Mikulsky v. Noom, Inc.

[11] 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA [14] 15 ERIKA MIKULSKY, individually and on Case No.: 3:23-cv-00285-H-MSB behalf of all others similarly situated, [16] ORDER GRANTING DEFENDANT’S Plaintiff, 17 MOTION TO DISMISS v. [18] [Doc. No. 37.] NOOM, INC., [19] Defendant. [21] 22 On October 30, 2023, Defendant Noom, Inc. (“Defendant” or “Noom”) moved to 23 dismiss Plaintiff Erika Mikulsky’s (“Plaintiff”) first amended complaint (“FAC”) pursuant 24 to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (Doc. No. 37.) On 25 November 30, 2023, Plaintiff filed a response in opposition to Defendant’s motion to 26 dismiss. (Doc. No. 38.) On December 21, 2023, Defendant filed a reply in support of its 27 motion. (Doc. No. 42.) The Court, pursuant to its discretion under Civil Local Rule 28 7.1(d)(1), determined the matter was appropriate for resolution without oral argument, 1 submitted the motion on the parties’ papers, and vacated the hearing. (Doc. No. 45.) For 2 the reasons below, the Court grants Defendant’s motion to dismiss. 3 BACKGROUND 4 This case is one of dozens of proposed class actions being litigated in federal courts 5 challenging the use of “Session Replay Code.” The Court briefly summarizes the factual 6 background taken from the allegations in Plaintiff’s first amended complaint. (Doc. No. 7 34, “FAC”.) 8 Defendant is a Delaware corporation that has its principal place of business in New 9 York. (FAC ¶ 8.) Defendant is a digital health and wellness platform that focuses on 10 helping individuals lose weight and lead healthier lives. (Id. ¶¶ 11-12.) Defendant operates 11 the website “www.noom.com” (the “Website”). (Id. ¶ 1.) Defendant procures and embeds 12 various Session Replay Code from third-party Session Replay Providers, including 13 FullStory, on its Website to track and analyze website users’ interactions with the Website. 14 (Id.) 15 Session Replay Code enables website operators to record, save, and replay website 16 visitors’ interactions with a given website, including “mouse movements, clicks, 17 keystrokes (such as text being entered into an information field or text box), URLs of 18 webpages visited, and/or other electronic communications in real-time.” (Id.; see also id. 19 ¶¶ 36-57.) Once the Session Replay Code records the website visitors’ interactions, the 20 website operator can view a visual reenactment of users’ visits through the Session Replay 21 Provider, usually in the form of a video. (Id. ¶¶ 2, 43, 66.) 22 Plaintiff alleges that she visited Defendant’s Website on her computer while in 23 California prior to filing this action. (Id. ¶ 73.) During her visit to Defendant’s Website, 24 Plaintiff was directed to complete a detailed screening survey (the “Noom Survey”). (Id. 25 ¶ 75.) The Noom Survey asked Plaintiff to “input [her] personal health information 26 (including current weight, ideal weight, sex, gender identity, and age) and answer questions 27 about [her] fitness goals, eating and exercise habits, medical and family history, mental 28 health, home environment, marital status, weight loss motivations and struggles, and 1 personal lifestyle.” (Id.) Plaintiff completed the Noom Survey through “mouse 2 movements, clicks and by typing the requested personal information into text fields.” (Id. 3 ¶ 77.) While visiting Defendant’s Website, Session Replay Code captured Plaintiff’s 4 communications and sent her responses and “sensitive personal health information” to 5 various Session Replay Providers without her knowledge and without her consent. (Id. ¶¶ 6 78, 81.) Plaintiff alleges that Defendant’s conduct violates the California Invasion of 7 Privacy Act (“CIPA”), California Penal Code § 630 et seq., and constitutes the tort of 8 invasion of privacy rights and intrusion upon seclusion. (Id. ¶ 5.) 9 On February 14, 2023, Plaintiff filed a class action complaint against Defendant. 10 (Doc. No. 1.) On May 8, 2023, Defendant moved to dismiss the complaint pursuant to 11 Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). (Doc. No. 12-1 at 6-21.) On June 12 13, 2023, the Court asked the parties sua sponte to address Plaintiff’s Article III standing 13 under Federal Rule of Civil Procedure 12(b)(1). (Doc. No. 21.) Defendant moved to 14 dismiss on that ground as well. (Doc. No. 24.) On July 17, 2023, the Court granted 15 Defendant’s motion to dismiss Plaintiff’s complaint pursuant to Federal Rules of Civil 16 Procedure 12(b)(1) and 12(b)(2) for lack of subject matter jurisdiction and lack of personal 17 jurisdiction, respectively. (Doc. No. 26.) In its Order, the Court warned Plaintiff that the 18 Court may dismiss Plaintiff’s claims with prejudice and without leave to amend should she 19 fail to cure the deficiencies identified by the Court. (Id. at 15.) The Court further instructed 20 that Plaintiff may amend her complaint by filing a motion for leave to amend. (Id.) 21 On August 7, 2023, Plaintiff filed a motion for leave to amend her complaint. (Doc. 22 No. 27.) On September 1, 2023, Defendant opposed Plaintiff’s motion, citing the same 23 jurisdictional issues identified in Defendant’s motion to dismiss. (Doc. No. 29.) On 24 September 27, 2023, the Court granted Plaintiff’s motion for leave to amend and 25 specifically deferred “consideration of Defendant’s challenges to the merits of Plaintiff’s 26 proposed amended complaint until after Plaintiff files it.” (Doc. No. 33 at 3.) 27 On September 29, 2023, Plaintiff filed the operative first amended class action 28 complaint. (Doc. No. 34, “FAC”.) By the present motion, Defendant moves to dismiss 1 Plaintiff’s FAC pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject 2 matter jurisdiction, Federal Rule of Civil Procedure 12(b)(2) for lack of personal 3 jurisdiction, and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. 4 No. 37-1.) On January 10, 2024, Defendant provided the Court with notice of supplemental 5 authority in support of its motion to dismiss. (Doc. No. 44.) 6 DISCUSSION 7 Defendant moves to dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil 8 Procedure 12(b)(1), 12(b)(2), and 12(b)(6) for lack of subject matter jurisdiction, lack of 9 personal jurisdiction, and for failure to state a claim,1 respectively. (Doc. No. 37-1.) 10 Specifically, Defendant argues that Plaintiff’s claims should be dismissed because Plaintiff 11 failed to establish that she suffered an injury in fact and thus lacks standing to bring her 12 claims.2 (See id.) 13 I. Legal Standard 14 A. Federal Rule of Civil Procedure 12(b)(1) 15 Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims for 16 lack of subject matter jurisdiction. “Rule 12(b)(1) jurisdictional attacks can be either facial 17 or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the 18 challenger asserts that the allegations contained in a complaint are insufficient on their face 19 to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the [21] 1 Because the Court grants Defendant’s motion to dismiss on subject matter [22] jurisdiction grounds, the Court declines to reach the question as to whether Plaintiff has 23 personal jurisdiction or states a claim for relief. 2 Defendant requests that the Court take judicial notice and/or incorporate by [24] reference Defendant’s Privacy Policy. (Doc. No. 37-2; Doc. No. 37-4, Ex. A to Declaration 25 of Aarti Reddy.) Plaintiff opposes Defendant’s request for judicial notice and/or incorporation by reference. (Doc. No. 39.) The Court notes that Plaintiff references [26] Defendant’s Privacy Policy throughout her FAC. (See FAC ¶¶ 21, 79, 89, 90.) However, 27 because the Court’s analysis under Federal Rule of Civil Procedure 12(b)(1) does not rely on Defendant’s Privacy Policy, the Court denies Defendant’s request for judicial notice [28] 1 truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” 2 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 3 Here, Defendant’s Rule 12(b)(1) briefing focuses solely on the allegations in 4 Plaintiff’s complaint, and, thus, Defendant makes a facial attack under Rule 12(b)(1). (See 5 Doc. No. 37-1 at 22-23.) “In deciding a Rule 12(b)(1) facial attack motion, a court must 6 assume the facts alleged in the complaint to be true and construe them in the light most 7 favorable to the nonmoving party.” Strojnik v. Kapalua Land Co. Ltd., 379 F. Supp. 3d 8 1078, 1082 (D. Haw. 2019) (citing Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 , 9 1139 (9th Cir. 2003)); see Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa 10 Cty., 343 F.3d 1036, 1039 (9th Cir. 2003); Rimac v. Duncan, 319 F. App’x 535, 536 (9th 11 Cir. 2009). 12 B. Article III Standing 13 Article III of the Constitution “confines the federal judicial power to the resolution 14 of ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 141 S. Ct. 2190 , 2203 15 (2021). “For there to be a case or controversy under Article III, the plaintiff must have a 16 personal stake in the case—in other words, standing.” Id. Standing consists of three 17 elements: “a plaintiff must show (i) that he suffered an injury in fact that is concrete, 18 particularized, and actual or imminent; (ii) that the injury was likely caused by the 19 defendant; and (iii) that the injury would likely be redressed by judicial relief.” Id. (citing 20 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). “The plaintiff, as the party 21 invoking federal jurisdiction, bears the burden of establishing these elements.” Spokeo, 22 Inc. v. Robins, 578 U.S. 330, 338 (2016). 23 The first element, injury-in-fact, requires “a plaintiff [to] show that he or she suffered 24 ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual 25 or imminent, not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (citing Lujan, 504 26 U.S. at 560). In Spokeo, the Supreme Court made clear that a plaintiff may not “allege a 27 bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact 28 requirement of Article III.” 578 U.S. at 341 . Rather, “‘Article III standing requires a 1 concrete injury even in the context of a statutory violation.’” TransUnion, 141 S. Ct. at 2 2205 (quoting Spokeo, 578 U.S. at 341 ). A legislature’s creation of a statutory prohibition 3 or obligation and a cause of action does not relieve courts of their responsibility to 4 independently decide whether a plaintiff has suffered a concrete harm under Article III. Id. 5 “[U]nder Article III, an injury in law is not an injury in fact.” Id. “[C]ertain harms readily 6 qualify as concrete injuries under Article III. The most obvious are traditional tangible 7 harms, such as physical harms and monetary harms.” TransUnion, 141 S. Ct. at 2204 . 8 “Various intangible harms can also be concrete.” Id.; see Spokeo, 578 U.S. at 340 . “Chief 9 among them are injuries with a close relationship to harms traditionally recognized as 10 providing a basis for lawsuits in American courts[,] . . . for example, reputational harms, 11 disclosure of private information, and intrusion upon seclusion.” TransUnion, 141 S. Ct. 12 at 2204. 13 In the privacy context, the Ninth Circuit “has stated that ‘violations of the right to 14 privacy have long been actionable at common law,’ and CIPA ‘codif[ies] a substantive 15 right to privacy, the violation of which gives rise to a concrete injury sufficient to confer 16 standing.’” Byars v. Sterling Jewelers, Inc., No. 5:22-CV-01456-SB-SP, 2023 WL 17 2996686 at *3 (C.D. Cal. Apr. 5, 2023) (quoting In re Facebook, Inc. Internet Tracking 18 Litig., 956 F.3d 589, 599 (9th Cir. 2020)). The Ninth Circuit has also clarified that the 19 right to privacy encompasses an “‘individual’s control of information concerning his or her 20 person.’” Facebook, 956 F.3d at 598 (quoting Eichenberger v. ESPN, Inc., 876 F.3d 979 , 21 983 (9th Cir. 2017)); see U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press, 489 22 U.S. 749 , 763 (1989) (“[B]oth the common law and the literal understandings of privacy 23 encompass the individual’s control of information concerning his or her person.”). 24 As this Court previously articulated in its July 17, 2023 Order, district courts “make 25 their decisions regarding whether a plaintiff has stated a legally protectible privacy interest 26 based on the nature of the information at issue.” (Doc. No. 26 at 8 (quoting In re Yahoo 27 Mail Litig., 7 F. Supp. 3d 1016, 1040 (N.D. Cal. 2014).). A plaintiff must identify the 28 “‘specific personal information she disclosed that implicates a protectible privacy interest’” 1 to survive a motion to dismiss. (Id. (quoting Byars, 2023 WL 2996686 , at *3).) Mere 2 assertion a violation of CIPA or invasion of the plaintiff’s right to privacy is insufficient to 3 confer standing under Article III. (See id. at 8-9.) 4 II. Analysis 5 The Court previously dismissed Plaintiff’s complaint for lack of subject matter 6 jurisdiction under Federal Rule of Civil Procedure 12(b)(1). (Doc. No. 26.) In its July 17, 7 2023 Order, the Court held that Plaintiff failed to plead an injury in fact necessary for 8 Article III standing because she had not alleged that Noom collected information over 9 which she had a protectable privacy interest. (Id. at 10.) Specifically, Plaintiff’s 10 conclusory allegations that Noom collected her “personal information”—without 11 specifying the type of information—could not establish that she suffered a concrete harm. 12 (Id.) 13 Upon initial review, the FAC appears to have remedied the deficiencies identified 14 by the Court. But for the reasons below, deficiencies in the FAC remain. The FAC details 15 the type of “personal information” Plaintiff allegedly disclosed to Defendant. Plaintiff 16 alleges she disclosed “sensitive personal health information” via the Noom Survey, which 17 Noom and its Session Replay Provider captured and shared without her consent. (FAC ¶¶ 18 14, 76.) Plaintiff contends the Noom Survey “asks potential customers to input their 19 personal health information (including current weight, ideal weight, sex, gender identity, 20 and age) and answer questions about their fitness goals, eating and exercise habits, medical 21 and family history, mental health, home environment, marital status, weight loss 22 motivations and struggles, and personal lifestyle.” (Id. ¶ 75.) Plaintiff further alleges that 23 FullStory “records all of Noom’s website visitor actions, including substantive personal 24 information typed by Noom’s website users” and discloses this information without 25 Website visitors’ consent. (Id. ¶ 64.) 26 Defendant argues that these new allegations still do not establish that Defendant 27 collected information over which Plaintiff has a protectible privacy interest for purposes of 28 Article III standing. (Doc. No. 37-1 at 22.) Specifically, Defendant asserts that the FAC 1 fails to allege that Plaintiff provided Defendant with any identifiable information that 2 would allow Defendant to connect her alleged responses to the Noom Survey to Plaintiff 3 herself. (See FAC ¶¶ 58-85.) Defendant claims that the lack of connection between the 4 information Plaintiff allegedly disclosed and Plaintiff is fatal to her claim. (Doc. No. 37-1 5 at 22.) The Court agrees. The disclosure of non-individually identifiable data is 6 insufficient to give rise to an injury-in-fact to support Article III standing. Cahen v. Toyota 7 Motor Corp., 717 F. App’x 720 , 724 (9th Cir. 2017) (“Plaintiffs have not pleaded sufficient 8 facts demonstrating how the aggregate collection and storage of non-individually 9 identifiable driving history and vehicle performance data cause an actual injury.”); Popa v. 10 PSP Grp., LLC, No. C23-0294JLR, 2023 WL 7001456 , at *5 (W.D. Wash. Oct. 24, 2023) 11 (dismissing session replay provider lawsuit on 12(b)(1) grounds where plaintiff did not 12 allege that defendant was able to connect the information collected to her identity); Massie 13 v. Gen. Motors LLC, No. CV 21-787-RGA, 2022 WL 534468 , at *5 (D. Del. Feb. 17, 14 2022) (“Plaintiffs do not have a reasonable expectation of privacy over the anonymized 15 data captured by the Session Replay software at issue here.”). 16 The court’s decision in Cook v. GameStop, Inc., No. 2:22-CV-1292, 2023 WL 17 5529772 (W.D. Pa. Aug. 28, 2023), is directly on point. GameStop involved a similar 18 challenge to session replay technology under Pennsylvania’s wiretap statute. Id. at *1. 19 There, the court dismissed the action for lack of Article III standing because the plaintiff 20 failed to allege that she disclosed “any personally identifying information at any point 21 during her [online] interaction. Not her name. Not her address. Not her credit card 22 information. Nothing that could connect her browsing activity to her.” Id. at *4 (emphasis 23 omitted). The plaintiff “didn’t even provide her basic contact information when she 24 browsed the GameStop website.” Id. at *4, n. 2. Because the plaintiff’s online browsing 25 was “completely anonymous” her allegations did “not set forth a concrete harm.” Id. at 26 *4. The GameStop court’s conclusion is consistent with other courts, which have found 27 that the collection of non-individually identifiable data does not give rise to an actual injury 28 under Article III. See Popa, 2023 WL 7001456 , at *5; Saeedy v. Microsoft Corp., No. 231 CV-1104, 2023 WL 8828852 , at *4 (W.D. Wash. Dec. 21, 2023) (collecting cases); 2 Hernandez v. Noom, Inc., No. 1:23-CV-00641-JRR, 2023 WL 8934019 at *8-9 (D. Md. 3 Dec. 27, 2023). 4 Here, the FAC does not allege that Plaintiff provided any personally identifiable 5 information that would allow Noom to link the “sensitive health information” she 6 purportedly provided via the Noom Survey to Plaintiff. (See FAC.) The FAC does not 7 allege that she entered her name, email address, credit card details, or other contact 8 information on Defendant’s Website. Neither does the FAC allege that Plaintiff purchased 9 any product on Noom’s Website. Put differently, Plaintiff’s activity on Defendant’s 10 website was basically anonymous. Without a connection between the information she 11 allegedly disclosed to Defendant and Plaintiff herself, Plaintiff’s allegations in the FAC are 12 insufficient to establish she suffered a concrete harm to support Article III standing. See 13 GameStop, 2023 WL 5529772 , at *4. 14 Additionally, the FAC’s allegations regarding Session Replay Providers’ capacities 15 are likewise insufficient to confer standing. For example, the FAC alleges that “Session 16 Replay Code does not necessarily anonymize user sessions” and “[s]ome Session Replay 17 Providers explicitly offer website owners cookie functionality that permits linking a session 18 to an identified user, who may be personally identified if the website owner has associated 19 the user with an email address or username.” (FAC ¶¶ 46, 49.) However, these allegations 20 do not pertain to Defendant or even purport to allege that these capabilities were executed 21 by Defendant during Plaintiff’s visit to Defendant’s Website. See In re BPS Direct, LLC, 22 No. 22-CV-4709, 2023 WL 8458245 , at *12 (E.D. Pa. Dec. 5, 2023) (citations omitted) 23 (“We need to know what session replay code actually captured, not what session replay 24 code is capable of capturing.”). 25 In response, Plaintiff does not address whether the lack of connection between the 26 “sensitive personal health information” and Plaintiff is fatal to her claim. (Doc. No. 38 at 27 13-15.) Rather, Plaintiff asserts that the FAC sufficiently alleges an injury in fact based on 28 the allegations that Noom “secretly recorded her communications and procured a third 1 party to intercept and eavesdrop on her in real time” without her consent. (Doc. No. 38 at 2 15; see also FAC ¶¶ 1-6.) According to Plaintiff, her allegations of Defendant’s violations 3 of CIPA and her right to privacy—in and of themselves—constitute a concrete injury in 4 fact sufficient to confer Article III standing. (Doc. No. 38 at 15.) In the Court’s prior 5 Order, the Court thoroughly rejected the argument that the bare assertion of a statutory 6 harm is sufficient to confer standing. (Doc. No. 26 at 8-9.) Plaintiff’s argument ignores 7 the Court’s prior Order and the Supreme Court’s holding in TransUnion both of which 8 dismissed her theory outright. (Doc. No. 26 at 9; see also TransUnion, 141 S. Ct. at 2205 9 (“[U]nder Article III, an injury in law is not an injury in fact.”).) The relevant question is 10 whether Plaintiff has adequately pled that she disclosed information over which she had a 11 protectible privacy interest. See Byars, 2023 WL 2996686 , at *3. As discussed above, 12 Plaintiff has failed to do so. 13 Plaintiff’s reliance on In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589 14 (9th Cir. 2020), is once again misplaced. Plaintiff claims Facebook stands for the 15 proposition that CIPA “codif[ied] a substantive right to privacy, the violation of which 16 gives rise to a concrete injury sufficient to confer standing.” (Doc. No. 38 at 14 (quoting [17] 956 F.3d at 599 ).) However, the Ninth Circuit’s decision did not purport to find Article III 18 standing merely from the bare assertion of a statutorily granted privacy right. Rather, in 19 Facebook, the court found that the plaintiffs adequately alleged that Facebook’s tracking 20 and collection practices, which correlated users’ browsing history with users’ personal 21 Facebook profiles, would cause harm or material risk of harm to the plaintiffs’ interest in 22 controlling their personal information. 956 F.3d at 598-599 . What the court found there, 23 and what is missing here, is a connection between the personal information and the 24 plaintiffs. Id. 25 Plaintiff’s citation to the Ninth Circuit’s recent decision in Jones v. Ford Motor Co., [26] 85 F.4th 570 (9th Cir. 2023), is equally unavailing. In Jones, the court found that the 27 plaintiffs plausibly alleged Article III standing where the plaintiffs alleged that the 28 defendants compiled and permanently stored “all text messages and call logs from [the 1 p]laintiffs’ cell phones . . . without [the p]laintiffs’ knowledge or consent” as soon as their 2 phones connected to the defendant’s on-board vehicle entertainment system. 85 F.4th 570 3 at 574. In contrast to Jones and Facebook, Plaintiff does not allege that Defendant collects, 4 tracks, or discloses any individually identifiable data or that Defendant has or does 5 anything to connect the information that she allegedly disclosed via the Noom Survey to 6 her. (See FAC.) Accordingly, Plaintiff’s FAC is insufficient to establish she suffered a 7 concrete harm. Thus, Plaintiff has failed to satisfy the injury in fact element for Article III 8 standing and the Court must dismiss Plaintiff’s claims for lack of subject matter 9 jurisdiction. Esquivel v. Fresno Cnty. Dep’t of Soc. Servs., No. 22-16975, 2023 WL 10 8014223 at *1 (9th Cir. Nov. 20, 2023) (citation omitted) (“A lack of constitutional 11 standing requires dismissal for lack of subject matter jurisdiction.”). 12 Lastly, the Court finds that granting leave to amend would be futile and unduly 13 prejudicial to Defendant. In its July 17, 2023 Order, the Court dismissed Plaintiff’s claims 14 under Federal Rule of Civil Procedure 12(b)(1) for failure to allege an injury in fact 15 sufficient to satisfy Article III standing. (Doc. No. 28 at 10-11.) The Court questioned 16 whether Plaintiff could cure the deficiencies identified in its Order and warned that failure 17 to cure the identified deficiencies may result in dismissal with prejudice and without leave 18 to amend. Nonetheless, Plaintiff failed to cure the deficiencies. Because any amendment 19 would be futile and unduly prejudicial to Defendant, leave to amend is denied. See. e.g., 20 Ali v. Intel Corp., No. 18-CV-03981-LHK, 2019 WL 1369926 , at *5 (N.D. Cal. Mar. 26, 21 2019), aff’d, 797 F. App’x 325 (9th Cir. 2020) (dismissing claims without leave to amend 22 following a court order warning the plaintiff that failure to cure the deficiencies may result 23 in dismissal with prejudice and plaintiff’s subsequent failure to cure the deficiencies). 24 /// 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 For the reasons above, the Court grants Defendant’s motion to dismiss. The Court 3 dismisses Plaintiff's complaint with prejudice and without leave to amend for lack of 4 || subject matter jurisdiction. 5 IT IS SO ORDERED. 6 || DATED: January 22, 2024 | | □□□ |. | | MARILYN. HUFF, Distri ge 8 UNITED STATES DISTRICT COURT [10] 1]