Carter v. L'Oreal USA, Inc. et al

Filing 60

ORDER ADOPTING 51 REPORT AND RECOMMENDATION. Dfts' 30 MOTION to Dismiss is GRANTED in part & DENIED in part. Plfs' Unjust Enrichment Claim (Count I) is DISMISSED as set out. Dfts' 30 MOTION to Dismiss is otherwise DENIED as set out. Signed by Senior Judge Callie V. S. Granade on 9/6/17. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ANGELA CARTER, et al.,
Plaintiffs,
vs.
L’OREAL USA, INC., et al.,
Defendants.

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) CIVIL ACTION NO. 16-00508-CG-B
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ORDER

This matter is before the Court on Defendants L’Oreal USA, Inc. and Soft
Sheen-Carson LLC’s (“Defendants”) Objection to the Magistrate Judge’s Report and
Recommendation Denying Motion to Dismiss Plaintiff Angela Carter’s (“Plaintiff”)
Second Amended Complaint. (Doc. 59). Based on the following, the Report and
Recommendation (Doc. 51) of the Magistrate Judge made under 28 U.S.C. §
636(b)(1)(B) is ADOPTED, in part, as explained herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Magistrate adequately laid out the facts of this case in her report, based
on Plaintiff’s Second Amended Complaint (“the Complaint”) (Doc. 29). See (Doc. 51,
pp. 1–4). Therefore, it is unnecessary to rehash the facts in this Order.
Within the Complaint, Plaintiff asserts seven counts against Defendants:
(Count I) Unjust Enrichment; (Count II) Violation of the Magnuson-Moss Warranty
Act; (Count III) Breach of Express Warranty; (Count IV) Breach of Implied

Warranty; (Count V) Violation of the Alabama Deceptive Trade Practices Act
(“ADTPA”); (Count VI) Fraud; and (Count VII) Negligent Design and Failure to
Warn. Id. Thereafter, Defendants moved, pursuant to Federal Rule of Civil
Procedure 12(b)(6), to dismiss the Complaint. (Doc. 30). As grounds, Defendants
contend reasonable consumers would not interpret the Relaxer Kit’s packaging in
the “implausible” manner of Plaintiff. See (Doc. 30, pp. 5–12). Defendants also
moved for dismissal of Plaintiff’s ADTPA, fraud, and negligence claims, arguing
that they are barred by the applicable statute of limitations. Id. at 12–15. Lastly,
Defendants moved for dismissal of Plaintiff’s unjust enrichment claim, arguing that
it is not cognizable when brought with her breach of express warranty claim. Id. at
15–16.
The Magistrate recommended the Motion to Dismiss be denied as to all
arguments. See (Doc. 51). Now, Defendants object to the Magistrate’s report and
argue that the Magistrate was wrong as a matter of law regarding the cognizability
of the unjust enrichment claim. (Doc. 59, pp. 2–5). Further, Defendants object and
argue that the Magistrate should have recommended Plaintiff’s ADTPA, fraud, and
negligence claims be dismissed as they were brought outside the relevant statute of
limitations period.
II. THE RULE 12(b)(6) STANDARD
A defendant may move to dismiss a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) if the plaintiff has failed to state a claim upon which relief
may be granted. “The standard of review for a motion to dismiss is the same for the

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appellate court as it [is] for the trial court.” Stephens v. Dep’t of Health & Human
Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). “When considering a motion to
dismiss, all facts set forth in the plaintiff’s complaint ‘are to be accepted as true and
the court limits its consideration to the pleadings and exhibits attached thereto.”
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting
GSW, Inc. v. Long Cnty., Ga., 999 F.2d 1508, 1510 (11th Cir. 1993)). All “reasonable
inferences” are drawn in favor of the plaintiff. St. George v. Pinellas Cnty., 285 F.3d
1334, 1337 (11th Cir. 2002).
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
complaint “does not need detailed factual allegations”; however, the “plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do…. Factual allegations must be enough to raise a right to relief
above the speculative level …, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted). The plaintiff must plead “enough facts
to state a claim that is plausible on its face.” Id. at 570. Unless a plaintiff has
“nudged [his] claims across the line from conceivable to plausible,” the complaint
“must be dismissed.” Id.
“[U]nsupported conclusions of law or of mixed fact and law” will not defeat a
Rule 12(b)(6) motion for dismissal. Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir.
2003) (quoting Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1036 n.16)). “[W]here the

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well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but has not ‘show[n]’—that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting FED. R. CIV.
P. 8(a)(2)). The U.S. Supreme Court has suggested that courts adopt a “twopronged approach” when considering motions to dismiss: “(1) eliminate any
allegations in the complaint that are merely legal conclusions; and (2) where there
are well-pleaded factual allegations, ‘assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.’ ” American Dental
Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S.
at 664). Importantly, “courts may infer from the factual allegations in the
complaint ‘obvious alternative explanation[s],’ which suggest lawful conduct rather
than the unlawful conduct the plaintiff would ask the court to infer.” Id. (quoting
Iqbal, 556 U.S. at 682).
III. ANALYSIS
A. Unjust Enrichment and Breach of Warranty Claims
As explained above, Plaintiff alleged a claim of unjust enrichment and a
claim of breach of express warranty within the Complaint. In their Motion to
Dismiss, Defendants moved for dismissal of Plaintiff’s unjust enrichment claim as
not cognizable when brought with her breach of express warranty claim. In her
Report and Recommendation, the Magistrate recommended Defendants’ Motion to
Dismiss the unjust enrichment claim be denied. (Doc. 51, p. 14). The Magistrate
explained that courts have found an unjust enrichment claim not cognizable when it

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accompanies “a classic breach of contract claim involving an express written
contract between the parties.” (Doc. 51, p. 13). The Magistrate explained that no
express written contract or breach of contract claim exist in this case. Id. Further,
the Magistrate reasoned that it is well-settled law that a plaintiff may plead
alternative theories of recovery, to wit: unjust enrichment (a quasi-contract based
theory in equity) and breach of contract (a theory based in law), citing 1021018
Alberta Ltd. v. Netpaying, Inc., 2011 WL 1103635, at *6 (M.D. Fla. Mar. 24, 2011).
Id. The Magistrate concluded that Plaintiff’s alternative theories of recovery could
proceed given the “uncertainty as to the existence of a contract between the
parties.” Id. Therefore, the Magistrate continued, even if the Complaint alleged a
breach of contract claim, which the Magistrate found it did not, both the unjust
enrichment and beach of warranty claim could proceed at this point.
The Court has reviewed Defendants’ objections and caselaw cited on this
point and DECLINES to adopt the Magistrate’s recommendation that Plaintiff’s
unjust enrichment claim not be dismissed. To begin, in a diversity action, federal
courts apply the law of the state in which they sit. Erie R.R. Co. v. Tompkins, 304
U.S. 64, 74–77 (1938). Accordingly, Alabama law governs the cognizability of
Plaintiff alleging unjust enrichment when she also alleges breach of an express
warranty. Therefore, to the extent the Magistrate’s report relies on 1021018
Alberta Ltd. v. Netpaying, Inc., 2011 WL 1103635 (M.D. Fla. Mar. 24, 2011), which
applies Florida contract and unjust enrichment law, this is in error.
It is well-settled law in Alabama that “where an express contract exists

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between two parties, the law generally will not recognize an implied contract
regarding the same subject matter.” Kennedy v. Polar-BEK & Baker Wildwood
Partnership, 682 So. 2d 443, 447 (Ala. 1996). And although its application typically
arises in the context of a “classic breach of contract involving an express written
contract between the parties,” this principle of law is not cabined to a written
contract. To be sure, the Kennedy Court analyzed the application of this principle of
law based on an express oral contract and a claim of unjust enrichment. 682 So. 2d
at 447. Thus, to the extent the Report and Recommendation limits this principle to
written contracts, it is too restrictive.
Further, the Kennedy holding is applicable to more than just the “classic
breach of contract” type situation. As this Court has explained, a breach of
warranty claim possesses the tenure of a breach of contract claim. White v.
Microsoft Corp., 454 F. Supp. 2d 1118, 1133 (S.D. Ala. 2006). When there is no
dispute between the parties that an express warranty exists and a plaintiff alleges a
breach of the express warranty, that plaintiff cannot also allege an unjust
enrichment claim. Id. But see Kennedy, 682 So. 2d at 47 (finding no error in
submitting both an unjust enrichment claim and breach of an express contract
claim to a jury when “the existence of an express contract … was highly disputed
and remained a question of fact”); Galbreath v. Hale Cnty., Comm., 2017 WL
3402967, at *10 (S.D. Ala. Aug. 8, 2017) (same). The rationale behind this rule is
easy to comprehend:
If the parties’ dealings are covered by an express agreement, then
there is no need to imply an agreement between them to ward off

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inequitable results. Based on that principle, where a plaintiff has
brought claims sounding in both express contract and quasi-contract as
to the same subject matter, Alabama courts have deemed the quasicontract claim not to be cognizable.
Id. (citing Callaway v. E.H. Smith Elec. Contractors, Inc., 814 So. 2d 893, 899 (Ala.
Civ. App. 2001)).
Defendants do not deny the existence of an express warranty and there is no
question Plaintiff maintains its existence because she alleged it in the Complaint.1
Both claims deal with the same subject matter. Given this, “an express contract
(the Warranty) governs the parties’ relationship and covers the precise issues as to
which [Plaintiff] is asking the Court to imply a contract to prevent” unjust
enrichment. See White, 454 F. Supp. at 1133. Thus, the Court declines to adopt the
Magistrate’s recommendation regarding Plaintiff’s unjust enrichment claim.
Defendants’ Motion to Dismiss Count I of the Complaint is GRANTED.
B. Fraud, Negligence, and Alabama Deceptive Trade Practices Act Claims
In evaluating Counts V (ADTPA claim), VI (fraud claim), and VII (negligent
design and failure to warn claim), the Magistrate found, for purposes of deciding
Defendants’ Rule 12(b)(6) motion, that the Complaint contained sufficient facts to
overcome the relevant statutes of limitations. Now, Defendants parry, “In sum,
Plaintiff’s allegations make facially apparent that [Plaintiff] gained actual or
inquiry notice of her claims and the product’s alleged dangers with her first alleged
injurious use of the Relaxer in May 2014, thereby barring her fraud, negligence, and

Because Plaintiff maintains the existence of an express warranty, the Magistrate’s
conclusion that no express contract exists is incorrect.
1

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ADTPA claims in connection with both her Relaxer uses.” (Doc. 59, p. 10).
Defendants, therefore, ask the undersigned to “(a) establish the limitations
defenses” for Plaintiff’s Relaxer use in May 2014 and October 2014, “(b) preclude
tolling under the discovery rule or a concealment theory, and (c) bar the assertion of
a negligence or fraud claim in connection with the October 2014 Relaxer use by
defeating the elements of duty to warn or reasonable reliance.” Id. The Court
denies Defendants’ requests based on the following:
1. Fraud Claim (Count VI)
Under Alabama law, the statute of limitations on a fraud claim is two years.
ALA. CODE § 6-2-38(1) (1975). But a fraud claim “must not be considered as having
accrued until the discovery by the aggrieved party of the fact constituting the
fraud.” ALA. CODE § 6-2-3 (1975). Alabama’s Supreme Court has defined “discovery
by the aggrieved party” as the time at which “the aggrieved party discovers or, in
the exercise of reasonable care, should have discovered, the facts constituting the
fraud.” Wheeler v. George, 39 So. 3d 1061, 1081 (Ala. 2009) (citing Ex parte Seabol,
782 So. 2d 212, 216 (Ala. 2000); Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421
(Ala. 1997)). “Therefore, the limitations period [for a fraud claim] commences when
the plaintiff discovers the fraud or when facts are known ‘which would put a
reasonable mind on notice that facts to support a claim of fraud might be discovered
upon inquiry.’ ” Id. (quoting Auto-Owners Ins. Co. v. Abston, 822 So. 2d 1187, 1195
(Ala. 2001)).
The Alabama Supreme Court has repeatedly held that “ ‘the question of when

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[a] party discovered or should have discovered the fraud is generally one for the
jury.’ ” Wheeler, 39 So. 3d at 1082 (quoting Liberty Nat’l Life Ins. Co. v. Parker, 703
So. 2d 307, 308 (Ala. 1997)); see also Seabol, 782 So. 2d at 216. It has further held
that “ ‘[t]he question of when a plaintiff should have discovered fraud should be
taken away from the jury and decided as a matter of law only in cases where the
plaintiff actually knew of facts that would have put a reasonable person on notice of
fraud.’ ” Wheeler, 39 So. 3d at 1082–83 (emphasis in original (quoting Kelly v. Conn.
Mut. Life Ins. Co., 628 So. 2d 454, 458 (Ala. 1993)).
Defendants argue that the Complaint does not “plausibly allege what
prevented Plaintiff from discovering the facts surrounding her claims in time to
observe the limitations periods.” (Doc. 59, p. 7). Defendants maintain that the face
of the Complaint makes it clear that Plaintiff knew or reasonably should have
known the “pertinent, alleged facts” constituting the fraud claim as of May 2014.
Id. At least, Defendants continue, Plaintiff’s May 2014 Relaxer use provides a basis
of knowledge for the October 2014 event, which, therefore, precludes any contention
that Plaintiff was deceived into believing the Relaxer would not harm her a second
time. Further, Defendants contend there are no facts in the Complaint alleging
concealment on their part. Id.
Conversely, Plaintiff alleges she “did not discover, realize, conclude and/or
make the causal connection that her injuries arose from the Relaxer Kit, its
ingredients, defective nature, inadequate warnings and/or inadequate and
confusing Product instructions until approximately August/September 2016 while

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reading on the [I]nternet.” (Doc. 29, p. 31) (the Complaint ¶ 78). Plaintiff explains
that the delay in the causal connection is due to her only possessing a “high school
diploma” and having no expertise in “hair products or the chemicals contained” in
the Relaxer. (Doc. 29, p. 31). Simply put, Plaintiff alleges in the Complaint that
she did not actually know of the fraud (regarding either the May 2014 or October
2014 event) until September 2016. Further, Plaintiff explains in the Complaint
that Defendants market the Relaxer to “African American women as ‘easy no-mix,’
‘no-lye’ relaxer kit” that “protects [the] scalp & skin,” while containing a “powerful
anti-oxidant rich in vitamins and minerals.” Id. at 2–3.
While Defendants’ arguments are certainly plausible, at this stage of the
litigation, the Court is required to accept Plaintiff’s contention that she did not
learn of the causal connection until August/September 2016 as true. See Iqbal, 556
U.S. at 678. As to Defendants’ contention that Plaintiff had actual or inquiry notice
after the first time she was harmed by the Relaxer Kit and any further reliance was
unreasonable, Defendants argument overlooks Alabama law’s clear position that
the question of when a party should have reasonably discovered fraud is generally
one for a jury, and that courts should decide this issue “as a matter of law only in
cases where the plaintiff actually knew of facts that would have put a reasonable
person on notice of fraud.” Wheeler, 39 So. 3d at 1082–83. Consequently, because
at this juncture the Court must “limit its consideration to the pleadings,” and
because Plaintiff has properly pleaded facts indicating that she did not know of the
fraud until August/September 2016 (i.e., within the limitations period), Defendants’

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objection to the Magistrate’s recommendation is OVERRULED.2
2. Negligence Claim (Count VII)
In Alabama, the statute of limitations for a tort claim is two years. ALA.
CODE § 6-2-38(1) (1975). Alabama law provides a statutory basis for tolling a
negligence claim based on fraudulent concealment. DGB, LLC v. Hinds, 55 So. 3d
218, 224 (Ala. 2010) (citing the tolling statute for a fraud claim, ALA. CODE § 6-2-3
(1975)). “A plaintiff using the tolling statute must allege, or on summary judgment
establish, prima facie facts which show that the defendant fraudulently prevented
discovery of the wrongful act on which the action is based.” Sellers v. A.H. Robins
Co., Inc., 715 F.2d 1559, 1561 (11th Cir. 1993) (citing Hudson v. Moore, 194 So. 147
(Ala. 1940)). A plaintiff establishes a prima facie case for fraudulent concealment if
the following elements are satisfied: “(1) that the defendant had a duty to disclose a
material fact; (2) that the defendant either failed to disclose or concealed that
material fact; (3) that the defendant’s failure to disclose or [its] concealment of that
material fact induced the plaintiff to act or to refrain from acting; and (4) that the
plaintiff suffered damage as a result of [its] action, or inaction, induced by the
defendant’s failure to disclose or [its] concealment of the material fact.” Soniat v.
Johnson-Rast & Hays, 626 So. 2d 1256, 1258–59 (Ala. 1993).

Defendants also object to the Magistrate’s recommendation to the extent the
“report inadvertently makes it sound as though the Magistrate adjudicated the
merits of the limitations defense in Plaintiff’s favor as to Plaintiff’s fraud claim.”
(Doc. 59, p. 11). The undersigned has reviewed the relevant portion of the
recommendation and found Defendants’ objection without merit. The particular
section read in its entire context makes clear that any conclusion the Magistrate
made was only in the context of a Rule 12(b)(6) recommendation.
2

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If a plaintiff establishes fraudulent concealment tolling, “the limitations
period commences once the fraud is readily discoverable or the potential plaintiff is
on notice that fraud may have been perpetrated.” Lampliter Dinner Theater, Inc. v.
Liberty Mut. Ins. Co., 792 F.2d 1036, 1043 (11th Cir. 1986) (citing Johnson v.
Shenandoah Life Ins. Co., 281 So. 2d 636, 642–43 (Ala. 1973)). “Facts that would
provoke a reasonable person’s inquiry and lead to a discovery of the fraud
commence the limitation period.” Id. (citing Butler v. Guar. Sav. & Loan Ass’n, 37
So. 2d 638 (Ala. 1948)). Thus, much like in Plaintiff’s fraud claim, the negligence
claim will not be tolled if Plaintiff “actually knew of facts that would have put a
reasonable person on notice of fraud.’ ” See Wheeler, 39 So. 3d at 1082–83 (emphasis
in original) (quoting Kelly v. Conn. Mut. Life Ins. Co., 628 So. 2d 454, 458 (Ala.
1993)).
For the same reasons Plaintiff’s 2014 Relaxer Use does not bar her fraud
claim, her negligence claim is not barred by the statute of limitations and
Defendants objections are without merit. The Complaint alleges Defendants
concealed material facts in their marketing of the Relaxer Kit. Further, there are
sufficient allegations that Defendants made false and deceptive statements about
the Relaxer Kit. This directly disputes Defendants’ contention that the Complaint
lacks “any well-pleaded” facts establishing this point. And like her claim of fraud,
Plaintiff sufficiently pleads that she was unable to establish a causal connection
between the Relaxer Kit and the harm she suffered from its use. This, at least at
this point in the litigation, establishes what prevented Plaintiff from discovering

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the facts establishing her claim within the limitations period. Thus, the Court is
unconvinced by Defendants’ position that Plaintiff possessed actual or inquiry
notice of the causal connection when the Complaint alleges otherwise. What
Defendants ask the Court to endeavor is to weigh the credibility of Plaintiff’s
assertions, which is inappropriate at this juncture.
In like kind, the Court finds unavailing Defendants’ objection that the
Magistrate should be overruled to the extent she did not dismiss Plaintiff’s
negligence claim in as much as it relates to the October 2014 Relaxer Use.
Defendants explain, “Plaintiff was already fully aware of the safety risks by having
experienced exactly the same alleged injuries using the same product only months
earlier,” citing Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 471 (11th Cir.
1993). To begin, Reynolds lends Defendants no support. In Reynolds, the plaintiff
in question was an experienced tire changer and “aware of the dangers associated
with mounting tires on multi-piece rims.” Reynolds, 989 F.2d at 471. Given this,
there was no dispute that Reynolds possessed an awareness with the dangers
present in his situation. Here, the Complaint notates Plaintiff’s limited education,
the fact that she is not an expert in hair products or chemicals, and her inability to
establish the necessary causal connection after the May 2014 incident. As discovery
progresses, this may change. But the Court declines to do more than accept this
point as true for the purposes of the present motion. Therefore, the undersigned
OVERRULES Defendants’ objections as they relate to Plaintiff’s negligence claim.

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3. Alabama Deceptive Trade Practices Act Claim (Count V)
The ADTPA states, in relevant part:
No action may be brought under this chapter more than one year after
the person bringing the action discovers or reasonably should have
discovered the act or practice which is the subject of the action ….
ALA. CODE § 8-19-14 (1975).
The Magistrate recommended in her report that Plaintiff’s ADTPA claim was
not time-barred for the same reasons Plaintiff’s fraud and negligence claims were
not time-barred. (Doc. 51, p. 22). Now, Defendants object to this recommendation
and explain that Plaintiff’s complaint makes it facially apparent that she gained
actual or inquiry notice of her ADTPA claim with her use of the Relaxer in May
2014.
Although the parties cite no authority for this principle, it appears from the
plain language of the ADTPA that a discovery type rule tolls the one-year ADTPA
statute of limitations. Indeed, Plaintiff proposed such a concept in opposing
Defendants’ Rule 12(b)(6) Motion (Doc. 33, p. 24) and Defendants at least implicitly
concede such a concept in their reply thereto (Doc. 34, p. 8). Further, although the
undersigned is unable to find Alabama Supreme Court caselaw holding that the
Alabama Legislature built a discovery rule into § 8-19-14, it can be gleaned from
dicta that § 8-19-14 is understood to be tolled when the discovery rule is satisfied.
See, e.g., Coilplus-Alabama, Inc. v. Vann, 53 So. 3d 898, 908 (Ala. 2010) (citing,
among other statutes, § 8-9-14 and explaining that “[t]he legislature has shown its
special capability in that regard by structuring variations of discovery features”).

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Given that the Alabama Legislature built a discovery type feature into the ADTPA,
there is no reason why the Magistrate’s recommendation for Plaintiff’s ADTPA
claim should have been any different from her recommendation for the fraud or
negligence claim. Thus, in as much as Defendants object to the Magistrate’s report
regarding Plaintiff’s May 2014 Relaxer use, this objection is OVERRULED.
Also, Defendants go a step farther in their objection. Defendants propound
that “Plaintiff cannot credibly claim that after two allegedly injurious uses, she
remained in the dark about the existence of her ADTPA claim.” (Doc. 59, p. 9).
Thus, Defendants ask the Court to not adopt the Magistrate’s report in as much as
it did not dismiss Plaintiff’s ADTPA claim connected to her October 2015 Relaxer
use.
Yet again, this argument fails to consider the lens under which a motion to
dismiss is viewed. In deciding a Rule 12(b)(6) motion, the Court must take
Plaintiff’s factual allegations as true. See, e.g. United States v. Pemco Areoplex, Inc.,
195 F.3d 1234, 1236 (11th Cir. 1999) (en banc). At this stage in the litigation, the
issue to be decided by the Court is not whether Plaintiff will ultimately prevail on
both her alleged May 2014 and October 2014 use of the Relaxer, but “whether the
claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scheuer, 468 U.S. 183
(1984). Thus, the Court OVERRULES Defendants’ objections to the Magistrate’s
report regarding Plaintiff’s ADTPA claim in as much as it pertains to Plaintiff’s
October 2014 Relaxer use.

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IV. CONCLUSION
Based on the foregoing, The Court adopts the Report and Recommendation in
all respects save the recommendation on the cognizability of the unjust enrichment
claim. The Court GRANTS, in part, and DENIES, in part Defendants’ Motion to
Dismiss (Doc. 30) as follows:
1. Plaintiff’s Unjust Enrichment Claim (Count I) is DISMISSED because it is
not cognizable when brought with her Breach of Express Warranty Claim.
2. Defendants’ Motion to Dismiss (Doc. 30) is otherwise DENIED.
DONE and ORDERED this

day of September, 2017.

/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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