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Hitt v. Arizona Beverage Co.

November 24, 2009

HEIDI HITT, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
ARIZONA BEVERAGE CO., LLC; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Motion to Dismiss the First Amended Complaint, filed by all Defendants (Doc. # 49), and the Motion to Amend Complaint Pursuant to Rule 15 Fed. R. Civ. P. and Substitute Another Plaintiff for the Named Plaintiff, filed by Plaintiff Heidi Hitt (Doc. # 59).

I. Background

On May 2, 2008, Plaintiff initiated this action by filing the Complaint. (Doc. # 1). The Complaint alleged that Defendants Arizona Beverage Co., LLC ("Arizona Beverage"), Hornell Brewing Company, Inc. ("Hornell"), and Ferolito Vultaggio & Sons, Inc. ("Ferolito") engaged in the unfair, unlawful, deceptive and fraudulent practice of describing their AriZona Tea drink products as "100% Natural," "Natural," or "All Natural" when these drink products contain one or more non-natural or artificial ingredients; and of listing fruit(s) in the name of certain of their drink products when these drink products do not contain any significant amount of the fruit listed in the product's name. The Complaint alleged the following causes of action: (1) misleading and deceptive advertising, in violation of section 17500, et seq., of the California Business and Professions Code, (2) untrue advertising, in violation of section 17500, et seq., of the California Business and Professions Code, (3) unlawful business acts and practices, in violation of section 17200, et seq., of the California Business and Professions Code, (4) unfair business acts and practices, in violation of section 17200, et seq., of the California Business and Professions Code, (5) fraudulent acts and practices, in violation of section 17200, et seq., of the California Business and Professions Code, and (6) violation of the Consumers Legal Remedies Act ("CLRA") (Injunctive and Declarative Relief Only), section 1750, et seq., of the California Civil Code.

On February 4, 2009, this Court issued an Order denying a motion to dismiss filed by Defendants. The Court concluded that Plaintiff's claims were not preempted by the Federal Food, Drug, and Cosmetics Act, 21 U.S.C. section 301, et seq., and that the Complaint stated a claim upon which relief may be granted. (Doc. # 27). On February 23, 2009, Defendants filed an answer to the Complaint. (Doc. # 29).

On May 5, 2009, Plaintiff filed a motion for leave to file a first amended complaint. (Doc. # 37). Plaintiff requested leave to add an additional defendant, Beverage Marketing USA, Inc. ("BMU") and a demand for actual and punitive damages. On June 16, 2009, the Court granted the motion for leave to amend. (Doc. # 41).

On June 23, 2009, the Magistrate Judge entered a Scheduling Order, which stated: "Any motion to join other parties, to amend the pleadings, or to file additional pleadings shall be filed on or before July 13, 2009." (Doc. # 43 at 2).

On July 1, 2009, Plaintiff filed the First Amended Complaint. (Doc. # 44). On July 16, 2009, Defendants filed the Motion to Dismiss the First Amended Complaint ("Motion to Amend"). (Doc. # 49). In the Motion to Dismiss, Defendants contend:

1. The plaintiff's claims against BMU, in the sixth cause of action in the First Amended Complaint, seeking actual damages, punitive damages and counsel fees under the California Consumer Legal Remedies Act, California Civil Code Section 1750, et seq. ('CLRA'), should be dismissed because plaintiff failed to comply with the notice requirements under Section 1782 of the CLRA.

2. The plaintiff's claims for an injunction against Hornell and BMU, set forth in the first through sixth causes of action in the First Amended Complaint, should be dismissed for lack of standing.

3. The plaintiff's claims against BMU (set forth in the first through sixth causes of action in the First Amended Complaint) for: (a) alleged misleading, deceptive and untrue advertising (under California Business and Professional Code Section 17500, et seq.); (b) alleged unlawful, unfair and fraudulent business practices (under California Business and Professional Code, Section 17200, et seq.); and (c) for alleged unfair, unlawful and deceptive acts under the CLRA should be dismissed for Plaintiff's failure to plead allegations sounding in fraud with particularity as required under Rule 9(b) of the Federal Rules of Civil Procedure. (Doc. # 49 at 2).

On July 28, 2009, the Court granted the joint motion to dismiss Defendant Arizona Beverage without prejudice. (Doc. # 52).

On August 14, 2009, Plaintiff filed an opposition to the Motion to Dismiss. (Doc. # 54). On August 24, 2009, the remaining Defendants filed a reply in support of the Motion to Dismiss. (Doc. # 55).

On September 28, 2009, Plaintiff filed the Motion to Amend Complaint Pursuant to Rule 15 Fed. R. Civ. P. and Substitute Another Plaintiff for the Named Plaintiff ("Motion to Amend"). (Doc. # ...


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