Johnson v. Organo Gold Int'l Inc. et al

Filing 32

MEMORANDUM OPINION re 23 motion to dismiss. Signed by Judge Leonard P. Stark on 5/13/16. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARLIN JOHNSON, on behalf of himself
and all others similarly situated,
Plaintiff,
Civil Action No. 15-390-LPS

v.
ORGANO GOLD INT'L, INC., a Nevada
Corporation,
Defendant.

Phillip T. Edwards, MURPHY & LANDON, Wilmington, DE.
John S. Spadaro, JOHN SHEEHAN SP AD ARO, LLC, Smyrna, DE.
Attorneys for Plaintiff.

Colm F. Connolly, Jody C. Barillare, MORGAN, LEWIS & BOCKIUS LLP, Wilmington, DE.
Thomas J. Sullivan, Zachary M. Johns, MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, PA.
Attorneys. for Defendants.

MEMORANDUM OPINION

May 13, 2016
Wilmington, Delaware

Pending before the Court is Defendant Organo Gold International, Inc.' s ("Defendant" or
"Organo Gold") Motion to Dismiss Based upon Federal Rules of Civil Procedure 9(b), 12(b)( 6),
and 12(f). (D.I. 23) ("Motion") Briefing on the Motion was completed on February 26, 2016.
(D.I. 24, 25, 27) The Court heard argument on the Motion on April 26, 2016. (D.I. 31 ("Tr."))
For the reasons set forth below, the Court will grant the Motion in part and deny the Motion in
part.

I.

BACKGROUND
On March 19, 2015, plaintiff Marlin Johnson ("Plaintiff"), currently a resident of

Delaware (Tr. at 40), filed a civil action against defendants Organo Gold, Organo Gold
International, Inc. (a Washington Corporation), Organo Gold International, LLC, and Organo
Gold Management, Inc. (collectively, " Organo Gold" or "Defendants"), in the Superior Court of
Delaware in and for New Castle County. (See D.I. 1 at 2) In his Complaint (see D.I. 1, Ex. A at
8-23) (hereinafter "Complaint"), Plaintiff alleged that he suffered serious complications after
undergoing gastric bypass surgery, due to his consumption of Organo Gold coffee containing a
supplement called Ganoderma Lucidum. (Id. at iii! 8-9) He claimed that Defendants failed to
warn him of the dangerous side effects of Ganoderma Lucidum and further failed to label the
amount of Ganoderma Lucidum in their product. (See id. at if 13) Consequently, in Plaintiffs
view, Defendants are liable for his resulting injuries. (See, e.g., id. at if 1) Plaintiff also
purported to bring a class action on behalf of over 100 individuals and entities "within the State
of Delaware that purchased Organo Gold products contain[ing] Ganoderma Lucidum." (Id. at

1

ii 14) 1 In his Complaint, Plaintiff asserted six counts for:

(I) declaratory relief; (II) breach of

express and implied warranties; (III) consumer fraud ; (IV) negligence; (V) negligent labeling and
failing to warn; and (VI) misrepresentation. (Id. at iii! 24-43)
On May 15, 2015, the action was removed to this Court based on diversity of citizenship,
28 U.S.C. § 1332(a), and the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d)(2). (See
D.I. 1 at 1, 3-7) On November 20, 2015 , the Court denied Plaintiffs Motion to Remand. (D.I.
20, 21 ) On February 24, 2016, two days before briefing on the pending Motion was completed,
the parties agreed to a Stipulation to Dismiss Certain Defendants and Claims ("Stipulation"),
pursuant to which: (1) all of Plaintiffs claims against Defendants other than Organo Gold were
dismissed with prejudice; (2) Plaintiffs claims in Count II for breach of express warranty and
breach of implied warranty of merchantability were dismissed with prejudice; (3) Plaintiff's class
allegations pursuant to Federal Rule of Civil Procedure 23(b)(3) and Delaware Superior Court
Rule of Civil Procedure 23(b)(3) (collectively, "Rule 23(b )(3)") were withdrawn; and
(4) Plaintiff agreed not to seek relief pursuant to Rule 23(b)(3). 2 (D.I. 26)

II.

LEGAL STAND ARDS
A.

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

Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires
the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372
F.3d 218 , 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but

1

Plaintiff has since revised his class definition. (See D.I. 25 at 16)

2

The Court does not address in this Memorandum Opinion issues raised by the Motion
which have since been mooted by the Stipulation.
2

whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted).
Thus, the Court may grant such a morion to dismiss only if, after "accepting all well-pleaded
allegations in the complaint as true, and viewing them in the light most favorable to plaintiff,
plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000)
(internal quotation marks omitted).
However, " [t]o survive a motion to dismiss, a civil plaintiff must allege facts that ' raise a
right to relief above the speculative level on the assumption that the allegations in the complaint
are true (even if doubtful in fact)."' Victaulic Co. v. Tieman, 499 F .3d 227, 234 (3d Cir. 2007)
(quoting Bell At!. Corp. v. Twombly, 550 U. S. 544, 555 (2007)) . A claim is facially plausible
"when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U .S. 662, 678
(2009). At bottom, " [t]he complaint must state enough facts to raise a reasonable expectation
that discovery will reveal evidence of [each] necessary element" of a plaintiff's claim. Wilkerson

v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation
marks omitted).
The Court is not obligated to accept as true "bald assertions," Morse v. Lower Merion

Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported
conclusions and unwarranted inferences," Schuy lkill Energy Res., Inc. v. Pa. Power & Light Co.,
113 F.3d 405 , 417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami v. Fauver,
82 F.3d 63 , 69 (3d Cir. 1996). " [A) complaint may be subject to dismissal under Rule 12(b)(6)
when an affirmative defense .. . appears on its face." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859

3

(3d Cir. 1994).

B.

Federal Rule of Civil Procedure 9(b)

Federal Rule of Civil Procedure 9(b) requires a complaint to plead "with particularity the
circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). However, " [m]alice, intent,
knowledge, and other conditions of a person' s mind may be alleged generally." Id. "Although a
plaintiff is not required to allege every material detail - such as date, location, or time - a
plaintiff must plead the circumstances of the fraud with sufficient particularity 'to place
defendants on notice of the precise misconduct with which they are charged."' Eames v.
Nationwide Mut. Ins. Co., 2008 WL 4455743 , at *13 (D. Del. Sept. 30, 2008), aff'd 346 F. App 'x
859 (3d Cir. 2009). Rule 9(b) imposes a "stringent pleading restriction[] ," Frederico v. Home
Depot, 507 F .3d 188, 200 (3d Cir. 2007), such that "boiler plate and conclusory allegations will
not suffice," Kuhn Constr. Co. v. Ocean & Coastal Consultants, Inc. , 844 F. Supp. 2d 519, 530
(D. Del. 2012).

C.

Federal Rule of Civil Procedure 12(t)

Pursuant to Federal Rule of Civil Procedure 12(f), " [a] court may order stricken from any
pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter." The Court may strike class allegations before discovery "where the complaint itself
demonstrates that the requirements for maintaining a class action cannot be met." Advanced
Acupuncture Clinic, Inc. v. Allstate Ins. Co. , 2008 WL 4056244, at *7 (D.N.J. Aug. 26, 2008);
see also Bell v. Cheswick Generating Station, Genon Power Midwest, L.P., 2015 WL 401443 , at
*2 (W.D. Pa. Jan. 28 , 2015). In such cases, to survive a motion to strike class allegations and
class definition, "[t]he plaintiff bears the burden of advancing a prima facie showing that the

4

class action requirements of Federal Rule of Civil Procedure 23 are satisfied or that discovery is
likely to produce substantiation of the class allegations." Semenko v. Wendy 's Int'!, Inc., 2013
WL 1568407, at *2 (W.D. Pa. Apr. 12, 2013).

III.

DISCUSSION
A.

Rule 12(b)(6) Motion to Dismiss
1.

Federal Preemption

Defendant argues that Plaintiffs state-law claims based on Defendant's failure to disclose
the amount of Ganoderma Lucidum in Organo Gold coffee are preempted by the Nutrition
Labeling and Education Act of 1990 ("NLEA"), Pub. L. No. 101-535, 104 Stat. 2353 (1990),
amending the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C . § 301 et seq. The
NLEA expressly preempts "any requirement for nutrition labeling of food that is not identical to
the requirement of section 343(q)." 21 U.S.C. § 343-l(a)(4). Section 343(q) authorizes the Food
and Drug Administration ("FDA") to regulate the labeling of nutrition information in food
products such as coffee. Id. § 343(q)(l)-(2)(A); see also 21 U.S.C. § 321(f) ("The term 'food'
means (1) articles used for food or drink for man .... "). FDA regulations require that content
information for coffee be listed in a "Nutrition Facts" label for certain nutrients or food
components having Reference Daily Intakes ("RDis") or Daily Reference Values ("DRVs"), such
as sodium, sugar, and protein. See 21 C.F .R. § 101.9. Content information for particular
nutrients or food components can only be included in the Nutrition Facts label if those nutrients
or food components are identified by subsection (c) for either mandatory or voluntary disclosure
in the Nutrition Facts label. See id. § 101.9(c). Whether or not a dietary ingredient is included in
the Nutrition Facts Panel, all dietary ingredients are required to be listed - without corresponding

5

content information - in an ingredients list, in descending order of weight percentage. Id. §
101.4(a)
Plaintiff argues that his state-law content-based claims are not preempted by the NLEA ' s
amendments to the FDCA because the legislative history of section 343-1 makes clear that statelaw remedies regarding safety warnings are not preempted, see Pub. L. No. 101 -535, 104 Stat.
2634 (1990) ("The amendment made by subsection (a) shall not be construed to apply to any
requirement respecting a statement in the labeling of food that provides for a warning concerning
the safety of the food or component of the food. "), and " [p]reemption is always a matter of
congressional intent," Wachovia Bank, NA . v. Burke, 414 F.3d 305, 314 (2d Cir. 2005) (citing
Fidelity Fed. Sav. & Loan Ass 'n v. de la Cuesta, 458 U.S. 141 , 152 (1982)). The theories for
Plaintiff's state-law claims are two-fold: that Defendant is liable both for "failing to provide
warning to its customers of the dangerous side effects of its products and for failing to provide
accurate information about the amount of Ganoderma Lucidum in its products." (Complaint at
~ 25) Defendant seeks to dismiss claims only the latter theory - the "content theory" 3 - based on

preemption. (See Tr. at 7-8) The Court agrees that Plaintiff's state-law claims based on this
content theory are preempted.
The content theory directly conflicts with non-identical federal labeling requirements,
which only allow labeling of ingredient amounts for nutrients or food components identified for
disclosure by the FDA, which Ganoderma Lucidum is not. See 21 C.F .R. § 101.9 & ( c).
Because acceptance of Plaintiff's content theory would "in effect enforc[ e] state law

3

As Defendant notes, this theory is expressly advanced with respect to Counts I, IV, V,
and VI, but could also be fairly read as applying to Counts II and III. (See D.l. 24 at 4 n.2)
6

requirements that are not identical to the NLEA, [Plaintiffs] action is expressly preempted as it
relates to those claims." Young v. Johnson & Johnson , 525 F. App' x 179, 183 (3d Cir. 2013);

see also Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84, 93 (D.N.J. 2011) ("When the .. .
cause of action would impose a requirement that is not the same as the federal requirement then
it is preempted."). Plaintiffs content-based claims do not fall within the exception to express
preemption for safety warnings, as they "do[] not involve a warning and only relate[] to how
certain ingredients are to be displayed on a label." (D.I. 27 at 3)4
Accordingly, to the extent that Plaintiffs state law claims are based on the content theory,
they are preempted by the NLEA. Further, because the safe harbor provision in the Delaware
Consumer Fraud Act ("DCF A") bars actions where FDA regulations have been complied with,
Plaintiff's DCFA content theory claims in Count III must also be dismissed. See 6 Del. C.
§ 2513(b)(2); Pa. Employee Benefit Trust Fund v. Zeneca, Inc., 2005 WL 2993937, at *2 (D.
Del. Nov. 8, 2005) (applying 6 Del. C. § 2513(b)(2) to FDA preemption), judgment vacated on

other grounds, 556 U.S. 1101 (2009).

2.

Causation

Defendant argues that Plaintiff has failed to plead causation for his claims of negligence
and negligent labeling, Counts IV and V, respectively. With respect to causation, Plaintiff
alleges not only that Organo ' s failure to warn "caused" Mr. Johnson' s injuries (Complaint at
~~

36, 39), but also more specifically alleges that " [h]is hemoglobin level dropped from 11 to 6

and his international normalised ration (INR) was close to 3," and "[a]fter investigation, it was

4

The Complaint itself distinguishes the content theory and the failure to warn theory. (See
Complaint at ~ 25)
7

discovered by Plaintiffs doctors that Plaintiffs consumption of Organo Gold coffee infused with
Ganoderma Lucidum caused his platelet dysfunction and bleeding which led to his postoperative
complications" (id. at~ 9). Plaintiff further alleges that "Ganoderma Lucidum is a natural blood
thinner that prevents a person' s blood from clotting properly and causes intestinal bleeding and
platelet dysfunction." (Id. at~ 13)
These factual allegations are not legal conclusions. Taken as true (as the Court must at
this point in the proceedings), they are sufficient to establish actual causation. At the pleading
stage, Plaintiff need not point to scientific or medical literature or provide a more specific
account of precisely how much of his blood thinning was caused by his consumption of
Ganoderma Lucidum.
However, Defendant is correct that Plaintiff fails to adequately allege in connection with
Counts IV and V that a warning would have made a difference to him. See Salvio v. Amgen, Inc.,
810 F. Supp. 2d 745, 753 (W.D. Pa. 2011) (finding causation inadequately pled where plaintiff,
inter alia, "failed to provide any facts about how the change in the 'black box ' warning affected

her choice to either continue taking [the medication] , or stop taking it"). Plaintiff points to the
allegations in paragraphs 39 and 42 of the Complaint, which are made with respect to Counts V
and VI, respectively. (See Complaint at~ 39 ("Defendants' negligence in failing to give adequate
warnings, instructions or ingredient content information to consumers of Organo Gold products
containing Ganoderma Lucidum caused and will continue to cause injury to Plaintiff Marlin
Johnson and others similarly

situated.") , ~

42 ("Had Defendants not withheld or omitted the

important information about their products, Plaintiff and others similarly situated would not have
purchased Organo Gold products, or would have paid less for them.")) But these paragraphs do

8

not clearly articulate that Plaintiff would not have consumed Organo Gold coffee had the coffee
contained a warning about the risks of Ganoderma Lucidum. Plaintiff did, however, clarify at the
hearing that it was his intent to so plead. (See Tr. at 22-25) Under the circumstances, the Court
will provide Plaintiff an opportunity to amend his Complaint to allege that he would not have
consumed Organo Gold coffee had it contained a warning about the risks of Ganoderma
Lucidum, and will further permit him to incorporate the amended allegations in any of the claims
he is being permitted to press.

3.

Implied Warranty of Fitness

In Count II, Plaintiff alleges breach of an implied warranty of fitness for a particular
purpose. Such a claim requires four elements:
(1) a buyer has a special purpose for certain goods; (2) the seller
knew or had reason to know of that purpose; (3) the seller knew or
had reason to know that the buyer was relying on the seller' s
superior skill to select goods that fulfilled that purpose; and (4) the
buyer in fact relied on the seller' s superior skill.

Diienno v. Libbey Glass Div., Owens-Ill., Inc., 668 F. Supp. 373 , 376 (D . Del. 1987) (citing Del.
C. § 2-315).
Here, Plaintiff fails to plead at least the first of these four factors. Plaintiff alleges that he
"purchased and consumed the coffee because of [Organo Gold' s] representation of the purported
health benefits derived from Ganoderma Lucidum." (Complaint
~

at~

8; see also id. at

12) Hence, the purpose for which Plaintiff purchased Organo Gold coffee is the coffee ' s

"ordinary purpose, not some special purpose possessed only by [Plaintiff]." Dilenno, 668 F.
Supp. at 376-77 ("Dilenno contends that she purchased the jar for a particular purpose, to open
and close it. This argument is ridiculous. Opening and closing is a jar' s ordinary purpose, not

9

some special purpose possessed only by Dilenno. An action for breach of the warranty for a
particular purpose is thus unavailable to Dilenno.") (internal citation omitted); see also Cohen v.

Hathaway, 595 F. Supp. 579, 583-84 (D. Mass. 1984) (applying Delaware law in finding implied
warranty of fitness where defendant had reason to know plaintiff was purchasing vessel for
fishing and represented the vessel as suitable for fishing). 5
Accordingly, the Court will grant Defendant's Motion with respect to Plaintiffs claim for
breach of the implied warranty of fitness for a particular purpose claim in Count II.

4.

Declaratory Judgment

Under the Delaware Declaratory Judgment Act, 46 Del. C. § 269, and the Federal
Declaratory Judgment Act, 28 U.S.C. § 2201 , courts have discretion to dismiss a request for
declaratory relief if an alternative remedy is better or more effective. See Burris v. Cross, 583
A.2d 1364, 1376 (Del. Super. Ct. 1990) ("Although the mere existence of another adequate
remedy does not require dismissal, it can constitute sufficient grounds for dismissal in the
Court' s discretion."); see also Khoday v. Symantec Corp. , 858 F. Supp. 2d 1004, 1015 (D. Minn.
2012) ("The Court will dismiss Plaintiffs' request for declaratory relief [pursuant to 28 U.S .C. §
2201] because it is unnecessary. Plaintiffs have already asserted a claim for damages based on
the same underlying dispute"). The Court agrees with Defendant that here "monetary damages
would be a more efficient remedy for Plaintiffs alleged physical injuries [rather] than a
declaration oflegal rights," as the latter "would not redress Mr. Johnson' s physical injuries and
associated medical expenses." (D.I. 27 at 9; D.I. 24 at 14) Accordingly, the Court will grant

5

At the hearing, Plaintiffs counsel candidly admitted that if Delaware law requires
pleading that Plaintiffs purpose for the product be something other than the ordinary purpose for
which the product is sold, that would be "fatal" to this claim. (Tr. at 33)
10

Defendant' s Motion with respect to dismissing Plaintiffs declaratory judgment claim in Count I.

B.

Rule 9(b) Motion to Dismiss

Defendant argues that Plaintiff has failed to plead his claims for fraud under the DCFA
and intentional misrepresentation by omission6 - Counts III and VI, respectively - with the
factual particularity required by Federal Rule of Civil Procedure 9(b ). See generally Indianapolis
Life Ins. Co. v. Hentz, 2008 WL 4453223 , at *10 (M.D. Pa. Sept. 30, 2008) (applying Rule 9(b)
to DCFA claim); Metro Lif Ins. Co. v. Tremont Grp. Holdings, Inc. , 2012 WL 6632681 , at *16
e
(Del. Ch. Ct. Dec. 20, 2012) (requiring intentional misrepresentation claims to meet Delaware
Court of Chancery' s equivalent to Rule 9(b)). The Court disagrees.

In relevant part, Plaintiff makes the following factual allegations:
8.
In March 2013 , Plaintiff purchased three boxes of Organo
Gold coffee from an Organo Gold representative in Delaware.
Over a two week period he consumed one cup of coffee a day as
directed by Defendants. Plaintiff purchased and consumed the
coffee because of Defendants' representation of the purported
health benefits derived from Ganoderma Lucidum. When Plaintiff
purchased and consumed the Organo Gold coffee, he was unaware
of the product's dangerous side effects.
9.
On April 5, 2013 , Plaintiff underwent gastric bypass
surgery. The surgery proceeded unremarkably, but he was
vomiting blood and suffering from blood clots postoperatively
which became more frequent as the evening progressed. His
hemoglobin level dropped from 11 to 6 and his international
normalised ration (INR) was close to 3. After investigation, it was
discovered by Plaintiffs doctors that Plaintiff's consumption of
Organo Gold coffee infused with Ganoderma Lucidum caused his
platelet dysfunction and bleeding which led to his postoperative
complications. As a result, Plaintiff had to be resuscitated with
multiple blood and platelet transfusions and undergo an emergency

6

Plaintiff represented at the hearing that he is no longer asserting any claims based on
affirmative misrepresentations as opposed to omissions. (See Tr. at 29)
11

surgery.

13.
Ganoderma Lucidum is a natural blood thinner that
prevents a person' s blood from clotting properly and causes
intestinal bleeding and platelet dysfunction. The packaging and/or
labeling of Organo Gold products do not contain warnings about
these dangerous side effects. The packaging and/or labeling also
does not provide information about how much Ganoderma
Lucidum is in the product.
(Complaint at iii! 8-9, 13) These allegations are incorporated by reference into Counts III and VI.

(Id. at iii! 32, 40)
Plaintiff' s allegations specify the state in which Plaintiff purchased Organo Gold coffee,
the relevant approximate dates during which Plaintiff purchased and consumed the coffee, the
amount of coffee consumed, the exact date of his subsequent alleged personal injuries, the
alleged cause of his personal injuries, and the alleged omission that serves as the basis for the
alleged misrepresentation. Although the allegations do not also disclose which individual
Delaware representative sold the coffee to Plaintiff or precisely where that transaction took place,
the allegations are sufficient "to place defendants on notice of the precise misconduct with which
they are charged." Eames, 2008 WL 4455743 , at *13. Plaintiff's allegations here stand in
contrast to those in Travelers Indem. Co. v. Cephalon, Inc. , 620 F. App'x 82, 86 (3d Cir. 2015),
in which the plaintiffs "fail[ ed) to identify any specific fraudulent statements, omissions, or
misrepresentations."
In Frederico, 507 F .3d at 201 , a plaintiff alleging misrepresentation by Home Depot of

"the actual hours during which vehicles could be returned so as to avoid or halt the accumulation
oflate fees" failed to allege (1 ) when she attempted to return her vehicle and (2) who told her she

12

could not do so. The Third Circuit found that this did not meet Rule 9(b)'s requirements,
explaining:
We are mindful of Frederico's observation that without the benefit
of discovery she could not learn the name of the employee with
whom she interacted when attempting to return the truck.
Nevertheless, her complaint only refers generally to being
"informed by Defendant," and does not disclose the circumstances
surrounding her discussion with, or any information about, the
particular individual who informed her that the rental department
was closed.
Id. (internal citations omitted). Here, Plaintiff may need discovery to determine the name of the

Delaware representative who sold him the coffee, but this missing detail alone is not fatal to his
claims. Because the alleged misrepresentation is a labeling omission rather than an affirmative
or verbal misrepresentation,7 Plaintiffs ability to prove his claims does not tum on his ability to
prove the exact circumstances of the transaction whereby he obtained the allegedly mislabeled
coffee. See generally Twombly, 550 U. S. at 570 ("[W]e do not require heightened fact pleading
of specifics, but only enough facts to state a claim to relief that is plausible on its face. ").
Accordingly, the Court will deny the Motion with respect to dismissal of Counts ill and
VI pursuant to Rule 9(b ).

C.

Rule 12(f) Motion to Dismiss

Plaintiffs putative class, as redefined in his Answering Brief, includes: "All Delaware
residents who have purchased or may in the future purchase Organo Gold coffee, where such

7

Plaintiff s allegation in Count VI that Defendant "affirmatively represent[ ed] that its
products were safe, healthy and free from dangerous side effects" (Complaint at i! 41 ) - which
Plaintiff is no longer asserting (see Tr. at 29) -would not meet the requirements of Rule 9(b), as
Plaintiff has not made any particularized factual allegations regarding affirmative
misrepresentations. When Plaintiff amends his Complaint, he should remove any allegations of
affirmative misrepresentations.
13

product is unaccompanied by any warning of the risk of bleeding or blood disorders associated
with the consumption of Ganoderma Lucidum." 8 (D.I. 25 at 16) Although Plaintiff was a
resident of Florida when he filed his Complaint (see Complaint at if 3), he was a resident of
Delaware when he consumed Defendant' s product and is again currently a resident of Delaware

(see Tr. at 40). The Court assumes, then, that Plaintiff is a member of his proposed class. See
Anchem Prods., Inc. v. Windsor, 521 U.S. 591 , 594 (1997) ("Representatives must be part of the
class .... ").
Nevertheless, the Court agrees with Defendant that the Complaint "demonstrates that the
requirements for maintaining a class action cannot be met." Advanced Acupuncture Clinic, Inc. ,
2008 WL 4056244, at *7 (internal quotation marks omitted). Pursuant to Federal Rule of Civil
Procedure 23(a), the Court may certify a class only if:
(1 ) the class is so numerous that joinder of all members is
impracticable; (2) there are questions oflaw or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a). The third of these requirements, typicality, requires that a class
representative ' s claims be "generally the same as those of the other class members in terms of
both the legal theory advanced and the factual circumstances underlying that theory." Semenko,
2013 WL 1568407, at *8 (internal quotation marks omitted). It "derives its independent legal
significance [separate from the commonality requirement] from its ability to screen out class

8

Defendant does not object to Plaintiff having redefined the proposed class during the
briefing. In the Complaint, the class was described as : "All persons and entities within the State
of Delaware that purchased Organo Gold products contain[ing] Ganoderma Lucidum including
but not limited to coffee, tea, cocoa, and/or supplements." (Complaint at if 14)
14

actions in which the legal or factual position of the representatives is markedly different from
that of other members of the class even though common issues oflaw or fact are present."

Marcus v. BMW ofN Am. , LLC, 687 F.3d 583, 598 (3d Cir. 2012) (internal quotation marks
omitted).
In addition to satisfying the requirements of Rule 23 (a) , a party seeking class certification

must satisfy one of Rule 23(b)'s requirements. See Warfarin Sodium Antitrust Litig., 391 F.3d
516, 527 (3d Cir. 2004) ("[P]arties seeking class certification must show that the action is
maintainable under Rule 23(b)(l), (2), or (3)."). Plaintiff here seeks relief under Rule 23(b)(2),9
which is permissible where "the party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Further pursuant to
Rule 23(b )(2),
What is important is that the relief sought by the named plaintiffs
should benefit the entire class. The general applicability
requirement of (b )(2) also aims to prevent prejudice to absentees
by mandating that the putative class demonstrate that the interests
of the class members are so like those of the individual
representatives that injustice will not result from their being bound
by such judgment in the subsequent application of principles of res
judicata.

Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 59 (3d Cir. 1994) (internal quotation marks
omitted).
Plaintiffs serious injuries (see Complaint at~ 9) significantly differentiate him from
other class members, on behalf of which Plaintiff does not allege any injury. (See D.l. 24-1 (Oct.

9

Plaintiff initially sought relief under Rule 23(b)(3) as well, but later withdrew this
allegation. (See D.l. 26 at 1)
15

9, 2015 Hr'g Tr.) at 12 (Plaintiff acknowledging that "[n]owhere does [the Complaint] allege a
personal injury claim on behalf of any absent class member"); see also id. at 5-6) Because
Plaintiff is "markedly different from the class as a whole," he cannot satisfy the typicality
requirement under Rule 23(a). Marcus , 687 F.3d at 598. As Defendant explains, "Mr. Johnson's
claims for physical injuries will be subject to defenses unique to him that threaten to become the
focus of the litigation." (D.I. 27 at 10)
Plaintiff points to Baby Neal, 43 F.3d at 58 (3d Cir. 1994), for the proposition that "even
relatively pronounced factual differences will generally not preclude a finding of typicality where
there is strong similarity oflegal theories." But Baby Neal did not suggest that an injured
plaintiff can adequately represent a class of plaintiffs who have not suffered any injury. To the
contrary, it merely found that "[w)here an action challenges a policy or practice, the named
plaintiffs suffering one specific injury from the practice can represent a class suffering other
injuries, so long as all the injuries are shown to result from the practice." Id. (emphasis added).

Further, Plaintiff is unable to satisfy the requirements of Rule 23(b )(2). "When .. . the
realities of the litigation demonstrate that the suit has been brought primarily for money damages,
it may not be maintained as a (b)(2) class action." Christiana Mortg. Corp. v. Del. Mortg.

Bankers Ass'n, 136 F.R.D. 372, 381 (D. Del. 1991) (internal quotation marks omitted); see also
In re School Asbestos Litig., 789 F.2d 996, 1008 (3d Cir. 1986); Barnes v. Am. Tobacco Co. , 161
F.3d 127, 142 (3d Cir. 1998).
Accordingly, the Court will grant Defendant' s Motion with respect to striking Plaintiffs
class allegations and class definition.

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IV.

CONCLUSION

An appropriate order will be entered.

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