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In re Hydroxycut Marketing and Sales Practices Litigation

June 3, 2010

IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION
JESSICA ROGOFF, PLAINTIFF,
v.
GENERAL NUTRITION CENTERS, IOVATE HEALTH SCIENCES INTERNATIONAL U.S.A., INC., A.K.A. IOVATE HEALTH SCIENCES U.S.A., INC., IOVATE HEALTH SCIENCES, INC., AND DOES 1 THROUGH 300, INCLUSIVE, DEFENDANTS.



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

(S.D. Cal. No. 10CV0036)

MOTION TO DISMISS ORDER GRANTING DEFENDANTS'

Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants General Nutrition Centers, Iovate Health Sciences U.S.A., Inc., and Iovate Health Sciences, Inc. ("Defendants") have moved to dismiss Plaintiff's claims of intentional infliction of emotional distress and negligent infliction of emotional distress as pled in Plaintiff's eighth and ninth causes of action. Defendants have further moved, pursuant to Federal Rule of Civil Procedure 9(b), to dismiss Plaintiff's claim of "fraud and concealment" as pled in the tenth cause of action. For the reasons set forth below, Defendants' motion to dismiss is GRANTED with leave to amend. The Court grants the motion on the grounds that the Complaint fails to allege facts sufficient to state a claim of intentional or negligent infliction of emotional distress against the Defendants and fails to plead fraud with the requisite particularity. Plaintiffs shall have 21 days to file any amended complaint addressing the deficiencies as set forth herein.

I. BACKGROUND

On September 29, 2009, Plaintiff filed a complaint (the "Complaint") in the Superior Court of the State of California for the County of Los Angeles (Superior Court Case No. BC422842). On November 6, 2009, Defendants filed a Notice of Removal. The case was removed to the District Court for the Central District of California (Case No. 09cv8188-DEP). On January 6, 2010, the case was transferred by the Panel on Multidistrict Litigation ("MDL") to the Southern District of California. Upon transfer, the case became part of the pending MDL entitled In re Hydroxycut Marketing and Sales Practices Litigation (09md2087), and was assigned a separate civil case number in the Southern District of California (10cv0036). On January 22, 2010, Defendants filed a motion to dismiss Plaintiff's eighth, ninth and tenth causes of action. Plaintiff filed no opposition to the motion to dismiss.

II. LEGAL STANDARDS

A. Fed. R. Civ. P. 12(b)(6)

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the formal sufficiency of the plaintiff's statement of the claim for relief. The Court's inquiry is whether the allegations state a sufficient claim under Fed. R. Civ. P. 8, which sets forth the requirements for pleading. Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In the adjudication of a motion to dismiss under 12(b)(6), plaintiff's allegations must be accepted as true, drawing all inferences from the pleaded facts in plaintiff's favor. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). To survive a motion to dismiss, the complaint must allege facts that, if true, would create a judicially cognizable cause of action. Only factual allegations must be accepted as true-not legal conclusions. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Although detailed factual allegations are not required, the factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 129 S.Ct. at 1949. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" Id. at 1950.

B. Fed. R. Civ. P. 9(b)

Rule 9(b) requires that a plaintiff state a claim for fraud with particularity as follows:

In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

Fed. R. Civ. P. 9(b). A court may dismiss a claim of fraud when its allegations fail to satisfy Rule 9(b) 's heightened pleading requirements. Vess v. Ciba-Geigy Corp. U.S.A., 317 F.3d 1097, 1107 (9th Cir.2003). The Ninth Circuit has confirmed:

Rule 9(b) demands that, when averments of fraud are made, the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong. Averments of fraud must be accompanied by the 'who, what, when, where, and how' of the misconduct charged. A plaintiff must set forth more than the neutral facts necessary to ...


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