Moran v. Edgewell Personal Care, LLC

Filing 77

ORDER by Judge Seeborg granting 58 Motion to Dismiss. (rslc1, COURT STAFF) (Filed on 11/21/2022)

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Case 3:21-cv-07669-RS Document 77 Filed 11/21/22 Page 1 of 3 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 MICHELLE MORAN, Case No. 21-cv-07669-RS Plaintiff, 11 United States District Court Northern District of California v. ORDER GRANTING MOTION TO DISMISS 12 13 EDGEWELL PERSONAL CARE, LLC, Defendant. 14 15 16 A motion to dismiss the first amended complaint in this action was granted with respect to 17 any claims arising from “advertisements other than the “Reef Friendly – No Oxybenzone or 18 Octinoxate” claim on the sunscreen labels,” and as to the claim for breach of implied warranty. 19 Plaintiff subsequently filed a second amended complaint that retained those claims without adding 20 any substantive factual allegations to support them. Defendant, unsurprisingly, moved again to 21 dismiss, although it asserts it first attempted to persuade plaintiff to eliminate the claims 22 voluntarily. 23 In response to the motion to dismiss, plaintiff filed an “errata” and a “corrected second 24 amended complaint” that purportedly removes the previously dismissed claims. Plaintiff then filed 25 an opposition brief urging that the motion to dismiss be denied as moot. On reply, defendant 26 objects to the procedural impropriety of plaintiff’s “corrected” pleading, and argues that it does 27 not completely remove all references to “advertising,” as opposed to the labeling of the products. 28 This is not a dispute that should have required court intervention. Plaintiff states without Case 3:21-cv-07669-RS Document 77 Filed 11/21/22 Page 2 of 3 1 qualification that she is pursuing claims for relief “based solely on the ‘REEF FRIENDLY- no 2 Oxybenzone or Octinoxate’ representation on the Products’ labels and packaging,” and not on any 3 other “advertising.” The putative “corrected” pleading defines “The Challenged Representation” 4 as one that appears on the products labels.1 As such, any attempt by plaintiff to assert claims based on advertising at any future point United States District Court Northern District of California 5 6 in this litigation would not have been viable even if the “corrected” second amended complaint 7 were deemed operative. That said, defendant is technically correct that even the “corrected” 8 pleading retains some language suggesting there are claims arising from advertising. See, e.g., 9 para. 41 (“Defendant intentionally and deliberately used the Reef Friendly Representations on the 10 Products’ labeling, packaging, and advertising to cause Plaintiff and similarly situated consumers 11 to believe that the Products are safe . . . .” (emphasis added). Because the parties have been unable to resolve this by stipulation notwithstanding the lack 12 13 of any actual substantive controversy, and for clarity of the record, the pending motion to dismiss 14 the second amended complaint will be granted, as to both the original and the “corrected” 15 versions. Plaintiff may file a third amended complaint in substantially similar form, provided she 16 exercises care to remove all references to “advertising” that arguably create ambiguity regarding 17 the scope of her claims, such as the one identified in paragraph 41. Any inadvertent failure by 18 plaintiff to excise one or more references to “advertising” from the third amended complaint, 19 however, will not serve as a basis for another motion to dismiss. Plaintiff’s claims are limited to 20 those arising from representations on the products’ labels and packaging. 21 22 23 24 25 26 27 For any of defendant’s products that may be sold in packaging additional to the actual containers, representations on such packaging should be understood as equivalent to labels on the containers. 1 28 CASE NO. 2 21-cv-07669-RS Case 3:21-cv-07669-RS Document 77 Filed 11/21/22 Page 3 of 3 1 IT IS SO ORDERED. 2 3 4 5 Dated: November 21, 2022 ______________________________________ RICHARD SEEBORG Chief United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NO. 3 21-cv-07669-RS

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