The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER (1) SUA SPONTE ALLEGATIONS FROM THE FAC, STRIKING CERTAIN AND (2) DENYING DEFENDANT'S MOTION TO DISMISS [DOC. 91]
Pending before the Court is Defendant Vital Pharmaceuticals, Inc.'s ("Vital Pharm") motion to dismiss for failure to state a claim upon which relief may be granted. Plaintiff Zack Aaronson opposes the motion.
The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons discussed below, the Court sua sponte STRIKES from the First Amended Complaint ("FAC") all safety and class-action allegations, and DENIES Vital Pharm's motion to dismiss [Doc. 91].
The facts of this case have been discussed in detail in this Court's previous orders. (See Order Granting In Part And Denying In Part MTD [Doc. 13]; Order Denying Mt. For Class Cert. [Doc. 76].) Accordingly, the Court summarizes only those facts relevant to the current motion.
Vital Pharm manufactures and sells several energy drinks and related products under the brand name Redline ®. (First Amended Compl. ("FAC") [Doc. 90], ¶ 1.) Aaronson purchased and used a bottle of Redline in or around early January 2009. (Id., ¶ 7.) Aaronson alleges that the product "caused him to suffer negative health effects" and "didn't work." (Id., ¶¶8, 21.)
In June 2009, Aaronson filed this case as a purported class action. On February 17, 2010, this Court dismissed the first and second causes of action in the original Complaint, which were based on the product's alleged safety risks. The dismissal was based on the primary-jurisdiction doctrine. (See Order Granting In Part And Denying In Part MTD, p. 3:2--6:7.) Then on February 3, 2012, this Court denied Aaronson's motion for class certification finding that he failed to establish typicality, adequacy of representation and predominance. (See Order Denying Mt. For Class Cert., 4:9--8:15.)
On May 10, 2012, Aaronson filed a motion for leave to file a first amended complaint. On June 5, 2012, VPX filed a notice of non-opposition, and this Court subsequently granted Aaronson leave to file the FAC.
The FAC contains two causes of action. The first asserts a breach of implied warranty of fitness claim, based on the allegation that Redline does not provide energy. (FAC, ¶ 39.) The second asserts a claim under the Magnuson-Moss Warranty Act.
Vital Pharm now seeks to dismiss the FAC under Federal Rule of Civil Procedure 12(b)(6). Aaronson opposes the motion.
The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's legal sufficiency. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is proper only if the plaintiff's complaint lacks a cognizable legal theory or adequate facts to support a "facially plausible claim to relief." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).
All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555(2007). As the Supreme Court explained, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal ...