The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COUNTS III, VII, AND VIII OF PLAINTIFF'S FIRST AMENDED COMPLAINT
Defendants Iovate Health Sciences U.S.A., Inc., Iovate Health Sciences Group, Inc., Iovate Health Sciences Research Inc., Iovate HC 2005 Formulations Ltd., Iovate Health Sciences International Inc., Muscletech Research and Development Inc., HDM Formulations Ltd., Bodybuilding.com, LLC, and General Nutrition Centers, Inc. ("Defendants") have filed a motion to dismiss Plaintiff's claims of breach of express warranty (Count III) and breach of implied warranty (Count VII) pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants have further moved, pursuant to Federal Rule of Civil Procedure 9(b), to dismiss Plaintiff's claim of fraud and misrepresentation (Count VIII). For the reasons discussed below, Defendants' motion to dismiss is GRANTED.
On April 29, 2010, Plaintiff filed his complaint in the Western District of Kentucky (Case No. 1:10cv-78-R). On July 16, 2010, the case was transferred to the Southern District of California as a tag-along action to the In re Hydroxycut Marketing and Sales Practices multi-district litigation (Case No. 09md2087) currently pending before the Court. Upon transfer, the case was assigned a separate civil case number in the Southern District of California (Case No. 10cv1485). On August 2, 2010, Defendants filed a motion to dismiss the complaint. On August 18, 2010, the parties filed a joint motion for leave to file an amended complaint. The Court granted this motion and Plaintiff filed his First Amended Complaint ("FAC") on September 3, 2010. On September 24, 2010, Defendants filed a motion to dismiss Count III (breach of express warranty), Count VII (breach of implied warranty) and Count VIII (fraud and misrepresentation) of the FAC. On November 19, 2010, Plaintiff filed his opposition to Defendants' motion to dismiss. On December 3, 2010, Defendants filed a reply in support of their motion to dismiss.
A. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss under Rule 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. Of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (internal quotation marks omitted). Only a complaint that states a plausible claim for relief will survive a motion to dismiss. Id.
B. Federal Rule of Civil Procedure 9(b)
A motion to dismiss under Rule 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 ...