Keating v. Nordstrom, Inc.

Filing 71

ORDER: re Motion to Dismiss and Other Pending Motions (see order for full details). Signed by Judge Sharon L. Gleason on 01/26/2018. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MAUREEN KEATING, on her own
behalf and on behalf of all others
similarly situated,
Plaintiff,
vs.
NORDSTROM, INC., a Washington
Corporation,

Case No. 3:17-cv-00030-SLG

Defendant.

ORDER RE MOTION TO DISMISS AND OTHER PENDING MOTIONS
Before the Court at Docket 23 is Defendant’s Motion to Dismiss First Amended
Complaint Under F.R.C.P. 12(b)(1) and 12(b)(6) and/or to Strike Allegations Under
F.R.C.P. 12(f). The motion has been fully briefed. 1 Oral argument was held on December
6, 2017. Plaintiff has alleged this Court has jurisdiction pursuant to 28 U.S.C. § 1332(d). 2
BACKGROUND
Plaintiff Maureen Keating seeks to bring a class action on behalf of herself and
residents of Alaska and California who have purchased goods from Nordstrom. 3 Her First
Amended Complaint (“FAC”) alleges that Nordstrom “has a pattern and practice of
1

See Docket 41 (Opp.); Docket 46 (Reply). Ms. Keating has filed a Motion to Amend/Correct at
Docket 52, which includes a Proposed Second Amended Complaint at Docket 52-1. At Docket
59, the Court ordered Nordstrom to file its opposition to the Motion to Amend within 14 days from
this order.
2

Docket 7 at 4, ¶ 10.

3

Docket 7 at 4.

advertising false sales prices while regularly charging its customers more than the
ticketed price.” She also asserts that “Nordstrom falsely claims that it is committed to
delivering low prices to its customers and that it will not be undersold and that it price
matches.”4 She further alleges “Nordstrom regularly advertises pre-season sales in which
it purports to discount the prices of fashion items, which it buys in limited quantities at the
purported full value[.]” Finally, she contends that “Nordstrom engages in other deceptive
sales practices, including misleading representations that prices are reduced by ‘more
than’ or ‘up to’ certain percentages, when the markdowns do not reflect the prominently
displayed amounts, misrepresenting the savings of items which are regularly bought as
multiple items and/or fails to apply the discounts it offers for multiple purchases.” 5
Ms. Keating’s FAC then contains a list of various purchases she has made at
Nordstrom over the last few years. For example, she alleges that on January 3, 2014,
after receiving a solicitation from Nordstrom that it was having a sale, she purchased
more than $600 in items from a Nordstrom in San Francisco, California. 6 Only one of the
items she purchased received a sales price, and four items were charged at a price in
excess of the advertised sales price. 7 On January 16, 2014, Ms. Keating obtained a
refund and price adjustment for the overpriced items. 8

4

Docket 7 at 2, ¶ 3.

5

Docket 7 at 1– 2, ¶ 3.

6

Docket 7 at 3, ¶ 7.

7

Docket 7 at 3, ¶ 7.

8

Docket 7-3 (Receipt Images) at 1.

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The FAC also alleges that on February 12, 2015, Ms. Keating purchased a top
from Nordstrom, which had a printed price tag of $88, but she was charged $98. The
same item was available online for $78. When Ms. Keating inquired about the price
differences, she was told she could not have a price adjustment. 9
On February 16, 2015, Ms. Keating alleges that Nordstrom’s signs and emails
advertised sale prices of “up to” 40 percent off or 33 percent off “or more.”

After

purchasing four items, three of which had a 33 percent off handwritten sale price, Ms.
Keating later discovered she received the sale price on only one of the items. 10 Upon
returning to the store to obtain a refund for the overcharge, Ms. Keating alleges the sales
assistant told her that she would not receive the sale price because “we don’t ring up the
hand-written price, we use the bar code and charge the price that is entered on the
computer.”11
Ms. Keating alleges that on February 15, 2017, she purchased a scarf from
Nordstrom that displayed a 40 percent discount and had a handwritten price of $23.40.
However, the scarf rang up at the full price of $39. 12

9

Docket 7 at 3, ¶ 8.

10

Docket 7 at 2–3, ¶ 6.

11

Docket 7 at 3, ¶ 6. It is unclear from the FAC whether Ms. Keating received a refund related to
the February 16, 2015 purchase.

12

Docket 7 at 2, ¶ 5.

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On February 16, 2017, Ms. Keating initiated this action. 13 On June 9, 2017, Ms.
Keating filed her FAC. 14 She alleges four causes of action: common law fraud; violations
of California’s Unfair Competition Law (“UCL”); violations of AS 45.50.471; and violations
of California’s Consumer Legal Remedies Act (“CLRA”). 15 In July 2017, Nordstrom
reimbursed Ms. Keating’s credit card for the February 12, 2015 and February 15, 2017
overcharges. 16
Ms. Keating seeks class certification. She defines the proposed class as follows:
All persons who reside in the States of Alaska and California and who within
the applicable statute of limitations preceding the filing of this action
purchased goods from Nordstrom which reflected a purported discount
price whether by posted signage and/or by amendment to the affixed hang
tag price, and who were not afforded the sales price. The putative class will
also include those who purchased items that are regularly discounted for
multiple purchases, and for whom the purported percentage of savings was
misrepresented. The Alaska class will include all Nordstrom customers,
because all were subject to deceptive sales practices including false
advertising. The California class will include all Nordstrom customers who
shopped during purported sales as a result of inducement of reduced prices
and misleading and deceptive sales practice including a commitment to low
prices and price matching, and who would not have made purchases but
for those inducements and/or who relied upon Nordstrom’s representations
as to savings. 17
On August 7, 2017, Nordstrom filed the Motion to Dismiss Ms. Keating’s FAC. 18
Nordstrom asserts that Ms. Keating lacks standing to bring her claims under Federal Rule
13

Docket 1 (Compl.).

14

Docket 7.

15

Docket 7 at 6–8.

16

Docket 24 at 4.

17

Docket 7 at 4, ¶ 13.

18

Docket 23.

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of Civil Procedural 12(b)(1) and that the FAC fails to state any claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). 19

Nordstrom also requests the Court strike Ms.

Keating’s allegations and class definitions pursuant to Federal Rule of Civil Procedure
12(f). Nordstrom asserts that the Court should strike “Plaintiff’s conclusory accusations
throughout the FAC, which are clearly irrelevant and impertinent because they are entirely
untethered to any facts concerning Plaintiff.” 20 Nordstrom further requests the Court to
strike the class definition as to California consumers, asserting Plaintiff does not have
standing to represent them. 21
DISCUSSION
I. Standard for Motion to Dismiss Pursuant to 12(b)(1)
In order to survive a defendant’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1), the plaintiff must establish and prove jurisdiction. 22 “In reviewing an
order dismissing an action for lack of subject matter jurisdiction, we must accept all of the
plaintiff’s factual allegations as true.” 23 However, “unlike a Rule 12(b)(6) motion, a Rule
12(b)(1) motion can attack the substance of a complaint’s jurisdictional allegations despite
their formal sufficiency, and in so doing rely on affidavits or any other evidence properly

19

Docket 23 at 12, 16.

20

Docket 23 at 24.

21

Docket 23 at 18.

22

Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008).

23

McGowan v. Scoggins, 890 F.2d 128, 136 (9th Cir. 1989) (citing Atkinson v. United States, 825
F.2d 202, 204 n.2 (9th Cir. 1987)).

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before the court.”24 A plaintiff must establish Article III standing “for each challenge [she]
wishes to bring and each form of relief [she] seeks.” 25
II. Standard for Motion to Dismiss Pursuant to 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” 26 Iqbal does not
require a litigant to prove her case in her pleading, but it requires the litigant to “state
‘enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of
[the misconduct alleged].’” 27 The pleading must contain “enough facts to state a claim to
relief that is plausible on its face.” 28 This inquiry requires a court to “draw on its judicial
experience and common sense.”29 When reviewing a Rule 12(b)(6) motion, a court
considers only the pleadings and documents incorporated into the pleadings by
reference, as well as matters on which a court may take judicial notice. 30 A court

24

Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (quoting St. Clair v. City of Chino, 880
F.2d 199, 201 (9th Cir. 1989)).
25

Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 771 (9th Cir. 2006).

26

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
27

Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
(alterations in original) (quoting Twombly, 550 U.S. at 556).
28

Twombly, 550 U.S. at 570.

29

Iqbal, 556 U.S. at 679.

30

Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008) (citing
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
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“accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the
light most favorable to the nonmoving party.” 31
When a motion to dismiss for failure to state a claim is granted, a court “should
freely give leave when justice so requires.” 32 But leave to amend is properly denied as
to those claims for which amendment would be futile. 33
III. Rule 9(b)
In alleging fraud or mistake pursuant to Federal Rule of Civil Procedure 9(b), a
plaintiff must “state with particularity the circumstances constituting fraud or mistake.” A
plaintiff’s allegations must be “specific enough to give defendants notice of the particular
misconduct so that they can defend against the charge and not just deny that they have
done anything wrong.” 34 The rule requires a plaintiff to assert “the who, what, when,
where, and how” as to the alleged misconduct that occurred. 35
IV. Analysis
A. 12(b)(1) Motion
Nordstrom first contends that Ms. Keating does not have Article III standing to
challenge Nordstrom’s alleged practices.

Specifically, Nordstrom contends that Ms.

31

Manzarek v. St. Paul Fire & Marine Ins. Co., 518 F.3d 1025, 1031 (9th Cir. 2008).

32

Fed. R. Civ. P. 15(a).

33

Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v. Lund, 845
F.2d 193, 195 (9th Cir. 1988)).

34

Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Bly-Magee v.
California, 236 F.3d 1014, 1019 (9th Cir. 2001)).
35

Id. at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).

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Keating does not have an injury “because she does not allege that [Nordstrom’s alleged
practices] have affected her, or are likely to affect her, in any way.” 36

With respect to

those practices that purportedly did affect Ms. Keating, Nordstrom asserts that Ms.
Keating still lacks standing because Nordstrom has refunded the overcharges, and thus
she has not suffered any monetary loss. 37
Article III requires that a plaintiff allege “(1) an injury that is (2) is fairly traceable to
the defendant’s allegedly unlawful conduct and that is (3) likely to be redressed by the
requested relief.”38 To establish injury in fact, a plaintiff must establish that she suffered
“an invasion of a legally protected interest” that is “concrete and particularized” and
“actual or imminent, not conjectural or hypothetical.”39 For an injury to be particularized
it “must affect the plaintiff in a personal and individual way.” 40 To establish that an injury
is concrete it must be “de facto; that is it must actually exist.” 41 “Article III standing
requires a concrete injury even in the context of a statutory violation.” 42 “If an intervening
circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at

36

Docket 23 at 12–13.

37

Docket 23 at 12–13.

38

Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992) (internal quotations and citations
omitted).
39

Id. at 560.

40

Lujan, 504 U.S. at 560 n.1; see also Valley Forge Christian College v. Ams. United for
Separation of Church and State, Inc., 1454 U.S. 464, 472 (1982) (“[Plaintiff must] show that he
personally has suffered some actual or threatened injury[.]”).
41

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (internal quotation omitted).

42

Id.

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any point during litigation, the action can no longer proceed and must be dismissed as
moot.” 43
Nordstrom specifically takes issue with two of Ms. Keating’s allegations: (1) that
“Nordstrom regularly advertises pre-season sales in which it purports to discount the
prices of fashion items, which it buys in limited quantities and does not intend to sell and/or
nor does it sell such items in any substantial quantities at the purported full value” 44; and
(2) that “Nordstrom . . . misrepresent[s] the savings of items which are regularly bought
as multiple items and/or fails to apply the discounts it offers for multiple purchases.”45
Nordstrom asserts that “[Ms. Keating] nowhere alleges that she herself shopped at
Nordstrom during any pre-season sale” and “does not allege that she made any
purchases subject to a multiple-item discount.” 46 The Court agrees. Ms. Keating has not
alleged in her FAC that she suffered an injury “in a personal and individual way” relating
to either of these practices.

Accordingly, she has not satisfied the “particularity”

requirement of injury for standing for these claims. Therefore, her claims that relate to
Nordstrom’s pre-season sales and multiple item discounts are dismissed without
prejudice with leave to amend. 47
43

Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669 (2016) (quotations omitted) (citing Genesis
Healthcare Corp., 569 U.S. 66, 70 (2013)).

44

Docket 7 at 2.

45

Docket 7 at 2.

46

Docket 23 at 13.

47

The FAC also does not plead these claims with particularity pursuant to Federal Rule of Civil
Procedure 9(b), which requires a plaintiff to allege in detail the alleged fraudulent conduct,
including “the who, what, when, where, and how.” Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.
1997).

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However, Ms. Keating does have Article III standing for her other claims. Ms.
Keating claims that Nordstrom “has a pattern and practice of advertising false sale prices
while regularly charging its customers more than the ticketed price” and that it “falsely
claims that . . . it price matches.”48 These claims are “particularized” because she alleges
Nordstrom’s practices have affected her personally by listing specific purchases she
made in her FAC that relate to allegedly false sale prices and price matching. 49 Her
claims are also concrete since monetary damages are concrete. 50 Ms. Keating has
provided specific examples in which she was charged more than the ticketed price and
was charged more than had Nordstrom honored its price matching as it advertises.
Accordingly, these allegations are particularized and concrete and therefore satisfy Article
III standing.
Nordstrom maintains that because Ms. Keating has been reimbursed for the price
discrepancies, she no longer has any damages and therefore, does not have Article III

48

Docket 7 at 2–3.

49

See Docket 7 at 2 (“Keating purchased a scarf from Nordstrom from a display of several dozen
such scarves marked at a 40 percent discount, with a handwritten price of $23.40. The scarf rang
up at full-price of $39.00.”); Docket 7 at 3 (“Keating purchased a Je T’aime knit top which is clearly
labeled . . . with a price $88. Upon examining her receipt, she was charged $98. . . . Keating found
the same item available online for $78.”); see also Docket 41 at 14 (“[I]t was Keating’s experience
that Nordstrom didn’t price match in practice.”).

50

See Chase v. Hobby Lobby Stores, Inc., 2017 WL 4358146 at *5 (S.D. Cal. Oct. 2, 2017)
(“Defendant’s references to the Spokeo standard requiring ‘concrete and particularized’ injury are
inapposite—monetary damage is concrete and Plaintiff has adequately alleged that she was
affected by the advertising in a ‘personal and individual way.’”); see also Hinojos v. Kohl’s Corp.,
718 F.3d 1098, 1104 n.3 (9th Cir. 2013) (“[W]hen . . . Plaintiffs contend that class members paid
more for a product than they otherwise would have paid, or bought it when they otherwise would
not have done so they have suffered an Article III injury in fact.” (quotations omitted)).
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injury. 51 Ms. Keating relies on Campbell-Ewald Co. v. Gomez to support her argument
that reimbursing her for the overcharges does not moot her case.

In Gomez, the

defendant argued that because it had provided a comprehensive offer to the plaintiff,
which if accepted would have mooted his case, Article III standing did not exist. 52 The
Supreme Court disagreed with the defendant’s argument and reasoned:
When a plaintiff rejects such an offer—however good the terms—her
interest in the lawsuit remains just what it was before. And so too does the
court’s ability to grant her relief. An unaccepted settlement offer—like any
unaccepted contract offer—is a legal nullity, with no operative effect. As
every first-year law student learns, the recipient’s rejection of an offer leaves
the matter as if no offer had ever been made. 53
Although in Gomez the Supreme Court did not decide “whether the result would be
different if a defendant deposits the full amount of the plaintiff’s individual claim in an
account payable to a plaintiff,” it expressed concern for placing class action “defendant[s]
in the driver’s seat,” holding that “a would-be class representative with a live claim on her
own must be accorded a fair opportunity to show that [class] certification is warranted.” 54
In Chen v. Allstate, the Ninth Circuit addressed the issue left open in Gomez. 55 In
Chen, the defendant deposited $20,000 in escrow and agreed to an injunction, thereby
offering to afford complete relief to the named plaintiff. The defendant then moved to

51

Docket 23 at 12–13.

52

Gomez, 136 S.Ct. 663, 668 (2016).

53

Id. at 669 (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 81 (2013) (Kagan, J.
dissenting)).

54

Id. at 672.

55

819 F.3d 1136 (9th Cir. 2016).

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dismiss the case as moot. On appeal, the Ninth Circuit affirmed the trial court’s denial of
the motion to dismiss. First, the Circuit held that “even if the district court entered
judgment affording [the named plaintiff] complete relief on his individual claims for
damages and injunctive relief, mooting those claims, [the named plaintiff] would still be
able to seek class certification under Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir.
2011).” 56 Second, the Ninth Circuit held that it would not direct the district court to moot
the named plaintiff’s individual claims before the plaintiff was accorded a fair opportunity
to move for class certification.
In this case, Nordstrom has reimbursed Ms. Keating for two overcharges after she
filed her complaint. But the FAC requests injunctive relief, punitive damages, statutory
penalties, and attorneys’ fees and costs, none of which Nordstrom has offered to provide;
therefore, Ms. Keating has not received complete relief. 57 Accordingly, Nordstrom’s
reimbursement for these overcharges does not moot her case; nor does it negate Ms.
Keating’s standing.
Finally, Nordstrom contends that Ms. Keating “lacks standing to seek any injunctive
relief” because she does not have a “sufficient likelihood that [s]he will again be wronged
in a similar way.” 58 In Chester v. TJX Companies, Inc., the district court rejected a similar
argument. 59 The defendants there argued that the plaintiffs did not allege they intended

56

Chen v. Allstate, 819 F.3d at 1138.

57

Docket 7 at 7, 9.

58

Docket 23 at 14 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)).

59

2016 WL 4414768 (C.D. Cal. Aug. 18, 2016).

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to purchase any items from the defendant retailers in the future and therefore lacked
standing to assert injunctive relief. 60 The court explained:
It is inconceivable to think prospective relief in the false advertising context
is bound by the rules of ‘fool me once, shame on you; fool me twice shame
on me.” . . . [O]nce a plaintiff has alleged that she was deceived, she likely
will not voluntarily be deceived again—and thus no court can enjoin
deceptive practices without ignoring Article III’s standing requirements. . . .
To follow Defendants’ arguments would “eviscerate the intent of the
California legislature in creating consumer protection statutes because it
would effectively bar any consumer who avoids the offending product from
seeking injunctive relief. 61
The Court agrees with this reasoning. Moreover, Ms. Keating has adequately alleged an
intention to shop at Nordstrom in the future. Accordingly, she has standing to allege her
claims for injunctive relief.
B. 12(b)(6) Motion
i.

Common Law Fraud

Nordstrom contends that Ms. Keating has not pleaded claims for common law
fraud that are “sufficient to meet both the plausibility requirement under Rule 8 and the
particularity standard under Rule 9(b).” 62 Although the FAC may establish a cause of
action for common law fraud, Ms. Keating has not pleaded with particularity the “who,

60

Id. at *8.

61

Id. (quoting Koehler v. Litehouse, Inc., 2012 WL 6217635, at *6 (N.D. Cal. Dec. 13, 2012)); but
see Taylor v. Nike, Inc., 2017 WL 663056 at *2 (D. Or. Feb. 17, 2017) (agreeing with other district
courts that have denied standing for injunctive relief “because consumers who become aware of
a defendant’s false advertising cannot establish that they are likely to be ‘fooled again’ by the
misrepresentations”).

62

Docket 23 at 16, 23.

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what, where, when and how” pursuant to Rule 9(b). 63 Accordingly, Ms. Keating’s First
Cause of Action alleging common law fraud is dismissed without prejudice.
ii. California Consumer Protection Statutes
Ms. Keating’s Fourth Cause of Action alleges a violation of California Civil Code
Section 1750, California’s Consumer Legal Remedies Act (“CLRA”). 64 Nordstrom asserts
that Ms. Keating’s CLRA claim is barred by the statute of limitations. 65 The CLRA is
governed by a three-year statute of limitation. 66 However, the discovery rule applies to
the CLRA and provides that “the accrual date of a cause of action is delayed until the
plaintiff is aware of her injury and its negligent cause.” 67
Ms. Keating alleges that on January 1, 2014, she purchased items from a
Nordstrom in San Francisco, California that were rung up incorrectly. 68 Ms. Keating
returned to Nordstrom and received a price adjustment on January 16, 2014. 69 On
February 16, 2017, Ms. Keating filed her initial complaint. Ms. Keating was aware of a
potential CLRA claim no later than January 16, 2014, which is beyond the three year

63

Ms. Keating’s Proposed Second Amended Complaint no longer alleges a claim for common law
fraud. See Docket 52-1.
64

Docket 7 at 8.

65

Docket 23 at 22.

66

Cal. Civ. Code § 1783.

67

Jolly v. Eli Lilly & Co., 751 P.2d 923, 926–27 (Cal. 1988) (en banc).

68

Docket 7 at 3, ¶ 7.

69

Docket 7-3 at 1.

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statute of limitations. Accordingly, Ms. Keating’s Fourth Cause of Action under the CLRA
is dismissed without prejudice with leave to amend. 70
Ms. Keating’s Second Cause of Action alleges violations of California’s Unfair
Competition Law (“UCL”). 71 Nordstrom maintains that Ms. Keating has “failed to state a
claim under California’s UCL” statute and thus, lacks statutory standing. 72 Nordstrom
asserts that because it has reimbursed Ms. Keating for any price discrepancies, she no
longer has “lost money or property” as required by the statute. 73 However, the Ninth
Circuit in Hinojos v. Kohl’s Corp. held that “when a consumer purchases merchandise on
the basis of false price information, and when the consumer alleges that he would not
have made the purchase but for the misrepresentation, he has standing to sue under the
UCL . . . because he has suffered an economic injury.” 74 Ms. Keating alleges that she
and the other plaintiffs “would not have purchased the items had they known that the
savings were illusory and/or otherwise untrue.” 75 Accordingly, the FAC states a cause of
action pursuant to California’s UCL.

70

Ms. Keating’s general claims that she shopped at Nordstrom in California do not suffice to plead
a claim pursuant to CLRA. The Ninth Circuit has held that Rule 9(b)’s heightened pleading
requirement applies to CLRA claims. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th
Cir. 2009) (citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102–05 (9th Cir. 2003)).
71

Docket 7 at 6. Cal. Bus. & Prof. Code § 17200.

72

Docket 23 at 21–22.

73

Docket 23 at 21–22.

74

718 F.3d at 1107.

75

Docket 7 at 6, ¶ 19.

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iii. Alaska’s Consumer Protection Statute
Nordstrom asserts that Ms. Keating’s claims for violations to Alaska law have not
been pleaded with particularity, and should be dismissed. 76 Rule 9’s heightened pleading
standard applies to state consumer protection statutes. 77
Ms. Keating first alleges that Nordstrom violated subsection (5) of AS 45.50.471(b),
which makes it an unfair trade practice to represent “that goods are original or new if they
are deteriorated, altered, reconditioned, reclaimed, used, secondhand, or seconds.”78
The FAC does not contain any allegations that any of the goods Ms. Keating purchased
from Nordstrom were deteriorated, altered, reconditioned, reclaimed, used, secondhand,
or seconds. Accordingly, this claim is dismissed without prejudice with leave to amend.79
Ms. Keating also asserts violations of the following three subsections of the statute:
subsection (10), which penalizes “making false or misleading statements of fact
concerning the reasons for, existence of, or amounts of price reductions”; subsection (11),
which penalizes “engaging in any other conduct creating a likelihood of confusion or of
misunderstanding and that misleads, deceives, or damages a buyer or a competitor in
connection with the sale or advertisement of goods or services”; and subsection (12),

76

Docket 23 at 16. Although Ms. Keating’s FAC alleges violations to Alaska Statute
45.50.471(a)(5), (10), (11) and (12), the statute does not have subsections (a)(5), (10), (11), or
(12). Ms. Keating asserts, and Nordstrom acknowledges, that her FAC should have read (b)(5),
(10), (11), and (12). See Docket 41 at 24; Docket 23 at 16.

77

See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (holding “Rule 9(b)’s
heightened pleading standards apply to claims for violations of [California’s] CLRA and UCL.”).
78

Alaska Stat. § 45.50.471(b).

79

Ms. Keating does not allege violations of subsection (5) in her Proposed Second Amended
Complaint. See Docket 52-1 (Proposed Second Am. Compl.).
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which penalizes “using or employing deception, fraud, false pretense, false promise,
misrepresentation, or knowingly concealing, suppressing, or omitting a material fact with
intent that others will rely upon the concealment, suppression, or omissions in connection
with the sale or advertisement of goods or services whether or not a person has in fact
been misled, deceived or damaged.” Ms. Keating alleges in her FAC that Nordstrom “has
a pattern and practice of advertising false sales prices while regularly charging its
customers more than the ticketed price” and that the advertised price, whether it be hand
written or on a sign, was not honored at the cash register. 80 She maintains that she was
charged a higher price. Ms. Keating has satisfied Rule 9(b)’s particularity requirements
in providing specific details of several events where this allegedly occurred. Accordingly,
the FAC has stated a cause of action under subsections (10), (11), and (12) of AS
45.50.471(b).
Nordstrom maintains that the two-year statute of limitations bars Ms. Keating’s
claims that are based on the February 12, 2015 transaction. 81 AS 45.50.531(f) provides
“[a] person may not commence an action under this section more than two years after the
person discovers or reasonably should have discovered that the loss resulted from an act
or practice declared unlawful by AS 45.50.471.” Although the FAC does not state when
Ms. Keating discovered the pricing problem, the Proposed Second Amended Complaint
alleges she returned on February 16, 2015 to obtain a price adjustment. 82 Accordingly,

80

Docket 7 at 1–2, ¶ 3.

81

Docket 23 at 23.

82

Docket 52-1 at 5, ¶ 15.

Case No. 3:17-cv-00030-SLG, Keating v. Nordstrom, Inc.
Order re Motion to Dismiss
Page 17 of 20

Ms. Keating’s claims based on the February 12, 2015 transaction are not barred by the
statute of limitations under the discovery rule. 83
C. 12(f) Motion
Nordstrom asserts that the Court should strike Ms. Keating’s improper allegations
and class certification. 84 Federal Rule of Civil Procedure 12(f) provides that a district
court “may strike from a pleading . . . any redundant, immaterial, impertinent, or
scandalous matter.” “Where the complaint demonstrates that a class action cannot be
maintained on the facts alleged, a defendant may move to strike class allegations prior to
discovery.” 85

As discussed previously, Ms. Keating’s CLRA claim is barred by the

statute of limitations and all claims relating to pre-season sales and multiple item
discounts lack standing. 86 Accordingly, her CLRA claim and all claims relating to preseason sales and multiple item discounts on behalf of the putative class are stricken
without prejudice.
CONCLUSION
Therefore, IT IS ORDERED that Nordstrom’s Motion to Dismiss at Docket 23 is
DENIED in part and GRANTED in part as follows:

83

See Yurioff v. American Honda Motor Co., Inc., 803 P.2d 386, 388–89 (Alaska 1990) (holding
that complaint filed on March 20, 1987 would be timely filed if the accident took place on March
20, 1985).
84

Docket 23 at 17.

85

Jovel v. Boiron, Inc., 2013 WL 12164622 at * 3 (C.D. Cal. Aug. 16, 2013).

86

See supra notes 44-47 and accompanying text. Ms. Keating’s allegations of violations to AS
45.50.471(b)(5) and common law fraud are similarly stricken without prejudice. However, these
claims are not pleaded in Ms. Keating’s Proposed Second Amended Complaint. See Docket 521.

Case No. 3:17-cv-00030-SLG, Keating v. Nordstrom, Inc.
Order re Motion to Dismiss
Page 18 of 20

Nordstrom’s Motion to Dismiss Ms. Keating’s claims as they relate to pre-season
sales and multiple item discount is GRANTED with leave to amend.
Nordstrom’s Motion to Dismiss Ms. Keating’s First Cause of Action or common
law fraud is GRANTED with leave to amend.
Nordstrom’s Motion to Dismiss Ms. Keating’s Second Cause of Action for
violations of California’s Consumer Legal Remedies Act is GRANTED with leave to
amend.
Nordstrom’s Motion to Dismiss Ms. Keating’s Third Cause of Action for violations
of Alaska Statute § 45.50.471(b)(5) is GRANTED with leave to amend.
Nordstrom’s Motion to Dismiss Ms. Keating’s Third Cause of Action for violations
of Alaska Statute § 45.50.471(b)(10), (11) and (12) is DENIED.
Nordstrom’s Motion to Dismiss Ms. Keating’s Fourth Cause of Action for
violations of California’s Unfair Competition Law is DENIED.
Nordstrom’s Motion to Strike Allegations under FRCP 12(f) is GRANTED as to
Ms. Keating’s claims relating to preseason sales, multiple item discount and her CLRA
claim and is DENIED as to all other claims.
Nordstrom’s opposition to Ms. Keating’s Motion to Amend at Docket 52 is due 14
days from the date of this order. 87
Nordstrom’s Motion for Extension of Time to File Scheduling and Conference
Planning Report at Docket 62 is GRANTED as follows: the report shall be filed within 14
days of the date of this order.

87

See Docket 59 (Minute Entry for Oral Argument).

Case No. 3:17-cv-00030-SLG, Keating v. Nordstrom, Inc.
Order re Motion to Dismiss
Page 19 of 20

Nordstrom’s Motion to Strike Ms. Keating’s Supplemental Authority in Support of
Her Opposition at Docket 70 is DENIED. However, the Court has considered both
parties’ briefing and finds Veera v. Banana Republic, 6 Cal.App.5th 907 (2016)
inapposite.
DATED this 26th day of January, 2018.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

Case No. 3:17-cv-00030-SLG, Keating v. Nordstrom, Inc.
Order re Motion to Dismiss
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