DeBernardis v. NBTY, Inc. et al, No. 1:2017cv06125 - Document 24 (N.D. Ill. 2018)
Court Description: MEMORANDUM Opinion and Order: Signed by the Honorable Harry D. Leinenweber on 1/18/2018. Mailed notice (mma, )
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DeBernardis v. NBTY, Inc. et al Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JOSHUA DeBERNARDIS, individually and on behalf of all others similarly situated , Case No. 17 C 6125 Plaintiff, Judge Harry D. Leinenweber v. NBTY, INC., and UNITED STATES NUTRITION, INC., Defendants. MEMORANDUM OPINION AND ORDER A. BACKGROUND The Plaintiff, Joshua DeBernardis (“JB”), is attempting to bring a nationwide class action seeking monetary damages and injunctive supplement. made false relief against the distributor of a dietary The four-count Complaint alleges that Defendants and misleading effects of the product. claims concerning the beneficial Count I alleges violations of state consumer fraud acts on behalf of a multi-state class; Count II alleges violation of the Illinois Consumer Fraud Act on behalf of Illinois purchasers; Count III alleges violations of Express Warranty the on behalf of nation-wide class, and Count IV alleges unjust enrichment on behalf of the nation-wide class. Dockets.Justia.com Defendants Complaint: does not make four challenges against Plaintiff’s (1) most important, Defendants claim that this Court have jurisdiction to hear the case involving non- resident class of plaintiffs based on the recent Supreme Court case Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (June 19, 2017) (This involves Counts I, III and IV); (2) Plaintiff lacks Article III standing to claim injunctive relief (Count III); (3) Plaintiff failed to allege that he gave pre-suit notice to Defendants of his breach of warranty claim; and (4) his claim for unjust enrichment fails for the national class for the same reason as his nationwide consumer fraud claim as alleged in Count I fails. II. A. The main issue DISCUSSION Out-of-State Plaintiffs to be decided in this Motion is the applicability of Bristol-Myers to this putative nationwide class action. not In that case, a group of plaintiffs, most of whom were California residents, brought product liability actions against Bristol-Myers Squibb in California state court. The complaints alleged that Plavix, a prescription drug manufactured by Bristol-Myers, damaged their health. Bristol-Myers is a large company incorporated in Delaware and headquartered in New York. It also engages in business - 2 - activity in other jurisdictions including California. Among other activities, Bristol-Myers sells Plavix in California. The plaintiffs, consisting of 86 California residents and 592 residents from 33 other states, filed 8 separate complaints in California Superior Court. resident plaintiffs There was no claim that the non- obtained Plavix through California physicians or any other California source; nor did they claim that they were injured by Plavix in California or were treated for their injuries in California. Asserting lack of jurisdiction, Bristol-Myers moved to quash service on the nonresidents’ claims. The case moved through the California state system and concluded with the California Supreme Court holding that while over the the California non-resident courts cases, lacked general nevertheless the jurisdiction courts had specific jurisdiction over Bristol-Myers to hear the cases. The court adopted a “sliding scale” approach to finding specific jurisdiction, holding that the strength of the connection between the forum and the specific claims at issue is relaxed where a defendant has extensive forum contacts, even though those contacts are unrelated to the specific claims at issue. The United States Supreme Court, in reversing, pointed out that a court must consider a variety of interests in determining whether personal jurisdiction is present, including those of the - 3 - forum state, the defendant, and the plaintiff. primary concern is the burden on the defendant. However the In addition to the practical problems of litigating in the out-of-state forum, the court must consider “the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question,” i.e., a consequence of territorial limitations on the power of the respective States. The Court went on to find that the Due Process Clause, “acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.” The court then noted that the plaintiffs were non-residents and did not claim that they suffered harm in California and all conduct giving rise to the non-resident claims occurred elsewhere. Finally, the court noted that the California and out-of-state plaintiffs general were free jurisdiction plaintiffs could to join over join the together together in defendant in their a or state the home that had out-of-state states to sue Bristol-Myers. The Plaintiff, in response to the Defendants’ citation of Bristol-Myers Squibb, points out that there is distinction between that case and the instant case. a major Bristol- Myers involved mass tort actions and not putative class actions, a point raised by Justice Sonia - 4 - Sotomayor in her dissent. Plaintiff cites to a Northern District of California case, Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 2017 WL 4224723 (Sept. 22, 2017) and an Eastern District of Louisiana case, In 5971622, re Chinese-Manufactured both of which DryWall refused to Products, apply 2017 WL Bristol-Myers to nationwide class action cases. The Defendants, however, cite a case from this District, McDonnell v. Nature’s way Products, LLC, 2017 WL 4864910 (N.D. Ill. October 26. 2017) which applied Bristol-Myers Squibb to a remarkably similar case to the one at bar. This case involved a putative nationwide class action brought by the purchasers of a vitamin supplement that was manufactured outside of the United States contrary to the label which stated that the product was manufactured in the United States. false advertising violated the The claim was that this Illinois Consumer Fraud and Deceptive Practices Act as well as the consumer fraud statutes of seven other states. Relying on Bristol-Myers Squibb the court dismissed the claims of the non-resident class. The Court finds that the applicability Squibb to this case is a close question. of Bristol-Myers The Court understands the argument that there is a distinction between a mass tort action that was present in Bristol-Myers Squibb and a nationwide class action that is present here. - 5 - As noted in the Chinese Dry Wall case to qualify as a class action the plaintiff must meet the requirements of Rule 23, numerosity, typicality, adequacy of representation, predominance and superiority. torts on the typicality other and hand will be due predominance hard pressed to the to Mass establish almost certain differences in damages. The Court believes that it is more likely than not based on the Supreme Court’s comments about federalism that the courts will apply Bristol-Myers Squibb to outlaw nationwide class actions in a form, such as in this case, where there is no general jurisdiction over the Defendants. issue of forum shopping, which was There is also the mentioned in the Chinese DryWall case as a basis for distinguishing mass torts from class actions, but possible forum multi-state class actions. shopping is just as present in Consequently, to the extent that Counts I, III and IV seek to recover on behalf of out-of-state plaintiff classes, the Motion to Dismiss is granted. B. Defendants’ standing to Count II – Injunctive Relief next pursue contention injunctive is relief that Plaintiff because there lacks are no allegations that Plaintiff is likely to suffer future harm at the hands of the Defendants. In support Defendants cite this court’s decision in Mednick v. Precor, Inc., 2016 WL 5490955 - 6 - (N.D. Ill. Sept. 27, 2016). Plaintiff responds citing a number of cases that hold the opposite to Mednick, e.g., Leineer v. Johnson & Johnson Consumer Co., 215 F.Supp.3d 670 (N.D. Ill. 2016). It is therefore an open question in this district. However for the reasons set forth in Mednick, the Court believes that the Plaintiff relief. injunctive here As does in not have Mednick, the allegations of any potential future injury. the Complaint is in paragraph 74 in standing to Plaintiff seek makes no The only mention in which Plaintiff merely states that he “seeks to enjoin Defendants’ ongoing deceptive practices relating to its claims on the Product’s labels and advertising.” As a practical matter Plaintiff would be hard pressed to argue that he is in danger of being fooled again by Defendants’ products. Moreover, if it is true that Defendants violated the Illinois Consumer Protection Act, they would be certain possible to modify future their advertising liability to in others the future consumers. due The to Court therefore strikes the claim for injunctive relief in Count II. C. Defendants’ recovery because for Count III – Express Warranty next contention violation Plaintiff failed of to an is that express provide Count warranty Defendants III seeking cannot with stand pre-suit notice of his contention that Defendants breached an express - 7 - warranty as required by Illinois law, 810 ILCS 5/2-607(3)(a). Plaintiff responds by contending that he is exempt from the notice requirement because the Defendants had actual knowledge of the product’s defect, citing Stella v. LVMH Perfumes and Cosmetics USA, Inc., 564 F.Supp.2d 833, 837 (N.D. Ill. 2014). Plaintiff’s theory is that Defendants knew that their claims that their product is the “ultimate recovery fuel” and “Boosts Post-Workout Recovery” were “blatantly false.” The Illinois Supreme Court decision in Connick v. Suzuki Motor Co., Inc., 174 Ill. 2d. 482 (1996), explained that the “notice of the breach required is not of the facts, which the seller knows quite as well as, if not better than, the buyer, but of buyer’s claim that they constitute a breach.” The Seventh Circuit applied this reasoning in Anthony v. Country Life Manufacturing, LLC., involving nutritional bars. 70 F.Appx. 379 (2003), a case The Court held that even though the defendant may have been aware of the trouble with the specific product, the manufacturer particular notice is requirement somehow product “is apprised purchased by of a satisfied the only when the with the buyer.” A trouble particular manufacturer’s knowledge of its own ingredients is insufficient under Illinois law to constitute actual knowledge of the alleged defect. The Motion to Dismiss Count III is granted. - 8 - D. Count IV – Unjust Enrichment The final objection on Defendants’ part is their claim that Count IV, unjust enrichment, must be dismissed as it applies to the nationwide class allegations. Since the Court has dismissed the nationwide allegations, the Court need not deal with this count any further. III. For the reasons CONCLUSION stated herein, Defendants’ Motion to Dismiss is granted as to the allegations in Counts I, III, and IV as to the putative national class of Plaintiffs. to Dismiss is granted as to Count III, breach of The Motion warranty, without prejudice. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: 1/18/18 - 9 -
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