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Vasic v. Patent Health, LLC

United States District Court, S.D. California

March 10, 2014

DRAGAN VASIC, on behalf of himself and all others similarly situated, Plaintiff,
PATENT HEALTH, LLC., an Ohio Limited Liability Company, ARTHUR MIDDLETON CAPITAL HOLDINGS, INC., an Ohio Corporation, WALGREEN, CO., an Illinois Corporation, and DOES 1 THROUGH 20, Defendants.



Presently before the Court is Defendants Arthur Middleton Capital Holdings, Inc. ("Arthur Middleton") and Patent Health, LLC's ("Patent Health") (collectively, "Defendants") motion to dismiss the First Amended Complaint ("FAC") pursuant to Federal Rules of Civil Procedure 8, 9(b), 12(b)(1), and 12(b)(6). (Doc. No. 35.) Plaintiff Dragan Vasic ("Plaintiff") filed an opposition on January 17, 2014, (Doc. No. 36), and Defendants filed a reply on January 31, 2014, (Doc. No. 37). This motion is suitable for disposition without oral argument pursuant to Civil Local Rule 7.1.d.1. Accordingly, the motion hearing set for March 6, 2014 is hereby vacated. For the reasons set forth below, Defendants' motion to dismiss is GRANTED.


On April 8, 2013, Plaintiff filed a putative class action against Defendant Patent Health alleging violations of California's Consumer Legal Remedies Act ("CLRA"), California's Unfair Competition Law ("UCL"), and breach of express warranty. (Doc. No. 1.) Plaintiff filed the operative First Amended Complaint ("FAC") as a matter of right on May 23, 2013, which contained similar factual allegations, but omitted the third cause of action for breach of express warranty, and added Arthur Middleton and Walgreen Company ("Walgreen") as named Defendants. (Doc. No. 4.) Plaintiff voluntarily dismissed all claims alleged against Defendant Walgreen on December 10, 2013. (Doc. No. 33.) After Defendants filed initial motions to dismiss for lack of subject matter jurisdiction, insufficient service, and moved to quash service of process, on November 26, 2013, the Court ordered Defendants to answer or otherwise respond within thirty days. (Doc. No. 32.)

The operative FAC alleges that Defendants violated the UCL and CLRA by manufacturing, distributing, and selling two glucosamine-based dietary supplements -Trigosamine Max-Strength ("Max-Strength") and Trigosamine Fast-Acting ("Fast-Acting") (collectively, the "Trigosamine Products" or "Products")-by representing that the Products' primary ingredients-Glucosamine and Chondrotin Sulfate-have certain health benefits that they do not. (FAC ¶ 1.) Specifically, Plaintiff alleges that Defendants represented that the Products relieve joint pain and lubricate and build cartilage, when in fact, there is no competent or reliable scientific evidence to support these claims. ( Id. at ¶¶ 1, 3.) Plaintiff then cites numerous studies within the FAC to support this assertion. ( Id. at ¶¶ 29-51.) As a result, Plaintiff contends that there are numerous scientific studies that have universally demonstrated that Glucosamine, and Glucosamine in combination with other ingredients, including Chondrotin Sulfate, have "absolutely no scientific value in the treatment of joint pain or discomfort." ( Id. at ¶ 3.)

Finally, Plaintiff alleges that as a result of his exposure to Defendants' representations regarding the joint health benefits of the Products, he purchased a bottle of Max Strength for approximately $25.00.[1] ( Id. at ¶ 13.) At the time of his purchase, Plaintiff alleges that he was experiencing pain and stiffness in his joints following his regular workouts, and purchased Max Strength based on the product's label, which represented that it would improve his joint soreness and provide joint health benefits. ( Id. ) Although the FAC does not allege that Plaintiff purchased the Fast-Acting Product, Plaintiff alleges that both Products share the same primary active ingredient-Glucosamine Hydrochloride-and that the Products are otherwise virtually identical, in that "neither is efficacious." ( Id. at ¶ 24.) Therefore, Plaintiff alleges that despite a complete lack of competent scientific evidence, Defendants unequivocally represent that the Products provide a variety of health benefits centered around relieving joint pain and lubricating and building cartilage. ( Id. at ¶ 52.) Plaintiff included the following screen shots of the Products packaging:


A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). When ruling on a motion to dismiss under Rule 12(b)(6), the court must accept all factual allegations pleaded in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court, however, is not bound to accept "legal conclusions" as true. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).

To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). It is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Complaints alleging fraud must satisfy the heightened pleading standard of Rule 9(b). Fed.R.Civ.P. 9(b). Rule 9(b) requires that in all averments of fraud or mistake, the circumstances constituting that fraud or mistake should be stated with particularity. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. A pleading is sufficient under Rule 9(b) if it "state[s] the time, place[, ] and specific content of the false representations as well as the identities of the parties to the misrepresentation." Misc. Serv. Workers, Drivers & Helpers v. Philco-Ford Corp., 661 F.2d 776, 782 (9th Cir. 1981) (citations omitted); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). Regardless of the title given to a particular claim, allegations grounded in fraud are subject to Rule 9(b)'s pleading requirements. Vess, 317 F.3d at 1103-04; Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009).


Defendants move to dismiss the FAC in whole or in part on four grounds: (1) the FAC fails to allege a cognizable basis for relief under Federal Rule of Civil Procedure 9(b); (2) Plaintiff lacks standing; (3) the claims are impliedly preempted by the Food, Drug, and Cosmetic Act ("FDCA"); and (4) the FAC alleges nothing more than a non-cognizable claim for "lack of substantiation." The Court addresses each in turn.[2]

I. Sufficiency of the Complaint under Rule 9(b)

Defendants make several arguments as to why the FAC should be dismissed in its entirety for failure to state a cognizable claim for relief. First, Defendants contend that the FAC should be dismissed under Rule 9(b) because Plaintiff has failed to distinguish between the conduct of the individual Defendants, and instead, lumps the two Defendants together by stating that both entities "manufacture, market, and distribute" the Products at issue. Plaintiff opposes this contention by stating that it was not necessary to make any distinction between the Defendants because "for all intents and purposes there are no distinctions to be drawn." (Doc. No. 36 at 9:25-26.) Plaintiff further argues that to the extent a distinction is required, Arthur Middleton is a proper Defendant because Patent Health ...

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