Seegert v. Rexall Sundown, Inc.

Filing 30

ORDER granting 17 Defendant's Motion to Dismiss and 18 Motion to strike. Plaintiff's claims are dismissed without prejudice. Plaintiff may file a second amended complaint within 30 days of this order. Signed by Judge John A. Houston on 12/01/2017. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SANDRA SEEGERT, individually and on
behalf of all other similarly situated,

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS (Doc. No. 17)
AND MOTION TO STRIKE (Doc. No.
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Plaintiff,

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Case No.: 17cv1243-JAH (JLB)

v.
REXALL SUNDOWN, INC.,
Defendant.

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INTRODUCTION

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Pending before the Court are Defendant Rexall Sundown Incorporated’s

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(“Defendant”) motion to dismiss and motion to strike Plaintiff Sandra Seegert’s

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(“Plaintiff”) class action complaint (“Complaint”) pursuant to Rules 12(b)(6) and 12(f) of

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the Federal Rules of Civil Procedure. Doc. Nos. 17, 18. Defendant also requests the Court

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to take judicial notice of specific documents. Doc. No. 19. Plaintiff filed oppositions to

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both motions. Doc. Nos. 24, 25. After a careful review of the pleadings filed by both

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parties, and for the reasons set forth below, the Court GRANTS Defendant’s motion to

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dismiss, motion to strike, and request for judicial notice.

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FACTUAL BACKGROUND

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Plaintiff alleges Defendant engaged in false and misleading advertising of four Osteo

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Bi-Flex dietary supplements. Doc. No. 1. at pg. 2. Plaintiff posits that Defendant falsely

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claims the products promote joint health. Id. Plaintiff contends that on February 20, 2017,

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Plaintiff purchased one of Defendant’s products, Osteo Bi-Flex Triple Strength, in reliance

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on the product’s advertising. Id. at pg. 3. Plaintiff alleges the product did not provide

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“meaningful joint health benefits” and was falsely, deceptively, and misleadingly

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advertised. Id.

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Plaintiff argues that Defendant violated three California statutes: (1) California’s

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Unfair Competition Law, Cal. Bus. & Prof. Code § 17200; (2) California’s Consumers

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Legal Remedies Act, Cal. Civ. Code § 1750; and California’s False Advertising Law, Cal.

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Bus. & Prof. Code § 17500. Doc. No. 1 at pgs. 21-27. Plaintiff presents allegations on

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behalf of herself and a putative class of similarly situated individuals. Id. Specifically,

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Plaintiff asserts that Defendant falsely advertises four products: Osteo Bi- Flex One Per

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Day; Osteo Bi-Flex Triple Strength; Osteo Bi-Flex Triple Strength MSM; and Osteo Bi-

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Flex Triple Strength with Vitamin D. Id. at pgs. 4-5. Plaintiff argues that none of the four

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products achieve their intended purpose, to support or benefit joint health. Id. Plaintiff

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requests restitution, disgorgement, injunctive relief, attorney’s fees, and interest on damage

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awards. Id. at pg. 28.

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PROCEDURAL BACKGROUND

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Plaintiff filed her Complaint on June 19, 2017, on behalf of herself and a putative

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class. Doc. No. 1. On August 14, 2017, Defendant filed a motion to dismiss Plaintiff’s

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Complaint. Doc. No. 17. The same day, Defendant filed a motion to strike. Doc. No. 18.

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Defendant also filed a request for judicial notice. Doc. No. 19. On October 9, 2017,

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Plaintiff filed a response in opposition to Defendant’s motion to dismiss. Doc. No. 22. On

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the same day, Plaintiff filed a response in opposition to Defendant’s motion to strike. Doc.

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No. 24.

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LEGAL STANDARD
I.

Federal Rule of Civil Procedure 12(b)(6)

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A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint.

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Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule

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12(b)(6) where the complaint lacks a cognizable legal theory or fails to allege sufficient

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facts to support a cognizable legal theory. Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007)). A claim is facially plausible when the factual allegations permit “the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

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556 U.S. at 678. In other words, “the non-conclusory ‘factual content,’ and reasonable

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inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff

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to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556

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U.S. at 678). “Determining whether a complaint states a plausible claim for relief will . . .

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be a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Iqbal, 556 U.S. at 679.

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In reviewing a motion to dismiss under Rule 12(b)(6), a court must assume the truth

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of all factual allegations and construe the factual allegations in the light most favorable to

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the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996).

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However, legal conclusions need not be taken as true merely because they are “cast in the

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form of factual allegations.” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). “Nor

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does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

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enhancement.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). The court may

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consider facts alleged in the complaint, documents attached to the complaint, documents

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relied upon but not attached to the complaint when authenticity is not contested, and
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matters of which the court takes judicial notice. Lee v. City of Los Angeles, 250 F.3d 668,

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688–89 (9th Cir. 2001). If a court determines that a complaint fails to state a claim, the

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court should grant leave to amend unless it determines that the pleading could not possibly

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be cured by the allegation of other facts. Doe v. United States, 58 F.3d 494, 497 (9th Cir.

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1995).

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II.

Federal Rules of Civil Procedure 8

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Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a claim

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for relief in a pleading it must contain “a short and plain statement of the grounds for the

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court’s jurisdiction” and “a short and plain statement of the claim showing that the pleader

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is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). “The pleading standard Rule 8 announces

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does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the

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defendant-unlawfully-harmed me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly,

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550 U.S. at 555).

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III.

Federal Rule of Civil Procedure 9(b)

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Under Rule 9(b) of the Federal Rules of Civil Procedure, “[i]n alleging fraud or

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mistake, a party must state with particularity the circumstances constituting fraud or

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mistake.” Under Ninth Circuit case law, Rule 9(b) imposes two distinct requirements on

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complaints alleging fraud. First, the basic notice requirements of Rule 9(b) require

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complaints pleading fraud to “state precisely the time, place, and nature of the misleading

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statements, misrepresentations, and specific acts of fraud.” Kaplan v. Rose, 49 F.3d 1363,

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1370 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp., U.S.A., 317 F.3d 1097, 1106 (9th

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Cir. 2003) (citation omitted) (stating that a plaintiff must set forth the “who, what, when,

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where and how” of the alleged misconduct). Second, Rule 9(b) requires that the complaint

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“set forth an explanation as to why the statement or omission complained of was false or

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misleading.” Yourish v. California Amplifier, 191 F.3d 983, 993 (9th Cir. 1999) (citation

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and quotation omitted).

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IV.

Federal Rule of Civil Procedure 12(f)

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A party may move to strike from a pleading “an insufficient defense or any

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redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he

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function of a 12(f) motion to strike is to avoid the expenditure of time and money that

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must arise from litigating spurious issues by dispensing with those issues prior to trial.”

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See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Motions to

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strike are generally disfavored, unless “it is clear that the matter to be stricken could have

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no possible bearing on the subject matter of the litigation.” See LeDuc v. Kentucky

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Central Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992); Cairns v. Franklin Mint

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Co., 24 F. Supp. 2d 1013, 1037 (C.D. Cal. 1998); See also Colaprico v. Sun

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Microsystems, 758 F. Supp. 1335, 1339 (N.D. Cal. 1991).

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DISCUSSION

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The Court first addresses whether Plaintiff and the class have standing to assert

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their claims against Defendant. The Court will then address whether Plaintiff has

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properly plead her allegations under the heightened standard of Federal Rule of Civil

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Procedure 9(b).

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I.

Motion to Dismiss
a. Plaintiff’s Standing

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Defendant argues Plaintiff lacks standing to assert claims for products she did not

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purchase and representations she did not rely on. Defendant also contends Plaintiff lacks

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standing for injunctive relief because Plaintiff faces no imminent or future harm.

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A federal court’s judicial power is limited to “cases” or “controversies.” U.S. Const.,

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Art. III § 2. A necessary element of Article III’s “case” or “controversy” requirement is

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that a litigant must have “‘standing’ to challenge the action sought to be adjudicated in the

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lawsuit.” Valley Forge College v. Americans United for Separation of Church and State,

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Inc., 454 U.S. 464, 471 (1982); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir. 2000).

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To satisfy the standing requirement, both the UCL and the CLRA require a plaintiff to

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allege they have suffered economic injury and that the economic injury was caused by the
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unfair business practice or false advertising that is the mainstay of the claim. See Kwikset

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Corp. v. Superior Court, 51 Cal.4th 310, 321 (2011); Stearns v. Ticketmaster Corp., 655

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F.3d 1013 (9th Cir. 2011).

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The “irreducible constitutional minimum” of Article III standing has three elements.

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LSO, 205 F.3d at 1152 (internal quotations omitted). First, plaintiff must have suffered

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“an injury in fact — an invasion of a legally protected interest which is (a) concrete and

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particularized, and (b) actual and imminent, not conjectural or hypothetical.” Lujan v.

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Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted).

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Second, plaintiff must show a causal connection between the injury and the conduct

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complained of; i.e., “the injury has to be fairly . . . trace[able] to the challenged action of

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the defendant, and not . . . th[e] result [of] the independent action of some third party not

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before the court.” Id. (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426

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U.S. 26, 41-42 (1976))(alterations in original). Third, it must be “likely,” and not merely

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“speculative,” that the plaintiff’s injury will be redressed by a favorable decision. Id. at

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561. If the Court finds plaintiff lacks Article III standing, it must dismiss plaintiff’s claim.

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Nichols v. Brown, 859 F. Supp. 2d 1118. 1127 (C.D. Cal. 2012).

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Here, Defendant points out that Plaintiff admits she only relied on an advertisement

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for one of Defendant’s four products. Doc. No. 17-1 at pgs. 26-27. Defendant argues

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Plaintiff cannot assert claims for the three other products she did not purchase. Id.

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Defendant further contends that Plaintiff’s Complaint references advertisements that

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Plaintiff never read. Id. at pg. 27. For example, Plaintiff challenges three products she

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never purchased: Osteo Bi-Flex Triple Strength MSM, Osteo Bi-Flex One Per Day, and

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Osteo Bi-Flex Triple Strength with Vitamin D. Id. at pgs. 26-27. However, Plaintiff never

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relied on advertisement for these products. Id.

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Defendant also posits that numerous district courts in the Ninth Circuit now

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implement a bright line rule where the named plaintiff of a putative class action “cannot

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expand the scope of his claims to include a product he did not purchase or advertisements

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relating to a product that he did not rely upon.” Id.; see also Johns v. Bayer Corp., No.
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09CV1935DMSJMA, 2010 WL 476688 (S.D. Cal. Feb. 9, 2010); Granfield v. NVIDIA

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Corp., No. C 11-05403 JW, 2012 WL 2847575 (N.D. Cal. July 11, 2012); Hairston v. S.

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Beach Beverage Co., No. CV 12-1429-JFW DTBX, 2012 WL 1893818 (C.D. Cal. May

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18, 2012).

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In response, Plaintiff maintains that she has standing. Doc. No. 22 at pgs. 23-30.

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Plaintiff argues that while she only purchased one of Defendant’s four products,

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Defendant’s business practice is consistent across all four products. Id. at pg. 26. Plaintiff

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contends all four products are advertised in a similar fashion and contain the same main

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ingredient, glucosamine hydrochloride. Id. Plaintiff also argues that she has standing to

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seek injunctive relief because fraud impacts the market wholly. Id. at pg. 24. Plaintiff

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contends she is filing suit on behalf of the class of people impacted by Defendant’s actions.

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Id. at pg. 26.

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The Court finds Plaintiff lacks standing to assert a claim in the instant matter. While

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the standard for reviewing standing at the pleading stage is lenient, the Court reiterates that

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a plaintiff cannot rely solely on conclusory allegations of injury or ask the court to draw

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unwarranted inferences in order to find standing. See Schmeir v. U.S. Ct. of Appeals for

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the Ninth Cir., 279 F.3d 817, 820 (9th Cir. 2001). Plaintiff fails to demonstrate how

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Defendant’s advertisement of its product, Osteo Bi-Flex Triple Strength, is false or

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misleading. Plaintiff fails to specifically mention any of the challenged labels in her

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Complaint. Doc. No. 17-1 at pg. 8. Defendant’s products do not purport to treat

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osteoarthritis or any other joint-related disease. Id. at pg. 6. Plaintiff also fails to show

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that her cited scientific studies are relevant or that the active ingredients in Defendant’s

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products do not deliver promised results. Id. at pgs. 18-23. As to Defendant’s three other

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products, Plaintiff fails to show how she was injured by products she did not come across

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or purchase. Plaintiff also fails to demonstrate that she faces “imminent harm” pursuant to

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the requirements necessary for injunctive relief.

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b. Rule 9(b) Standard
Defendant also argues that Plaintiff’s claims fail because Plaintiff has not plead her

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claims with the specificity required under Rule 9(b). Doc. No. 17-1 at pgs. 23-25.

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Claims grounded in fraud must set forth allegations “specific enough to give defendants

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notice of the particular misconduct . . . so that they can defend against the charge and not

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just deny that they have done anything wrong.” See Vess v. Ciba-Geigy Corp. USA, 317

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F.3d 1097, 1103–04, 1108 (9th Cir. 2003) (applying Rule 9(b) when the allegations in the

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complaint described fraudulent conduct); In re Sony Gaming Networks & Customer Data

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Sec. Breach Litig., 903 F. Supp. 2d 942, 967, n. 20 (S.D. Cal. 2012) (“Rule 9(b)’s

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heightened pleading standards apply equally to claims for violation of the UCL . . . that

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are grounded in fraud”). As noted above, under Rule 9(b) of the Federal Rules of Civil

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Procedure, “[i]n alleging fraud or mistake, a party must state with particularity the

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circumstances constituting fraud or mistake.” This requires allegations of fraud to

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include the “who, what, when, where, and how” of the circumstances giving rise to the

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claim. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997) (citation omitted).

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Defendant argues that Plaintiff’s Complaint pleads generally vague and conclusory

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allegations, which fail to identify the “who, what, when, where and how” of Defendant’s

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misconduct. Doc. No. 17-1 at pgs. 23-24. Defendant argues that Plaintiff fails to allege

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how Defendant’s advertisement was false or misleading. Id. at pg. 24. Defendant posits

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that Plaintiff fails to state if she used Defendant’s product; followed the product’s

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instructions; why she took the product; what she expected from the product; and whether

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the product was effective. Id.

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In response, Plaintiff maintains that the Complaint meets the standards of Rule 9(b).

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Doc. No. 22 at pg. 22. Plaintiff contends she properly alleged deficiencies in the product

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she purchased; when and where she made this purchase; how Defendant’s false advertising

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deceived her; and why Defendant’s representations are untrue. Id.

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The Court finds Plaintiff fails to sufficiently allege the “who, what, where, how and

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why” of Defendant’s misconduct. The pleadings do not allege with specificity how
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Defendant misrepresented its product. In addition, the pleadings do not provide specific

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examples demonstrating Defendant has misrepresented its product.

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demonstrate that the cited scientific studies are relevant to Defendant’s products. Doc. No.

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17-1 at pgs. 18-20. Plaintiff also fails to show that Defendant’s products do not achieve

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the intended purpose. Id. at pgs. 18-23. Thus, the Court finds that Plaintiff’s Complaint

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does not demonstrate Plaintiff has plead with particularity sufficient to meet the 9(b)

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heightened standard.

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II.

Plaintiff fails to

Motion to Strike

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Defendant moves to strike Plaintiff’s class definition and allegations relating to

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standing as factually insufficient.1 Defendant argues that Plaintiff’s class includes putative

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class members that have already settled their claims against Defendant and thus lack

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standing. Doc. No. 18-1 at pgs. 9-12.

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Specifically, Defendant argues that Plaintiff’s class definition includes members that

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have not been injured and do not have standing to sue. Doc. No. 18-1 at pg. 10. Defendant

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contends that Plaintiff’s class definition includes individuals that have already settled their

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case in Pearson v. NBTY Inc., No. 11-cv-7972 (N.D. Ill.). Id. Defendant posits that these

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individuals from the Pearson settlement lack standing to sue. Id. at pgs. 11-12.

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In response, Plaintiff states she does not oppose modifying the class definition to

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exclude all transactions covered by the Pearson settlement. Doc. No. 24 at pg. 2. Plaintiff

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suggests her class definition can change, including to “[a]ll persons who purchased in the

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state of California any of the following products between January 19, 2016, and the date

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of notice of this class action…” Id.2

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Because the Court has already addressed Plaintiff’s standing relating to allegations involving products
she did not purchase, the Court will solely address Defendant’s motion to strike Plaintiff’s class
definition.
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The Court will not accept Plaintiff’s intention to modify the class definition by way of her response.
Any modification should be undertaken in an amended complaint.
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For the reasons stated in Section I (a) above, Plaintiff cannot assert claims for

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products she did not purchase regardless of whether members of the putative class

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participated in the Pearson settlement. Id.

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Here, Plaintiff fails to prove that all members of her class definition have been

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injured and/or have standing pursuant to Article III. Members of the class must have the

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same interest and suffer the same injury as other class members. Fed. R. Civ. P. 23. Thus,

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the Court GRANTS Defendant’s motion to strike the class definition pursuant to FRCP

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Rule 12(f).

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III.

Request for Judicial Notice

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Defendant filed a request for judicial notice. Doc. No. 19. This Court may take

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judicial notice of an adjudicative fact “not subject to reasonable dispute because it can

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be…accurately and readily determined from sources whose accuracy cannot be reasonably

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questioned.” See Fed. R. Evid. 201; Grason Elec. Co. v. Sacramento Mun. Util. Dist., 571

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F. Supp. 1504, 1521 (E.D. Cal. 1983).

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Defendant seeks judicial notice of product labelling and various documents. The

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documents Defendant submits for judicial notice include packaging and labeling for four

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Osteo products (Exhibits 1-4) and documents from Pearson (Exhibits 5-14). Doc. No. 19.

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Because the request of judicial notice is capable of accurate and ready determination from

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sources whose accuracy cannot be reasonably questioned and the parties do not dispute the

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authenticity of the document, Defendant’s request for judicial notice is GRANTED.

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CONCLUSION AND ORDER

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Based on the foregoing reasons, IT IS HERBEY ORDERED THAT Defendant’s

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motion to dismiss Plaintiff’s Complaint (Doc. No. 17) is GRANTED, and Plaintiff’s

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claims are DISMISSED WITHOUT PREJUDICE. Accordingly, Defendant’s motion to

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strike (Doc. No. 18) is GRANTED as well. To the extent that Plaintiff is able to cure the

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noted deficiencies, Plaintiff may file a second amended complaint within 30 days of this

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order.

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DATED:

December 1, 2017

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_________________________________
JOHN A. HOUSTON
United States District Judge

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