KIM ALLEN, et al., on behalf of themselves, all others similarly situated, and the general public, Plaintiffs,
SIMILASAN CORPORATION, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
BARRY TED MOSKOWITZ, Chief District Judge.
On June 18, 2013, Defendant Similasan Corporation ("Defendant" or "Similasan") filed a motion to dismiss in part Plaintiffs' Second Amended Complaint ("SAC") (ECF No. 43). For the reasons below, Defendant's motion is hereby GRANTED. The Court DISMISSES the SAC with leave to amend within twenty-one (21) days.
Plaintiffs Kim Allen and Lainie Rideout and new plaintiff Kathleen Hairston ("Plaintiffs") filed the SAC against Similasan Corporation on June 4, 2013, alleging violations of California's Consumers Legal Remedies Act ("CLRA"), California Unfair Competition Law ("UCL"), California False Advertising Law ("FAL"), breach of express and implied warranties, and unjust enrichment. In the SAC, they have also added new claims for violations of the Magnuson-Moss Warranty Act ("MMWA") and the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA").
Plaintiff Kim Allen is a resident of Florida. Plaintiffs Lainie Rideout and Kathleen Hairston are both residents of California. Defendant Similasan Corporation markets and sells homeopathic products throughout the United States. Plaintiffs allege that they purchased various products on the basis of unsubstantiated advertising claims made by Defendant on the products' packaging and on Defendant's website, and that Defendant was unjustly enriched thereby.
II. LEGAL 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 , 556 U.S. 662, 679 (2009) (internal quotation marks omitted).
Plaintiffs assert seven causes of action: (1) violation of the CLRA, (2) violation of the UCL, (3) violation of the FAL, (4) breach of express warranty, (5) breach of implied warranty of merchantability, (6) violation of the MMWA, and (7) violation of the FDUTPA.
In its motion to dismiss, Similasan argues that: (a) Plaintiffs' claims seeking injunctive relief should be dismissed because the Court already held that Plaintiffs had no standing to do so; (b) Plaintiffs failed to meet their CLRA notice obligations with regard to several of their allegations and the CLRA claim should therefore be dismissed as to those allegations; (c) Plaintiffs failed to state a claim under the MMWA; and (d) Plaintiffs have asserted untimely claims for the class they seek to represent.
A. Injunctive Relief
In the SAC, Plaintiff Hairston seeks injunctive relief under the CLRA, UCL, and FAL. (See SAC ¶¶ 142, 155, & 162.) Plaintiff Allen also seeks injunctive relief under the FDUTPA. (See id. at ¶ 188.)
In the Court's May 14, 2013 Order, the Court dismissed Plaintiff Rideout's claims for injunctive relief under the CLRA, UCL, and FAL because Plaintiff Rideout could not show a "real and immediate threat of repeated injury in the future, " Chapman v. Pier 1 Imports (U.S.) Inc. , 631 F.3d 939, 946 (9th Cir. 2011) (internal quotations omitted), as it was highly unlikely that she would repurchase a product that she had determined did not work. See also Mason v. Nature's Innovation, Inc., No. 12-cv-3019-BTM-DHB (S.D. Cal. filed ...