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In re Hydroxycut Marketing and Sales Practices Litigation

February 9, 2010

IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION
MARTIN ROBERTSON AND JAMIE LYNN ROBERTSON, PLAINTIFFS,
v.
KERR INVESTMENT HOLDING CORP., IOVATE HEALTH SCIENCES, INC., IOVATE HEALTH SCIENCES U.S.A., INC. AND MUSCLETECH RESEARCH AND DEVELOPMENT, INC., DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

(S.D. Cal. No. 09CV2508)

(S.D.N.Y. No. 09CV6334)

ORDER DENYING DEFENDANTS' MOTION FOR A MORE DEFINITE STATEMENT

On July 15, 2009, Plaintiffs Martin Robertson and Jamie Lynn Robertson filed a complaint in the United States District Court for the Southern District of New York against Iovate Health Sciences, Inc., Iovate Health Sciences U.S.A., Inc. and MuscleTech Research and Development, Inc. Plaintiffs subsequently amended their complaint twice. On August 26, 2009, Plaintiffs filed a First Amended Complaint ("FAC"). On September 16, 2009, Plantiffs filed a Second Amended Complaint ("SAC").

On October 16, 2009, in the United States District Court for the Southern District of New York, Defendants filed a Motion for a More Definite Statement pursuant to Fed. R. Civ. P. 12(e) and 9(b) as to the SAC ("Motion"). On November 2, 2009, Plaintiffs filed an Opposition to the Motion. On November 5, 2009, the case was transferred by the Panel on Multidistrict Litigation ("MDL") to the Southern District of California. On November 13, 2009, in the above-entitled MDL action (09MD2087), Plaintiffs filed a Reply in further support of the Motion.

For the reasons set forth below, Defendants' Motion is DENIED.

I. DISCUSSION

Defendants contend that Plaintiffs' SAC does not provide fair notice of the specific products and representations that are the subject of Plaintiffs' allegations and therefore, they are unable to prepare a reasoned response to the allegations. Defendants further argue that the use of the word "plaintiffs" in its plural form makes it impossible to respond to the SAC. Defendants contend they are unable to decipher which Plaintiff, Martin Robertson or Jamie Lynn Robertson, is making each claim. Defendants also contend that "Defendants cannot reasonably identify which products are the subject of these claims, which representations and omissions Plaintiffs allege to be false, and upon which representations Plaintiffs allegedly relied." Motion, p. 5.

Upon review of the SAC, the Court holds that Defendants have failed to show that the complaint is so excessively vague as to be unintelligible.

Federal Rule of Civil Procedure 12(e) allows for an order requiring Plaintiff to provide a more definite statement when the pleading is so vague or ambiguous that the responding party cannot reasonably be required to frame a responsive pleading. Fed. R. Civ. P. 12(e). Motions for a more definite statement are disfavored. In re European Rail Pass Antitrust Litigation, 166 F. Supp. 2d 836, 844-45 (S.D.N.Y. 2001). In order to warrant a more definite statement, the complaint must be "so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it." Kok v. First Unum Life Ins. Co., 154 F. Supp. 2d 777, 781-82 (S.D.N.Y. 2001). The rule is designed to remedy unintelligible pleadings, not to correct for lack of detail. Whether or not to grant a motion for a more definite statement is in the discretion of the trial court. See Vaden v. Lantz, 459 F. Supp. 2d 149, 150 (D. Conn. 2006).

In the SAC, Plaintiffs are abundantly clear that the claims are based upon the specific product known as Hydroxycut Regular Rapid Release Caplets. Reading all the allegations as a whole, the SAC is also sufficiently clear that Plaintiffs do not allege Jamie Lynn Robertson used or ingested any Hydroxycut products. Plaintiff Martin Robertson alleges he "ingested a Hydroxycut product, namely Hydroxycut Regular Rapid Release Caplets." SAC ¶ 14. Furthermore, Plaintiff details his "Experience with Hydroxycut Regular Rapid Release Caplets." SAC, page 11. The allegations are:

* Plaintiff Martin Robertson "purchased and used Hydroxycut Regular Rapid Release Caplets from on or about November 1, 2008 through February 8, 2009." SAC ¶ 49.

* "Plaintiff used Hydroxycut Regular Rapid Release Caplets as directed, and for the purpose and in the manner for which it was normally intended." SAC ¶ 50.

* Plaintiff could not have discovered the defective nature and or dangers of Hydroxycut Regular Rapid ...


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