The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge
MOTION TO DISMISS COUNTS VI AND VII OF PLAINTIFF'S ORDER GRANTING DEFENDANTS' COMPLAINT
Pursuant to Federal Rule of Civil Procedure 9(b), defendants GNC Corporation, Iovate Health Sciences USA Inc., Iovate Health Sciences, Inc., Iovate Health Sciences Research, Inc., Iovate Health Sciences Capital, Inc., Iovate Copyright, Ltd., Iovate Health Sciences Group, Inc., Iovate Health Sciences International, Inc., Iovate HC 2005 Formulations, Ltd., and Muscletech Research and Development, Inc. ("Defendants") have filed a motion to dismiss Plaintiff's "Fraud and Misrepresentation" claim as pled in Count VI and Plaintiff's "Violations of Pennsylvania Unfair Trade Practices and Consumer Protection Law" claim as pled in Count VII of Plaintiff's First Amended Complaint. 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 First Amended Complaint fails to plead fraud with the requisite particularity, and fails to allege facts sufficient to state a claim for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law against the Defendants. Plaintiff shall have 30 days to file any amended complaint addressing the deficiencies as set forth herein.*fn1
On November 3, 2009, Plaintiff filed a complaint in the District Court for the Eastern District of Pennsylvania (E.D. Pa. Case No. 2:09-cv-05055). On March 15, 2010, Plaintiff filed a First Amended Complaint ("FAC"). On March 22, 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 (10cv587). On May 5, 2010, Defendants filed a Motion to Dismiss Counts VI and VII of the FAC pursuant to Federal Rule of Civil Procedure 9(b). Plaintiff filed no opposition to the motion to dismiss.
A motion to dismiss under Federal Rule of Civil Procedure 9(b) tests the sufficiency of a plaintiff's statement of a claim for fraud. 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 identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.
Id. at 1106 (internal citations and quotation marks omitted).
Plaintiff, Clinton Davis, alleges that he experienced severe health issues, including elevated liver enzymes and severe liver damage, after ingesting Hydroxycut weight loss products manufactured, marketed and sold by Defendants. FAC ¶ 55. In the FAC, Plaintiff brings nine claims against Defendants, including "Count VI" for "Fraud and Misrepresentation" and "Count VII" for "Violations of Pennsylvania Unfair Trade Practices and Consumer Protection Law." FAC ¶¶ 98-112.
Defendants have moved to dismiss Counts VI and VII on the ground that Plaintiff has failed to plead these claims with the particularity that is required by Rule 9(b). Specifically, Defendants contend that Plaintiff fails to provide sufficient factual ...