PATRICK HESANO, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
IOVATE HEALTH SCIENCES, INC.; IOVATE HEALTH SCIENCES U.S.A., INC.; and IOVATE HEALTH SCIENCES GROUP, INC., n/k/a KERR INVESTMENT HOLDING CORP, Defendants.
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Motion to Dismiss Complaint and Motion to Strike Class Allegations ("Motion to Dismiss"), filed by all Defendants. (ECF No. 8).
On August 22, 2013, Plaintiff Patrick Hesano initiated this action by filing a Class Action Complaint ("Complaint") in this Court. (ECF No. 1). The Complaint alleges that Defendants used false, fraudulent and misleading advertising in marketing and labeling Defendants' dietary supplement product, Six Star Pro Nutrition N.O. Fury ("Product"), which Plaintiff purchased on May 29, 2013. The Complaint alleges that Defendants falsely claim that use of the Product will "provide increased formation of Nitric Oxide in the blood, increase[d] circulation of oxygen and nutrients, enhance[d] athletic performance, increase[d] lean muscle mass, and provide muscle pumps.'" Id. ¶ 4. The Complaint alleges that Plaintiff "paid more for the Product, and would have been unwilling to purchase the Product at all, absent the false and misleading labeling." Id. ¶ 64. In the Complaint, Plaintiff seeks certification of the following Class: "All Persons in the State of California who have spent money purchasing the Product from Defendants from four years from the first-filed complaint in this action until the final disposition of this and any and all related cases." Id. ¶ 71. The Complaint alleges four causes of action: (1) violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, et seq.; (2) violations of California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, et seq.; (3) violations of California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code § 17500, et seq.; and (4) breach of express warranty. The Complaint seeks compensatory, statutory and punitive damages, injunctive relief, and attorney's fees and costs. The Complaint alleges subject-matter jurisdiction pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d).
On October 21, 2013, Defendants filed the Motion to Dismiss. (ECF No. 8). Defendants contend that the Complaint is subject to dismissal for the following reasons:
Although Plaintiff's claims for relief are all fundamentally based on the allegations that there is no scientific substantiation for the claims made on the packaging of, and advertisements for, the Product, Plaintiff may not pursue any claims based upon lack of substantiation. Second, in order to have standing to bring a UCL, FAL, or CLRA claim, Plaintiff must plead that he relied on the allegedly misleading materials. Plaintiff has failed to adequately do so.... Third, although the Complaint alleges, inter alia, that the Product falsely claims that it enhance[s] athletic performance, ' the Complaint does not actually allege that Plaintiff even attempted to ingest any of the Product caplets prior to commencing this action.... Fourth, the claims that are premised upon a violation of either federal law or California's Sherman Law, Cal. Health & Safety Code § 109875 et seq., are subject to preemption.
(ECF No. 8-1 at 6-7). Defendants move to strike the class allegations on the basis that Plaintiff is an inadequate class representative and the Complaint references class members outside the State of California.
On November 11, 2013, Plaintiff filed an opposition to the Motion to Dimiss. (ECF No. 9). Plaintiff contends:
Defendants... attempt to complicate this otherwise straightforward issue with a kitchen-sink approach to briefing, arguing lack of substantiation, insufficient reliance, failure to ingest the product, federal preemption, and inadequate class representation.... [Defendants]' arguments misconstrue or otherwise distort the allegations in the Complaint. Thus, they should be rejected, permitting the parties to move into the next phase of the litigation.
Id. at 9.
On November 18, 2013, Defendants filed a reply brief. (ECF No. 10).
II. Motion to Dismiss
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides that "[a] pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient ...