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Davidson v. Kimberly-Clark Corp.

United States District Court, N.D. California

December 19, 2014

JENNIFER DAVIDSON, Plaintiff,
v.
KIMBERLY-CLARK CORPORATION, et al., Defendants

Page 965

For Jennifer Davidson, an individual on behalf of herself, the general public and those similarly situated, Plaintiff: Seth Adam Safier, LEAD ATTORNEY, Adam Gutride, Kristen Gelinas Simplicio, Gutride Safier LLP, San Francisco, CA.

For Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., Kimberly-Clark Global Sales, LLC., Defendants: Amy P. Lally, Sidley Austin Brown & Wood LLP, Los Angeles, CA; Emily Z Culbertson, Sidley Austin LLP, Los Angeles, CA; Naomi Ariel Igra, Naomi Ariel Igra, San Francisco, CA.

Page 966

ORDER GRANTING MOTION TO DISMISS

PHYLLIS J. HAMILTON, United States District Judge.

Defendants' motion pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for an order dismissing the first amended complaint came on for hearing on November 12, 2014. Plaintiff appeared by her counsel Adam Gutride, and defendants appeared by their counsel Amy Lally. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion as follows.

BACKGROUND

Plaintiff Jennifer Davidson alleges that defendants Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc.; and Kimberly-Clark Global Sales LLC (" Kimberly-Clark" or " defendants" ) falsely advertised that four cleansing cloths/" wipes" they manufacture and sell are " flushable." First Amended Complaint (" FAC" ) ¶ ¶ 17, 19-25, 31-38. The four products at issue are Kleenex® Cottonelle® Fresh Care Flushable Wipes & Cleansing Cloths, Scott Naturals® Flushable Moist Wipes, Huggies® Pull-Ups® Flushable Moist Wipes, and U by Kotex® Refresh flushable wipes. FAC ¶ 17.

Plaintiff asserts that " [r]easonable consumers understand the word 'flushable' to mean suitable for disposal down a toilet." FAC ¶ 18. Plaintiff asserts that the four Kimberly-Clark products are not in fact " flushable" under that definition. Id. She believes that after the wipes are flushed down a toilet, they fail to " disperse," with the result that they may clog municipal sewer systems and septic systems, and/or damage pipes and sewage pumps. See FAC ¶ ¶ 18, 39. Indeed, she claims that the defendants' flushable wipes are designed so as to " not break down easily when submersed in water." FAC ¶ 40.

At some point in 2013, plaintiff purchased one of the products at issue -- Scott Naturals® Flushable Moist Wipes (also referred to as Scott Naturals® Flushable Cleansing Cloths) -- which at the time she believed had been " specially designed to be suitable for flushing down toilets . . . [without] caus[ing] problems in her plumbing or at the water treatment plant." FAC ¶ 52.

She does not allege that her use of the wipes caused plumbing problems. Instead, she simply asserts that after " several uses of the wipes," she " began to become concerned that they were not truly flushable, [and] so stopped flushing the wipes and stopped using the product altogether." FAC ¶ 53. She has not purchased any of defendants' " flushable" products since that time, FAC ¶ 55 (and indeed bought the Scott Naturals® product on only the one occasion " [i]n 2013" ).

Plaintiff asserts that she would not have purchased the Scott Naturals® wipes had defendants not misrepresented " the true nature" of their " flushable" products -- or, at a minimum, would have paid less for the Scott Naturals® product because she would not have obtained the benefit of being able to flush it, FAC ¶ 56 (even though she did flush it).

Plaintiff filed the original complaint in this case on March 13, 2014 in the Superi

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or Court of California, County of San Francisco, as a proposed class action. Plaintiff asserts violations of the Consumer Legal Remedies Act (" CLRA" ), Cal. Civ. Code § 1750, et seq., and the False Advertising Act (" FAL" ), Cal. Bus. & Prof. Code § 17500, et seq.; common law fraud, deceit and/or misrepresentation; and unlawful, unfair, and deceptive trade practices, in violation of Cal. Bus. & Prof. Code § 17200, et seq. (" UCL" ).

Plaintiff claims that the four products at issue are deceptively advertised as " flushable," FAC ¶ ¶ 35-38; that they are all manufactured " using the same proprietary paper blend, for which [d]efendants own the patent," FAC ¶ 40; and that they were all subjected to the same " flawed" tests used for setting the " guidelines" for determining whether a product is " flushable," FAC ¶ ¶ 41-47. She asserts that wipes that are not truly " flushable" are the cause of numerous problems at municipal sewage treatment facilities. FAC ¶ ¶ 48-51.

Defendants removed the case on April 17, 2014, asserting jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2)(A). They subsequently moved to dismiss the complaint and strike certain allegations in the complaint. On August 8, 2014, the court issued an order granting the motion in part and denying it in part.

The court denied the motion to dismiss the statutory UCL/FAL/CLRA causes of action for lack of subject matter jurisdiction (failure to allege Article III and statutory standing), with the exception of the claim for prospective injunctive relief, for which the court found plaintiff had no standing.

The court granted the motion to dismiss the statutory claims for failure to allege fraud with particularity as to affirmative misrepresentations, with leave to amend, to plead facts showing that defendants made false statements, and that she relied on the alleged misrepresentations. The court denied the motion to dismiss the statutory claims for failure to state a claim of fraudulent omissions, finding that it was unclear whether plaintiff's claim was that the alleged omission of information explaining the meaning of " flushable" was actionable because it was contrary to an affirmative representation made by defendants, or that it was actionable because defendants had a duty to disclose to her (and/or the public) that the wipes might not completely disperse by the time they arrived at the wastewater treatment plant.

The court granted the motion to strike as irrelevant the allegations regarding sewage/septic systems and municipal wastewater treatment plants in locations other than the city where plaintiff lives (San Francisco, California). The court denied the motion to strike allegations regarding products plaintiff did not purchase and advertising she did not view, on the ground that those allegations might possibly be relevant to the question whether plaintiff can assert UCL/FAL/CLRA claims on behalf of a proposed class as to such products or advertising.

Plaintiff filed the FAC on September 5, 2014, alleging the same four causes of action as in the original complaint. Under the CLRA claim, plaintiff seeks restitution, injunctive relief, actual damages, punitive damages, and statutory damages, on her behalf and on behalf of the other members of the proposed class. Under the UCL/FAL claims, plaintiff seeks restitution and injunctive relief, on her own behalf and on behalf of the other members of the proposed class. Under the fraud claim, plaintiff seeks compensatory damages and punitive damages, on her own behalf and on behalf of the other members of the proposed class. On all four causes of action, plaintiff seeks on her own behalf and on

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behalf of the other members of the proposed class " and the general public," attorney's fees under the CLRA and California Code of Civil Procedure § 1021.5, plus costs of suit.

Defendants now seek an order dismissing the FAC for lack of subject matter jurisdiction and failure to state a claim, and striking certain allegations in the FAC.

DISCUSSION

A. Motion to Dismiss for Lack of Subject Matter ...


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