Moshiri v. HSNi, LLC et al

Filing 33

ORDER by Judge Vince Chhabria granting 20 Motion to Dismiss with leave to amend. (knm, COURT STAFF) (Filed on 6/20/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALLEN MOSHIRI,

Case No. 14-cv-01034-VC

Plaintiff,
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v.

ORDER GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND

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HSNI, LLC, et al.,

Re: Dkt. No. 20

Defendants.

United States District Court
Northern District of California

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In this putative class action, Allen Moshiri alleges that four defendants have promoted,
advertised, and sold "EMERIL™" brand kitchen knives that defendants represented were

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manufactured in Solingen, Germany, when in fact the knives were manufactured in China.
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Moshiri, who purchased one of these knives, claims that defendants’ actions violate California's

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consumer protection laws, and seeks to vindicate the rights of a nationwide class of consumers

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allegedly defrauded by the defendants. The defendants have filed a motion to dismiss, which is

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GRANTED with leave to amend.

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Because Moshiri's claims are based on fraud, Rule 9(b) of the Federal Rules of Civil
Procedure requires that he state his claims with particularity. The claims must include "the who,

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what, when, where, and how" of the fraud. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106
(9th Cir. 2003). Further, the allegations must be specific enough that defendants have notice of

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their particular misconduct and can defend against the charge. Bly-Magee v. California, 236 F.3d

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1014, 1019 (9th Cir. 2001).

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Moshiri's complaint fails to satisfy this requirement in two key ways. First, it does not

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explain how each of the four defendants was involved in the fraud. Instead, it makes the generic,

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undifferentiated allegation that the four defendants "falsely represented to the public that the

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EMERIL™ brand Counterfeit Knives are made in Solingen, Germany through various means,

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with the misrepresentations being made in advertisements, promotions, offers, and sales occurring

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over the Internet, during nationally televised promotional shows, and through telephone sales."

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Compl. ¶ 15. This allegation is not sufficient to identify the manner in which each defendant

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engaged in the alleged fraud.
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Second, the complaint is too vague with respect to Moshiri himself. The complaint merely
alleges that Moshiri purchased a knife from unspecified "defendants," after being "exposed to" and

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United States District Court
Northern District of California

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"relying on" unspecified "representations" about the origin and quality of the knife. Compl. ¶ 5.

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Moshiri has 30 days from the date of this order to file an amended complaint, if he can in
good faith allege more specific facts to support his fraud-based claims. In addition, as discussed at
the hearing, Moshiri should consider whether he may lawfully and in good faith seek to enforce

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California law on behalf of a nationwide class, or whether he is limited to asserting California law
claims on behalf of a class of California consumers.
IT IS SO ORDERED.
Dated: June 19, 2014
______________________________________
VINCE CHHABRIA
United States District Judge

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