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In Re Hydroxycut Marketing and Sales v. Kerr Investment Holding Corp.

March 28, 2011

IN RE HYDROXYCUT MARKETING AND SALES
PRACTICES LITIGATION SIMONA GULLEY, PLAINTIFFS,
v.
KERR INVESTMENT HOLDING CORP., ET AL., DEFENDANTS.



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

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COUNTS IV, V, VI AND VIII OF PLAINTIFF SIMONA GULLEY'S COMPLAINT

I. BACKGROUND

Plaintiff Simona Gulley filed a complaint on March 31, 2010 in the Southern District of New York. Ms. Gulley brought claims based on injuries she alleges she suffered as a result of ingesting Hydroxycut Hardcore Liquid Caplets. Specifically, Ms. Gulley alleges that as a result of taking Hyrdroxycut Hardcore Liquid Caplets, she had to undergo invasive medical procedures and continues to suffer from chronic renal problems. Her complaint contains eight claims for relief: Negligence (Count I), Strict Liability - Failure to Warn (Count II), Strict Liability - Defective Design (Count III), Breach of Express Warranty (Count IV), Breach of Implied Warranty (Count V), Common Law Fraud (Count VI), Punitive Damages (Count VII), and Violation of New York General Business Law § 349 (Count VIII).

Defendants Iovate Health Sciences, Inc., Iovate Health Sciences U.S.A. Inc., and Muscletech Research and Development, Inc. have moved to dismiss counts IV, V, VI and VIII of the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b).

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." 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 claim. 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. Specifically, while malice, intent, knowledge, and other conditions of a person's mind may be alleged generally, "a party must state with particularity the circumstances constituting fraud or mistake." 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

A. Breach of Warranty Claims - Counts IV and V

Privity is a required element to state a claim for breach of express or implied warranty under Georgia law. See Barnett v. Leiserv, Inc., 968 F. Supp. 690, 695 (N.D. Ga. 1997). At this point, Plaintiff has failed to adequately allege facts that establish privity between her and any defendant. Accordingly, Counts IV and V must be dismissed.

Plaintiff's claim for Breach of Express Warranty further fails as Plaintiff has failed to adequately allege facts that provide the basis for an express warranty. Though Plaintiff quotes specific language from Hydroxycut's website and Hydroxycut product labels that assure the product's safety, nowhere does Plaintiff allege that she read that language or that it was part of the reason she bought the product. Plaintiff has also failed to allege that the representations were made contemporaneously with and as a part of the contract for the sale of the Hydroxycut goods. See North Georgia Ready Mix Concrete Co. v. L&L Constr., Inc., 508 S.E. 2d 722, 726 (Ga. Ct. App. 1998).

The Court, therefore, grants Defendants' Motion to Dismiss the breach of express and implied warranty claims as pled in Counts IV and V. Plaintiff shall have leave to ...


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