NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIN SOOK SHIN, Individually and On 

Behalf of All Others Similarly Situated, 

Plaintiff-Appellant, 

 v. 

UMEKEN USA, INC.; BRIAN HAN, 

individually, 

Defendants-Appellees.

No. 17-56767 

D.C. No. 

8:17-cv-00315-CJC-SS 

MEMORANDUM*

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.

FILED

JUN 3 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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. 
3 

§ 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.”).
4 

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 
5 

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 
6 

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.