United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS RE: DKT. NOS. 25, 57
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
Thomas Bailey brings this putative class action against
defendant Rite Aid Corporation (“Rite Aid”)
asserting eight causes of action arising out of
defendant's sale and marketing of its over-the-counter
rapid release acetaminophen gelcaps. (See First Amended
Complaint Dkt. No. 15 (“FAC”).) Now before the
Court is defendant's motion to dismiss plaintiff's
FAC for failure to state a claim under Rule
12(b)(6). (Dkt. No. 25 (“MTD”).) Having
carefully considered the pleadings and the papers submitted,
as well as arguments by counsel during the hearing on May 28,
2019, and for the reasons set forth more fully below, the
Court hereby Grants in Part and
Denies in Part defendant's motion to
alleges as follows:
response to Johnson & Johnson's 2005 release of
Tylenol Extra Strength Rapid Release Gels and 2008 release of
Tylenol PM Rapid Release Gels, both of which were launched
with the promise that the gelcaps were “specially
designed” “with holes to allow [for] the release
of powerful medicine even faster than before, ”
defendant Rite Aid released its own version of these
medications called “Rite Aid Acetaminophen Rapid
Release Gelcaps” and “Rite Aid Acetaminophen PM
Rapid Release Gelcaps, ” (collectively, “Rite Aid
RR Gelcaps”). (FAC ¶¶ 4-6.)
their release, Rite Aid has marketed these medications as
comparable to Tylenol Extra Strength Rapid Release Gels even
though, they do not contain the unique laser drilled holes of
Tylenol Extra Strength Rapid Release Gels. (Id.
¶ 8.) The Rite Aid version are nonetheless labeled and
advertised as a “rapid release” product.
(Id.) Additionally, the term “rapid
release” does not actually mean that the drug works
faster than non-rapid release products. (Id. ¶
9.) Rite Aid has known, or should have known, that non-rapid
release acetaminophen products can be equally effective in
the same, if not faster, time period than its Rite Aid rapid
release products. (Id. ¶ 10.) A recent study
demonstrates that Ride Aid RR Gelcaps dissolve slower than
Rite Aid non-rapid release products. (Id. ¶
11.) Yet, Rite Aid charges a premium for the Rite Aid RR
Gelcaps. (Id. ¶¶ 12, 45, 48, 50.)
purchased a bottle of Rite Aid Acetaminophen Rapid Release
Gelcaps, 100 count, in mid-2018 at a Rite Aid store in
Alameda County, California for a price more than the
brand's cheaper non-rapid release acetaminophen products
in the same count. (Id. ¶ 73.) He purchased the
Rite Aid RR Gelcaps “over other Rite Aid brand and
other acetaminophen products solely because they were labeled
as rapid release and he was seeking ‘faster'
relief.” (Id. ¶ 76.) Rite Aid's
marketing, labeling and advertising, misled plaintiff to
believe that the Rite Aid RR Gelcaps he purchased would
provide faster relief than other, cheaper Rite Aid
acetaminophen products. (Id. ¶ 77.) Had
plaintiff known that the Rite Aid RR Gelcaps did not act any
faster than traditional, cheaper Rite Aid products, he would
not have been willing to pay the premium that he paid for the
Rite Aid RR Gelcaps. (Id. ¶ 78.) Instead,
“he would have purchased a cheaper, just as effective
and just as fast acting acetaminophen product.”
(Id.) “The cost of the [Rite Aid RR Gelcaps]
exceeded the value of the product and [p]laintiff Bailey did
not receive the benefit of the bargain.” (Id.
Rule of Civil Procedure 8(a) requires a plaintiff to plead
each claim with sufficient specificity to “give the
defendant fair notice of what the . . . claim is and the
ground upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks omitted). The factual allegations in the complaint
“must be enough to raise a right to relief above the
speculative level” such that the claim “is
plausible on its face.” Id. at 556-57.
Moreover, a plaintiff suing multiple defendants “must
allege the basis of his claim against each defendant to
satisfy Federal Rule of Civil Procedure 8(a)(2) . . .
.” Gauvin v. Trombatore, 682 F.Supp. 1067,
1071 (N.D. Cal. 1988). “Specific identification of the
parties to the activities alleged by the plaintiff is
required . . . to enable [a] defendant to plead
intelligently.” Herrejon v. Ocwen Loan Servicing,
LLC, 980 F.Supp.2d 1186, 1196 (E.D. Cal. 2013) (internal
quotation marks omitted).
complaint that falls short of the Rule 8(a) standard may be
dismissed if it fails to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(b)(6). “Dismissal under
Rule 12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
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
a nonmoving party.” Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Court, however, need not accept as true allegations
contradicted by judicially noticeable facts, see Shwarz
v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and
it “may look beyond the plaintiff's complaint to
matters of public record” without converting the Rule
12(b)(6) motion to a motion for summary judgment, Shaw v.
Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor must
the Court “assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations.” Fayer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir. 2011) (per curiam) (internal quotation marks
omitted). Mere “conclusory 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).
court determines that a complaint should be dismissed, it
should give leave to amend unless “the pleading could
not possibly be cured by the allegation of other
facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal.
Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.
1990). In making this determination, a court must bear in
mind “the underlying purpose of Rule 15 to facilitate
decisions on the merits, rather than on the pleadings or
technicalities.” Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000) (en banc) (alterations and
internal quotation marks omitted).
MTD attacks the FAC on five bases. First, defendant contends
that plaintiff's claims are preempted by Section 379r of
the Food and Drug Administration Modernization Act of 1996
(“FDAMA”). (MTD at 2 (citing 21 U.S.C. §
379r).) Second, and in the alternative, defendant asserts
that the FAC should be dismissed under the doctrine of
primary jurisdiction. (Id. at 3 n.1.) Next,
defendant argues that the UCL, FAL, and CLRA claims fail
under Rules 12(b)(6) and 9(b) as well as for failure to
allege a duty to disclose with respect to the UCL claim and
application of California's safe harbor doctrine.
(Id. at 3.) Fourth, defendant contends that
plaintiff's Song-Beverly Act and UCC claims fail to
allege breach of any warranty. Finally, the motion seeks
dismissal of the unjust enrichment and declaratory and
injunctive relief claims as “derivative and duplicative
of his other claims and similarly flawed . . . .”
(Id. at 4.) The Court addresses each argument in
the Supremacy Clause of Article VI of the Constitution,
“state law that conflicts with federal law is without
effect.” Cipollone v. Liggett Group, Inc., 505
U.S. 504, 516 (1992). Federal preemption of state law,
however, “will not lie unless it is the clear and
manifest purpose of Congress.” CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 664 (1993) (internal citation
omitted). If a federal statue contains an express preemption
clause, the plain wording of the clause necessarily contains
the best evidence of Congress' preemptive intent.
Natural Uniformity Nonprescription Drugs provision of the
Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C.
§ 379r, includes an express preemption provision, which
the provides: [N]o State or political ...