Stephenson v. Neutrogena Corporation

Filing 33

ORDER by Judge Hamilton granting in part and denying in part 21 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 7/27/2012)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 DESIREE STEPHENSON, 6 Plaintiff(s), No. C 12-0426 PJH 7 v. ORDER RE MOTION TO DISMISS 8 NEUTROGENA CORPORATION 9 10 Defendant(s). ___________________________________/ 11 Defendant Neutrogena Corporation’s motion to dismiss came on for hearing before 12 this court on July 25, 2012. Plaintiff Desiree Stephenson (“plaintiff”) appeared through her 13 counsel, Mark Todzo. Defendant Neutrogena Corporation (“defendant”) appeared through 14 its counsel, Matt Powers. Having read the papers filed in conjunction with the motion and 15 carefully considered the arguments and relevant legal authority, and good cause 16 appearing, the court hereby GRANTS in part and DENIES in part defendant’s motion to 17 dismiss as follows. 18 Defendant first moves to dismiss (or alternatively to strike), for lack of standing, all of 19 plaintiffs claims to the extent that they relate to products that were not actually purchased 20 by plaintiff. Specifically, defendant points out that plaintiff alleges causes of action related 21 to six of the Neutrogena Naturals products, even though plaintiff claims to have purchased 22 only one product, the purifying facial cleanser. Both parties cite a number of cases in 23 support of their position. See, e.g., Larsen v. Trader Joe’s Co., No. 3:11-cv-5188, Dkt. 41 24 (N.D. Cal. June 14, 2012) (dismissing claims related to products not purchased by plaintiff); 25 Mlejnecky v. Olympus Imaging America Inc., 2011 WL 1497096 (E.D. Cal. Apr. 19, 2011) 26 (same); Carrea v. Dreyer’s Grand Ice Cream, Inc., 2011 WL 159380 (N.D. Cal. Jan. 10, 27 2011) (same); but cf. Astiana v. Dreyer’s Grand Ice Cream, Inc., 2012 WL 2990766 (N.D. 28 Cal. July 20, 2012) (denying motion to dismiss as to products not purchased by plaintiff); Cardenas v. NBTY, Inc., 2012 WL 1593196 (E.D. Cal. May 4, 2012) (same). Ultimately, 1 1 the court finds that the Astiana/Cardenas cases are less persuasive here, because the 2 products at issue in those cases were more similar than the Neutrogena Naturals products 3 at issue here. In both Astiana and Cardenas, the purchased product(s) were similar 4 enough to the unpurchased products such that an individualized factual inquiry was not 5 needed for each product. The court does not find that to be the case here, and thus 6 DISMISSES with prejudice plaintiff’s claims to the extent that they relate to products that 7 were not actually purchased by plaintiff. Defendant also moves to dismiss under Rule 9(b), arguing that some of plaintiff’s 8 9 state law claims are based in fraud, and thus must be pled with particularity. As to any 10 claims that relate to products not purchased by plaintiff, those claims have been dismissed, 11 thus mooting defendant’s motion. As to plaintiff’s claims related to the purifying facial 12 cleanser, the court finds that plaintiff has properly set forth the “who, what, where, when, 13 and how” of the alleged fraud, and thus DENIES defendant’s motion to dismiss under Rule 14 9(b). 15 Finally, defendant moves to dismiss plaintiff’s claims for injunctive relief, based on 16 the argument that plaintiff has not demonstrated a risk of future injury. Preliminarily, the 17 court notes that plaintiff has not asserted a “claim” for injunctive relief, but rather has 18 included a “prayer” for injunctive relief. While defendant correctly notes that plaintiff has not 19 alleged that she intends to purchase the purifying facial cleanser (or any other Neutrogena 20 Naturals product) in the future, it is still possible that plaintiff would purchase those products 21 if the alleged misrepresentations are corrected. Thus, the court STRIKES plaintiff’s prayer 22 for injunctive relief with leave to amend, so that plaintiff can add an allegation to that effect, 23 and may then appropriately include the prayer for injunctive relief. 24 Defendant also requests that the court take judicial notice of the product labeling 25 and/or packaging for the Neutrogena Naturals products at issue. As to the products that 26 were not purchased, the court finds that they are no longer relevant to the case, and thus 27 denies defendant’s request. As to the purifying facial cleanser, the court grants defendant’s 28 request to take judicial notice of the product’s label (attached as Exhibit A to defendant’s request for judicial notice). 2 1 IT IS SO ORDERED. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 27, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge

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