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Engel v. Novex Biotech LLC

United States District Court, Northern District of California

November 6, 2014

JULIAN ENGEL, Plaintiff,
v.
NOVEX BIOTECH LLC, et al., Defendants

For Julian Engel, an individual on behalf of himself and all others similarly situated, Plaintiff: Manfred Patrick Muecke, LEAD ATTORNEY, Bonnett, Fairbourn, Friedman, & Balint, P.C., San Diego, CA; Elaine A. Ryan, PRO HAC VICE, Bonnett Fairbourn Friedman & Balint, P.C, Phoenix, AZ; Lindsey M Gomez, PRO HAC VICE, Bonnett Fairbourn Friedman Balint, Phoenix, AZ; Stewart M. Weltman, PRO HAC VICE, Stewart M Weltman LLC, Chicago, IL; Patricia Nicole Syverson, Bonnett Fairbourn et al, Phoenix, AZ.

For Novex Biotech LLC, Defendant: Christopher B Sullivan, John P Snow, LEAD ATTORNEY, PRO HAC VICE, Price Parkinson and Kerr, SLC, UT; Jeremy Noah Lateiner, LEAD ATTORNEY, Morgan Lewis and Bockius LLP, San Francisco, CA; Mark J. Williams, LEAD ATTORNEY, PRO HAC VICE, Salt Lake City, UT; Rollin Bernard Chippey, II, LEAD ATTORNEY, Morgan Lewis & Bockius, San Francisco, CA; Jason M. Kerr, PRO HAC VICE, Salt Lake City, UT.

For GNC Corporation, Defendant: Rollin Bernard Chippe, II, LEAD ATTORNEY, Morgan Lewis & Bockius, San Francisco, CA; Christopher B Sullivan, John P Snow, PRO HAC VICE, Price Parkinson and Kerr, SLC, UT; Jason M. Kerr, PRO HAC VICE, Salt Lake City, UT; Mark J. Williams, PRO HAC VICE, Salt Lake City, UT.

ORDER RE: MOTION TO DISMISS Re: Dkt. No. 34

MARIA-ELENA JAMES, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Julian Engel (" Plaintiff") filed this putative class action on behalf of himself and others similarly situated, against Defendants Novex Biotech, LLC and GNC Corporation (" Defendants").[1] Pending before the Court is Defendants' Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 34. Plaintiff filed an Opposition on October 27, 2014. Dkt. No. 44. The Court finds this motion suitable for disposition without oral argument. Civil L.R. 7-1(b). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court GRANTS Defendants' Motion for the reasons set forth below.

II. BACKGROUND

The following allegations are drawn from the Complaint. Defendant Novex Biotech, LLC distributes, markets, and sells Growth Factor-9, an over-the-counter amino acid supplement marketed to boost human growth hormone (" HGH"). First Am. Compl. ¶ ¶ 1, 9, Dkt. No. 15. Defendant GNC promoted, marketed and sold Growth Factor-9 to consumers nationwide in its retail locations. Id. ¶ 11. Plaintiff alleges that in their labeling and marketing campaigns, Defendants have made the following marketing representations: (1) that Growth Factor-9 provides a 682% mean increase in HGH levels; (2) that Growth Factor-9 is clinically tested; and (3) that " a recent, randomized, cross-over, double-blind clinical trial" supports the growth hormone representations. Id. ¶ ¶ 8, 16.

Plaintiff alleges that he saw these advertisements for Growth Factor-9 in at least one magazine and on websites such as GNC.com. Id. ¶ 8. After reading the advertisements, he went to GNC to purchase Growth Factor-9 on October 13, 2013. Id. While there, he read the product label and in-store advertisements, which reaffirmed the claims he saw in the magazine and online advertisements. Id. Relying on these claims, Plaintiff purchased and used Growth Factor-9 as directed, and he subsequently purchased two more boxes on November 13, 2013 and December 13, 2013. Id.

On July 30, 2014, Plaintiff filed suit in this matter. Dkt. No. 1. On August 29, 2014, Plaintiff filed an amended Complaint. Dkt. No. 15. In the operative Complaint, Plaintiff alleges two causes of action: (1) violation of California's Unfair Competition Law, Business and Professions Code section 17200 (" UCL"); and (2) violation of California's Consumer Legal Remedies Act, Civil Code section 1750 (" CLRA").

Defendants now move to dismiss the Complaint, arguing: (1) Plaintiff brings only substantiation claims, for which there exists no available private right of action; (2) even if Plaintiff's claims are construed to be something other than substantiation claims, the Complaint fails to demonstrate that Defendants' claims regarding Growth Factor-9 are false; and (3) Plaintiff's Complaint fails to allege that Defendants did not rely on competent scientific evidence.[2] Dkt. No. 34-1.

III. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A facial plausibility standard is not a " probability requirement" but mandates " more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court " accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). " [D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotations and citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.").

Even under the liberal pleading standard of Rule 8(a)(2), under which a party is only required to make " a short and plain statement of the claim showing that the pleader is entitled to relief, " a " pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555.) " [C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (" [A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively."). The court must be able to " draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. " ...


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