Van Houten v. USPlabs, LLC et al

Filing 46

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT re 36 Motion to Dismiss. Signed by JUDGE LESLIE E. KOBAYASHI on 09/30/2014. -- Defendants' Motion to Di smiss Plaintiff's Complaint, filed May 21 2014, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED insofar as this Court HEREBY DISMISSES Count II and Count III WITHOUT PREJUDICE. Plaintiff shall file her amended complaint, according to the terms of this Order, by October 30, 2014. The Motion is DENIED in all other respects. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EVERINE VAN HOUTEN, a single
person,

)
)
)
)
Plaintiff,
)
vs.
)
)
USPlabs, LLC, a Texas
)
corporation and GNC Holdings, )
Inc., a Pennsylvania
)
)
corporation,
)
)
Defendants.
_____________________________ )

CIVIL NO. 13-00635 LEK-KSC

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Before the Court is USPlabs, LLC (“USPlabs”) and GNC
Holdings, Inc.’s (“GNC,” collectively “Defendants”) Motion to
Dismiss Plaintiff’s Complaint (“Motion”), filed on May 21. 2014.
[Dkt. no. 36.]

Plaintiff Everine Van Houten (“Plaintiff”) filed

her memorandum in opposition on July 30, 2014, and Defendants
filed their reply on August 25, 2014.

[Dkt. nos. 40, 41.]

matter came on for hearing on September 8, 2014.

This

After careful

consideration of the Motion, supporting and opposing memoranda,
and the arguments of counsel, Defendants’ Motion is HEREBY
GRANTED IN PART AND DENIED IN PART for the reasons set forth
below.
BACKGROUND
Plaintiff filed her Complaint on November 19, 2013,
asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332.

[Complaint at ¶ 2.2.]
Plaintiff is a Hawai`i resident who purchased two
containers of OxyElite Pro (“the Product”), in tablet form, on or
about February 5, 2013 at a GNC store in Hilo, Hawai`i.

With her

purchase, she received two sample-size containers of another
formulation of the Product.
that followed.

She consumed both during the months

In March 2013, she began to experience abdominal

pains, nausea, fatigue, and muscle aches.

Her symptoms recurred

throughout the summer, and she was hospitalized in August.
at ¶¶ 1.1, 5.6-5.7.]

[Id.

Plaintiff was eventually “diagnosed with

acute hepatitis due to an unknown cause.”

[Id. at ¶ 5.7.]

The Complaint alleges that Plaintiff “suffered
injuries, including acute non-viral hepatitis as a result of
consumption of” the Product, which “was manufactured,
distributed, and sold by Defendant [USPlabs], through Defendant
GNC stores in Hawai`i.”

[Id. at ¶ 3.1.]

In addition, “[a]s a

result of her consumption of the Product, Plaintiff experienced
hepatic injury and associated symptoms including pain, fatigue,
malaise, nausea, anorexia which required multiple medical
treatments [and] hospitalization, and possible long-term liver
damage.”

[Id. at ¶ 3.2.]
Plaintiff alleges that USPlabs
is a Texas based manufacturer of a wide variety of
dietary supplements, including specifically
OxyElite Pro . . . , a protein supplement marketed
and sold as beneficial for muscle increase and
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weight loss. OxyElite Pro was manufactured by
Defendant [USPlabs] in several formulations, and
sold in both power [sic] and tablet form. As
stated by Defendant [USPlabs], several
formulations of the Product has [sic] now been
recalled by it after epidemiological and traceback
investigation by the U.S. Food and Drug
Administration (“FDA”) and the Centers for Disease
Control (“CDC”) showed that use of the Product has
been associated with serious adverse health
consequences, namely serious liver damage and/or
acute liver failure.
[Id. at ¶ 1.2 (citation omitted).]

Plaintiff alleges that GNC

“knowingly distributed and sold the Product in GNC retail stores
locations in the State of Hawaii.”

[Id. at ¶ 1.3.]

Plaintiff states that, on September 9, 2013, the State
of Hawai`i Department of Health (“DOH”) learned about seven cases
of previously healthy patients who developed “severe acute
hepatitis and sudden liver failure of unknown cause.”
¶ 5.1.]

[Id. at

All seven patients consumed the Product before the onset

of their illnesses.

According to Plaintiff, DOH issued a public

health alert and, as of the filing of the Complaint, forty-five
patients responded.

Of the forty-five, twenty-four (including

the original seven) have acute hepatitis and used the Product
within sixty days prior to onset.

[Id. at ¶¶ 5.1-5.2.]

Plaintiff states that she saw the public health advisory and has
been interviewed by DOH about her use of the Product and her
liver injuries.

[Id. at ¶ 5.8.]

On or about October 11, 2013, the FDA notified USPlabs
that it may deem the versions of the Product that contain
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aegeline1 to be “adulterated because they contain a new dietary
ingredient for which there was inadequate information to provide
reasonable assurance that such ingredient does not present a
significant or unreasonable risk of illness or injury.”

[Id. at

¶ 5.3.]
On November 9, 2013, USPlabs voluntarily recalled all
versions of the Product.

According to the Complaint, in

conjunction with the recall, “[t]he FDA indicated that
epidemiological evidence showed that use of these products has
been associated with serious adverse health consequences, namely
serious liver damage or acute liver failure, concentrated in
Hawaii.”

[Id. at ¶ 5.4.]

According to the Complaint, USPlabs

stated that the recalled products contained aegeline, which “is
not approved by the FDA as a dietary supplement.”
¶ 5.5.]

[Id. at

Plaintiff alleges that USPlabs initiated the recall

“after it was notified by the FDA that its OxyElite products had
been linked to cases of liver injury in Hawai`i and that there
was a reasonable probability that the products were adulterated.”
[Id.]
Plaintiff alleges the following claims against
Defendants: strict liability (“Count I”); negligence
(“Count II”); and breach of warranties (“Count III”).

1

According to the Complaint, aegeline is “a synthesized
version of a natural extract from the Bael tree.” [Complaint at
¶ 5.5.]
4

Count I alleges, inter alia, that the Product “was
unsafe for human consumption and caused hepatic injury.”
¶ 6.3.]

[Id. at

Further, “the Product that the Defendants manufactured

and sold to Plaintiff was in a condition that Plaintiff had not
contemplated, and was in a condition that rendered the Product
unreasonably dangerous for its reasonably foreseeable use.”
[Id.]

Count I also alleges that the Product was expected to

reach Plaintiff and be consumed by her, and that she “used the
Product in the manner expected and intended.”

[Id. at ¶ 6.4.]

Count II alleges, inter alia, that:
Defendants were negligent in manufacturing,
distributing, and selling a food Product that was
adulterated, not fit for human consumption, and
not reasonably safe because it contained an
ingredient injurious to human health and because
adequate warnings or instructions were not
provided, including but not limited to the warning
that the Product may contain ingredients not
approved by FDS [sic] for dietary supplements and
thus should not be given to, or eaten by
humans.[2]

2

The Product is subject to classification and regulation by
the FDA.
The Food and Drug Administration (“FDA”) has
regulatory authority over whether a product is a
drug, food, dietary supplement, old dietary
ingredient (“ODI”) or a new dietary ingredient
(“NDI”) under the FDA’s jurisdiction. 21 U.S.C.
§ 351 et seq. The Food, Drug, and Cosmetic Act
(“FDCA”) subjects the drug, dietary supplement,
and food industries to a comprehensive regulatory
authority. 21 U.S.C. § 301 et seq. . . .
Imagenetix, Inc. v. Frutarom USA, Inc., No. 12CV2823–GPC(WMC),
(continued...)
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[Id. at ¶ 7.3.]

Count II alleges that Defendants breached the

following duties:
•“a duty to properly supervise, train, and monitor their
employees, or the employees of their agents or
subcontractors, engaged in the preparation of the Product,
to ensure compliance with Defendants’ operating standards
and to ensure compliance with all applicable health
regulations[;]” [id. at ¶ 7.4;]
•“a duty . . . to comply with all statutory and regulatory
provisions that pertained or applied to the manufacture,
distribution, storage, labeling, and sale of the Product[;]”
[id. at ¶ 7.5;]
•“the duty to exercise reasonable care in the sale of the
Product, to ensure that the Product it sold to Plaintiff was
not adulterated, and was not potentially injurious to human
health[;]” [id. at ¶ 7.6;] and
•“the duty to provide adequate warnings and instructions for the
use of the Product” [id.].
Count III alleges that Defendants both gave the
following warranties: an implied warranty that the Product “was
fit for the ordinary purpose for which the food Product is
used[;]” [id. at ¶ 8.3;] an implied warranty that the Product
“was of merchantable quality, and was safe and fit for human
consumption[;]” [id. at ¶ 8.4;] and an express warranty that the
Product “was safe to eat” and was “safely manufactured” [id. at
¶ 8.5].

Plaintiff alleges that Defendants breached these

warranties because the Product “contained an ingredient injurious
to human health, and because adequate warnings or instructions

2

(...continued)
2014 WL 6419674, at *4

(S.D. Cal. Dec. 9, 2013).
6

were not provided, including but not limited to the warning that
the Product may contain ingredients not approved by FDS [sic] for
dietary supplements and thus should not be given to, or eaten by
humans.”

[Id. at ¶ 8.6.]
Plaintiff prays for the following relief: general,

special, incidental, and consequential damages - including lost
wages, medical and medical-related expenses, travel and travelrelated expenses, emotional distress, physical pain, and physical
injury; reasonable attorneys’ fees and costs; and any other
appropriate relief.

She also requests leave to amend her

Complaint, as necessary, including leave to amend after service
of all parties and completion of discovery.
DISCUSSION
I.

Scope of the Motion
At the outset, this Court notes that Defendants’ Motion

seeks dismissal based on both Fed. R. Civ. P. 12(b)(2) (“lack of
personal jurisdiction”) and Rule 12(b)(6) (“failure to state a
claim upon which relief can be granted”).

The Motion asserts,

inter alia, that Defendants “lack the requisite contacts for this
Court to exercise personal jurisdiction over them.”
2.]

[Motion at

The memorandum in support, however, does not contain any

discussion of this argument.
USPlabs and GNC are also named as defendants in five
other cases with similar factual allegations: Waikiki v. USPlabs,
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LLC, et al., CV 13-00639 LEK-KSC; Akau v. USPlabs, LLC, et al.,
CV 14-00029 LEK-KSC; Igafo v. USPlabs, LLC, et al., CV 14-00030
LEK-KSC; Ishihara v. USPlabs, LLC, et al., CV 14-00031 LEK-KSC;
and Mattson v. USPlabs, LLC, et al., CV 14-00032 LEK-KSC.

The

defendants in those cases also include entities and individuals
who are not named in the in the instant case.

USPlabs and GNC

are represented by the same counsel in those cases, and they also
filed motions to dismiss in those cases.

See, e.g., Akau, CV 14-

00029, Motion to Dismiss, filed 4/28/14 (dkt. no. 10).

Although

the five motions to dismiss raised a personal jurisdiction
argument as to the other entities and the individual defendants,
the defendants did not challenge personal jurisdiction over
USPlabs and GNC.

See, e.g., Akau, CV 14-00029, Mem. in Supp. of

Motion to Dismiss at 6-20.
For these reasons, this Court does not construe the
Motion in the instant case as challenging personal jurisdiction
over USPlabs and GNC.
II.

Forum Non Conveniens/Transfer of Venue
Defendants first argue that this Court should dismiss

the action based on forum non conveniens “because the United
States District Court for the Western District of Texas
[(“Western District of Texas”)] is a more appropriate forum in
which to litigate this matter.”
(citations omitted).]

[Mem. in Supp. of Motion at 5

Plaintiff responds that the doctrine of

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forum non conveniens only applies to cases where the alternative
forum is outside of the United States.

At the hearing on the

Motion, Defendants’ counsel conceded that the doctrine does not
apply and asked this Court to construe the Motion as requesting
transfer of venue to the Western District of Texas.
This Court agrees and construes Defendants’ request to
dismiss the case based on forum non conveniens as a request to
transfer venue pursuant to 28 U.S.C. § 1404(a).

This Court

adopts the venue analysis in this Court’s Order Granting in Part
and Denying in Part Defendants’ Motion to Dismiss, filed in Akau
(“Akau Order”).

[CV 14-00029, Akau Order, filed 9/9/14 (dkt. no.

44), at 12-16.]

Based upon the analysis in the Akau Order, this

Court DENIES Defendants’ request to transfer venue pursuant to
§ 1404(a).
III. Failure to State a Claim
Defendants next ask this Court to dismiss all of
Plaintiff’s claims pursuant to Rule 12(b)(6).

Defendants argue

that this Court must dismiss Plaintiff’s claim for attorneys’
fees.

Plaintiff’s Complaint, however, does not include a claim

for attorneys’ fees; Plaintiff merely requests attorneys’ fees as
part of her prayer for relief.

If Plaintiff prevails on the

merits of this case, she will have to file a motion for
attorneys’ fees, and that motion must state, inter alia, the
“statutory or contractual authority entitling [Plaintiff] to the
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requested award.”

See Local Rule LR54.3(c).

As to Plaintiff’s substantive claims, this Court finds
that Count I contains sufficient factual allegations (which this
Court must accept as true for purposes of the instant Motion)
that allow this Court to draw the reasonable inference of
liability.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).3

This Court therefore DENIES the Motion as to Count I.
At the hearing on the Motion, Plaintiff’s counsel
stated that he did not draft the Complaint, and he expressed
doubt as to whether the negligent supervision, training, and
monitoring claim, [Complaint at ¶ 7.4,] was a key issue in the
case.

This Court also finds the Complaint does not include any

factual allegations to support the portions of Count II alleging
negligent supervision, training, and monitoring and negligent
failure to comply with applicable statutes and regulations [id.
at ¶ 7.5].

Those allegations amount to mere conclusory

statements of the elements of Plaintiff’s different negligence
3

In Iqbal, the United States Supreme Court stated:
To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is
plausible on its face.” [Bell Atl. Corp. v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955
[(2007)]. A claim has facial plausibility when
the plaintiff pleads factual content that allows
the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged. Id., at 556, 127 S. Ct. 1955.

556 U.S. at 678.
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claims, and they are not enough to survive a motion to dismiss.
See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.” (citing Twombly, 550 U.S. at 555, 127 S. Ct.
1955)).
Based on Plaintiff’s memorandum in opposition and
counsel’s arguments at the hearing: Count II is based, at least
in part, on the allegation that Defendants were negligent in
failing to provide a warning that the Product contained an
ingredient which had not been approved by the FDA; and Count III
is based, at least in part, on the allegation that the failure to
include such an express warning constitutes a warranty that the
Product is safe for human consumption.

The Court finds that

Plaintiff’s Complaint does not provide sufficient notice that
these theories are the basis of Counts II and III.

See Brewer

Envtl. Indus., LLC v. Matson Terminals, Inc., Civil No. 10–00221
LEK–KSC, 2011 WL 1637323, at *16 (D. Hawai`i Apr. 28, 2011).4

4

In Brewer Environmental, this Court stated:
Although Federal Rule of Civil Procedure
8(a)(2) requires only that a complaint include “a
short and plain statement of the claim showing
that the pleader is entitled to relief[,]” such a
statement must sufficiently put the defendants on
fair notice of the claims asserted and the grounds
on which they rest. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167
L. Ed. 2d 929 (2007) (citation omitted). . . .

2011 WL 1637323, at *16 (some alterations in Brewer Envtl.).
11

This Court therefore concludes that Counts II and III
do not contain sufficient allegations to support plausible claims
for relief.

See Iqbal, 556 U.S. at 678.

This Court also notes

that, although it appears from the context of the Complaint as a
whole that the reference was an inadvertent error, the portion of
Count III alleging breach of the implied warranty of
merchantability states that the product at issue is lettuce.
[Complaint at ¶ 8.4.]
This Court GRANTS Defendants’ Motion insofar as this
Court DISMISSES Counts II and III.

The dismissal is WITHOUT

PREJUDICE because this Court finds that it is arguably possible
to cure the defects in those claims by amendment.

See Harris v.

Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (“Dismissal
without leave to amend is improper unless it is clear that the
complaint could not be saved by any amendment.” (citation and
quotation marks omitted)).
Plaintiff shall file her amended complaint by
October 30, 2014.

This Court grants Plaintiff leave to amend

Counts II and III against USPlabs and GNC.

If Plaintiff wishes

to make other changes - i.e. if she wishes to add new parties,
claims, or theories of liability - Plaintiff must file a motion
for leave to amend prior to the deadline set forth in the Rule 16
Scheduling Order [filed 5/21/14 (dkt. no. 37)].

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CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Dismiss Plaintiff’s Complaint, filed May 21 2014, is HEREBY
GRANTED IN PART AND DENIED IN PART.

The Motion is GRANTED

insofar as this Court HEREBY DISMISSES Count II and Count III
WITHOUT PREJUDICE.

Plaintiff shall file her amended complaint,

according to the terms of this Order, by October 30, 2014.

The

Motion is DENIED in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 30, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

EVERINE VAN HOUTEN VS. USPlabs, LLC, ET AL; CIVIL 13-00635 LEKKSC; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S COMPLAINT

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