Burns v. Tristar Products, Inc. et al
Filing
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ORDER Granting Defendant's 5 Motion to Dismiss without Prejudice. Signed by Judge Cynthia Bashant on 7/25/2014. (knb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JEANNE BURNS, individually and on
behalf of all other similarly situated,
Case No. 14-cv-749-BAS(DHB)
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Plaintiff,
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS
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v.
[ECF No. 5]
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TRISTAR PRODUCTS, INC.,
Defendant.
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On February 11, 2014, Plaintiff Jeanne Burns commenced this putative action
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against Defendant Tristar Products, Inc. (“Tristar”) in the San Diego Superior Court for
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allegedly falsely advertising the Flex-Able Hose. Thereafter, Defendant removed this
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action to federal court. Defendant now moves to dismiss Plaintiff’s claims for
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injunctive relief under Federal Rule of Civil Procedure 12(b)(1). Plaintiff opposes.
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The Court finds this motion suitable for determination on the papers submitted
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and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the
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Court GRANTS Defendant’s motion to dismiss.
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//
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14cv749
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I.
BACKGROUND
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According to the complaint, “Defendant marketed and distributed the Flex-Able
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Hoses both online and through retail outlets in California.” (Compl. ¶ 16.) The Flex-
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Able Hose was marketed as a “durable and strong garden hose.” (Id. ¶ 18.) The
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packaging and the infomercial touted the product as having “a tough double
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construction” and being “designed like a fire-hose for speed, storage and strength, to
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last a really long time.” (Id.) Plaintiff alleges that she “viewed the infomercial prior
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to her purchase and believed that the Flex-Able Hose would be strong and would last
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a long time based upon Defendant’s representations.” (Id.) She eventually purchased
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a Flex-Able Hose from Defendant’s “interactive website.” (Id. ¶ 7.)
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However, according to Plaintiff, the product did not “last a long time” and was
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not “built strong.” (Compl. ¶¶ 7, 19.) Instead, “it leaked and ruptured shortly after her
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purchase.” (Id. ¶ 7.) Plaintiff alleges that Defendant was “fully aware of the inherent
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defect in the Flex-Able Hose[,]” and that “Defendant actively concealed the existence
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and nature of the inherent defect[.]” (Id. ¶ 21.) She further alleges that had she
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“known that the Flex-Able Hose was a flimsy hose with a propensity to leak and
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rupture, she would not have purchased the product.” (Id. ¶¶ 7, 33, 58.)
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On February 11, 2014, Plaintiff commenced this putative class action in the San
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Diego Superior Court, asserting six claims: (1) violation of the Consumers Legal
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Remedies Act; (2) violation the Unfair Competition Law (“UCL”) under California
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Business and Professions Code § 17200; (3) violation of the UCL under California
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Business and Professions Code § 17500; (4) fraud by omission; (5) breach of implied
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warranty of merchantability; and (6) breach of implied warranty of fitness. Thereafter,
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Defendant removed this action to federal court. Defendant now moves to dismiss
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Plaintiff’s claims for injunctive relief under Rule 12(b)(1) for lack of Article III
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standing. Plaintiff opposes.
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//
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//
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14cv749
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II.
LEGAL STANDARD
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Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss
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based on the court’s lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).
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“A federal court is presumed to lack jurisdiction in a particular case unless the contrary
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affirmatively appears.” Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225
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(9th Cir. 1989) (citation omitted). “Article III of the Constitution confines the federal
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courts to adjudication of actual ‘Cases’ and ‘Controversies.’” Lujan v. Defenders of
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Wildlife, 504 U.S. 555, 590 (1992). Consequently, a “lack of Article III standing
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requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil
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Procedure 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011)
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(emphasis omitted). “For the purposes of ruling on a motion to dismiss for want of
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standing,” the court “must accept as true all material allegations of the complaint, and
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must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422
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U.S. 490, 501 (1975); see also Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000).
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The “irreducible constitutional minimum” of Article III standing contains three
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elements: (1) “the plaintiff must have suffered an ‘injury in fact’”; (2) “there must be
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a causal connection between the injury and the conduct complained of”; and (3) “it
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must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed
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by a favorable decision.’” Lujan, 504 U.S. at 560-61. The injury in fact must be an
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invasion of a legally protected interest that is concrete and particularized, and actual
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or imminent, not conjectural or hypothetical.
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Furthermore, to satisfy the casual-connection prong, the injury has to be fairly traceable
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to the challenged action of the defendant, and not the result of the independent action
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of some third party not before the court. Id. (citing Simon v. E. Ky. Welfare Rights
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Org., 426 U.S. 26, 41-42 (1976)). Furthermore, “[s]tanding must be shown with
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respect to each form of relief sought, whether it be injunctive relief, damages or civil
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penalties.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007).
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//
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Id. at 560 (citation omitted).
14cv749
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III.
DISCUSSION
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Defendant argues that Plaintiff lacks Article III standing to pursue injunctive
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relief because there is no threat of a repeated injury. (Def.’s Mot. 2:10–5:25.) Plaintiff
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responds by urging the Court to apply the reasoning in Henderson v. Gruma Corp., No.
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CV 10-04173, 2011 WL 1362188 (C.D. Cal. Apr. 11, 2011), under which she argues
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that she has Article III standing to pursue injunctive relief. (Pl.’s Opp’n 2:13–7:15.)
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For the following reasons, the Court agrees with Defendant.
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“In a class action, standing is satisfied if at least one named plaintiff meets the
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requirements.” Bates, 511 F.3d at 985. “Standing to bring a damages claim does not
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necessarily imply standing to seek injunctive relief.” Lanovaz v. Twinings N. Am., Inc.,
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No. C-12-02646-RMW, 2014 WL 46822, at *9 (N.D. Cal. Jan. 6, 2014). Furthermore,
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“[u]nless the named plaintiffs are themselves entitled to seek injunctive relief, they may
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not represent a class seeking that relief.” Hodgers-Durgin v. de la Vina, 199 F.3d
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1037, 1045 (9th Cir. 1999).
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“The standing formulation for a plaintiff seeking prospective injunctive relief is
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simply one implementation of Lujan’s requirements.” Bates, 511 F.3d at 985. The
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plaintiff must demonstrate that he has suffered or is threatened with a “concrete and
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particularized” legal harm, coupled with “a sufficient likelihood that he will again be
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wronged in a similar way.” Id. (citing Lujan, 504 U.S. at 560; City of Los Angeles v.
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Lyons, 461 U.S. 95, 111 (1983)). Regarding the latter inquiry, the plaintiff must
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establish a “real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U.S.
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488, 496 (1974). “[P]ast wrongs do not in themselves amount to [a] real and immediate
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threat of injury necessary to make out a case or controversy.” Lyons, 461 U.S. at 103.
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However, “past wrongs are evidence bearing on whether there is a real and immediate
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threat of repeated injury.” O’Shea, 414 U.S. at 496. “In addition, the claimed threat
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of injury must be likely to be redressed by the prospective injunctive relief.” Bates,
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511 F.3d at 985-86.
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//
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14cv749
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In Henderson, the court found that the plaintiffs in a false-advertising case retain
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standing to pursue injunctive relief so long as the products continue to be deceptively
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marketed and sold by the defendant. Henderson, 2011 WL 1362188, at *8. In reaching
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that conclusion, the court reasoned that to hold otherwise would severely undermine
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the objective of California’s consumer protection laws “to protect both consumers and
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competitors by promoting fair competition in commercial markets for goods and
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services.” Id. (citing Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 344 (2011))
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(emphasis in original).
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However, Supreme Court and Ninth Circuit precedent are clear that for a plaintiff
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to have standing to pursue injunctive relief, there must be a “real and immediate threat
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of repeated injury.” See Lujan, 504 U.S. at 560; O’Shea, 414 U.S. at 496; Bates, 511
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F.3d at 985. The Ninth Circuit recently reiterated that proposition in Ervine v. Desert
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View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014), stating that
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“it is not the presence or ‘absence of a past injury’ that determines Article III standing
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to seek injunctive relief; it is the imminent ‘prospect of future injury.’” Consequently,
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“[t]o the extent that Henderson and other cases purport to create a public-policy
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exception to the standing requirement, that exception does not square with Article III’s
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mandate.” Delarose v. Boiron, Inc., No. SACV 10-1569, 2012 WL 8716658, at *5
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(C.D. Cal. Dec. 28, 2012). Thus, this Court declines to follow Henderson, and Plaintiff
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must demonstrate a real and immediate threat of repeated injury in order to have
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standing to pursue injunctive relief. See Bates, 511 F.3d at 985; see also Forcellati v.
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Hyland’s, Inc., No. CV 12-1983, 2014 WL 1410264, at *13 (C.D. Cal. Apr. 9, 2014)
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(declining to follow Henderson); Luman v. Theismann, No. 2:13-cv-00656, 2014 WL
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443960, at *8 (E.D. Cal. Feb. 4, 2014) (same); Mason v. Nature’s Innovation, Inc., No.
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12cv3019, 2013 WL 1969957, at *3-4 (S.D. Cal. May 13, 2013) (same); Ries v. Ariz.
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Beverages USA LLC, 287 F.R.D. 523, 533-34 (N.D. Cal. 2012) (same).
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In this case, Plaintiff fails to allege any facts that plausibly suggest that her
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alleged injury will occur again. She does not allege that she intends to purchase
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14cv749
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Defendant’s Flex-Able Hose again in the future. To the contrary, Plaintiff emphasizes
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multiple times in her complaint that had she known the quality of the product—that it
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is allegedly prone to leaks and ruptures—she would not have purchased the Flex-Able
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Hose. Given that the allegations suggest little to no possibility that she will purchase
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the Flex-Able Hose again in future, Plaintiff fails to allege facts that suggest a real and
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immediate threat of a repeated injury as a result of the alleged misrepresentations about
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the product. See Bates, 511 F.3d at 985. Therefore, Plaintiff lacks Article III standing
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to pursue her claims for injunctive relief.
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IV.
CONCLUSION & ORDER
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In light of the foregoing, the Court GRANTS Defendant’s motion to dismiss,
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and DISMISSES WITHOUT PREJUDICE Plaintiff’s claims for injunctive relief for
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lack of Article III standing. The Court dismisses the claims for injunctive relief
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without prejudice because it is possible that another plaintiff could be added to this
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action who would have standing to pursue injunctive relief. See Bates, 511 F.3d at 985
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(“In a class action, standing is satisfied if at least one name plaintiff meets the
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requirements.”). Thus, if Plaintiff chooses to amend her claims for injunctive relief in
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a manner that confers standing to the potential class, she must do so no later than
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August 15, 2014.
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Lastly, the Court DENIES Plaintiff’s request to remand her claims for injunctive
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relief to state court because she fails to adequately justify such relief. Because the
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Court dismisses the claims for injunctive relief without prejudice, she may now, if she
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chooses to do so, commence a separate action for injunctive relief in state court.
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IT IS SO ORDERED.
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DATED: July 25, 2014
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Hon. Cynthia Bashant
United States District Judge
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