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Robert A. Mason, Individually and On Behalf of All Others Similarly Situated and the General Public v. Nature's Innovation

May 13, 2013

ROBERT A. MASON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED AND THE GENERAL PUBLIC, PLAINTIFF,
v.
NATURE'S INNOVATION, INC., A GEORGIA CORPORATION (ALSO KNOWN AS NATURASIL, FORMERLY KNOWN AS TRASK RESEARCH INC.), DEFENDANT.



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

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Defendant Nature's Innovation, Inc., has filed a motion to dismiss certain claims in Plaintiff's Complaint. For the reasons discussed below, Defendant's motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On December 19, 2012, Plaintiff Robert A. Mason commenced this action. Plaintiff alleges that during the "Class Period" (December 19, 2008 to the present), he purchased Naturasil skin tag remover based on representations on the product label and Defendant's website that the product was an exclusive and 100% natural formula that was FDA registered and was proven to gently and effectively remove skin tags. (Compl. ¶¶ 16, 18-22.)

Plaintiff alleges that Defendant also sold the identical product under its Dermisil brand line and made the same marketing representations in connection with the Dermisil for Skin Tags product. (Compl. ¶ 25.)

Plaintiff alleges that Defendant's representations regarding its skin tag product were false and misleading because (1) the product was not 100% natural (Compl. ¶ 20); (2) the term "FDA Registered" is misleading because the product is listed as an unapproved homeopathic drug with the FDA, and the confusion is enhanced by the marketing of the product next to other allopathic, FDA-monograph approved over-the-counter drugs (Compl. ¶¶ 21, 32); (3) the product is not effective at removing skin tags because the active ingredient it allegedly contains, Thuja, is not effective at removing skin tags, and the active ingredient is not even actually present in the product due to the enormous dilution of the product (Compl. ¶¶ 24, 26-28); and (4) the product did not contain "exclusive" ingredients because the exact same ingredients were used in many of Defendant's other products such Naturasil Molluscum, Naturasil Warts, and Naturasil Nail Fungus (Compl. ¶¶ 40-47.)

Plaintiff seeks to bring this action on behalf of himself and a California consumer class defined as: "All purchasers of Defendant's Skin Tags Products from December 19, 2008 to the present (the "Class Period") in California."

Plaintiff's Complaint asserts the following causes of action: (1) violation of the Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq. ("CLRA") (2) violation of the Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. ("UCL"); (3) violation of the False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq. ("FAL"); (4) breach of express warranty; (5) breach of implied warranty of merchantability; and (6) violation of Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301, et. seq. ("MMWA").

II. STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 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 prove 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, 565 U.S. 662, 679 (2009) (internal quotation marks omitted). Only a complaint that states a plausible claim for relief will survive a motion to dismiss. Id.

III. DISCUSSION

Defendant moves to dismiss Plaintiff's claims for injunctive relief in connection with his CLRA, UCL, and FAL claims, and also moves to dismiss Plaintiff's claims for violation of the CLRA, breach of the implied warranty of merchantability, and violation of the MMWA. As discussed below, the Court grants Defendant's motion to dismiss as to the claims for injunctive relief as well as the CLRA claim, but denies the motion as to the breach of implied warranty and MMWA claims.

A. Article III Standing to Assert a Claim for Injunctive Relief

Defendant argues that Plaintiff has not satisfied his burden of establishing Article III standing with respective to injunctive relief because Plaintiff has not shown that he will likely be harmed again by Defendant's actions. According to Defendant, there is no likelihood that Plaintiff will purchase Defendant's skin tag removal product in the future because, according to Plaintiff, it does not ...


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