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In re Hydroxycut Marketing and Sales Practices Litigation

July 20, 2010

IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION
CORETTA T. BROWN, PLAINTIFF,
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. 10CV0237)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS COUNTS IV, V, VI, AND VIII OF PLAINTIFF'S COMPLAINT

Defendants Iovate Health Sciences, Inc., Iovate Health Sciences USA, Inc., and Muscletech Research and Development, Inc. ("Defendants") have filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b) ("Motion"). The Motion seeks dismissal of Count IV (breach of express warranty), Count V (breach of implied warranty), Count VI (common law fraud), and Count VIII (violation of New York General Business Law § 349) of the complaint filed by Coretta T. Brown ("Complaint"). For the reasons set forth below, Defendants' Motion is GRANTED in part and DENIED in part. The Court denies the Motion as to Count V. The Motion is granted as to Counts IV, VI, and VIII.

I. BACKGROUND

On December 16, 2009, Plaintiff filed a complaint in the District Court for the Southern District of New York (S.D.N.Y. Civil Action No. 09cv10231). On January 29, 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 Practice Litigation (09md2087), and was assigned a separate civil case number in the Southern District of California (10cv0237). On February 2, 2010, in the above-entitled MDL action (09md2087), Defendants filed a Motion to Dismiss Counts IV, V, VI and VIII of Plaintiff's Complaint.

II. 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." 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. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of America Sec. LLC, 568 F.3d 374, 377 (2d Cir. 2009). To survive a motion to dismiss, the complaint must allege facts that, if true, would create a judicially cognizable cause of action. South Road Assoc. v. Int'l Bus. Machines Corp., 216 F.3d 251, 253 (2d Cir. 2000). Only factual allegations must be accepted as true-not legal conclusions. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "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).

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).

III. DISCUSSION

Plaintiff, Coretta T. Brown, alleges that she suffered personal injuries, namely, a heart attack, a stroke, and renal failure, after ingesting a dietary supplement manufactured and sold by defendants, namely, Hydroxycut Regular Rapid Release Caplets. (Compl. ¶¶ 51-53.) Plaintiff's Complaint contains eight claims for relief: negligence, strict liability--failure to warn, strict liability--defective design, breach of express warranty, breach of implied warranty, common law fraud, punitive damages, and violation of New York General Business Law § 349. "Count IV" and "Count V" of the Complaint allege breach of express and implied warranties. (Compl. ¶¶ 82-96.) Specifically, Plaintiff alleges that defendants expressly and impliedly warranted that Hydroxycut products were safe for their intended purpose as a dietary supplement for weight loss. (Compl. ¶¶ 83, 92.) According to Plaintiff, Hyrdroxycut products were unfit and unsafe for those purposes. (Compl. ¶¶ 86, 93.) "Count VI" of the Complaint alleges common law fraud. (Compl. ¶¶ 97-104.) Specifically, Plaintiff alleges defendants fraudulently represented that Hydroxycut Regular Rapid Release Caplets were safe, Plaintiff relied on the representations and as a result, incurred serious injuries. (Compl. ...


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