NOT FOR PUBLICATION FILED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.