Mary Thompson v. Isagenix International LLC ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY THOMPSON, No. 20-15780
Plaintiff-Appellant, D.C. No. 2:18-cv-04599-SPL
v.
MEMORANDUM*
ISAGENIX INTERNATIONAL LLC;
ISAGENIX WORLDWIDE, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted June 9, 2021**
Portland, Oregon
Before: WARDLAW, TALLMAN, and HURWITZ, Circuit Judges.
Mary Thompson appeals an order of the district court dismissing her
complaint against Isagenix International, LLC, and Isagenix Worldwide, Inc.
(collectively, “Isagenix”) and compelling arbitration of her claims against Isagenix
*
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).
under the Telephone Consumer Protection Act, 47 U.S.C. § 227. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Thompson assented to Isagenix’s Policies and Procedures (“P&Ps”),
which included the arbitration provision, by placing orders online after enrolling as
an associate. The order screen through which Thompson placed orders stated that
by clicking the checkout button, she was agreeing to the P&Ps, which were
conspicuously hyperlinked immediately above. We have “been more willing to find
the requisite notice for constructive assent” under such circumstances. Nguyen v.
Barnes & Noble Inc., 763 F.3d 1171, 1176 (9th Cir. 2014). The district court
therefore did not err in dismissing Thompson’s complaint and compelling
arbitration.
2. The district court did not err in considering a declaration from the
Isagenix Director of Global Compliance concerning the order screen. A court may
consider evidence outside the pleadings when ruling on a Rule 12(b)(1) motion to
dismiss and a motion to compel arbitration. See Warren v. Fox Fam. Worldwide,
Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003); Ashbey v. Archstone Prop. Mgmt.,
Inc., 785 F.3d 1320, 1323 (9th Cir. 2015) (requiring that a district court determine
whether an agreement has been reached to arbitrate in evaluating a motion to compel
arbitration). We decline to consider Thompson’s argument that the declaration was
inaccurate, which was raised for the first time below in a motion for reconsideration,
the denial of which Thompson acknowledges “is not a subject of this appeal.”
3. Thompson’s argument that the district court denied her the opportunity
to develop and submit evidence is unavailing. After Isagenix submitted evidence
related to Thompson’s assent to the P&Ps with its motion, Thompson had the
opportunity to supply contrary evidence in her opposition. She simply failed to do
so. Thompson asserts that Isagenix “stonewall[ed]” her on discovery, but Isagenix
timely responded to Thompson’s discovery request and the only discovery issue
raised below did not bear on arbitrability.
AFFIRMED.