trade show in San Francisco, 20 thought it was manufactured by Eltech K-Laser made in Italy (based on its branding and because 21 Summus Medical employee Scott Allen said that it was), learned near the end of the lease that it 22 was not manufactured by Eltech, and then sued the defendants.2 The product was labeled K-Laser 23 USA and showed a Franklin, Tennessee, address.3 — 24 — — 25 — 1 Second Am. Compl. (SAC) – ECF No. 33; Order – ECF No 32 at 7–10. Citations refer to material in 26 the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. This order incorporates the facts and analysis in the earlier order by this reference. — 27 — 2 SAC – ECF No. 33 at 3–4 (¶¶ 8–12). 1 The equipment lease is signed by the plaintiff only, although there is an unsigned signature 2 area that says “ACCEPTED BY LESSOR: Beneficial Equipment Finance Corporation.” It lists the 3 equipment supplier as K-Laser USA LLC. It lists the product as the K-Laser Platinum 4.4 The 4 agreement provides that the lessor is not warranting the equipment because it is not the 5 manufacturer and the lessee selected the supplier and the equipment.5 It has an inspection clause: 6 the lessee agreed to inspect the equipment within 48 hours of delivery, and unless the lessee 7 objected, it is presumed conclusively “as between Lessor and Lessee that: (A) Lessee has fully 8 inspected the Equipment; (B) the Equipment is in full compliance with the terms and conditions of 9 this Lease; (C) the Equipment is in good condition and repair; and (D) Lessee has accepted the 10 Equipment and the obligation to remit rent shall begin.”6 It has a purchase option at the end of the 11 lease for $1. It provides that the supplier is not an agent of the lessor.7 It has waiver and indemnity 12 terms: for example, the lessee waives the right to recover damages from the lessor for breaches of 13 warranty or “any other reason,” and the lessee must indemnify the lessor for liability “pertaining in 14 any way to the Equipment.”8 The agreement has a Pennsylvania choice-of-law provision, a venue 15 provision for state and federal courts in Pennsylvania, and the plaintiff’s agreement to personal 16 jurisdiction in Pennsylvania courts.9 The plaintiff signed the agreement, initialed each page, and 17 initialed the choice-of-law and venue provision.10 18 The claims in the amended complaint are (1) a RICO violation ( 18 U.S.C. § 1962 (c)), based on 19 four predicate acts: trafficking in a counterfeit good, mail and wire fraud, ( 18 U.S.C. §§ 2320 , 20 1341, and 1343), and unlawful sale of a counterfeit good ( Cal. Penal Code § 350 ); (2) false 21 advertising in violation of the FAL ( Cal. Bus. & Prof. Code § 17500 ); and (3) common-law — 22 — 23 4 Equip. Lease Agreement – ECF No. 33-4 at 2 (boxes at top of agreement and signature blocks at the bottom of the page) — 24 — — 5 — Id. (¶¶ 4, 10). 25 6 Id. (¶ 11). — 26 — — 7 — Id. (¶ 9). — 8 — Id. at 3 (¶¶ 18–19). — 27 — — 9 — Id. at 4 . 1 fraud.11 The court held a hearing on the defendants’ motion to dismiss on January 13, 2022. There 2 is federal-question jurisdiction predicated on the RICO claim and diversity jurisdiction because 3 the parties are diverse and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332 . All 4 parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636.12 — 5 — 6 ANALYSIS 7 The four issues raised in the motion to dismiss are (1) whether there is personal jurisdiction 8 over Summus Holdings and Dr. Albright (and whether the plaintiff is entitled to jurisdictional 9 discovery), (2) whether the plaintiffs plausibly pleaded a RICO claim, (3) whether the defendant is 10 a third-party beneficiary of the plaintiff’s lease-finance agreement with Beneficial and, if not, did 11 the plaintiff plausibly plead state-law claims, and (4) whether transfer to Pennsylvania is 12 appropriate under the lease agreement’s forum-selection clause. 13 The court grants the motion in part. There is no personal jurisdiction (and the court denies the 14 request for jurisdictional discovery because there is no colorable basis for it). The plaintiff did not 15 plausibly plead a RICO claim because he did not plausibly plead investment injury or the RICO 16 predicates, and he did not oppose the motion to dismiss the fraud claim. He did plausibly plead a 17 FAL claim based on the alleged deceptive practices. The court denies the motion to transfer the 18 case to Pennsylvania because the defendants are not third-party beneficiaries of the lease-finance 19 agreement and thus are not entitled to the benefit of its terms). — 20 — 21 1. Personal Jurisdiction 22 The earlier order recounts the jurisdictional facts and held that there was no personal 23 jurisdiction over Summus Holdings and Dr. Albright.13 The amended complaint adds no new facts 24 that change that analysis. The plaintiff thus asked for jurisdictional discovery. At the hearing, he — 25 — — 26 — — 11 — Id. at 6–16 (¶¶ 17–48). — 27 — 12 Consents – ECF Nos. 12, 16. 1 clarified that he wanted to depose Dr. Albright to test the declaration that he submitted to show 2 lack of personal jurisdiction. A court has the discretion to allow a plaintiff to conduct limited 3 discovery when a defendant contests personal jurisdiction. Boschetto v. Hansing, 539 F.3d 1011 , 4 1020 (9th Cir. 2008). But generally, there must be some colorable basis for the discovery. Id. 5 (There is no abuse of discretion in denying limited discovery when the request was based on “little 6 more than a hunch that it might yield jurisdictionally relevant facts.”). Here, there is no basis for 7 the discovery (such as, for example, an alter-ego theory of liability). The court denies the request. — 8 — 9 2. RICO Claim 10 The plaintiff claims a violation of the RICO statute, 18 U.S.C. § 1962 (c), based on the 11 predicate acts of (1) trafficking in counterfeit goods, in violation of 18 U.S.C. § 2320 , (2) mail 12 fraud in violation of 18 U.S.C. § 1341 , (3) wire fraud in violation of 18 U.S.C. § 1343 , and (4) the 13 unlawful sale of a counterfeit good in violation of Cal. Penal Code § 350.14 The defendant moved 14 to dismiss because the plaintiff did not plead investment injury and also because the plaintiff did 15 not plead two predicate acts under RICO sufficiently.15 16 The parties do not dispute that the plaintiff must plead investment injury.16 The earlier order 17 analyzed the sufficiency of the plaintiff’s allegations and concluded that he did not plausibly plead 18 investment injury. The earlier order also analyzed the sufficiency of the allegations to support the 19 predicate acts and concluded that the plaintiff did not plausibly plead the predicate acts.17 The new 20 complaint adds no new allegations that alter that outcome.18 The court thus dismisses the RICO 21 claim because — despite being given an opportunity to cure the earlier complaint’s deficiencies — 22 he did not plausibly plead investment injury or the RICO predicates. — 23 — — 24 — 14 SAC – ECF No. 33 at 6–12 (¶¶ 17–36). — 25 — 15 Mot. – ECF No. 35 at 9–12; Reply – ECF No. 39 at 7. 26 16 Mot. – ECF No. 35 at 9; Opp’n – ECF No. 17 at 18. — 27 — 17 Order – ECF No. 32 at 11–12. 18 The docket contains a blackline version of the new complaint against the original complaint. 1 3. State Claims 2 The plaintiff did not oppose the motion to dismiss the common-law fraud claim. At the 3 hearing, he said that he thought he did not have to because the court previously let the claim stand. 4 That is incorrect: An “amended complaint supersedes the original, the latter being treated 5 thereafter as nonexistent,” and any motion to dismiss must be targeted to the amended 6 complaint. Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (collecting 7 cases); see 6 Wright, Miller, & Kane, 6 Fed. Prac. & Proc. Civ. § 1476 (4th ed. 2010) (same). A 8 defendant thus may move to dismiss claims even on grounds that the court rejected previously. 9 Ordinarily, the court would dismiss with leave to amend. But for judicial economy, the court 10 instead orders that within fourteen days from the date this order is filed, the plaintiff may oppose 11 the motion to dismiss the common-law fraud claim in a brief of up to five pages. Seven days after 12 the opposition is filed, the defendant may file an optional reply brief of up to two pages. 13 The remaining claim is for false advertising in violation of the FAL. Cal. Bus. & Prof. Code 14 § 17500. The defendant moved to dismiss it on two grounds: (1) the choice-of-law provision under 15 the lease-finance agreement with Beneficial allows claims only under Pennsylvania law, and the 16 defendant is a third-party beneficiary of the agreement; and (2) the plaintiff does not plausibly 17 state an FAL claim under California law.19 18 3.1 Choice-of-Law Provision of Lease Agreement 19 Under California law, a “contract, made expressly for the benefit of a third person, may be 20 enforced by him at any time before the parties thereto rescind it.” Cal. Civ. Code § 1559 . The issue 21 here is whether the defendant is an intended beneficiary. Read as a whole in light of the 22 circumstances under which it was made, the contract must “clearly manifest” the intent to benefit 23 the third party. Martin v. Bridgeport Cmty. Ass’n, Inc., 173 Cal. App. 4th 1024, 1034 (2009); 24 Souza v. Westlands Water Dist., 135 Cal. App. 4th 879, 891 (2006); Markowitz v. Fidelity Nat’l. 25 Title Co., 142 Cal. App. 4th 508, 527 (2006). “Ascertaining this intent is a question of ordinary 26 contract interpretation.” Markowitz, 142 Cal. App. 4th at 527 . The basic test is “whether an intent — 27 — 1 to benefit a third person appears from the terms of the contract.” Cargill, Inc. v. Souza, 201 Cal. 2 App. 4th 962, 967 (2011). The determination of intent is generally a question of fact. Hotel Emp. 3 and Restaurant Emp. Local 2 v. Vista Inn Mgmt. Co., 393 F. Supp. 2d 972, 987 (N.D. Cal. 2005). 4 The terms of the contract show no intent to benefit the defendant. It is named as the supplier, 5 but other terms — such as the lessor’s representation that it is not warranting the equipment, the 6 terms about the lessee’s selecting and approving the equipment, the term that the supplier is not 7 the lessor’s agent, and the waiver and indemnity terms — show that this is a standard lease8 financing agreement between a lessor and a lessee. Reading the contract as a whole in light of the 9 circumstances that surrounded it, nothing suggests any intent that the defendant is an intended 10 beneficiary. At the hearing, the defendant pointed to the purchase option at the end of the contract, 11 but that does not suggest an intent to benefit the supplier. The defendant cites only generic 12 California contract cases that do not support the conclusion that a supplier like Summus Medical is 13 an intended beneficiary of an agreement like this one.20 Also, apparently the parties to the 14 financing agreement rescinded it.21 15 Because the defendant has not sustained its burden to show that it is a third-party beneficiary 16 of the contract, it cannot benefit from its choice-of-law or forum-selection provisions. Thus, the 17 court denies the motion to apply Pennsylvania law or transfer the case to Pennsylvania. 18 3.2 Plausible Claim Under California’s FAL Law 19 The defendant also contends that (1) there is no private right of action under the FAL and (2) 20 the plaintiff does not plausibly plead false advertising.22 21 First, there is a private right of action under the FAL. Cal. Bus. & Prof. Code § 17500 ; Nat’l 22 Council Against Health Fraud, Inc. v. King Bio Pharm., Inc., 107 Cal. App. 4th 1336, 1344 (2003) 23 (“Both private persons and prosecuting authorities may sue to enjoin false advertising and obtain 24 restitution” under § 17500) (cleaned up). — 25 — — 26 — 20 Id. at 13–14. — 27 — 21 Opp’n – ECF No. 37 at 21. 1 Second, the plaintiff plausibly pleads a FAL claim based on misleading branding and the 2 alleged misrepresentations made at the trade show. 3 Claims under the FAL (like claims under California’s Consumer Legal Remedies Act and 4 Unfair Competition Act) are governed by the “reasonable consumer” test. Williams v. Gerber 5 Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). “Under the reasonable consumer standard, 6 [plaintiffs] must show that ‘members of the public are likely to be deceived.’” Id. (cleaned up). 7 “[W]hether a business practice is deceptive will usually be a question of fact not appropriate for 8 decision on [a motion to dismiss]” because [it] requires ‘consideration and weighing of evidence 9 from both sides.’” Id. at 938–39 (cleaned up) (quoting Linear Tech. Corp. v. Applied Materials, 10 Inc., 152 Cal. App. 4th 115 , 134–35 (2007)). “The California Supreme Court has recognized that 11 these laws prohibit ‘not only advertising which is false, but also advertising which, although true, 12 is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse 13 the public.’” Id. (cleaned up) (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 951 (2002)). “A 14 perfectly true statement couched in such a manner that it is likely to mislead or deceive the 15 consumer, such as by failure to disclose other relevant information, is actionable under these 16 sections.” Day v. AT&T Corp., 63 Cal. App. 4th 325 , 332–33 (1998). 17 The court’s earlier order described the circumstances at the trade show: 18 [T]he plaintiff, a retired veterinarian[,] . . . attended a veterinary convention in San Francisco. There, Scott Allen, a sales representative for the defendants, demonstrated a 19 Class IV medical laser to the plaintiff and told him that the defendants were authorized distributors of the device, which was manufactured in Italy by a company called Eltech K20 Laser S.r.l. The display devices had the “K-Laser” mark, which was substantially similar 21 to the mark belonging to Eltech K-Laser, thereby suggesting that they were genuine products manufactured by Eltech. Mr. Allen “sold [a device with the K-Laser mark] to 22 Plaintiff at the convention.” The product was a “Platinum 4, 24W CW, 28W ISP Laser.”23 23 The issue is whether the plaintiff stated a claim by alleging similar branding and a 24 misrepresentation about the product’s origin. He alleges that the defendants “pass[ed] off” their 25 lasers as those manufactured by Eltech K-Laser S.r.l. in part by using a substantially similar mark — 26 — — 27 — 23 Order – ECF No. 32 at 2; see SAC – ECF No. 33 at 2 (¶ 3), 4 (¶ 11), 15 (¶ 42); Prod. Info., Ex. 1 – 1 with the same font design and colors.™* Then, a Summus Medical employee said that the company 2 || was an authorized distributor of products manufactured by Eltech K-Laser.”> He demonstrated the 3 laser to the plaintiff and told him that it was manufactured by Eltech K-Laser S.r.l. in Italy (when A || it was not).7° This plausibly pleads a FAL claim. 5 Brand names themselves can be misleading. Brady v. Bayer Corp., 26 Cal. App. 5th 1156 , 6 1170-71 (2018) (‘One a Day” brand for vitamins was misleading because two pills were 7 necessary). Selling look-alike copies of a product can be misleading too. Dastar Corp. v. 8 Twentieth Century Fox Film Corp., 539 U.S. 23 , 27 n.1 (2003). The defendant contends that the 9 mark is literally true, but a perfectly true statement can be stated in a way that is likely to mislead 10 || or deceive the consumer. Day, 63 Cal. App. 4th at 332-33 ; Skinner v. Ken’s Foods, Inc., 53 Cal. 11 App. 5th 938, 949 (2020). And a failure to disclose a fact can be actionable under the reasonable12 || consumer test “when the defendant actively conceals a material fact from the plaintiff.” Collins v. 5 13 eMachines, Inc., 202 Cal. App. 4th 249, 255 (2011). 14 The product’s allegedly deceptive branding and the misrepresentation about its origin plausibly 3 15 || plead consumer confusion in violation of the FAL. Whether the conduct was deceptive is a questio: 16 || of fact not appropriate for decision on a motion to dismiss. Williams, 552 F.3d at 938-39 . CONCLUSION 19 The court dismisses the RICO claim with prejudice and denies the motion to transfer. Within 20 || fourteen days, the plaintiff may oppose dismissal of the fraud claim in a five-page brief, and the 21 defendant may reply seven days afterwards in a two-page brief. 22 IT IS SO ORDERED. LAE 23 Dated: January 21, 2022 LAUREL BEELER 24 United States Magistrate Judge — 25 — 26 ||| 20qcs]dJIIHH_ 4 SAC — ECF No. 33 at 13 (4 39). 27 |) 25 14 at 3-4 (7 8). 28 || 76 Id. at 13-14 (9 39-40).