Seegert v. Rexall Sundown, Inc., No. 3:2017cv01243 - Document 39 (S.D. Cal. 2018)
Court Description: ORDER denying 34 Defendant Motion to Dismiss. Signed by Judge John A. Houston on 6/13/2018. (jpp)
Download PDF
<![CDATA[
Seegert v. Rexall Sundown, Inc. Doc. 39 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SANDRA SEEGERT, individually and on behalf of all other similarly situated, 15 ORDER DENYING DEFENDANT’S MOTION TO DISMISS Plaintiffs, 13 14 Case No.: 3:17-cv-1243-JAH-JLB v. REXALL SUNDOWN, INC., Defendant. 16 17 18 INTRODUCTION 19 Presently before the Court is Defendant Rexall Sundown, Inc.’s (“Defendant” or 20 “Rexall”) Motion to Dismiss Plaintiff Sandra Seegert’s (“Plaintiff”) First Amended 21 Complaint (“FAC”) pursuant to Federal Rules of Civil Procedure 8, 9(b), 12(b)(1), and 22 12(b)(6). [Doc. No. 34]. In addition, Defendant requests the Court take judicial notice of 23 several exhibits attached in support of its Motion to Dismiss. [Doc. No. 34–2]. The motion 24 has been fully briefed. After careful consideration of the pleadings, and for the reasons set 25 forth below, Defendant’s Motion to Dismiss is DENIED. 26 \\ 27 \\ 28 \\ 1 3:17-cv-1243-JAH-JLB Dockets.Justia.com 1 BACKGROUND 2 Plaintiff brings this class action complaint on behalf of herself, and all others 3 similarly situated, alleging that Defendant violated two California statutes: (1) California’s 4 Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200; and (2) California’s 5 Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750. See Doc. No. 31. 6 I. Factual History 7 Defendant distributes and sells a line of “joint health” supplements marketed by the 8 product name “Osteo Bi-Flex.” Doc. No. 31, ¶ 2. Defendant offers four different types of 9 Osteo Bi-Flex products: (1) Osteo Bi-Flex One Per Day, (2) Osteo Bi-Flex Triple Strength, 10 (3) Osteo Bi-Flex Triple Strength MSM formula, and (4) Osteo Bi-Flex Triple Strength 11 with Vitamin D. Id. at ¶ 15. Plaintiff alleges that on February 20, 2017 she purchased 12 Defendant’s Osteo Bi-Flex Triple Strength product while shopping at a Walgreens store in 13 San Diego, California. Id. at ¶ 11. Plaintiff further alleges that she purchased Defendant’s 14 product believing it would provide the joint health benefits that it advertised, including 15 relief from joint pain and increased joint mobility. Id. at ¶ 12. Defendant advertises and 16 markets its four Osteo Bi-Flex products as having the ability to provide meaningful joint 17 health benefits.1 Id. at ¶ 3. Plaintiff asserts that these claims constitute false and misleading 18 advertising because the Osteo Bi-Flex products are “incapable of supporting or benefitting 19 the health of human joints.” Id. at ¶ 5. In support, Plaintiff cites to numerous clinical trials 20 21 22 23 24 25 26 27 28 Plaintiff asserts that on the label of each of the Osteo Bi-Flex products Defendant “prominently and in all caps” displays the words “Joint Health,” “Glucosamine,” and “Joint Shield” as well as the phrase: “Shows Improved Joint Comfort within 7 days!” Doc. No. 31, ¶ 3. In addition, Plaintiff alleges that Defendant reinforces their overall joint health benefit message by representing that Osteo Bi-Flex can help with: (1) “range of motion,” (2) “strengthen joints”, (3) “support flexibility,” (4) “support mobility,” (5) “supports joint comfort,” (6) “defend your joints,” and (7) “helps strengthen joints while helping to maintain joint cartilage essential for comfortable joint movement.” Id. at ¶ 25. Finally, Plaintiff alleges that Defendant labels the Osteo Bi-Flex products as the “#1 Pharmacist Recommended Brand,” which “adds credibility” and “provides consumers with a ‘reason to believe’ ” the representations made by Defendant. Id. at ¶ 26. 1 2 3:17-cv-1243-JAH-JLB 1 and studies which demonstrate that the main ingredients in Osteo Bi-Flex are ineffective 2 and unable to produce “joint health benefits.” Id. at ¶ 34. 3 II. Procedural History 4 Plaintiff filed her initial complaint on June 19, 2017. [Doc. No. 1]. On August 14, 5 2017, Defendant filed a motion to dismiss and motion to strike Plaintiff’s complaint. [Doc. 6 Nos. 17, 18]. On December 1, 2017, this Court granted Defendant’s motion to dismiss and 7 motion to strike, dismissing Plaintiff’s claims without prejudice. [Doc. No. 30]. On 8 December 29, 2017, Plaintiff filed a FAC, to which Defendant filed this pending Motion 9 to Dismiss. [Doc. Nos. 31, 34]. The Court has received an opposition from Plaintiff and a 10 reply from Defendant. [Doc. Nos. 35, 37]. 11 12 LEGAL STANDARD I. Federal Rule of Civil Procedure 12(b)(1) 13 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek 14 to dismiss a complaint for lack of jurisdiction over the subject matter. The federal court is 15 one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769, 16 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its 17 own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 18 83, 95 (1998). When considering a Rule 12(b)(1) motion to dismiss, the district court is 19 free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving 20 factual disputes where necessary. See Augustine v. United States, 704 F.2d 1074, 1077 21 (9th Cir. 1983). 22 a. Standing 23 A necessary element of Article III’s “case” or “controversy” requirement is that a 24 litigant must have “‘standing’ to challenge the action sought to be adjudicated in the 25 lawsuit.” Valley Forge College v. Americans United for Separation of Church and State, 26 Inc., 454 U.S. 464, 471 (1982); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir. 2000). 27 Standing under Article III pertains to the Court’s subject matter jurisdiction and therefore 28 is “properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1).” 3 3:17-cv-1243-JAH-JLB 1 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “For purposes of ruling on a motion to 2 dismiss for want of standing, both the trial and reviewing courts must accept as true all 3 material allegations of the complaint and must construe the complaint in favor of the 4 complaining party.” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting 5 Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). 6 The “irreducible constitutional minimum” of Article III standing has three elements. 7 LSO, 205 F.3d at 1152 (internal quotations omitted). First, plaintiff must have suffered “an 8 injury in fact—an invasion of a legally protected interest which is (a) concrete and 9 particularized, and (b) actual and imminent, not conjectural or hypothetical.” Lujan v. 10 Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted). 11 Second, plaintiff must show a causal connection between the injury and the conduct 12 complained of; i.e., “the injury has to be fairly . . . trace[able] to the challenged action of 13 the defendant, and not . . . th[e] result [of] the independent action of some third party not 14 before the court.” Id. (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 15 26, 41-42 (1976)) (alterations in original). Third, it must be “likely,” and not merely 16 “speculative,” that the plaintiff’s injury will be redressed by a favorable decision. Id. at 17 561. “The party invoking federal jurisdiction bears the burden of establishing these 18 elements.” Lujan, 504 U.S. at 561 (internal citations omitted). 19 II. Federal Rule of Civil Procedure 12(b)(6) 20 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 21 dismiss for failure to state a claim for relief. Dismissal is warranted under Rule 12(b)(6) 22 where the complaint lacks a cognizable legal theory or fails to allege sufficient facts to 23 support a cognizable legal theory. Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013). Under 24 Rule 8(a)(2) of the Federal Rules of Civil Procedure, the plaintiff is required to set forth a 25 “short and plain statement of the claim showing that the pleader is entitled to relief,” and 26 “give the defendant fair notice of what the...claim is and the grounds upon which it rests.” 27 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). 28 4 3:17-cv-1243-JAH-JLB 1 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 2 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 3 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). A claim is facially plausible 4 when the factual allegations permit “the court to draw the reasonable inference that the 5 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In other words, “the 6 non-conclusory ‘factual content,’ and reasonable inferences from that content, must be 7 plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 8 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Determining whether a 9 complaint states a plausible claim for relief will . . . be a context-specific task that requires 10 the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. 11 at 679. 12 In reviewing a motion to dismiss under Rule 12(b)(6), the reviewing court must 13 assume the truth of all factual allegations and construe them in the light most favorable to 14 the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 15 However, legal conclusions need not be taken as true merely because they are cast in the 16 form of factual allegations. Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). “Nor 17 does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 18 enhancement.’ ” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). 19 III. Federal Rule of Civil Procedure 9(b) 20 Rule 9(b) of the Federal Rules of Civil Procedure, requires that “[i]n alleging fraud 21 or mistake, a party must state with particularity the circumstances constituting fraud or 22 mistake.” Under Ninth Circuit case law, Rule 9(b) imposes two distinct requirements on 23 complaints alleging fraud. First, the basic notice requirements of Rule 9(b) require 24 complaints pleading fraud to “state precisely the time, place, and nature of the misleading 25 statements, misrepresentations, and specific acts of fraud.” Kaplan v. Rose, 49 F.3d 1363, 26 1370 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp., U.S.A., 317 F.3d 1097, 1106 (9th 27 Cir. 2003) (citation omitted) (stating that a plaintiff must set forth the “who, what, when, 28 where and how” of the alleged misconduct). Second, Rule 9(b) requires that the complaint 5 3:17-cv-1243-JAH-JLB 1 “set forth an explanation as to why the statement or omission complained of was false or 2 misleading.” Yourish v. California Amplifier, 191 F.3d 983, 993 (9th Cir. 1999) (citation 3 and quotation omitted). 4 IV. Judicial Notice 5 Defendant filed a request for judicial notice in support of its Motion to Dismiss. 6 [Doc. No. 34–2]. This Court may take judicial notice of an adjudicative fact “not subject 7 to reasonable dispute because it can be . . . accurately and readily determined from sources 8 whose accuracy cannot be reasonably questioned.” See Fed. R. Evid. 201; Grason Elec. 9 Co. v. Sacramento Mun. Util. Dist., 571 F. Supp. 1504, 1521 (E.D. Cal. 1983). The 10 documents Defendant submits for judicial notice include packaging and labeling for the 11 four Osteo Bi-Flex products [Exhibits 1–4] and an order from the Hon. Michael M. Anello 12 affirming a tentative ruling. [Exhibit 5]. See Doc. No. 34–2. Because the request of judicial 13 notice is capable of accurate and ready determination from sources whose accuracy cannot 14 be reasonably questioned and the parties do not dispute the authenticity of the documents, 15 Defendant’s request for judicial notice is GRANTED. 16 DISCUSSION 17 Defendant makes several arguments in support of its Motion to Dismiss. First, 18 Defendant argues that because Plaintiff only purchased Osteo Bi-Flex Triple Strength, she 19 lacks standing to assert claims for the remaining Osteo Bi-Flex products. See Doc. No. 34– 20 1, pg. 17–19. Next, Defendant argues that Plaintiff’s complaint should be dismissed in its 21 entirety because she has not plausibly alleged that the representations made by Defendant 22 concerning its Osteo Bi-Flex products are false. Id. at 20–26. Finally, Defendant contends 23 that Plaintiff failed to remedy any of the Rule 9(b) deficiencies discussed by this Court in 24 dismissing her original complaint. Id. at pg. 26–27. The arguments will be addressed in 25 turn below. 26 \\ 27 \\ 28 \\ 6 3:17-cv-1243-JAH-JLB 1 I. Standing for unpurchased Osteo Bi-Flex products 2 Defendant argues that Plaintiff lacks standing to pursue claims as to the products she 3 did not purchase. See Doc. No. 34–1, pg. 17–19. Defendant contends that Plaintiff read 4 and relied solely on the packaging, and claims thereon, of the Osteo Bi-Flex Triple Strength 5 product in making her purchase decision, and because Plaintiff did not purchase–or even 6 rely upon–the three remaining Osteo Bi-Flex products, she lacks standing to pursue claims 7 as to those products. In opposition, Plaintiff argues that the Ninth Circuit has adopted a 8 “class certification” approach where any dissimilarities between the class representative 9 and passive class members is addressed at the class certification stage rather than a motion 10 to dismiss. See Doc. No. 35, pg. 12 (citing Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 11 2015)). Plaintiff argues that this “class certification” approach has been applied to UCL 12 and CLRA claims by numerous district courts throughout the Ninth Circuit. Id. In 13 dismissing Plaintiff’s initial complaint, this Court held that Plaintiff lacked standing to 14 assert claims for the non-purchased products because she “failed to show how she was 15 injured by products she did not come across or purchase.” Doc. No. 30. However, upon 16 reconsideration of Ninth Circuit case law, and in light of Plaintiff’s new allegations 17 regarding the similarities between the Osteo Bi-Flex products, the Court finds it appropriate 18 to change course. 19 In Melendres,2 the Ninth Circuit Court of Appeals held that “once the named plaintiff 20 demonstrates her individual standing to bring a claim, the standing inquiry is concluded, 21 and the court proceeds to consider whether the Rule 23(a) prerequisites for class 22 certification have been met.” Melendres, 784 F.3d at 1262 (quoting 1 William B. 23 Rubenstein, Newberg on Class Actions § 2:6 (5th ed.)). In Kirola v. City & Cty. of San 24 25 26 27 2 Melendres involved a civil rights class action dealing with racial profiling, and specifically discussed whether plaintiffs had standing to assert claims against defendants for a particular type of police stop, even though they were pulled over under a different stop regime than other class members. 28 7 3:17-cv-1243-JAH-JLB 1 Francisco, the Ninth Circuit applied Melendres to an American with Disabilities (“ADA”) 2 claim holding that the plaintiff had standing to challenge the disability access of facilities 3 she never physically visited. 860 F.3d 1164, 1176 (9th Cir. 2017). Defendant argues that 4 these holdings are irrelevant because they do not involve consumer class actions, and cites 5 to numerous UCL and CLRA cases wherein standing was denied to plaintiffs concerning 6 products they did not actually purchase or advertisements they did not rely upon.3 7 The Court need not determine Melendres’ applicability here because, as clearly 8 demonstrated by Defendant’s cited authority, the majority of Ninth Circuit courts already 9 allow plaintiffs to assert claims for unnamed class members “based on products he or she 10 did not purchase so long as the products and alleged misrepresentations are substantially 11 similar.” Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 870-72 (N.D. Cal. 12 2012) (emphasis added); see also Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 13 1141 (N.D. Cal. 2013) (“Plaintiffs have failed to allege substantial similarity among the 14 Purchased Products and the Non–Purchased Products.”); Route v. Mead Johnson Nutrition 15 Co., 2013 WL 658251, at *3 n.4 (acknowledging the plaintiff might have standing with 16 respect to unpurchased products “[i]f all four products (1) contained the same controverted 17 ingredient in the same amount, (2) were subject to the same advertisement campaign and 18 same representations, and (3) the only differences between the products were not germane 19 to Plaintiff's claims. . . .”). Accordingly, Plaintiff will have standing to pursue claims for 20 the unpurchased Osteo Bi-Flex products so long as they are alleged to be substantially 21 similar. 22 23 24 25 26 27 28 3 Route v. Mead Johnson Nutrition Co., No. CV 12-7350-GW JEMX, 2013 WL 658251, at *1 (C.D. Cal. Feb. 21, 2013); Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1141-42 (N.D. Cal. 2013); Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 870-72 (N.D. Cal. 2012); Granfield v. NVIDIA Corp., No. 11-cv-05403, 2012 WL 2847575, at *6 (N.D. Cal. July 11, 2012); Hairston v. S. Beach Beverage Co., Inc., No. 12-cv-1429, 2012 WL 1893818, at *5 n.5 (C.D. Cal. May 18, 2012); Mlejnecky v. Olympus Imaging Am. Inc., No. 10-cv-2630, 2011 WL 1497096, at *4-5 (E.D. Cal. Apr. 19, 2011); Carrea v. Dreyer’s Grand Ice Cream, Inc., No. 10-cv-1044, 2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 2011); Johns v. Bayer Corp., No. 09-cv-1935, 2010 WL 476688, at *5 (S.D. Cal. Feb. 9, 2010) 8 3:17-cv-1243-JAH-JLB 1 Here, Plaintiff has added detail in her FAC about the similarities of the Osteo Bi- 2 Flex products and their packaging. Plaintiff alleges that all Osteo Bi-Flex products contain 3 the same main ingredient–glucosamine hydrochloride–in the same amount per serving. 4 Doc. No. 31, ¶¶ 16–17. Plaintiff further alleges that the front packaging of all Osteo Bi- 5 Flex products is materially identical “and communicates the very same advertising 6 message.” Id. at ¶¶ 22, 24. In analyzing the front packaging of all four Osteo Bi-Flex 7 products, the Court notes only minimal differences, including different “sub-names” 8 located under “Osteo Bi-Flex Joint Health” and the color of the packaging. See Doc. No. 9 34 – 2, Exs. 1–4. Additionally, Plaintiff contends that the same “overall joint health benefits 10 message” is used throughout Defendant’s Osteo Bi-Flex products, including affirmations 11 that the products assist with “range of motion,” “support flexibility,” and “support joint 12 comfort.” Doc. No. 31, ¶ 25, Ex. A. The Court finds that Plaintiff has sufficiently alleged 13 substantial similarities between the Osteo Bi-Flex products, and thus has standing to pursue 14 claims for the products she did not purchase. While a different result may be obtained in a 15 motion for class certification, Defendant’s motion to dismiss on such a basis must be 16 DENIED. 17 II. UCL and CLRA Claims 18 “The UCL prohibits, and provides civil remedies for, unfair competition, which it 19 defines as ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, 20 untrue or misleading advertising.’ ” Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 320, 21 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) (quoting Cal. Bus. & Prof. Code § 17200). This 22 section establishes three separate and distinct theories of liability. Rubio v. Capital One 23 Bank, 613 F.3d 1195, 1203 (9th Cir. 2010) (“A business act or practice may violate the 24 UCL if it is either ‘unlawful,’ ‘unfair,’ or ‘fraudulent.’ ”). To state a claim under the 25 “fraudulent” prong, a plaintiff must allege “members of the public are likely to be 26 deceived” by the defendant’s business practices. Schnall v. Hertz Corp., 78 Cal.App.4th 27 1144, 1167, 93 Cal.Rptr.2d 439 (2000). The “unlawful” prong “borrows” violations of 28 other laws and makes them independently actionable under the UCL. Cel–Tech Commc’ns, 9 3:17-cv-1243-JAH-JLB 1 Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 2 P.2d 527 (1999). An “unfair” business practice is one that “threatens an incipient violation 3 of an antitrust law, or violates the policy or spirit of one of those laws, or otherwise 4 significantly threatens or harms competition.” Id. at 187, 83 Cal.Rptr.2d 548, 973 P.2d 527. 5 In addition, Plaintiff asserts a claim for a violation of the CLRA. She alleges 6 Defendant violated the CLRA by engaging in the following practices proscribed by 7 California Civil Code § 1770(a): 8 9 10 11 12 (5) Representing that goods . . . have . . . approval, characteristics . . . uses [and] benefits . . . which [they do] not have . . . [;] (7) Representing that goods are of a particular standard, quality or grade . . . if they are of another[;] (9) Advertising goods . . . with intent not to sell them as advertised[; and] (16) Representing that [goods] have been supplied in accordance with a previous representation when [they have] not. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Doc. No. 31, ¶ 128. The gravamen of Plaintiff’s FAC concerns the alleged false and deceptive advertising of Defendant’s Osteo Bi-Flex Products. See generally Doc. No. 31. To sufficiently plead a claim for false or misleading advertising claims under the UCL and CLRA, Plaintiff must plausibly allege that Defendant’s advertising and marketing are false or misleading in the eyes of a “reasonable consumer.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.2008) (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.1995). Under the reasonable consumer standard, Plaintiff must “show that ‘members of the public are likely to be deceived.’ ” Freeman, 68 F.3d at 289 (quoting Bank of West v. Superior Court, 2 Cal.4th 1254, 1267 (1992)). “[N]aked assertion[s]” that Defendant’s representations are misleading are “nothing more than a legal conclusion”, which the Court can ignore. Otto v. Abbott Labs., Inc., No. CV 12-1411-SVW (DTB), 2013 WL 12132064, at *2 (C.D. Cal. Mar. 15, 2013). As such, in order to survive a motion to dismiss, Plaintiff must demonstrate that it is plausible that Defendant’s representations were either false or likely to mislead a reasonable consumer. 10 3:17-cv-1243-JAH-JLB 1 In granting Defendant’s previous motion to dismiss, the Court noted several 2 deficiencies which necessitated dismissal. See Doc. No. 30, pg. 7. The Court found that 3 Plaintiff did not adequately describe the Osteo Bi-Flex labels, nor did she allege how her 4 cited studies were relevant to show the active ingredients in Defendant’s products cannot 5 deliver the promised results. Id. Ultimately, the Court determined that Plaintiff failed to 6 plausibly allege that Defendant’s advertisement of Osteo Bi-Flex are false or misleading. 7 Id. In her FAC, Plaintiff cites to additional scientific studies, articles, and clinical trials 8 which tested the effects of Osteo Bi-Flex’s two main ingredients–glucosamine and 9 chondroitin. See Doc. No. 31 ¶¶ 31–100. Plaintiff alleges that there is substantial scientific 10 evidence to suggest that glucosamine and chondroitin–alone or in combination–do not 11 support or promote joint health as Defendant claims. Id. Defendant contends that Plaintiff’s 12 FAC is similarly deficient to her initial complaint. See Doc. No. 34–1, pg. 20. Specifically, 13 Defendant argues that Plaintiff’s studies remain irrelevant because the studies only tested 14 whether glucosamine and chondroitin successfully treated osteoarthritis, and they do not 15 directly address the representations made on Osteo Bi-Flex packaging. See Doc. No. 34– 16 1, pg. 20–26. Furthermore, Defendant contends that Plaintiff is unable to plausibly allege 17 that Osteo Bi-Flex does not provide its advertised benefits without a study utilizing all of 18 the active ingredients in its unique formula. Id. at pg. 23–26. 19 First, the Court disagrees with Defendant’s assertion that osteoarthritis related 20 studies are irrelevant for purposes of establishing plausibility in this case. In fact, 21 Defendant cites to several osteoarthritis related studies on the Osteo Bi-Flex packaging in 22 an effort to support and corroborate the efficacy of Osteo Bi-Flex. See Doc. No. 31, ¶ 32. 23 If Defendant can utilize studies involving osteoarthritis subjects to promote and 24 substantiate its product, then certainly Plaintiff can use those same types of studies to 25 plausibly allege the contrary. Moreover, according to the FAC, the findings in the 26 published osteoarthritis studies cited by Plaintiff do not exclusively apply to osteoarthritis 27 sufferers, but instead are equally applicable to those individuals who have yet to be 28 diagnosed. See Doc. No. 31, ¶¶ 31, 32. Secondly, the Court is not persuaded by the Eckler, 11 3:17-cv-1243-JAH-JLB 1 Padilla, McCrary, or Murray decisions cited by Defendant. See Doc. No. 34–1, pg. 24–25.4 2 These courts held that studies and clinical trials are unable to establish facial plausibility 3 that a product is ineffective when the study does not include all of the active ingredients 4 from the contested product. Id. (emphasis added). This Court is of the mind, however, that 5 compelling such a showing would heighten the plausibility standard beyond what 6 Twombly and Iqbal require. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (“A claim has 7 facial plausibility when the pleaded factual content allows the court to draw the reasonable 8 inference that the defendant is liable for the misconduct alleged.”). If a product’s primary 9 ingredients provide no benefits related to joint health, as Plaintiff’s studies allegedly show, 10 certainly then a reasonable inference can be drawn that such a product does not provide the 11 joint health benefits it represents. See Vasic v. Patent Health, LLC., No. 13CV849 AJB 12 MDD, 2014 WL 940323, at *4 (S.D. Cal. Mar. 10, 2014). Because the studies cited by 13 Plaintiff examine products with similar active ingredients as Osteo Bi-Flex, the Court finds 14 Plaintiff’s claims facially plausible. Whether the remaining ingredients in Osteo Bi-Flex 15 distinguish it from the proffered studies is a factual inquiry, not ripe for review in a motion 16 to dismiss. Thus, the Court finds Plaintiff has plausibly alleged that Defendant’s 17 representations of Osteo Bi-Flex are false or misleading, and Defendant’s Motion to 18 Dismiss on 12(b)(6) grounds is DENIED. 19 III. Rule 9(b) 20 In its final argument for dismissal, Defendant contends that Plaintiff fails to plead 21 her claims with the sufficient particularity as required by Rule 9(b). See Doc. No. 34–1, 22 pgs. 26–27. Defendant further argues that the Rule 9(b) deficiencies noted in this Court’s 23 previous order were not rectified in the FAC. Id. at pg. 26. The Court disagrees. As noted 24 25 26 27 28 4 Eckler v. Wal-Mart Stores, Inc., No. 12-CV-727-LAB-MDD, 2012 WL 5382218 (S.D. Cal. Nov. 1, 2012); Padilla v. Costco Wholesale Corp., No. 11 C 7686, 2013 WL 195769 (N.D. Ill. Jan. 16, 2013); McCrary v. Elations Co., LLC, No. EDCV 13-0242 JGB OPX, 2013 WL 6402217 (C.D. Cal. Apr. 24, 2013); Murray v. Elations Co., No. 13-CV-02357-BAS WVG, 2014 WL 3849911 (S.D. Cal. Aug. 4, 2014). 12 3:17-cv-1243-JAH-JLB 1 above, “[a]verments of fraud must be accompanied by ‘the who, what, when, where, and 2 how’ of the misconduct charged.” Vess v. Ciba-Geigy Corp., U.S.A., 317 F.3d 1097, 1106 3 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997)). Here, 4 Plaintiff alleges that she relied upon the representations made on the Osteo Bi-Flex product 5 label, specifically those regarding “joint health” when she purchased the Osteo Bi-Flex 6 Triple Strength product from a San Diego Walgreens. Doc. No. 31, ¶ 12. Plaintiff further 7 alleges that Osteo Bi-Flex “cannot provide the promised benefits” and had she “known the 8 truth . . . she would not have purchased Defendant’s Osteo Bi-Flex Triple Strength 9 product.” Id. Plaintiff’s claims are clear: The representations made on Osteo Bi-Flex’s 10 packaging and advertising is false and misleading because Osteo Bi-Flex is unable to 11 provide any joint health benefits. This level of specificity is sufficient to provide Defendant 12 with adequate notice of the particular conduct so that it may properly “defend against the 13 charge and not just deny that they have done anything wrong.” Bly–Magee v. California, 14 236 F.3d 1014, 1019 (9th Cir.2001) (internal citations and quotations omitted). 15 Accordingly, Defendant’s Motion to Dismiss for failure to plead with sufficient 16 particularity as required by Rule 9(b) is DENIED. 17 CONCLUSION AND ORDER 18 Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s Request for 19 Judicial Notice [Doc. No. 34–2] is GRANTED and Defendant’s Motion to Dismiss 20 Plaintiff’s FAC [Doc. No. 34] is DENIED. 21 22 23 24 25 IT IS SO ORDERED. DATED: June 13, 2018 _________________________________ JOHN A. HOUSTON United States District Judge 26 27 28 13 3:17-cv-1243-JAH-JLB
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
