United States District Court, D. Nevada
FAN FI INTERNATIONAL, INC. et al., Plaintiffs,
INTERLINK PRODUCTS INTERNATIONAL, INC., Defendant.
C. JONES United States District Judge
case arises out of alleged false advertising. Pending before
the Court are a motion to dismiss and a motion for summary
FACTS AND PROCEDURAL HISTORY
The New Jersey Actions
February 29, 2016, Interlink Products International, Inc.
(“Interlink”) sued Fan Fi International, Inc.
(“Fan Fi”) for patent infringement in the U.S.
District Court for the District of New Jersey, alleging that
Fan Fi's sale of certain dual showerhead products
violated U.S. Patent No. 7, 299, 510. (See Compl.,
ECF No. 1 in D.N.J. Case No. 2:16-cv-1142). Interlink amended
the complaint on June 23, 2016 to add ETL, LLC as a
defendant. (See Am. Compl., ECF No. 14 in D.N.J.
Case No. 2:16-cv-1142).
March 4, 2016, Interlink again sued Fan Fi in the U.S.
District Court for the District of New Jersey, this time for
trademark infringement and unfair competition under both
federal and state law, based on Fan Fi's use of the
“POWER SPA” mark. (See Compl., ECF No. 1
in D.N.J. Case No. 2:16-cv-1244). Interlink amended the
complaint on June 23, 2016 to add ETL, LLC as a defendant.
(See Am. Compl., ECF No. 13 in D.N.J. Case No.
2:16-cv-1244). On July 29, 2016, Fan Fi and ETL
counterclaimed for a declaration of non-infringement and
cancellation of the mark. (See Answer &
Countercl., ECF No. 23 in D.N.J. Case No. 2:16-cv-1244).
August 2, 2016, Interlink sued Fan Fi and ETL for a third
time in the U.S. District Court for the District of New
Jersey for false advertising under the Lanham Act and several
related state law causes of action based on advertising
claims Fan Fi and ETL made in relation to their showerhead
products. (See Compl., ECF No. 1 in D.N.J. Case No.
September 28, 2016, the three New Jersey Actions were
consolidated in that district, with the ‘1142 Case as
the lead case. On November 17, 2016, Fan Fi and ETL moved to
transfer the New Jersey Actions to this District under 28
U.S.C. § 1404(a). As of February 6, 2017, the motion is
fully briefed but no hearing has been set, and a settlement
conference has been set for February 23, 2017.
The Present Action
November 16, 2016 (a day before moving to transfer the New
Jersey Actions to this District), Plaintiffs Fan Fi and ETL
sued Defendant Interlink in this Court for false advertising
under the Lanham Act and deceptive trade practices and unfair
competition under state law. Plaintiffs allege that certain
of Defendant's showerheads violate federal regulations
because they permit a flow of greater than 2.5 gallons per
minute (“gpm”) at 80 psi when the flow restrictor
is removed and that the flow restrictors can be removed with
less than eight pounds of force. Plaintiffs allege that
Defendant's advertising claims that its showerheads
comply with federal law are therefore false.
moved to dismiss for failure to state a claim. The Court
granted the motion in part. Plaintiffs had only alleged that
Defendant's showerheads violated flow rate limitations if
modified by consumers, not as sold by Defendant. The Court
gave Plaintiffs leave to amend in that regard. The Court did
not dismiss as to the allegation that Defendant's
showerheads' flow restrictors could be removed with less
than eight pounds of force (“the force test”),
but the Court ordered Plaintiffs to make a more definite
statement as to that allegation, i.e., to specify which of
Defendant's products violated the force test. Plaintiffs
filed the First Amended Complaint (“FAC”).
Defendant has moved to dismiss the FAC for failure to state a
claim and has also moved for summary judgment.
Dismissal for Failure to State a Claim
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil
Procedure 12(b)(6) mandates that a court dismiss a cause of
action that fails to state a claim upon which relief can be
granted. A motion to dismiss under Rule 12(b)(6) tests the
complaint's sufficiency. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL