Thimes Solutions, Inc. v. Tp Link USA Corporation ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        APR 15 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    THIMES SOLUTIONS, INC.,                         No.    21-55407
    Plaintiff-Appellant,            D.C. No. 2:19-cv-10374-SB-E
    v.
    MEMORANDUM*
    TP LINK USA CORPORATION;
    AUCTION BROTHERS, INC., DBA
    Amazzia,
    Defendants-Appellees,
    and
    MIKHAIL J. FIKHMAN, DBA Amazzia; et
    al.,
    Defendants.
    Appeal from the United States District Court
    for the Central District of California
    Stanley Blumenfeld, Jr., District Judge, Presiding
    Argued and Submitted April 7, 2022
    Pasadena, California
    Before: MURGUIA, Chief Judge, and GRABER and BEA, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    Plaintiff Thimes Solutions, Inc., timely appeals the judgment in favor of
    Defendants TP-Link USA Corporation and Auction Brothers, Inc., d.b.a. Amazzia.
    We review de novo the legal issues on appeal. See Kearney v. Foley & Lardner,
    LLP, 
    590 F.3d 638
    , 643 (9th Cir. 2009) (failure to state a claim); 
    id.
     (granting of a
    motion to strike under California’s anti-SLAPP statute); 
    id.
     (the Noerr-Pennington
    doctrine); Wochos v. Tesla, Inc., 
    985 F.3d 1180
    , 1197 (9th Cir. 2021) (futility of
    amending a complaint). We affirm in part, reverse in part, and remand.
    1. The district court erred in granting Defendants’ anti-SLAPP special
    motion to strike. Even if Defendants prevail at step one of the inquiry, see Kettler
    v. Gould, 
    231 Cal. Rptr. 3d 580
    , 592 (Cal. Ct. App. 2018) (starting the anti-SLAPP
    analysis, in similar circumstances, by considering the litigation privilege at step
    two), Defendants fail at step two. Step two of the anti-SLAPP inquiry requires
    Plaintiff to show that it has a probability of success on its claims. Olivares v.
    Pineda, 
    253 Cal. Rptr. 3d 213
    , 221 (Cal. Ct. App. 2019). Plaintiff’s complaint
    states a prima facie case on the state-law claims, and Defendants’ sole argument to
    the contrary is that California’s litigation privilege shields their complaints to
    Amazon from all litigation. But California’s litigation privilege applies only to
    communications preliminary to "proposed" litigation that was seriously
    contemplated at the time of the communication. E.g., Makaeff v. Trump Univ.,
    LLC, 
    715 F.3d 254
    , 264 (9th Cir. 2013); Strawn v. Morris Polich & Purdy, LLP,
    2
    
    242 Cal. Rptr. 3d 216
    , 224 (Cal. Ct. App. 2019). Defendants’ complaints to
    Amazon did not propose litigation. Nor, taking the facts in the light most
    favorable to Plaintiff, did Defendants seriously contemplate litigation at that time.
    California’s litigation privilege therefore does not shield Defendants’ complaints to
    Amazon from litigation. Accordingly, Plaintiff prevails on the anti-SLAPP
    inquiry.
    2. The district court correctly dismissed Plaintiff’s claim under the Lanham
    Act. The Lanham Act applies only to communications that are disseminated to the
    "relevant purchasing public." Coastal Abstract Serv., Inc. v. First Am. Title Ins.
    Co., 
    173 F.3d 725
    , 735 (9th Cir. 1999). The only recipient of the communication,
    Amazon, is not a purchaser. No circuit precedent supports Plaintiff’s argument
    that dissemination to a non-purchaser suffices. And nothing in the Act supports
    Plaintiff’s unduly broad reading of the Act’s requirement of "commercial
    advertising or promotion," 
    15 U.S.C. § 1125
    (a)(1)(B), as encompassing private
    communications to a single non-purchasing entity.
    3. The district court correctly dismissed Plaintiff’s claims under the
    Sherman Antitrust Act. Plaintiff failed to allege plausibly either that Defendant
    TP-Link restricted output or that manufacturers lack the capacity to increase
    output. Rebel Oil Co. v. Atl. Richfield Co., 
    51 F.3d 1421
    , 1434, 1441 (9th Cir.
    1995).
    3
    4. The district court correctly held that the Noerr-Pennington doctrine does
    not apply. The doctrine protects a person’s ability to petition the government,
    including the courts, for redress. The doctrine prohibits lawsuits challenging
    communications made during litigation. In order to provide persons with
    "breathing space" to exercise the right to petition, we have extended the doctrine to
    encompass prelitigation settlement demands and cease-and-desist letters sent to
    potential defendants. Sosa v. DIRECTV, Inc., 
    437 F.3d 923
    , 929–32, 942 (9th Cir.
    2006). But we have never applied, and we see no justification to apply, the
    doctrine to the communications sent here, which were delivered solely to a third
    party and which did not propose or threaten litigation.
    5. In sum, we affirm the dismissal of the federal-law claims, we reverse the
    dismissal of the state-law claims, and we remand for further proceedings. Because
    we reverse the dismissal of the state-law claims, we also reverse the district court’s
    related award of attorney’s fees pursuant to California Code of Civil Procedure
    section 425.16(c)(1).
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    Each party shall bear its own costs on appeal.
    4
    

Document Info

Docket Number: 21-55407

Filed Date: 4/15/2022

Precedential Status: Non-Precedential

Modified Date: 4/15/2022