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In re Joseph v. Costco Wholesale Corporation

United States District Court, C.D. California

February 5, 2015

Joseph, V. Costco Wholesale Corporation et al.


STEPHEN V. WILSON, District Judge.


Proceedings: IN CHAMBERS ORDER DENYING Plaintiff's Motion for Preliminary Injunction [39], CONVERTING Defendants' Motions to Dismiss to Motions for Summary Judgment [36 & 37], and ORDERING Defendants to Re-File their Motions as Motions for Summary Judgment

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 and which listed "Apotex USA Inc." as the drugs' manufacturer. Joseph proceeds pro se against defendants Costco Wholesale Corporation ("Costco") and Apotex Corporation ("Apotex"). In his Second Amended Complaint ("SAC"), Joseph asserts three claims under California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq. -(1) a claim under the UCL's "unlawful" prong premised on violations of the Tariff Act, 19 U.S.C. § 1304, and of California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750 et seq. ; (2) a claim under the UCL's "fraudulent" prong for failing to include a country of origin marking on the drugs and for labeling them as being manufactured by "Apotex USA Inc."; and (3) a claim under the UCL's "unfair" prong. (Dkt. 35.)

Presently before the Court are Defendants' motions to dismiss Joseph's SAC (Dkts. 36 & 37) and Joseph's motion for a preliminary injunction (Dkt. 39.) For the reasons discussed below, the Court CONVERTS Defendants' motions to dismiss into motions for summary judgment and DENIES Joseph's motion for a preliminary injunction.


At the hearing held on February 2, 2015, the parties for the first time informed the Court that: (1) there is no entity in existence called "Apotex USA, Inc., " and (2) that the atorvastatin at issue passed through a wholesale distributor which was responsible for supplying the manufacturer information that appeared on Costco's atorvastatin label. In light of these new discoveries and in consideration of the parties' briefs, the Court concludes that the parties raise issues that be resolved only by considering evidence outside of the complaint. The Court therefore CONVERTS Defendants' motions to dismiss into motions for summary judgment. See Bedrock Fin., Inc. v. United States, No. 1:10-CV-01055-MJS, 2013 WL 2244402, at *2 (E.D. Cal. May 21, 2013) (stating that a court considering matters not properly subject to judicial notice would convert a motion to dismiss into a motion for summary judgment).

The Court ORDERS Defendants to re-file their motions as motions for summary judgment on or before March 5, 2015. The parties are ORDERED TO APPEAR for a status conference on Monday March 23, 2015, at 1:30 P.M. to discuss what if any discovery Plaintiff requires in order to respond to Defendants' motions for summary judgment. At the status conference he Court will set the remainder of the briefing schedule and a hearing date regarding Defendants' motions for summary judgment.

Given that Defendants already possess the relevant evidence necessary to file their motions for summary judgment, the Court STAYS ALL DISCOVERY in this case pending the March 23 status conference.



Standing is an essential component of the Article III, § 2 "case or controversy" requirement. American Civil Liberties Union of Nevada v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006). "Standing to sue in any Article III court is, of course, a federal question which does not depend on the party's prior standing in state court." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 2970, 86 L.Ed.2d 628 (1985); see also Lee v. American Nat. Ins. Co., 260 F.3d 997, 1001-02 (9th Cir. 2001) ("[A] plaintiff whose cause of action is perfectly viable in state court under state law may nonetheless be foreclosed from litigating the same cause of action in federal court, if he cannot demonstrate the requisite injury.").

Under Article III's standing requirement, a plaintiff seeking injunctive relief bears the burden of showing "that he is under threat of suffering injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Summers v. Earth Island Institute, 129 S.Ct. 1142, 1149 (2009). When evaluating whether standing is present, courts look to the facts as they exist when the complaint was filed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.4, 112 S.Ct. 2130, 2141 n.4 (1992) (standing); Lomax, 471 F.3d at 1015 (standing requirements); Clark v. City of Lakewood, 259 F.3d 996, 1008-09 (9th Cir. 2001). "[A] plaintiff must demonstrate standing separately for each form of relief sought." Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153 (2010).

A Plaintiff seeking a preliminary injunction must establish the following elements: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to Plaintiff in the absence of preliminary relief; (3) that the balance of equities tips in Plaintiff's favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008). Because injunctive relief is an "extraordinary remedy, " it may be awarded only "upon a clear showing that the plaintiff is entitled to such relief." Id. at 376. This "clear showing" requires factual support beyond the allegations of the ...

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