                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 3 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MIN SOOK SHIN, Individually and On              No.    17-56767
Behalf of All Others Similarly Situated,
                                                D.C. No.
                Plaintiff-Appellant,            8:17-cv-00315-CJC-SS

 v.
                                                MEMORANDUM*
UMEKEN USA, INC.; BRIAN HAN,
individually,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                       Argued and Submitted May 15, 2019
                              Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.

      Min Sook Shin appeals the district court’s dismissal of her complaint with

prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). On behalf



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
of a putative class, Shin alleges that Umeken USA, Inc. (Umeken) violated

California and federal law by deceptively and unlawfully advertising its purported

dietary supplements. We have jurisdiction under 28 U.S.C. § 1291. We review the

district court’s dismissal de novo, Davidson v. Kimberly-Clark Corp., 889 F.3d

956, 963 (9th Cir.), cert. denied, 139 S. Ct. 640 (2018), and its denial of leave to

amend for abuse of discretion, Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th

Cir. 2010). We affirm.

      1. The district court properly dismissed Shin’s claims seeking injunctive

relief for lack of Article III standing. See Davidson, 889 F.3d at 969–70. “[A]

previously deceived consumer may have standing to seek an injunction against

false advertising or labeling” if “the consumer may suffer an ‘actual and imminent

. . . ’ threat of future harm.” Id. at 969. Shin, however, expressly alleged that

Umeken’s products were “worthless.” As the district court reasoned, “a plaintiff

certainly will not purchase a worthless product in the future.”

      2. The district court properly dismissed Shin’s breach of warranty claim

under the Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. §§ 2301–2312.

Shin purports to bring an MMWA implied warranty claim, but the claim relies

upon facts stated in Umeken’s written statements. The federal Food, Drug, and

Cosmetic Act (FDCA), 21 U.S.C. §§ 301–399i, not the MMWA, governs “the

making or content of” written warranties on Umeken’s products. 15 U.S.C.


                                           2
§ 2311(d); see 21 U.S.C. § 343 (FDCA labeling regulations). Thus, Shin’s

MMWA claim fails.

      3. Shin’s claim that Umeken made unlawful “disease” representations in

violation of 21 C.F.R. § 101.93 and, by extension, the California Sherman Law1

also fails. The skin health-related statements concerning C-Balance (Chewable)

are not “disease” claims but permissible “structure/function” statements. See 21

U.S.C. § 343(r)(6); 21 C.F.R. § 101.93(f). The FDA has explicitly recognized

statements concerning “wrinkles” and “other signs of aging on the skin, e.g., liver

spots,” as “examples of conditions about which structure/function claims could be

made.” Regulations on Statements Made for Dietary Supplements Concerning the

Effect of the Product on the Structure or Function of the Body, 65 Fed. Reg. 1000,

1020 (2000). That skin cancer or dermatological disease could cause skin spots

does not transform these statements into disease claims.

      As for the challenged Pomegranate Balls CoQ10 “disease” claims, Shin

fails to attribute these claims to Umeken. See Southland Sod Farms v. Stover Seed

Co., 108 F.3d 1134, 1147 (9th Cir. 1997) (holding that defendants cannot be liable

for false advertising when they were not “responsible for disseminating the


      1
             The California Sherman Law incorporates federal labeling
requirements under the FDCA into state law. See Cal. Health & Safety Code
§ 110100(a) (“All food labeling regulations and any amendments to those
regulations adopted pursuant to the federal act . . . shall be the food labeling
regulations of this state.”).

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offending advertisements”). The alleged Pomegranate Balls CoQ10 “disease”

claims appear not on Umeken’s website but on a third-party website. Shin

attempts to tie Umeken to the third-party website, but her allegation that the

appearance of Umeken’s name, address, and the title of an Umeken “information

booklet” on the third-party website means that Umeken is responsible for

statements on the website is implausible.

      4. The district court also correctly determined that Shin’s allegations, which

assert “a unified fraudulent course of conduct,” fail to satisfy Federal Rule of Civil

Procedure 9(b)’s particularity requirement. Kearns v. Ford Motor Co., 567 F.3d

1120, 1127 (9th Cir. 2009). Shin insufficiently pled her claims that Umeken’s

advertising statements are false and misleading because she makes conclusory

statements that Umeken’s products did not work as advertised, rather than

describing with the requisite specificity how or why the advertising is false. See

Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989)

(explaining that “mere conclusory allegations of fraud are insufficient” as a

defendant cannot adequately answer such allegations); see also Vess v. Ciba-Geigy

Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).

      Shin also inadequately pled her deceptive labeling and advertising claims

under California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code

§§ 17200–17210. Shin alleges that she was harmed by defective disclaimers


                                            4
accompanying Umeken’s advertising claims, not because the disclaimers

themselves are false or misleading, but because their “inconspicuous” nature

rendered the underlying advertising claims false or misleading. See 21 C.F.R.

§ 101.93(d), (e). But Shin fails to describe with the requisite particularity how any

defect in Umeken’s disclaimers makes its other advertising claims misleading.

Nor does she describe with any particularity which of Umeken’s statements misled

her to believe that “credible governmental authorities, such as the FDA” endorsed

Umeken’s products or, indeed, how a defect-free disclaimer would have clarified

this mistaken belief. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1161–62

(9th Cir. 2012) (affirming dismissal of false advertising claim alleging that a credit

card advertisement was misleading for failing to explicitly disclose the existence of

an annual fee because “no reasonable consumer could have believed that if an

annual fee was not mentioned, it must not exist”).

      5. Shin’s civil RICO claim likewise fails to state with particularity Umeken

CEO Brian Han’s alleged acts of mail and wire fraud. See Sanford v.

MemberWorks, Inc., 625 F.3d 550, 558 (9th Cir. 2010). The only factual

allegation Shin makes is that because “Defendant HAN is the Chief Executive

Office[r], the Secretary, the Director, and the Agent for Service of Process,” he

must have “exercised substantial control” over Umeken’s marketing and

advertising materials. This bare-bones recital, without more, fails to sufficiently


                                          5
allege the factual circumstances of the alleged mail and wire fraud.

      6. Because the district court properly dismissed Shin’s individual claims,

Shin lacks standing to pursue class claims. See Lierboe v. State Farm Mut. Auto.

Ins. Co., 350 F.3d 1018, 1022–23 (9th Cir. 2003) (holding that if a plaintiff has no

individual claim for relief, she cannot serve as a representative of a class who may

have such a claim). Accordingly, whether Shin has standing to pursue claims on

behalf of a class for Umeken products she did not purchase is moot.

      7. Shin waived any argument that she is entitled leave to amend her

complaint a third time because she failed to raise it in her opening brief. See

Steinle v. City & County of San Francisco, 919 F.3d 1154, 1167 (9th Cir. 2019).

      AFFIRMED.




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