United States District Court, E.D. California
MONA ESTRADA, On Behalf of Herself and All Others Similarly Situated, Plaintiffs,
JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND/OR STRIKE COMPLAINT
TROY L. NUNLEY, District Judge.
This matter is before the Court pursuant to Defendants' Johnson & Johnson ("J&J") and Johnson & Johnson Consumer Companies, Inc.'s ("J&J Consumer") (collectively "Defendants") Motion to Dismiss and/or Strike Plaintiff's Complaint. (Defs.' Mot. to Dismiss, ECF No. 18.) Plaintiff Mona Estrada ("Plaintiff"), on behalf of herself and all others similarly situated (collectively "Plaintiffs") filed an opposition to Defendants' motion. (Pls.' Opp'n, ECF No. 21.) The Court has carefully considered the arguments raised in Defendants' motion and reply, as well as Plaintiff's opposition. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.
I. FACTUAL BACKGROUND
From 1950 to sometime in 2013, the named Plaintiff, Mona Estrada, purchased Johnson's® Baby Powder ("Baby Powder") for personal use in her genital area after initially reading the label and determining the product was safe to use. (Compl., ECF No. 1 at ¶ 9.) Defendant J&J markets, distributes, and sells Baby Powder products to consumers in the United States, and Defendant J&J Consumer researches, distributes, and sells Baby Powder products to consumers in the United States. (ECF No. 1 at ¶¶ 10-11.)
Plaintiff claims Defendants' Baby Powder is a talc-based powder sold as a daily use powder intended to eliminate friction on the skin and to absorb unwanted excess moisture for both babies and women. (ECF No. 1 at ¶ 9.) Plaintiff alleges that talc-based powders have a 33% increased risk of ovarian cancer when used to powder women's genitals compared to those women who never used the powders. (ECF No. 1 at ¶ 3.) For this reason, Plaintiff argues that Baby Powder is not safe. (ECF No. 1 at ¶ 19.) Plaintiff alleges that Defendants knew of the increased risk of ovarian cancer from use of the product. (ECF No. 1 at ¶¶ 21-57.) Plaintiff alleges that Defendants seek to convey an image as a safe and trusted family brand by operating a website dedicated to the safety of their products. (ECF No. 1 at ¶ 17.) Plaintiff argues that Defendants do not warn or inform customers of the increased risk of ovarian cancer when used in the genital area. (ECF No. 1 at ¶ 20.) Plaintiff alleges that had she known the truth about the safety of using the product, she would not have purchased the product. (ECF No. 1 at ¶ 9.) Plaintiff argues that she suffered an economic injury-in-fact. (ECF No. 1 at ¶ 9.) Plaintiff is not claiming physical harm or seeking the recovery of personal injury damages. (ECF No. 1 at ¶ 9.)
On April 28, 2014, Plaintiff brought this suit against Defendants for: 1) violation of the Consumers Legal Remedies Act ("CLRA") under California Civil Code section 1750, et seq; 2) violation of the Unfair Competition Law ("UCL") under California Business and Professions Code section 17200, et seq; 3) Negligent Misrepresentation; and 4) Breach of Implied Warranty. (ECF No. 1 at 1.) Plaintiff brings this action on behalf of herself and other similarly situated consumers who have purchased Baby Powder. (ECF No. 1 at ¶ 5.) Plaintiff seeks declaratory and injunctive relief requiring Defendants to properly inform consumers regarding the health hazards of using Baby Powder and to obtain redress for those who have purchased the product. (ECF No. 1 at ¶ 5.)
II. STANDARD OF LAW
Federal Rule of Civil Procedure 12(b)(1) allows a party, or the Court on its own initiative, to challenge the court's subject matter jurisdiction at any stage in the litigation. Fed. Rule Civ. Pro. 12(b)(1) & (h)(3); Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). If a plaintiff lacks standing under Article III of the United States Constitution, then the Court lacks subject matter jurisdiction and the case must be dismissed. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998). Once a party has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the opposing party bears the burden of establishing the court's jurisdiction by putting forth "the manner and degree of evidence required" by whatever stage of the litigation the case has reached. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); see Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010); see also Barnum Timber Co. v. Envtl. Prot. Agency, 633 F.3d 894, 899 (9th Cir. 2011) (at the motion to dismiss stage, Article III standing is adequately demonstrated through allegations of "specific facts plausibly explaining" why the standing requirements are met).
To satisfy Article III standing, a plaintiff must allege: (1) an injury-in-fact that is concrete and particularized, as well as actual or imminent; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that the injury is redressable by a favorable ruling. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). "The party invoking federal jurisdiction bears the burden of establishing these elements [...] with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. In class actions, "the named representatives must allege and show that they personally have been injured." Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (quoting Pence v. Andrus, 586 F.2d 733, 736-37 (9th Cir. 1978)). The "injury must have actually occurred or must occur imminently; hypothetical speculative or other possible future' injuries do not count in the standings calculus." Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 820 (9th Cir. 2002) (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Plaintiff brought this suit against Defendants for: 1) violation of the CLRA; 2) violation of the UCL; 3) Negligent Misrepresentation; and 4) Breach of Implied Warranty. (ECF No. 1 at 1.) Defendants contend that Plaintiffs do not have an injury within the meaning of Article III of the United States Constitution. The Court agrees and finds that Plaintiff does not allege an injury sufficient to meet Article III standing for any of its claims.
Consistent with the requirements of Article III, plaintiffs must allege an injury that is "concrete and particularized as to themselves. " Birdsong v. Apple, 590 F.3d 955, 960 (9th Cir. 2009); see Lujan, 504 U.S. at 561 n.1. "[P]alpable economic injuries have long been recognized as sufficient to lay the basis for standing." Sierra Club v. Morton, 405 U.S. 727, 733-34 (1972). However, in order to have standing to bring claims asserting an economic injury-in-fact under Article III, courts have found that plaintiffs must demonstrate they were deceived, and either paid a premium for the product or would have purchased an alternative product. See Pirozzi v. Apple Inc., 913 F.Supp.2d 840, 846-47 (N.D. Cal. 2012) ("Overpaying for goods or purchasing goods a person otherwise would not have purchased based upon alleged misrepresentations by the manufacturer would satisfy the injury-in-fact and causation requirements for Article III standing"); Boysen v. Walgreen Co., 2012 WL 2953069, at *7 (N.D. Cal. July 19, 2012) (an economic injury is sufficiently alleged if plaintiff would have purchased an alternative beverage "had defendant's [beverage] been differently labeled"). Article III standing may also be satisfied by allegations that a plaintiff would not have purchased the product had she known about the misbranding. Kane, 973 F.Supp.2d at 1128; Boysen, 2012 WL 2953069, at *7; Herrington, 2010 WL 3448531, at *5.
If a plaintiff received the benefit-of-the-bargain because the product performed as promised, the plaintiff does not have an injury to satisfy Article III standing. See Myers-Armstrong v. Actavis Totowa, LLC, No. C 08-04741 WHA, 2009 WL 1082026, at *3-4 (N.D. Cal. Apr. 22, 2009) aff'd, 382 F.Appx. 545 (9th Cir. 2010) ("after consuming the pills and obtaining their beneficial effect with no downside, the consumer cannot get a refund [....] [T]he civil law should not be expanded to regulate every hypothetical ill in the absence of some real injury to the civil plaintiff"). See also Herrington, 2010 WL 3448531, at *2-5; In re Hydroxycut Mktg. & Sales Practices Litig., 801 F.Supp.2d 993, 1004 (S.D. Cal. 2011); Boysen, 2012 WL 2953069, at *7; Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 320 (5th Cir. 2002); In re Fruit Juice Products Mktg. & Sales Practices Litig., 831 F.Supp.2d 507, 512 (D. Mass. 2011).
In the instant case, Defendants argue that Plaintiff does not have standing to bring this action because Plaintiff has not suffered an "injury" which satisfies Article III of the United States Constitution. (ECF No. 18 at 7-9.) Plaintiff contends that she suffered an economic injury because she spent money she otherwise would not have spent in purchasing the Baby Powder. (ECF No. 21 at 7.) Plaintiff alleges that either she paid a premium price for a mislabeled product or she would not have purchased the Baby Powder had she known the alleged increased risk of ovarian cancer. (ECF No. 21 at 7.) Plaintiff argues that Defendants misrepresented that the Baby Powder was clinically ...