Arroyo v. Pfizer, Inc.

Filing 31

ORDER by Judge Edward M. Chen Granting 19 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 1/31/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 JOANNE ARROYO, on behalf of herself and all others similarly situated, No. C-12-4030 EMC 9 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS v. 11 For the Northern District of California United States District Court 10 (Docket No. 19) PFIZER, INC., 12 13 Defendant. ___________________________________/ 14 15 16 17 I. INTRODUCTION Plaintiff Joanne Arroyo filed a class action lawsuit against Defendant Pfizer, Inc., claiming 18 that Defendant “made, and continues to make, false and misleading statements in its advertising and 19 packaging” of a nutritional supplement called “Pro Nutrients Probiotic” (“Pro Nutrients”) in 20 violation of California law. Amended Complaint (Docket No. 16) (“Am. Comp.”) ¶ 20. Plaintiff 21 claims that “Pro Nutrients does not support healthy immune function as advertised, and provides no 22 benefit to an individual’s immune system.” Am. Comp. ¶ 12. Pfizer has moved to dismiss in full 23 and strike in part Plaintiff’s Amended Complaint, arguing in the main that Arroyo alleges “nothing 24 about her experience with the Product or what led her to believe that Pfizer’s immunity claim was 25 false or misleading,” thus warranting dismissal of the complaint under Fed. R. Civ. P. 12(b)(6). 26 Def.’s Mot. to Dismiss (Docket No. 19) at 2. Having considered the parties’ briefs and 27 accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS 28 Defendant’s motions for the reasons discussed herein. 1 II. FACTUAL & PROCEDURAL BACKGROUND 2 Plaintiff filed an initial class action complaint against Pfizer on July 31, 2012. Compl. 3 (Docket No. 1). The initial complaint alleged that Defendant had violated California’s Unfair 4 Competition Law (“UCL”), False Advertising Law (“FAL”), Consumers Legal Remedies Act 5 (“CLRA”), and had breached an express warranty made to California consumers, by advertising that 6 its Pro Nutrients Probiotic product “supports healthy immune function” when it, in fact, does not. 7 Compl ¶¶ 6, 7, 21. Plaintiff based her allegation on a theory that “the Product cannot support 8 healthy immune function because almost all of the Product is excreted through the urine leaving 9 minimal, if any, benefit to an individual’s immune system.” Compl. ¶ 7. The initial complaint also alleged that Defendant’s immunity claim was false and misleading because Pfizer had “no 11 For the Northern District of California United States District Court 10 competent and reliable scientific evidence to support such claims for the Product.” Id. ¶ 31. Pfizer 12 filed a Motion to Dismiss the initial complaint (Docket No. 15) on October 1, 2012, to which 13 Plaintiff responded with the instant Amended Complaint (Docket No. 16). 14 Arroyo’s Amended Complaint alleges the following facts. During March of 2012, Ms. 15 Arroyo “purchased and consumed the subject product of this action, ‘Pro Nutrients Probiotic’ 16 powder packets (‘Pro Nutrients’ or ‘the Product’) . . . for the purchase price of approximately 17 $14.99, from a Walgreens pharmacy.” Am. Comp. ¶ 8. She alleges that she “purchased Pro 18 Nutrients believing it would support or enhance her immune system because she relied on the 19 statement on the packaging for Pro Nutrients that it would in fact support her ‘healthy immune 20 function.’” Id. ¶ 9. Plaintiff states that “[i]n purchasing Pro Nutrients,” she “read and relied on the 21 labeling and advertising for Pro Nutrients displayed on the packaging; specifically, she relied on the 22 statement on the side of Pro Nutrients’ packaging that it ‘supports healthy immune function,’ by 23 reading it and thereby believing it would enhance her immune function.” Id. ¶ 10 (emphasis added). 24 Plaintiff states that she “used Pro Nutrients according to the directions on the Product’s label, but 25 stopped using Pro Nutrients because it failed to support her healthy immune function, or in other 26 words, Pro Nutrients failed to enhance her immune function,” but she does not state why she formed 27 this opinion, or how she came to learn that the product did not function as advertised. Id. ¶ 11. She 28 then concludes that both herself and similarly situated consumers “[have] been damaged by [their] 2 1 purchase of Pro Nutrients because the labeling and advertising for Pro Nutrients was and is false 2 and/or misleading under California law because Pro Nutrients does not support healthy immune 3 function as advertised, and provides no benefit to an individual’s immune system, such as Plaintiff 4 or members of the Class.” Id. ¶ 12. Ms. Arroyo claims that she “would not have purchased Pro 5 Nutrients, but for Pfizer’s representations, that consuming Pro Nutrients would help support her 6 immune system,” and alleges that she and “other purchasers of Pro Nutrients have suffered injury in 7 fact and have lost money as a result of Pfizer’s false misrepresentations.” Am. Comp. ¶¶ 31, 40. 8 See also id ¶ 44 (“As a result of the misleading representations detailed above, Pfizer was able to 9 charge a price premium for Pro Nutrients compared with similar drink powders that did not make 11 For the Northern District of California United States District Court 10 such claims.”). Plaintiff advances four causes of action against Pfizer. First, she claims that Defendant’s 12 alleged misrepresentations constituted “unfair business acts and/or practices” in violation of 13 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et. seq. See Am. 14 Comp. ¶¶ 60-76. Second, she claims that “Defendant disseminated, or caused to be disseminated, 15 the deceptive Product labeling and advertising representations that misleadingly claim to support a 16 healthy immune system” in violation of California’s False Advertising Law (“FAL”), Cal. Bus. & 17 Prof. Code §§ 17500, et. seq. Id. ¶ 78; see also id. ¶¶ 77-88. Third, she advances a claim under the 18 California Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et. seq., alleging that 19 Pfizer “represented that Pro Nutrients has characteristics, ingredients, uses, and benefits which it 20 does not have,” and “that Pro Nutrients is of a particular standard, quality, or grade, which it is not.” 21 Id. ¶ 95; see also id. ¶¶ 89-100. Finally, Ms. Arroyo alleges that Defendant breached an express 22 warranty, made through its advertising and labeling, that Pro Nutrients would “support a healthy 23 immune system,” through its failure “to provide a product with the promised benefits.” Id. ¶¶ 101- 24 109. Plaintiff seeks a variety of legal and equitable remedies, including actual, statutory, and 25 punitive damages, restitution, disgorgement of ill-gotten gains, attorney’s fees and costs, as well as 26 an injunction prohibiting “Defendant from making any claims for Pro Nutrients found to violate the 27 UCL, FAL, or CLRA.” Id. at 21-22. 28 3 1 Pfizer has moved to dismiss the amended complaint, arguing that “Plaintiff has neither pled 2 facts that add up to a plausible claim, as required by [the Federal Rules of Civil Procedure], nor pled 3 her claims with the requisite particularity, as required by Rule 9(b).” Def.’s Mot. to Dismiss at 2. 4 Neither, Pfizer argues, has Ms. Arroyo alleged facts showing that a reasonable consumer is likely to 5 be deceived by Defendant’s representations of the product, as is required to state a claim under the 6 UCL, FAL, and CLRA. Defendant also argues that Plaintiff lacks standing to obtain prospective 7 relief in the form of an injunction since she “does not intend to make another purchase [of] Pro 8 Nutrients, as it doesn’t perform for the reason Plaintiff purchased Pro Nutrients--to support her 9 ‘healthy immune function.’” Am. Comp. ¶ 38. Finally, Pfizer argues that paragraph 5 of the Amended Complaint, which states that “more than two-thirds of all of the members of the proposed 11 For the Northern District of California United States District Court 10 Plaintiff Class in the aggregate are citizens of a state other than California,” ought to be struck under 12 Rule 12(f) as redundant or confusing insofar as it conflicts with Plaintiff’s own proposed narrower 13 definition of the class. See id. ¶ 5 and page 10 (limiting the class to “[a]ll persons residing in the 14 State of California”). 15 16 III. A. DISCUSSION Motion to Dismiss 17 1. 18 Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead a claim with enough 19 specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which it 20 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 21 41, 47 (1957)). Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based 22 on the failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A 23 motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See 24 Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, 25 a court must take all allegations of material fact as true and construe them in the light most favorable 26 to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are 27 insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 28 2009). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough Legal Standard 4 1 facts to state a claim to relief that is plausible on its face.’” Id. “A claim has facial plausibility when 2 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 3 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see 4 also Bell Atl. Corp. v. Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a 5 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 6 unlawfully.” Iqbal, 129 S. Ct. at 1949. 7 2. 8 Pfizer argues that Plaintiff’s complaint ought to be dismissed under Rule 12 because the facts 9 Facial Plausibility pled within it “do not add up to a plausible claim under the UCL, FAL, or CLRA, or for breach of warranty.” Def.’s Mot. to Dismiss at 7. Defendant reasons that because the “vast majority of 11 For the Northern District of California United States District Court 10 allegations underlying Plaintiff’s false advertising claims are ‘bare assertions’ or ‘conclusions’ that 12 are not entitled to the assumption of truth,” the amended complaint does not present a well-pled 13 allegation that Pfizer is liable for false or misleading advertising. Id. at 6. See also id. at 7 14 (“Plaintiff’s Complaint is now little more than a collection of empty assertions, without supporting 15 facts, that Pfizer’s representation that the Product ‘supports healthy immune function’ is ‘false’ 16 and/or ‘misleading.’”). The Court is inclined to agree. 17 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 18 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. at 1949 19 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). “A pleading that offers ‘labels and 20 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. 21 Throughout the amended complaint, Arroyo repeatedly alleges that Defendant’s representation that 22 Pro Nutrients “supports healthy immune function” is “false” and/or “misleading.” See, e.g., Am. 23 Comp. ¶¶ 20-23, 29-30, 32-36. However, nowhere does she allege why she believes this to be true. 24 As Defendant argues: 25 26 27 28 Something must have occurred between March 2012 (when Plaintiff picked the product off the shelf) and April 2012 (when she sent a demand letter to Pfizer) that led her to believe Pfizer was liable for false advertising. The basic factual allegations that would fill that glaring hole in the Complaint – for example, what Plaintiff expected the product to do, what the Product actually did, and how she came to the conclusion that it did not “support healthy immune function” as 5 1 advertised – are all within Plaintiff’s knowledge. Yet they are nowhere to be found in the Complaint. 2 3 Def.’s Mot. to Dismiss at 7. Particularly in view of the brief time frame between which Plaintiff 4 purchased the product and sent a demand letter, these critical facts explaining why Defendant’s 5 clams are false must be pled as part of the “short and plain statement of the claim showing that the 6 pleader is entitled to relief.” Fed. R. Civ. P. 8. 7 Plaintiff is correct that in assessing the sufficiency of a complaint under Rule 12(b)(6), a 8 Court must “accept as true all of the allegations contained in a complaint,” but not allegations that 9 amount to “legal conclusions” or “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678; see id. (“Although for the purposes of a 11 For the Northern District of California United States District Court 10 motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not 12 bound to accept as true a legal conclusion couched as a factual allegation.’”) (quoting Twombly, 550 13 U.S. at 555). 14 Plaintiff’s numerous statements that Pro Nutrients’ claim to “support healthy immune 15 function” is false and/or misleading are nothing more than legal conclusions and conclusory 16 statements of fact. Throughout the amended complaint, Plaintiff fails to plead any underlying 17 factual premise that would justify her factual conclusion that Pro Nutrients “does not support 18 healthy immune function and provides no actual benefit to a consumer’s immune system,” Am. 19 Comp. ¶ 20, or her legal conclusion that Pfizer’s claim to the contrary “is false and/or misleading 20 under California law, id. ¶ 20. Without facts substantiating why the product does not work as 21 advertised or explaining why Defendant’s statements were false or misleading, the complaint fails to 22 allege “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. 23 at 678. A complaint that offers naked assertions devoid of further factual enhancement “stops short 24 of the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557 25 (citation and internal quotation marks omitted). 26 District courts have dismissed similar UCL, FAL, and CLRA claims when they are pled with 27 insufficient supporting facts. In Eckler v. Wal-Mart Stores, Inc., 12-CV-727-LAB-MDD, 2012 WL 28 5382218 (S.D. Cal. Nov. 1, 2012), for example, a plaintiff brought suit against Walmart for alleged 6 number of scientific studies suggesting that the ingredients of Equate did not support joint comfort, 3 rebuild cartilage, or lubricate joints, as advertised by the product’s manufacturer, but none of the 4 studies cited by plaintiff addressed the specific “Equate” product or its particular combination of the 5 studied ingredients. The court found that plaintiff’s cited studies could not lend “facial plausibility” 6 to her claims on account of the “mismatch between the representations at issue and the evidence that 7 allegedly debunks them.” Eckler v. Wal-Mart Stores, Inc., 2012 WL 5382218 at *7. Without the 8 studies, plaintiff’s complaint had no remaining factual support other than her own limited pleadings 9 about her experience with the product. The limited nature of those latter pleadings led the court to 10 find “to the extent Eckler’s false advertising claims turns on her own experience with Equate, rather 11 For the Northern District of California false advertising of a dietary supplement called “Equate.” The Eckler plaintiff’s complaint cited a 2 United States District Court 1 than studies that show it doesn’t deliver the joint benefits it suggests, she needs to say far more than, 12 in essence, ‘I took Equate and didn’t feel any better.’” Id., 2012 WL 5382218 at *8. See also 13 Damabeh v. 7-Eleven, Inc., 5:12-CV-1739-LHK, 2012 WL 4009503 at *7-8 (N.D. Cal. Sept. 12, 14 2012) (“Plaintiff’s allegations fail to provide the Court with sufficient information to evaluate 15 whether Defendant might reasonably be held liable under the UCL or FAL” under Rule 8 because 16 “Plaintiff’s allegation that Defendant interfered with Plaintiff’s sale of his store lacks any support 17 (e.g. facts regarding what Defendant did to interfere with the sale of Plaintiff’s store).”); Stevens v. 18 JPMorgan Chase Bank, N.A., C 09-03116 SI, 2010 WL 329963 (N.D. Cal. Jan. 20, 2010) 19 (dismissing FAL claim for want of specific allegations regarding the allegedly misleading 20 advertisements).1 Cf. Rosales v. FitFlop USA, LLC, 11-CV- 21 1 22 23 24 25 26 27 28 In Stevens, Judge Illston held: Plaintiff alleges that defendants engaged in false advertising by applying “misleading standardized practice and advertising” to “Plaintiff and the Class members.” FAC ¶ 40. These misleading practices included “a standardized sales pitch on the telephone” and “uniform advertisements on websites and brochures.” Id. Plaintiff adds that “such standardized practices and advertisements expressly or implicitly represented that customers had a substantial chance of qualifying for home loan modifications.” Id. Throughout the FAC, however, plaintiff does not give any specific information regarding these alleged misleading advertisements. Such general claims are precisely the “labels and conclusions, and a formulaic recitation of the elements of a cause of action” that Twombly deems insufficient at the 7 1 00973 W WVG, 2012 WL 3224311 at *5 (S.D. Cal. Feb. 8, 2012) (rejecting defendant’s claim that 2 plaintiffs fail to state a UCL claim that is plausible on its face within the parameters of Rule 8(a) 3 because “[p]laintiffs point to several studies involving toning fitness shoes that support their 4 contention that these shoes have no beneficial effect on exercise intensity, improved muscle 5 strength, or toning.”). 6 Plaintiff, acknowledging that Iqbal and Twombly set the applicable Rule 8 pleading standard, 7 nonetheless argues that “[i]t is well settled that ‘in testing a pleading against a [motion to dismiss] 8 the facts alleged in the pleading are deemed to be true, however improbable they may be.’” Pl.’s 9 Opp. Br. (Docket No. 20 at 2) (quoting Del E. Webb Corp. v. Structural Materials Co.. 123 Cal. App. 3d 593, 604 (Cal. Ct. App. 1981)). While that may be a true statement of California law, that 11 For the Northern District of California United States District Court 10 is not the pleading standard required by Rule 8 as interpreted by the Supreme Court. The fact that 12 Plaintiff specifically alleges, in a conclusory fashion, the required elements of a false advertising 13 claim does not, in itself, suffice to state a claim in federal court. See Iqbal, 556 U.S. at 678 14 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 15 do not suffice” to state a viable cause of action.). Plaintiff’s citation to Vanoni v. Western Airlines, 16 247 Cal. App. 2d 793, 795 (Cal. App. 1967), and Reichert v. General Ins. Co. of America, 68 Cal.2d 17 822, 840 (1968), two California cases discussing the requirements for pleading a cause of action in 18 state court, are inapplicable to her claims before this Court.2 19 Plaintiff’s pleading deficiency is not cured by the complaint’s reference to Dr. Kent Carson’s 20 opinion on the general efficacy and value of probiotics as a class of products. The Amended 21 Complaint indicates that Plaintiff retained Dr. Kent Carson, M.D., “to conduct a good faith and 22 reasonable inquiry into the veracity of Pfizer’s claims,” and reproduces several statements drawn 23 24 25 26 27 28 pleading stage. Twombly, 550 U.S. at 544. Stevens v. JPMorgan Chase Bank, N.A., 2010 WL 329963 at *5 (N.D. Cal. Jan. 20, 2010). 2 Plaintiff’s citation to Koehler v. Litehouse, Inc., 12-CV-04055-SI (copy provided in Plaintiff’s Notice of Supplemental Authority (Docket No. 22)), and Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008), are also inapplicable to the resolution of this issue since neither case discusses, let alone approves of, the de minimus pleading standard Plaintiff seeks to advance here. 8 1 from a report prepared by him in the text of the complaint. Am. Comp. ¶ 25. Generally, these 2 statements question the efficacy of probiotics products like Pro Nutrients in “supporting” the human 3 immune system. See id. ¶¶ 26-28. But the quotations from Dr. Carson are either conclusory in 4 nature or fail to address anything specific about the performance of Pfizer’s product. For instance, 5 ¶ 28(a) of the Amended Complaint quotes Dr. Carson as stating, “We can diminish our immune 6 system with medication and an unhealthy life style but we cannot significantly, and in a healthy 7 manner, boost our immune system artificially. The immune system is complex and not altered by a 8 powder.” This does not address Pfizer’s product specifically. Dr. Carson’s qualifying words such 9 as “significantly,” “in a healthy manner,” and “artificially” do not establish the falsity of Pfizer’s representation that its product “supports healthy immune function.” His statement at ¶ 28(c) of the 11 For the Northern District of California United States District Court 10 Amended Complaint, that “Pfizer’s probiotics don’t work and P[f]izer ‘knows this and laugh[s] all 12 the way to the bank from their false, deceptive advertising without which the consumers would not 13 purchase these product[s]’” is conclusory. In addition to qualifying his generalized statements about 14 probiotics with the use of adverbs and adverbial phrases like “significantly”and “in a healthy 15 manner,” he refers to their effects on the “average person” and the needs of average person’s 16 immune system; this leaves the possibility that some consumers may incur some benefit by using 17 Pfizer’s product. See id. ¶ 28(a) (“The average person needs no alteration of their gut flora. Our 18 immune system does not need a boost from the administration of live bacteria into our system.”) 19 (emphasis added). None of these statements adequately support Plaintiff’s conclusory assertion that 20 “Pro Nutrients does not support healthy immune function and provides no actual benefit to a 21 consumer’s immune system.” Id. ¶ 20 (emphasis added). 22 The Court is mindful of the Ninth Circuit’s general rule that “whether a business practice is 23 deceptive will usually be a question of fact not appropriate for decision on demurrer.” Williams v. 24 Gerber Products Co., 552 F.3d at 938-39 (“The facts of this case . . . do not amount to the rare 25 situation in which granting a motion to dismiss is appropriate.”). But a case such as Williams is 26 distinguishable because the court there found a more specific and more provably false assertion – 27 that Gerber’s “use of the words ‘Fruit Juice’ juxtaposed alongside images of fruits such as oranges, 28 peaches, strawberries, and cherries” on its packaging for “Gerber’s Fruit Juice Snacks” could lead a 9 1 reasonable consumer to believe that the product contained the juices of the fruit depicted, when in 2 fact it did not. Williams v. Gerber Products Co., 552 F.3d at 936. In contrast, Plaintiff’s complaint 3 here does not take issue with the content of Pro Nutrients, but rather with its efficacy. Pro Nutrients’ 4 effectiveness in supporting a healthy immune system cannot be discerned solely from text and a 5 picture on its packaging in the same way that a consumer of a juice drink could reasonably infer that 6 the drink was comprised of the juices of the fruit pictured. To establish a plausible claim that Pro 7 Nutrients does not work as advertised requires more. Ms. Arroyo has failed to “raise [her] right to 8 relief above the speculative level;” as such, her amended complaint has not “nudged [her] claims 9 across the line from conceivable to plausible.” Twombly, 550 U.S. at 545-47. 3. 11 For the Northern District of California United States District Court 10 Pfizer also argues that dismissal of Plaintiff’s claims is warranted because her claims sound Heightened Pleading Requirement 12 in fraud, and are not pled with the particularity required by Fed. R. Civ. P. 9(b). Rule 9(b) states that 13 “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting 14 fraud or mistake.” “To comply with Rule 9(b), allegations of fraud must be specific enough to give 15 defendants notice of the particular misconduct which is alleged to constitute the fraud charged so 16 that they can defend against the charge and not just deny that they have done anything wrong.” Bly- 17 Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (quoting Neubronner v. Milken, 6 F.3d 18 666, 672 (9th Cir.1993)) (quotation marks omitted). “[M]ere conclusory allegations of fraud are 19 insufficient.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir.1989). 20 Allegations sounding in fraud must include the “who, what, when, where, and how” of the 21 misconduct charged. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). 22 Plaintiff alleges that her claims do not need to comply with Rule 9(b)’s heightened pleading 23 standard. She argues, “[i]t is well-established that, unlike a common law fraud claim, fact-specific 24 or particularized pleading is not required to state a UCL, FAL or CLRA claim, even where 25 ‘fraudulent’ business acts or practices are the gravamen of the Plaintiff’s complaint.” Pl.’s Opp. Br. 26 at 7 (citing Morgan v. AT&T Wireless Services, Inc., 177 Cal. App. 4th 1235, 1256 (2009); 27 Quelimane Co. v. Stewart Title Guaranty Co. 19 Cal.4th 26, 46-47 (1998); and Committee on 28 Children’s Television, Inc. v. General Foods Corp., 35 Cal. 3d 197, 212 (1983)). As with her earlier 10 1 argument for adopting a pure notice pleading standard under Rule 8, Plaintiff’s argument here fails 2 to grasp the difference between federal and state procedural rules. 3 “It is well-established in the Ninth Circuit that both claims for fraud and negligent 4 misrepresentation must meet Rule 9(b)’s particularity requirements.” Neilson v. Union Bank of 5 California, N.A., 290 F. Supp. 2d 1101, 1141 (C.D. Cal. 2003). Rule 9(b) applies equally to state 6 law causes of action as it does to other claims brought in federal court. See Vess v. Ciba-Geigy 7 Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003) (“It is established law, in this circuit and elsewhere, 8 that Rule 9(b)’s particularity requirement applies to state-law causes of action. ‘[W]hile a federal 9 court will examine state law to determine whether the elements of fraud have been pled sufficiently to state a cause of action, the Rule 9(b) requirement that the circumstances of the fraud must be 11 For the Northern District of California United States District Court 10 stated with particularity is a federally imposed rule.’”) (quoting Hayduk v. Lanna, 775 F.2d 441, 443 12 (1st Cir.1985) (emphasis in original)). Thus, several recent opinions from this district, including one 13 from this Court, have dismissed UCL and CLRA claims sounding in fraud when not pled with the 14 specificity required by Rule 9(b). See Arroyo v. Chattem, Inc., C 12-2129 CRB, 2012 WL 5412295 15 at * 5-6 (N.D. Cal. Nov. 6, 2012) (granting motion to dismiss fraud claims for failure to meet the 16 particularity requirements of Rule 9(b) regarding the marketing of “Dexatrim products as ‘safe, 17 healthy, and appropriate for consumption,’” despite manufacturer’s knowledge that product was 18 tainted with hexavalent chromium); Fabozzi v. StubHub, Inc., C-11-4385 EMC, 2012 WL 506330 19 (N.D. Cal. Feb. 15, 2012) (“Plaintiff’s claims under the UCL alleging deceptive or fraudulent 20 conduct are subject to Rule 9(b)’s particularity requirement, which requires a plaintiff to identify the 21 ‘who, what, when, and how’ with sufficient specificity as to ‘give defendants notice of the particular 22 misconduct so that they can defend against the charge and not just deny that they have done 23 anything wrong.’”) (quoting Vess v. Ciba–Geigy Corp., 317 F.3d at 1105–06). 24 The Ninth Circuit draws a distinction under Rule 9 between claims alleging a unified course 25 of fraudulent conduct, and those that allege a mix of fraudulent and non-fraudulent conduct. In 26 cases “where fraud is not a necessary element of a claim,” but a plaintiff has alleged that a defendant 27 engaged in a unified course fraudulent conduct, and “rel[ies] entirely on that course of conduct as 28 the basis of a claim,” the claim “is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the 11 1 pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b).” Vess v. 2 Ciba-Geigy Corp. USA, 317 F.3d at 1103-04. “In other cases, however, a plaintiff may choose not 3 to allege a unified course of fraudulent conduct in support of a claim, but rather to allege some 4 fraudulent and some non-fraudulent conduct. In such cases, only the allegations of fraud are subject 5 to Rule 9(b)’s heightened pleading requirements.” Id. at 1104. In Kearns v. Ford Motor Co., 567 6 F.3d 1120 (9th Cir. 2009), the Ninth Circuit applied its holding in Vess v. Ciba-Geigy Corp. USA to 7 the specific context of fraud claims advanced under the CLRA and UCL. Kearns held that: 8 11 While fraud is not a necessary element of a claim under the CLRA and UCL, a plaintiff may nonetheless allege that the defendant engaged in fraudulent conduct. A plaintiff may allege a unified course of fraudulent conduct and rely entirely on that course of conduct as the basis of that claim. In that event, the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading ... as a whole must satisfy the particularity requirement of Rule 9(b). 12 567 F.3d 1120, 1125 (9th Cir. 2009) (citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097) (internal 13 citations omitted). 9 For the Northern District of California United States District Court 10 14 As in Kearns, Plaintiff’s claims here allege a “unified course of fraudulent conduct and rely 15 entirely on that course of conduct as the basis” for her claims. Kearns, 567 F.3d at 1125. Plaintiff’s 16 UCL, CLRA, and FAL claims are all based on the allegation that Pfizer made false and misleading 17 statements in its advertising and packaging of Pro Nutrients, misrepresenting that the product 18 supports a healthy immune function when it allegedly does not. See Am. Comp. ¶¶ 68, 83, 95. 19 Plaintiff alleges that Defendant made these allegedly false representations with the intent that 20 consumers rely on them when choosing to purchase the product, id. ¶ 24, and that Ms. Arroyo and 21 putative members of her class “suffered injury in fact and have lost money as a result of [Pfizer’s] 22 false misrepresentations,” id. ¶ 31. Sounding in fraud, these claims are required to be pled with 23 particularity under Rule 9(b). Vess v. Ciba-Geigy Corp. USA, 317 F.3d at 1103-04. 24 As with the pleading requirements imposed by Rule 8, Plaintiff has failed to plead with 25 particularity “the circumstances constituting fraud or mistake” in this matter. Fed R. Civ. P. 9(b). 26 She has not alleged any non-conclusory facts supporting her assertion that the product does not 27 support an individual’s healthy immune function, or that it otherwise fails to perform as advertised. 28 Again, without pleading these underlying factual details, Plaintiff has failed to allege “the who, 12 1 what, when, where, and how” of the misconduct charged. Cooper v. Pickett, 137 F.3d 616, 627 (9th 2 Cir.1997). Rule 9(b) requires a litigant to “set forth more than the neutral facts necessary to identify 3 the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it 4 is false.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d at 1106 (quoting Decker v. GlenFed, Inc. (In re 5 GlenFed, Inc. Sec. Litig.), 42 F.3d 1541, 1548 (9th Cir.1994) (emphasis in original)). See also Blake 6 v. Dierdorff, 856 F.2d 1365, 1369 (9th Cir. 1988) (Rule 9(b) requires “specific descriptions of the 7 representations made, [and] the reasons for their falsity”) (emphasis added)). Lacking the required 8 particularity, Plaintiff’s allegations of fraudulent conduct underlying her UCL, FAL, and CLRA 9 claims fail to meet the standard set by Rule 9(b). B. Motion to Strike 11 For the Northern District of California United States District Court 10 Defendant asks this Court to strike the third sentence of Paragraph 5 of the amended 12 complaint “because it is redundant, confusing, and liable to cause Pfizer prejudice.” Def.’s Mot. to 13 Dismiss at 14. Pursuant to Fed. R. Civ. P. 12(f), a court may strike from a pleading any “redundant, 14 immaterial, impertinent, or scandalous matter.” “[T]he function of a 12(f) motion to strike is to 15 avoid the expenditure of time and money that must arise from litigating spurious issues by 16 dispensing with those issues prior to trial . . . .” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 17 885 (9th Cir. 1983). A court may strike portions of a pleading where they are liable to “confuse the 18 issues, or otherwise prejudice a party.” Ollier v. Sweetwater Union High School Dist., 735 F. Supp. 19 2d 1222, 1223 (S.D. Cal. 2010). 20 Pfizer argues that the third sentence of Paragraph 5 ought to be struck because Ms. Arroyo 21 seeks to certify a class consisting entirely of California residents in Paragraph 44, yet alleges in 22 direct contradiction that “more than two-thirds of all of the members of the proposed Plaintiff Class 23 in the aggregate are citizens of a state other than California” in Paragraph 5. “Because these two 24 allegations are irreconcilable,” Pfizer reasons, “and because the presence of the two-thirds allegation 25 creates confusion as to whether Plaintiff intends to try to certify a California or nationwide class, the 26 third sentence of Paragraph 5 should be stricken.” Def.’s Mot. to Dismiss at 14. Plaintiff’s 27 opposition brief clarifies that the inconsistent statement in Paragraph 5 was made in order to “to 28 ensure its Class rights are preserved under the Class Action Fairness Act of 2005, for venue and 13 1 jurisdictional purposes.” Pl’s Opp. Br. at 15. Plaintiff cites to 28 U.S.C. §§ 1332(d)(4)(A)(i)(I) and 2 (d)(4)(B), which provide that “[a] district court shall decline to exercise jurisdiction . . . over a class 3 action in which—greater than two-thirds of the members of all proposed plaintiff classes in the 4 aggregate are citizens of the State in which the action was originally filed,” and when “two-thirds or 5 more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, 6 are citizens of the State in which the action was originally filed”). 7 There are two problems with Plaintiff’s argument. First, whatever the motivation, the two and (d)(4)(B) apply only to actions in which at least one named defendant is a citizen of the state in 10 which the action was originally filed. See 28 U.S.C. §§ 1332(d)(4)(A) and (d)(4)(B). Pfizer is not a 11 For the Northern District of California paragraphs are facially inconsistent. Second, Plaintiff overlooks the fact that both §§ 1332(d)(4)(A) 9 United States District Court 8 citizen of the State of California, as the amended complaint quite clearly acknowledges. See Am. 12 Comp. ¶ 5 (“As set forth below, Plaintiff is a citizen of California, and PFIZER can be considered a 13 citizen of Delaware. Therefore, diversity of citizenship exists under CAFA, as required by 28 14 U.S.C. § 1332(d)(2)(A)”). This allegation of Paragraph 5 is not only inconsistent, it is “immaterial” 15 to Plaintiff’s establishment of jurisdiction under the Class Action Fairness Act. It should be struck. 16 Plaintiff argues in the alternative that “[a]lthough the Proposed class seeking certification at 17 this time consists of California residents, Plaintiff has reserved the right to amend the Class 18 definition should further investigation and discovery indicate that the Class definition should be 19 expanded.” Pl.’s Opp. Br. at 15. Plaintiff has cited no authority for her purported ability to “reserve 20 the right” to amend her definition of the class. Amendments to pleadings are governed by Federal 21 Rule of Civil Procedure 15. Plaintiff cannot insert an inconsistent and confusing placeholder to 22 expand whatever right she may later have under Rule 15 to amend the complaint. The Court, 23 therefore, GRANTS Pfizer’s motion to strike the third sentence of Paragraph 5 under Rule 12(f). 24 IV. CONCLUSION 25 For the foregoing reasons, Pfizer’s motion to dismiss and motion to strike are GRANTED. 26 Plaintiff’s amended complaint fails to plead sufficient facts to give her false advertising claims the 27 facial plausibility required by Fed. R. Civ. P. 8(a). As her false advertising claims sound in fraud, 28 they are required to meet the heightened pleading requirement imposed by Rule 9(b). However, just 14 1 as Plaintiff fails to plead sufficient facts to satisfy Rule 8(a), neither does she meet the heightened 2 pleading requirement imposed by Rule 9(b). Further, Plaintiff’s inconsistent allegation in the third 3 sentence of Paragraph 5 is inconsistent with the class definition and immaterial to Plaintiff’s 4 establishment of jurisdiction under the Class Action Fairness Act, and is therefore struck. Because 5 the Court determines that Plaintiff’s amended complaint fails to satisfy the threshold requirements of 6 Rules 8(a) and 9(b), the Court need not reach Defendant’s alternate arguments that Ms. Arroyo’s 7 claims fail to satisfy the “reasonable consumer” standard, or that she lacks standing to obtain 8 injunctive relief under Article III. The Court does note, however, that Defendant’s argument on 9 standing raises serious questions. Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend “be freely 11 For the Northern District of California United States District Court 10 given when justice so requires.” Fed. R. Civ. P. 15. “This policy is to be applied with extreme 12 liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). See also 13 Foman v. Davis, 371 U.S. 178, 182 (1962) (implying leave to amend should be granted in the 14 absence of undue delay, bad faith or dilatory motive, or undue prejudice to the opposing party or 15 futility of amendment). Accordingly, this dismissal is without prejudice. Should Plaintiff seek to 16 file a second amended complaint asserting (consistent with Fed. R. Civ. P. 11) claims that are not 17 otherwise precluded by this order, she shall do so within 30 days of the date of this order. 18 The Case Management Conference (CMC) scheduled for February 7, 2013 at 9:00 a.m. has 19 been continued to March 14, 2013 at 9:00 a.m. A Joint CMC statement shall be filed by March 7, 20 2013. 21 This order disposes of Docket No. 19. 22 23 IT IS SO ORDERED. 24 25 Dated: January 31, 2013 26 _________________________ EDWARD M. CHEN United States District Judge 27 28 15

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