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Boris v. Wal-Mart Stores, Inc.

United States District Court, C.D. California, Western Division

April 9, 2014

TIMOTHY BORIS, BONNIE COOPER, TONY F. GIRARD, and ERIKA NEWSOME, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
WAL-MART STORES, INC. and WALMART.COM, Defendants

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[Copyrighted Material Omitted]

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For Timothy Boris, on behalf of themselves and all others similarly situated, Tony F Girard, on behalf of themselves and all others similarly situated, Plaintiffs: Benjamin J Sweet, Edwin J Kilpela , Jr, LEAD ATTORNEYS, PRO HAC VICE, Del Sole Cavanaugh Stroyd LLC, Pittsburgh, PA; Jennifer M Miller, Jonathan D Miller, LEAD ATTORNEYS, Nye Peabody Stirling Hale and Miller LLP, Santa Barbara, CA; Brian D Penny, PRO HAC VICE, Goldman Scarlato Karon & Penny PC, Wayne, PA; Lester L Levy, Matthew I Insley-Pruitt, Michele F Raphael, PRO HAC VICE, Wolf Popper LLP, New York, NY.

For Erika Newsome, on behalf of themselves and all others similarly situated, Plaintiff: Benjamin J Sweet, Edwin J Kilpela , Jr, LEAD ATTORNEYS, PRO HAC VICE, Del Sole Cavanaugh Stroyd LLC, Pittsburgh, PA; Jennifer M Miller, Jonathan D Miller, LEAD ATTORNEYS, Nye Peabody Stirling Hale and Miller LLP, Santa Barbara, CA; Lester L Levy, Matthew I Insley-Pruitt, Michele F Raphael, PRO HAC VICE, Wolf Popper LLP, New York, NY.

For Bonnie Cooper, Plaintiff: Jonathan D Miller, LEAD ATTORNEY, Nye Peabody Stirling Hale and Miller LLP, Santa Barbara, CA; Lester L Levy, Matthew I Insley-Pruitt, Michele F Raphael, PRO HAC VICE, Wolf Popper LLP, New York, NY.

For Wal-Mart Stores Inc, a Delaware corporation, Walmart.com Defendants: Frank C Rothrock, Paul B La Scala, Shook Hardy & Bacon LLP, Irvine, CA.

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ORDER GRANTING MOTION TO DISMISS

AUDREY B. COLLINS, U.S. DISTRICT COURT JUDGE.

Pending before the Court is Defendant Wal-Mart Stores, Inc., and Wal-Mart.com's (" Wal-Mart" ) Motion to Dismiss (" Motion," docket no. 25), filed on January 24, 2014. Plaintiffs Timothy Boris, Bonnie Cooper, Tony F. Girard, and Erika Newsome (" Plaintiffs" ) filed an Opposition and Wal-Mart filed a Reply. The Court heard oral argument on April 7, 2014. For the following reasons, the Court GRANTS the Motion.

I. BACKGROUND

In this putative class action lawsuit, plaintiffs Timothy Boris, Bonnie Cooper, Tony F. Girard, and Erika Newsome allege that Wal-Mart deceptively markets its Equate Migraine medication in violation of several laws. Plaintiffs contend that Equate Migraine and Equate Extra Strength Headache Relief (" Equate ES" ) -- both over-the-counter medications -- contain the exact same active ingredients in the same amounts, yet Wal-Mart charges two to three times more for Equate Migraine than it does for Equate ES, and Equate Migraine's package has a red background while Equate ES's package has a green background. First Amended Complaint (" FAC," docket no. 18) ¶ 2. Plaintiffs contend that Equate Migraine's price differential along with its package's red background " deceived [consumers] into thinking that Equate Migraine was better (stronger, more effective) for treating headaches (both migraine and non-migraine)" than Equate ES. Id. Plaintiffs also contend that Wal-Mart further misleads consumers into thinking Equate Migraine is more effective than Equate ES because Wal-Mart's website lists all three active ingredients for Equate Migraine, but lists only one active ingredient for Equate ES. Id. ¶ 13.

Based on the foregoing allegations, Plaintiffs assert the following claims: (1) false advertising in violation of California's False Advertising Law (" FAL," Cal. Bus. & Prof. Code § 17500 et seq. ) ; (2) unfair and unlawful conduct in violation of California's Unfair Competition Law (" UCL," Cal. Bus. & Prof. Code § 17200 et seq. ) ; (3) for violation of the California Consumer

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Legal Remedies Act (" CLRA," Cal. Civ. Code § 1750 et seq. ) ; (4) violation of the New Jersey Consumer Fraud Act (" NJCFA," N.J.S.A. 56:8-1 et seq. ) ; (5) violation of New York General Business Law (" NYGBL," New York General Business Law § 349); (6) unjust enrichment/restitution; and (7) breach of the covenant of good faith and fair dealing. All of Plaintiffs' claims are based on the same conduct, except the NJCFA, NYGBL, and unjust enrichment/restitution claims do not incorporate the website allegation.

Plaintiffs assert these claims on behalf of members of the following class and sub-classes who purchased Equate Migraine during the limitations period: a nationwide Class represented by all four representative Plaintiffs (FAC ¶ 33); a California State Subclass represented by California resident Boris (FAC ¶ 34); a New Jersey Sate Subclass represented by New Jersey resident Cooper (FAC ¶ 35); a New York State Subclass represented by New York resident Newsome (FAC ¶ 37); and an Online Purchaser Subclass represented by Pennsylvania resident Girard (FAC ¶ 36), the only Plaintiff who alleges that he purchased Equate Migraine through Wal-Mart's website.

Wal-Mart moves to dismiss all of these claims on several grounds, including for failure to state a claim, for failure to satisfy Fed. R. Civ. Proc. 9(b), as preempted by federal law, and as subject to the Food and Drug Administration's (" FDA" ) primary jurisdiction. Because the Court finds that Plaintiffs have simply failed to state any claim, it need not reach all of Wal-Mart's other arguments.

II. LEGAL STANDARD

Fed. R. Civ. Proc. 8(a)(2) (" Rule 8(a)" ) requires a pleading to present a " short and plain statement of the claim showing that the pleader is entitled to relief." Under Fed. R. Civ. Proc. 12(b)(6) (" Rule 12(b)(6)" ), a defendant may move to dismiss a pleading for " failure to state a claim upon which relief can be granted." Thus, a pleading that does not satisfy Rule 8(a) is subject to dismissal under Rule 12(b)(6). Dismissal is proper under Rule 12(b)(6) where there is either a " lack of a cognizable legal theory" or " the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

" [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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations and alterations omitted). Although this does not require " detailed factual allegations," it " demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A sufficiently-pled claim must be " plausible on its face." Id. " 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." Id. For purposes of a motion to dismiss, allegations of fact are taken as true and are construed in the light most favorable to the nonmoving party. See Newdow v. Lefevre, 598 F.3d 638, 642 (9th Cir. 2010).

The first step in determining whether a claim is sufficiently pled is to identify the elements of that claim. See Iqbal, 556 U.S. at 675. The court should then distinguish between the pleading's allegations of fact and its legal conclusions: a court " must take all of the factual allegations in the complaint as true," but should not give legal conclusions this assumption of veracity. Id. at 678

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. The court must then decide whether the pleading's factual allegations, when assumed true, " plausibly give rise to an entitlement to relief." Id. at 679. The court may not consider material beyond the pleadings other than judicially noticeable documents, documents attached to the complaint or to which the complaint refers extensively, or documents that form the basis of the claims. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

III. DISCUSSION

R A. Overview and Summary of Order


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