                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 24 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NUTRITION DISTRIBUTION, LLC, an                 No.    16-55632
Arizona Limited Liability Company,
                                                D.C. No. 2:15-cv-08233-R-JC
                Plaintiff-Appellant,

 v.

IRONMAG LABS, LLC, a Nevada Limited
Liability Company; ROBERT DIMAGGIO,             MEMORANDUM*
an individual; IRON MAG RESEARCH, a
Nevada Limited Liability Company,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                        Manuel L. Real, Presiding Judge

                     Argued and Submitted December 6, 2017
                              Pasadena, California

Before: KELLY,** CALLAHAN, and BEA, Circuit Judges.

      Plaintiff-Appellant Nutrition Distribution LLC appeals from the dismissal of

its complaint against Defendants-Appellees IronMag Labs, LLC, IronMag


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Research, LLC, and Robert DiMaggio (collectively, “IronMag”). The district

court dismissed Nutrition Distribution’s Lanham Act and California state law

claims for false advertising and unfair competition, determining that they fell under

the primary jurisdiction of the Food and Drug Administration (FDA). The district

court also dismissed Nutrition Distribution’s Racketeer Influenced and Corrupt

Organizations Act (RICO) claim against IronMag, even though the court had

previously denied Nutrition Distribution’s motion to add the RICO claim in an

amended complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse

and remand with instructions that the district court reconsider its application of the

primary jurisdiction doctrine in a manner consistent with this memorandum

disposition.

      A.       Primary Jurisdiction

      A district court’s application of the primary jurisdiction doctrine is reviewed

de novo, but its decision whether to exercise jurisdiction is reviewed for abuse of

discretion. Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015). Under

the primary jurisdiction doctrine, a court “may stay the case and retain jurisdiction

or, ‘if the parties would not be unfairly disadvantaged, . . . dismiss the case without

prejudice.’” Davel Commc’ns, Inc. v. Qwest Corp., 460 F.3d 1075, 1091 (9th Cir.

2006) (alteration in original) (quoting Reiter v. Cooper, 507 U.S. 258, 268–69

(1993)). Here, the district court granted IronMag’s motion to dismiss Nutrition


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Distribution’s complaint but did not specify whether the dismissal was with

prejudice. Federal Rule of Civil Procedure 41(b) provides that a dismissal operates

as an adjudication on the merits unless the order states otherwise (or is a dismissal

for lack of jurisdiction, improper venue, or failure to join a party). Because the

district court did not state otherwise (and because a dismissal under the primary

jurisdiction doctrine is not a dismissal for lack of jurisdiction, see Clark v. Time

Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008)), we interpret the dismissal as

an adjudication on the merits that was therefore with prejudice. As noted, a court

applying the primary jurisdiction doctrine has discretion either to stay proceedings

or dismiss the case without prejudice; dismissing with prejudice is a misapplication

of the law and an abuse of discretion. See Pauma Band of Mission Indians v.

California, 813 F.3d 1155, 1163 (9th Cir. 2015) (“A misapplication of the correct

legal rule constitutes an abuse of discretion.”).

      In exercising its discretion on remand, the district court must consider

whether the parties would be unfairly disadvantaged by dismissal. See Davel

Commc’ns, 460 F.3d at 1091. A factor in determining unfair disadvantage is

“whether there is a risk that the statute of limitations may run on the claims

pending agency resolution of threshold issues.” Id. It is also advised that “where

the court suspends proceedings to give preliminary deference to an administrative

agency but further judicial proceedings are contemplated, then jurisdiction should


                                           3                                     16-55632
ordinarily be retained via a stay of proceedings, not relinquished via a dismissal.”

Id. The district court should further consider whether, during the pendency of this

appeal, the FDA has provided sufficient “expert advice that would be useful to the

court in considering this lawsuit,” Astiana v. Hain Celestial Grp., Inc., 783 F.3d

753, 762 (9th Cir. 2015), obviating the need for further guidance from the FDA. In

contrast to other contexts where a “final” agency determination is necessary, see,

e.g., Dietary Supplemental Coal., Inc. v. Sullivan, 978 F.2d 560, 563 (9th Cir.

1992) (holding that a party may challenge an agency’s classification of a dietary

supplement only where there has been a final agency determination on the issue),

under the primary jurisdiction doctrine, the agency’s guidance need not be given in

connection with formal proceedings or as part of a final determination, see Reid,

780 F.3d at 966 (recognizing that guidance from the FDA may come in the form of

warning letters). If the FDA is aware of but expresses no further interest in the

subject matter of the lawsuit, the court should not invoke the primary jurisdiction

doctrine. Astiana, 783 F.3d at 761.

      B.     RICO Claim

      Nutrition Distribution also appeals from the dismissal of its RICO claim

against IronMag. But the district court had previously denied Nutrition

Distribution leave to amend its complaint to add the RICO claim. The court

nevertheless discussed the RICO claim, as it did not affect the outcome of its


                                          4                                    16-55632
ruling. Because the claim was never properly before the district court, the

dismissal of Nutrition Distribution’s RICO claim is not reviewable on appeal. See

California v. Rooney, 483 U.S. 307, 311 (1987) (“This Court ‘reviews judgments,

not statements in opinions.’” (quoting Black v. Cutter Labs., 351 U.S. 292, 297

(1956))).

      C.     Pending Motions

      Also pending are Nutrition Distribution’s motion to take judicial notice of

two district court decisions and GTx, Inc.’s motion to file an amicus brief. We

DENY Nutrition Distribution’s motion to take judicial notice and GRANT GTx’s

motion to file an amicus brief.

      REVERSED AND REMANDED.




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