Harrison v. IFit Health & Fitness et al, No. 4:2021cv10079 - Document 27 (N.D. Cal. 2022)

Court Description: Order GRANTING 15 defendant's motion to dismiss with leave to amend. Signed by Judge Phyllis J. Hamilton on May 13, 2022. (pjhlc1, COURT STAFF) (Filed on 5/13/2022)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PATRINA HARRISON, v. 9 10 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS IFIT HEALTH & FITNESS, et al., Re: Dkt. No. 15 Defendants. 11 United States District Court Northern District of California Case No. 21-cv-10079-PJH Plaintiff, 8 12 13 14 Defendant iFit, Inc.’s motion to dismiss came on for hearing before this court on 15 April 28, 2022. Plaintiff, proceeding pro se, appeared on her own behalf. Defendant 16 appeared through its counsel, Bradley R. Mathews. Having read the papers filed by the 17 parties and carefully considered their arguments and the relevant legal authority, and 18 good cause appearing, the court hereby GRANTS defendant’s motion, for the following 19 reasons. 20 21 BACKGROUND This is a products liability case involving treadmills purchased for in-home use. 22 Plaintiff Patrina Harrison is an asthma and allergy sufferer who resides in San Francisco. 23 Compl. ¶ 8. Defendant iFit, Inc. (hereafter “iFit,” erroneously sued as IFIT HEALTH & 24 FITNESS, ICON HEALTH & FITNESS/NORDICTRACK, and UTS) is a manufacturer of 25 fitness equipment, including treadmills, based in Utah. Compl. ¶ 10. Defendant makes 26 no distinction between the names of the entities identified in the complaint, representing 27 only that they are all one and the same as iFit. Defendant manufactures the Nordic Track 28 2450 Commercial and Freemotion treadmills. Compl. ¶ 10. 1 2 Narrative Plaintiff purchased a Nordic Track 2450 Commercial treadmill from Dick’s Sporting 3 Goods in Daly City, California, on January 16, 2021. Compl. ¶¶ 14-20. She purchased 4 the treadmill for aerobic exercise and selected the treadmill in particular because the 5 salesperson represented that it did not emit any kind of chemical odors. Compl. ¶¶ 14- 6 18. Plaintiff paid $2,299.99 for the treadmill, along with $135.00 for delivery to her 7 residence and assembly, and when it was delivered and assembled in her home on 8 January 29, 2021, she paid the delivery person a $40.00 tip. Compl. ¶¶ 20-22. 9 10 11 United States District Court Northern District of California A. 12 13 14 15 Plaintiff began an exercise session on the treadmill following the delivery person’s departure, and she describes, Within 15 minutes of Plaintiff’s aerobic exercise session on the treadmill, a burst of hot, steaming, offensive, chemical odor immediately started to emitted [sic] from the internal console of the treadmill, resulting in Plaintiff inhaling all such chemical fumes, immediately resulting in Plaintiff experiencing shortness of breath, uncontrollable coughing, itching throat, dizziness, burning eyes, and burning nostrils, all caused from exposure to the chemical odor that was emitted from the treadmill’s console ... 16 Compl. ¶ 24. The chemical odor filled plaintiff’s apartment and remained. Compl. ¶ 25. 17 Plaintiff called Dick’s Sporting Goods to initiate a return of the treadmill the same day, but 18 she was told that it would not be picked up until February 28, 2021, at the earliest. 19 Compl. ¶ 27. Plaintiff hired a moving company to pick up the treadmill from her home 20 and return it to Dick’s Sporting Goods to mitigate further damage to her health on 21 February 9, 2021, paying $494.00 plus a tip of $140.00. Compl. ¶ 28. 22 Plaintiff then purchased a Freemotion treadmill from Fitness Warehouse Direct on 23 July 8, 2021, for a cost of $1,975.50, and a tip of $120.00, which included delivery, 24 assembly, and an option for an extended manufacturer warranty. Compl. ¶ 30. She 25 purchased a four-year extended service plan for the treadmill from Icon Health and 26 Fitness for $279.99 on July 10, 2021. Compl. ¶ 31. Plaintiff reports that she intended for 27 the extended service plan to apply to the Freemotion treadmill, but the paperwork for the 28 extended service plan applied to the Nordic Track 2450 Commercial treadmill she 2 1 purchased earlier. Compl. ¶¶ 34-37. Defendant’s representatives informed plaintiff that 2 the extended warranty would not cover the second-hand treadmills sold by Fitness 3 Warehouse Direct. Compl. ¶ 37. 4 B. Plaintiff filed the complaint in this lawsuit on December 31, 2021, alleging the 5 United States District Court Northern District of California 6 Procedural History following causes of action against all defendants: 7 1. Manufacturing defect, 8 2. Negligence – duty to warn, 9 3. Strict liability – inadequate warning, 10 4. Breach of contract, 11 5. Implied warranty of merchantability, 12 6. Implied warranty of fitness for a particular purpose, and 13 7. Violation of California Business and Professions Code Section 17200. 14 See Compl. ¶¶ 46-113. For each claim, she “seeks special damages, general damages, 15 expectancy damages, punitive damages, and statutory damages” without specificity. Id. 16 The court granted plaintiff’s motion to proceed in forma pauperis and screened the 17 complaint pursuant to Title 28 U.S.C. § 1915(a)(1), concluding that the pleading satisfied 18 the requirements of Rule 8. Dkt. 7. In the screening order, the court noted its concern 19 with plaintiff’s initial showing of subject matter jurisdiction. Dkt. 7 at 4. 20 Defendant iFit filed the instant motion seeking dismissal of the complaint on 21 several grounds, including lack of subject matter jurisdiction, failure to state a claim, and 22 failure to plead with specificity a cause of action sounding in fraud. Defendant asks for 23 dismissal of the entire action, or in the alternative, certain causes of action and the claim 24 for punitive damages. 25 // 26 // 27 // 28 // 3 DISCUSSION 1 United States District Court Northern District of California 2 A. Legal Standards 3 1. Sufficiency of Pleading 4 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the 5 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 6 1191, 1199-1200 (9th Cir. 2003). Review is limited to the contents of the complaint. 7 Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). 8 To survive a motion to dismiss for failure to state a claim, a complaint generally must 9 satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 10 8, which requires that a complaint include a “short and plain statement of the claim 11 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 12 A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the 13 plaintiff fails to state a cognizable legal theory or has not alleged sufficient facts to 14 support a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 15 (9th Cir. 1988). The court is to “accept all factual allegations in the complaint as true and 16 construe the pleadings in the light most favorable to the nonmoving party.” Outdoor 17 Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007). 18 However, legally conclusory statements, not supported by actual factual 19 allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The 20 allegations in the complaint “must be enough to raise a right to relief above the 21 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 22 and quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable 24 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). 25 In the event dismissal is warranted, it is generally without prejudice, unless it is 26 clear the complaint cannot be saved by any amendment. See Sparling v. Daou, 411 F.3d 27 1006, 1013 (9th Cir. 2005). As a general rule, courts have a liberal policy favoring 28 amendments to pleadings, which is “applied even more liberally to pro se litigants.” 4 1 United States District Court Northern District of California 2 Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). For plaintiffs’ claims that sound in fraud, the complaint must also meet the 3 heightened pleading standard of Federal Rule of Civil Procedure 9(b). See Kearns v. 4 Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Rule 9(b) requires a party alleging 5 fraud or mistake to state with particularity the circumstances constituting fraud or mistake. 6 “To satisfy Rule 9(b)’s particularity requirement, the complaint must include an account of 7 the time, place, and specific content of the false representations as well as the identities 8 of the parties to the misrepresentations.” Depot, Inc. v. Caring for Montanans, Inc., 915 9 F.3d 643, 668 (9th Cir. 2019) (internal quotation marks omitted). In other words, 10 “[a]verments of fraud must be accompanied by ‘the who, what, when, where, and how’ of 11 the misconduct charged.” Kearns, 567 F.3d at 1124. 12 2. Subject Matter Jurisdiction 13 Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a defendant 14 may move to dismiss for lack of subject matter jurisdiction. Federal courts are courts of 15 limited subject matter jurisdiction and cannot hear every dispute presented by litigants. 16 Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 17 (9th Cir. 1989). Federal courts can only adjudicate cases which the Constitution or 18 Congress authorize them to adjudicate: those cases involving diversity of citizenship 19 (where the parties are from diverse states and the amount in controversy is at least 20 $75,000), or a federal question, or those cases to which the United States is a party. See 21 28 U.S.C. § 1332(a)(1); see also Kokkonen v. Guardian Life Insurance Co. of America, 22 511 U.S. 375 (1994). Federal courts are presumptively without jurisdiction over civil 23 cases and the burden of establishing that the court has jurisdiction rests upon the party 24 asserting jurisdiction. Kokkonen, 511 U.S. at 377. If the court determines that it lacks 25 subject matter jurisdiction, then the action must be dismissed. Fed. R. Civ. P. 12(h)(3). 26 “Where the plaintiff originally files in federal court, ‘the amount in controversy is 27 determined from the face of the pleadings.’” Geographic Expeditions, Inc. v. Estate of 28 Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010) (citation omitted). “The 5 1 amount in controversy alleged by the proponent of federal jurisdiction—typically the 2 plaintiff in the substantive dispute—controls so long as the claim is made in good faith.” 3 Id. at 1106. “To justify dismissal, it must appear to a legal certainty that the claim is really 4 for less than the jurisdictional amount.” Id. 5 B. 6 Defendant does not challenge subject matter jurisdiction based on diversity—iFit’s 7 home in Utah is uncontested. Defendant instead focuses on the second prong of the 8 assessment, that the amount in controversy is insufficient to support federal jurisdiction. 9 United States District Court Northern District of California Analysis Analysis of the amount in controversy begins with the amount expressly sought by 10 plaintiff to compensate for her alleged harm, or compensatory damages. Because the 11 compensatory damages as pleaded do not meet the jurisdictional threshold, the court 12 turns to also assess whether punitive damages would help the plaintiff reach the $75,000 13 threshold—punitive damages may also be considered as part of the amount in 14 controversy if they are properly pleaded. Gibson v. Chrysler Corp., 261 F.3d 927, 945 15 (9th Cir. 2001) (“It is well established that punitive damages are part of the amount in 16 controversy in a civil action.” (citation omitted)). The court discusses both forms of 17 damages in turn to determine whether it may exercise jurisdiction over the case. Finally, 18 the court addresses the sufficiency of plaintiff’s allegations related to the claim for fraud 19 under California’s Unfair Competition Law (“UCL”) to determine whether that claim must 20 be dismissed. 21 1. Compensatory Damages 22 As noted above, this federal court only has jurisdiction or authority to hear cases in 23 certain circumstances, such as where the plaintiff and defendants are legal residents of 24 different states and the amount at issue in the controversy exceeds $75,000. 28 U.S.C. 25 § 1332(a). An amount in controversy “reflects the maximum recovery the plaintiff could 26 reasonably recover.” Arias v. Residence Inn by Marriott, 936 F.3d 920, 927 (9th Cir. 27 2019). Determination of the amount in controversy is based on the plain language of the 28 complaint. Reule v. H.O. Seiffert Co., 430 Fed. Appx. 584 (9th Cir. 2011). 6 Here, plaintiff does not allege an amount in controversy that exceeds $75,000. United States District Court Northern District of California 1 2 Plaintiff specifically pleads her damages, including economic losses for medical care, as 3 follows: “As a result of the exposure to the offensive, chemical odor emitting from the 4 internal components of the treadmill, Plaintiff suffered injuries, exacerbated asthma and 5 allergy symptoms, and an economic loss of $634.00.” Compl. ¶ 29. Plaintiff does not 6 point to any allegations in her complaint that demonstrate that the case meets the 7 $75,000 threshold. Even if the court considered the amounts paid for the defective 8 treadmill and the replacement treadmill and their deliveries, the sum still would not reach 9 $75,000. The sum of all plaintiff’s expenditures enumerated in the complaint, including 10 the costs of the two treadmills, the delivery charges, the tips to delivery staff, and the 11 extended service plan, reaches only $5,484.48.1 See Compl. ¶¶ 20, 22, 28, 29, 30, 31. 12 Plaintiff states in her opposition brief that the case involves “a damage amount of 13 $2,000,000.00,” but this contention is unsupported by any citation or any allegations 14 included within the complaint. Dkt. 17 at 5. Plaintiff suggested at the hearing that she 15 seeks to recover damages for emotional distress and medical expenses, but she 16 provides no facts indicating that she sought and received medical care, for how long, and 17 whether her allergic response to the fumes was anything other than temporary. These 18 damages must be alleged in the complaint with greater specificity than “general 19 damages” to establish the court’s jurisdiction. Additionally, in her prayer for relief, plaintiff 20 says nothing about compensatory damages or medical expenses, and instead seeks an 21 award of out of pocket expenses, injunctive and equitable relief (unspecified), and 22 punitive damages. Therefore, the complaint lacks clarity and fails to establish that this 23 court has jurisdiction to hear the dispute, and it must be dismissed. 24 25 26 27 28 1 The court understands from the hearing that plaintiff received a refund of the amount paid for the first treadmill and that she retains the second treadmill, leaving her only outof-pocket damages for (1) the cost of delivery of the first treadmill, $135.00 plus $40.00 tip, (2) the cost to return the first treadmill to Dick’s Sporting Goods, $494.00 plus $140.00 tip, and (3) the cost for the service plan that does not apply to the used treadmill that she still retains, $279.00. 7 United States District Court Northern District of California 1 2. Punitive Damages 2 “It is well established that punitive damages are part of the amount in controversy 3 in a civil action.” Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001) (citing Bell 4 v. Preferred Life Assur. Soc’y, 320 U.S. 238, 240 (1943)). Two steps are necessary 5 before punitive damages may be included in the amount in controversy, however. “First, 6 the party asserting jurisdiction must establish that punitive damages would be permitted 7 under the applicable state law based on the conduct alleged.” In re Volkswagen “Clean 8 Diesel” Mktg., Sales Pracs., & Prod. Liab. Litig., No. MDL 2672 CRB (JSC), 2019 WL 9 1501577, at *4 (N.D. Cal. Apr. 5, 2019). Second, the party seeking jurisdiction must 10 determine the amount of punitive damages that are in controversy, which may be 11 accomplished through introduction of “evidence of jury verdicts in cases involving 12 analogous facts.” Surber v. Reliance Nat. Indem. Co., 110 F. Supp. 2d 1227, 1232 (N.D. 13 Cal. 2000). 14 California law provides for punitive damages as follows: “In an action for the 15 breach of an obligation not arising from contract, where it is proven by clear and 16 convincing evidence that the defendant has been guilty of oppression, fraud, or malice, 17 the plaintiff, in addition to the actual damages, may recover damages for the sake of 18 example and by way of punishing the defendant.” Cal. Civ. Code § 3294. In assessing 19 whether a plaintiff sufficiently alleges oppression, fraud, or malice, courts look to the 20 definitions of those terms provided in section 3294: 21 22 23 24 25 26 (1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. 27 Cal. Civ. Code § 3294(c)(1)-(3)) (italics in original); see also Jackson v. East Bay Hosp., 28 980 F. Supp. 1341, 1353 (N.D. Cal. 1997). “Although the court will apply the substantive 8 1 law embodied in section 3294, determinations regarding the adequacy of pleadings are 2 governed by the Federal Rules of Civil Procedure.” Jackson, 980 F. Supp. at 1353 3 (citations omitted). 4 5 National Medical Center v. Genentech, Inc., 43 Cal. 4th 375, 392 (2008). Punitive 6 damages are not available under section 17200 either. Korea Supply Co. v. Lockheed 7 Martin Corp., 29 Cal. 4th 1134, 1148 (2003) (“A UCL action is equitable in nature; 8 damages cannot be recovered. . . We have stated that under the UCL, prevailing 9 plaintiffs are generally limited to injunctive relief and restitution”) (cleaned up). 10 United States District Court Northern District of California “[P]unitive damages may not be awarded for breach of contract.” City of Hope Here, the only claims alleged in the complaint that can support an award for 11 punitive damages are those for products liability. Plaintiff nowhere specifies, however, 12 that defendant acted with oppression, fraud, or malice in relation to the manufacture or 13 marketing of either treadmill. Plaintiff alleges how she was injured, but she fails to allege 14 any particularly oppressive actions by defendant. Plaintiff specifically and repeatedly 15 alleges that defendant’s conduct was “negligent,” (Compl. ¶¶ 60, 69, 86, 94, & 98), not 16 that iFit willfully or consciously acted in a way that resulted in her harm. Therefore, 17 plaintiff’s prayer for punitive damages is insufficiently pleaded, and the prayer for punitive 18 damages does not change the court’s amount in controversy assessment. 19 3. Pleading of Fraud 20 The UCL prohibits “any unlawful, unfair or fraudulent business act or practice.” 21 Cal. Bus. & Prof. Code § 17200. The pleading requirements of Rule 9(b) apply to UCL 22 claims sounding in fraud. Kearns, 567 F.3d at 1125. As noted above, “Averments of 23 fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct 24 charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). 25 Here, plaintiff’s UCL claim expressly relies on both the unfair and fraudulent 26 prongs of the statute. Plaintiff avers under a header, “‘Fraudulent’ Prong,” that she relied 27 on misrepresentations regarding both the applicability of the extended service plan to the 28 Freemotion treadmill and the lack of warnings in the instructional manual for the Nordic 9 1 Track 2450 Commercial treadmill. Compl. ¶¶ 108-11. While these allegations may 2 generally address elements for a claim of fraud, they fail to specifically address the “who, 3 what, when, where, and how” of the alleged fraudulent conduct as is necessary to meet 4 federal pleading requirements under Rule 9(b). Therefore, plaintiff’s UCL claim is 5 insufficiently pleaded and must be dismissed. CONCLUSION 6 United States District Court Northern District of California 7 For the foregoing reasons, including that plaintiff’s alleged damages do not meet 8 the jurisdictional threshold and that the punitive damages that could have made up the 9 difference are insufficiently pleaded, the court GRANTS defendant’s motion to dismiss 10 with leave to amend. Plaintiff’s amended complaint must specify how the amount in 11 controversy exceeds the jurisdictional threshold of $75,000, and, if plaintiff renews her 12 fraud-based claim under the UCL, the amended complaint must specify the “who, what, 13 when, where, and how” of the alleged fraud to satisfy the particularity requirements of 14 Rule 9(b). The amended complaint must be filed on or before June 10, 2022. No 15 additional parties or claims may be added without leave of court or stipulation of 16 defendant. 17 18 19 20 IT IS SO ORDERED. Dated: May 13, 2022 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge 21 22 23 24 25 26 27 28 10

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