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Joseph v. Costco Wholesale Corporation

United States District Court, C.D. California

November 13, 2014

JOEL D. JOSEPH, Plaintiff,


STEPHEN V. WILSON, District Judge.


Plaintiff Joel D. Joseph ("Joseph") filed this self-styled "private attorney general action" after buying a container of prescription drugs that was not marked with the drugs' country of origin. Joseph claims that he understood the absence of a country-of-origin label as a representation that the drugs were made in the United States-which they were not. On August 1, 2014, Plaintiff filed suit pro se against defendants Costco Wholesale Corporation ("Costco") and Apotex Corporation ("Apotex") in California State Court. On September 4, 2014, Apotex removed the case to this Court. Joseph's First Amended Complaint ("FAC") asserts three claims under California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq., and one claim under California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500, et seq. (Dkt. 14.)

Presently before the Court are Apotex's and Costco's motions to dismiss Joseph's FAC, (Dkts. 17 & 19), and Apotex's motion to strike the demand for damages (Dkt. 16.). For the reasons set forth below, the Court GRANTS Apotex's and Costco's motions to dismiss and DENIES Apotex's motion to strike the demand for damages.


Joseph founded and chairs the Made in the USA Foundation-a non-profit organization that promotes American-made products. (FAC ¶ 7.) For many years, Joseph purchased the prescription drug Lipitor from Costco. (FAC ¶ 4.) Sometime after a generic version of Lipitor-called atorvastatin-became available in 2012, Costco filled Joseph's prescription with Apotex's atorvastatin. (FAC ¶¶ 6, 8.) Joseph inspected the "Apotex atorvastatin container" and did not find a country of origin label on it. (FAC ¶ 9.) Because Joseph believes that all imported products must be marked with a country of origin, he concluded that the unmarked atorvastatin was made in the United States. ( Id. )

Thus, although Joseph wanted to buy American atorvastatin, he actually purchased foreign-made atorvastatin for an undisclosed sum.[2] (FAC ¶¶ 16-18, 23.) He presumably learned of this discrepancy when, on an undisclosed date, Costco's pharmacist told Joseph that "the atorvastatin was made in India." (FAC ¶ 23.)

Joseph asserts that on April 1, 2014, the U.S. Food and Drug Administration ("FDA") published a report that Apotex's Bangalore, India factory failed its inspection. (FAC ¶ 20). On May 5, 2014, the FDA purportedly published an import alert banning Apotex's atorvastatin. (FAC ¶ 19.) Joseph claims he notified Costco that Apotex's atorvastatin was banned by the FDA in April and May 2014. (FAC ¶ 22.) Nevertheless, Costco continued selling Apotex atorvastatin. (FAC ¶ 24.)


A. Legal Standard for a Motion to Dismiss Under Rule 12(b)(6)

Federal Rule of Civil Procedure 8 requires plaintiffs to "plead a short and plain statement of the elements of his or her claim, identifying the transaction or occurrence giving rise to the claim and the elements of the prima facie case." Flores v. EMC Mortg. Co., ___ F.Supp.2d ___, No. CV F 14-0047 LJO GSA, 2014 WL 641097, at *4 (E.D. Cal. Feb. 18, 2014) (quoting Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000)). "Each allegation must be simple, concise, and direct." Fed.R.Civ.P. 8(d). The pleading must give fair notice of the claim asserted and the grounds on which it rests. Flores, 2014 WL 641097, at *4 (quoting Yamaguchi v. United States Dep't of Air Force, 109 F.3d 1475, 1481) (9th Cir. 1997)).

A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the claims stated in the complaint. Fed. R. Civ. Proc. 12(b)(6). To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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." Id. A complaint that offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). "Allegations in the complaint, together with reasonable inferences therefrom, are assumed to be true for purposes of the motion." Odom v. Microsoft Corp, 486 F.3d 541, 545 (9th Cir. 2007). Courts evaluating a motion to dismiss a pro se plaintiff's complaint liberally construe the complaint. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

If a court dismisses the complaint, it will grant leave to amend unless futile. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

B. Joseph's Standing to Bring UCL and FAL Claims

Joseph asserts claims under California's UCL and FAL. A plaintiff has standing to bring a claim under the UCL or FAL only if he suffered an injury-in-fact and lost money or property as a result of the complained-of conduct. Cal. Bus. & Prof. Code § 17204; Birdsong v. Apple, Inc., d, 959-960 (9th Cir. 2009); In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 F.Supp.2d 942, 986 (S.D. Cal. 2014) (quoting Kwikset Corp. v. Super. Ct., 51 Cal.4th 310, 322 (Cal.2011)). In other words, the plaintiff must allege not only that he suffered an economic injury, but that the defendant's complained-of conduct was an immediate ...

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