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