Franz v. Beiersdorf, Inc. et al
Filing
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ORDER OF DISMISSAL. The Court denies the plaintiff's request to amend and dismisses the action with prejudice. Signed by Judge Larry Alan Burns on 4/4/17.(kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ASHLEY FRANZ,
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CASE NO. 14cv2241-LAB (RBB)
Plaintiff,
vs.
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ORDER OF DISMISSAL
BEIERSDORF, INC.,
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Defendant.
Five years ago, Ashley Franz purchased a $10 bottle of Nivea's Skin Firming
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Hydration Body Lotion from a CVS in San Diego. She spent an extra $4 on this Lotion
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because she believed the claim on the bottle: “Improves Skin’s Firmness in as little as 2
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weeks.” When the Lotion didn’t firm her skin as advertised, she filed a class action against
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Beiersdorf, Inc. (“Nivea”) for false advertising and for selling an unapproved drug.
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About a year ago, the Court dismissed Franz’s false advertising claim, and found the
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FDA had primary jurisdiction to decide if the Lotion was a drug. The Court stayed the case
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to allow Franz to petition the FDA to take enforcement action against Nivea for making skin-
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firming claims that Franz maintains makes the Lotion a drug that requires FDA approval. The
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FDA declined to take any action.
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Franz filed a second amended complaint based on a single claim: Nivea is engaged
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in unfair competition because it’s selling the Lotion as an unapproved drug. Nivea moved to
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dismiss. Because the Court lacks jurisdiction, it dismisses the complaint.
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14cv2241
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1.
Standing
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Franz must establish standing by plausibly alleging that she’s suffered an “injury in
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fact,” that has a “causal connection” with “the conduct complained of,” and that will likely be
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“redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). And
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Franz must show she “lost money or property because of reliance on an allegedly unlawful
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practice, in order to establish standing for UCL unlawfulness claims." Wilson v. Frito-Lay N.
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Am., Inc., 961 F. Supp. 2d 1134, 1145 (N.D. Cal. 2013) (emphasis added) (dismissing unfair
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competition claims with prejudice for failure to allege reliance). Franz hasn’t plausibly alleged
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the causation or reliance necessary to establish standing.
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At first, Franz’s basis for standing made sense. The Lotion didn’t firm her skin, so
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Nivea injured her because she "would not have purchased the Product had she known that
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Defendants' skin firming representations were false and misleading."1 Then Franz filed an
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amended complaint, and the link between her injury and Nivea’s conduct became more
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attenuated: she dropped her claim that the Lotion didn’t work, and instead, explained that
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she was injured because the Lotion claims it’s “proven” to firm skin, “when, in fact, it is not
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proven to firm or tighten skin.”2
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Now Franz has taken a different tack. Her second amended complaint suggests two
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theories for standing. First, Nivea caused her harm because had she known the Lotion “was
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an illegal and misbranded drug, she would not have purchased it.” Second, Nivea caused
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her harm because she never should have been able to purchase the Lotion at all—if Nivea
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had followed the rules, the Lotion wouldn't “have been on the market.”3 These “bare bones
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words and phrases” are “insufficient to establish standing or to survive a motion to dismiss."
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Perez v. Nidek Co., 711 F.3d 1109, 1113 (9th Cir. 2013).
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Both of Franz’s standing theories rely on a basic syllogism: Under the FDCA, an
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article "intended to affect the structure or any function of the body" is a drug that requires
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Dkt. 1 at ¶¶ 8, 29.
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Dkt. 19 at ¶¶ 5, 42, 71, 74.
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Dkt. 46 at ¶¶ 2, 32, 35. Franz also says Nivea's at fault for listing the ingredients in
the wrong order. She hasn't plausibly alleged how she was harmed by this conduct either.
14cv2241
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agency approval. The Lotion is intended to affect the structure of the body by firming skin,
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but it hasn’t been approved as a new drug. Ergo, the Lotion is illegally sold as an
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unapproved drug. Accepting that argument as correct, Franz still hasn’t plausibly pled
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causation necessary to establish standing.
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First, she maintains that if she knew the Lotion “was an illegal and misbranded drug,
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she would not have purchased it.” Franz appears to suggest that she read the skin-firming
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claims on the Lotion, considered them as indicating that the Lotion was a drug, relied on
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Nivea having obtained FDA approval for the Lotion, and later, she found out the Lotion was
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never approved as a new drug. She didn’t plead any of those facts.
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Even if she had, the allegations are implausible. If Franz was a Nivea competitor
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selling a similar skin-firming lotion, but had spent extra time and money obtaining FDA
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approval for her rival lotion so that she could make skin-firming claims, then the Court would
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have no problem implying a causal connection. The Court could also understand Franz’s
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claim if the Lotion said "FDA approved"—but it wasn’t—and she broke out in a bad rash
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when she applied the Lotion. But here, Franz hasn’t shown there’s a plausible "causal
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connection" between her decision to buy and the "conduct complained of"—namely, Nivea's
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decision to sell the Lotion as a cosmetic, rather than obtaining approval to sell it as a drug.
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Second, Franz says she “lost money on a product that, but for Defendant’s illegal
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conduct, would not have been on the market.” That doesn't follow. Franz seems to suggest
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that had Nivea consulted the FDA, the agency would have found the Lotion was a drug, and,
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would have refused to allow Nivea to sell it. But Franz petitioned the FDA to make those very
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findings and it decided not to take action. More important, that explanation doesn’t plausibly
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allege causation or reliance. See Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 326
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(2011) (UCL provision that “a person who has suffered injury in fact and has lost money or
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property as a result of the unfair competition” requires showing reliance).
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2.
Amount in controversy
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Even if Franz has standing, she hasn’t plausibly alleged that the amount in
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controversy is enough for the Court to exercise jurisdiction over her state law claim under the
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Class Action Fairness Act. The Court is “obliged to inquire sua sponte whenever a doubt
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arises as to the existence of federal jurisdiction.” Mt. Healthy v. Doyle, 429 U.S. 274, 278
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(1977). Franz says the amount in controversy “exceeds the sum or value of $5,000,000” and
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that she believes there may be “thousands” of California consumers that were damaged by
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Nivea selling this Lotion.4
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Franz can rely on a good faith allegation of the amount at stake, but to “survive a
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motion to dismiss,” it must still be “plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Franz is no longer asking for an injunction or certification of a nationwide class. Instead,
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she’s only asking for restitution of the “full purchase price” of the Lotion–$10. She believes
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the class of California consumers may contain “thousands of purchasers,” but Franz needs
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to allege that roughly 500,000 purchasers each suffered $10 injuries to get to $5 million.5
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Even including attorney fees (which, it seems this case is really about), Franz hasn’t provided
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the Court plausible facts from which it could infer that this sum of money is on the table.
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***
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The Court “may exercise its discretion to deny leave to amend due to undue delay”
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“repeated failure to cure deficiencies by amendments previously allowed” as well as “undue
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prejudice to the opposing party.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 893
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(9th Cir. 2010) (quotations omitted). Franz bought the Lotion five years ago, filed this action
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three years ago, petitioned the FDA to no avail, and has tried out various theories of harm
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in three different complaints. At some point, Nivea’s interest in not being subjected to
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repeated, diverse legal theories must also come into play. The Court denies Franz’s request
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to amend and dismisses the action with prejudice.
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IT IS SO ORDERED.
DATED: April 4, 2017
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HONORABLE LARRY ALAN BURNS
United States District Judge
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Dkt. 46 at 2-3, 6.
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Dkt. 46 at 6.
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