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Jessica L. Tosh-Surryhne v. Abbott Laboratories Inc. D/B/A Abbott Sales

September 26, 2011



This matter comes before the court on defendant Abbott Laboratories, Inc.'s motion to dismiss for lack of subject matter jurisdiction in accordance with Federal Rule of Civil Procedure 12(b)(1) filed on July 11, 2011. (ECF 56.) This motion was heard on August 10, 2011; Lawrence Cagney appeared for plaintiff and Brian Mooney appeared for defendant. For the following reasons, defendant's motion is GRANTED.


Plaintiff filed a complaint in this court on September 24, 2010, alleging multiple causes of action for damages suffered as a result of her purchase of adulterated baby formula sold by defendant. (ECF 1.) Plaintiff alleges that the infant formula, Similac, was adulterated with beetles or their larvae, and that this contaminated Similac caused plaintiff's infant son to develop gastrointestinal distress. (Id. ¶ 11.) Plaintiff filed an amended complaint on December 6, 2010 alleging six causes of action: (1) unjust enrichment, (2) breach of express warranties, (3) breach of implied warranties, (4) false and misleading advertising, (5) fraudulent concealment, and (6) unfair and deceptive business practices. (ECF 11 ¶¶ 22-62.) Plaintiff demands declaratory judgment against defendant, in addition to injunctive relief and "actual, compensatory, punitive, exemplary damages, restitution and/or disgorgement." (Id. at 15.)*fn1 The complaint also requests that the court certify a class of plaintiffs as "[a]ll persons and entities who purchased and paid for any of Defendants' Similac® infant formula in the State of California." (Id. ¶ 12.)

Defendant filed a motion to dismiss the amended complaint for failure to state a claim on December 20, 2010. (ECF 14.) The court took the matter under submission without oral argument on February 24, 2011. (ECF 30.)

Defendant filed the present motion to dismiss for lack of subject matter jurisdiction on July 11, 2011. (ECF 56.) Defendant contends that its "offer of a refund [to plaintiff] moots any restitution claim a purchaser of recalled Similac might have had, regardless of whether that purchaser accepts the refund," because defendant effectively offered to satisfy plaintiff's demands without the need for litigation. (Def.'s Mem. at 1, ECF 57.)

Plaintiff filed objections to the motion to dismiss on July 14, 2011 (ECF 63) and her opposition on July 27, 2011. (ECF 65.) Plaintiff challenges defendant's ability to file a second motion to dismiss at this stage of the litigation on the theory that defendant already raised mootness in a previous filing with the court. (See Pl.'s Obj. to Def.'s Filing of Second Mot. to Dismiss (Pl.'s Obj.), ECF 63.) Additionally, plaintiff disputes that defendant offered a full refund to affected purchasers of Similac. (Pl.'s Opp'n at 4.) Plaintiff contends that as defendant's reimbursement policy is insufficient to make her whole, this reimbursement policy cannot moot plaintiff's complaint. (See id. at 5.)

Defendant filed its reply on August 2, 2011. (ECF 67.) Defendant contends that because mootness is a jurisdictional question, it was appropriate for it to file a second motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) before the previous motion, brought under Federal Rule of Civil Procedure 12(b)(6), was adjudicated. (See id. at 1-3.) On August 3, 2011, plaintiff responded to defendant's reply by filing a motion to strike, or in the alternative for leave to file a surreply and for a continuance. (ECF 69.)*fn2 The court denied this motion by order filed on August 9, 2011. (ECF 72.)


Initially, the court must determine whether defendant's present motion to dismiss was rightly filed at this stage of the litigation. Plaintiff contends that it was not because "Abbott previously filed a Motion to Dismiss [addressing the mootness question] . . . which is fully briefed and remains under submission in this Court." (Pl.'s Obj. at 1:28-2:2.) The court disagrees.

It is well-established that mootness is a question regarding courts' subject matter jurisdiction. See Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964) ("Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy."); Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) ("Mootness is a jurisdictional issue."). Indeed, "[i]f there is no longer a possibility that [a defendant] can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction." Id. (citing Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999)). The Federal Rules of Civil Procedure provide that a party cannot waive the defense of lack of subject matter jurisdiction, and by extension the defense that a claim has become moot. See FED. R. CIV. P. 12(h)(1). Furthermore, "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." FED. R. CIV. P. 12(h)(3) (emphasis added); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) ("To qualify as a case fit for federal-court jurisdiction, an actual controversy must be extant at all stages of review." (citations omitted)); see also Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 n.2 (9th Cir. 2004) ("'The matter of subject matter jurisdiction . . . may be raised by the parties at any time pursuant to Fed. R. Civ. P. 12(h)(3) . . . .'" (quoting Augustine v. United States, 704 F.2d 1074, 1075 n.3 (9th Cir. 1983))).

Thus, plaintiff's argument that the motion to dismiss is "procedurally flawed" lacks merit. Indeed, plaintiff cites no authority in support of this argument, making only conclusory statements that defendant cannot proceed on the present motion because no material facts were unknown to it when it filed its previous 12(b)(6) motion and that defendant's prior mootness argument has already been submitted to this court. (Pl.'s Opp'n at 3-4.) Defendant did intimate in a footnote in its 12(b)(6) reply that there was a viable argument for mootness (ECF 27 at 2 n.3), and informed the magistrate judge during a discovery hearing, that "both issues are before the Court in our pending motion" (id. at 2 (quoting June 29, 2011 Trans. at 3:3-17)). That motion, however, was one brought under Federal Rule of Civil Procedure 12(b)(6). (ECF 13.) While "motions raising the ripeness issue are treated as brought under Rule 12(b)(1) even if improperly identified by the moving party as brought under Rule 12(b)(6)," St. Clair v. Chico, 880 F.2d 199, 201 (9th Cir. 1989), a vague footnote buried in a reply brief does not a 12(b)(1) motion make.

The court can find no compelling reasons to decline consideration of defendant's present motion, which the court finds is not "an effort to reframe an argument . . . already . . . taken under submission." (Pl.'s Opp'n at 4.) Rather, it is a motion questioning the court's jurisdiction, which can be raised at any time.

Accordingly, plaintiff's objection to defendant's filing of this second motion to dismiss is overruled. (ECF 63.) The court proceeds to determine whether plaintiff's claim has been rendered moot, in which case the court would ...

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