Moczulski v. Ferring Pharmaceuticals, Inc.

Filing 19

MEMORANDUM. Signed by Chief Judge James K. Bredar on 7/19/2018. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CANDY MOCZULSKI, et al.,

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Plaintiff,

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v.

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FERRING PHARMACEUTICALS,
INC.,

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Defendant.
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CIVIL NO. JKB-18-1094

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MEMORANDUM
Candy Moczulski (“Plaintiff”) filed suit against

Ferring Pharmaceuticals, Inc.

(“Defendant”), alleging various state common law and statutory claims. Plaintiff’s claims stem
from her purchase and use of a fertility drug—Bravelle—that is manufactured and sold by
Defendant. Plaintiff originally filed her Complaint in the Circuit Court for Baltimore City, and
Defendant’s removed the case to this Court. Now pending before the Court is Defendant’s
unopposed Motion to Dismiss. (ECF No. 18.) Defendant contends that Plaintiff lacks standing
and has failed to state a plausible claim for relief. No hearing is required. See Local Rule 105.6
(D. Md. 2016). For the reasons set forth below, Defendants’ Motion will be GRANTED IN
PART and DENIED IN PART.
I.

Background1
Defendant develops, manufactures, markets, and sells a prescription drug called Bravelle.

(Compl., ECF No. 2 ¶ 1.) Bravelle—a urofollitropin—is intended to increase fertility in women.

1

Considering that this Memorandum evaluates a Rule 12 motion to dismiss, the Court here summarizes the
allegations as presented by Plaintiff in her complaint. See Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.
1997).

(Id. ¶ 2.) Specifically, Bravelle contains follicle stimulating hormone, which stimulates egg
maturation and multiple follicular development. (Id.) Bravelle is frequently prescribed as part of
an in vitro fertilization procedure. (Id.)
Plaintiff wanted to have a baby and was informed by her doctor that Bravelle would
increase the chances of her successfully conceiving. On September 25, 2014, Plaintiff began “a
lengthy and expensive medical procedure,”2 which included the use of Bravelle. Despite using
Bravelle as prescribed, Plaintiff did not become pregnant. (Id. ¶ 5.) Plaintiff alleges that
Defendant “knew or should have known” that the Bravelle sold to Plaintiff “did not and would
not work as advertised and intended” and “would not . . . accomplish the medical and
pharmaceutical effect intended.” (Id. ¶ 9.)
In October 2015, Defendant initiated a voluntary recall of all Bravelle in the United States
after discovering “that certain lots of the drug did not meet potency requirements.” (Id. ¶ 6.)
Plaintiff alleges that the Bravelle she purchased and used “was not capable of stimulating egg
maturation and multiple follicular development,” and therefore it was part of the defective batch.
(Id. ¶¶ 15, 18.)

Defendant offered to reimburse customers, including Plaintiff, who had

purchased Bravelle; however, Plaintiff rejected the offer.
II.

Legal Standards
A.

Standard for Dismissal under Rule 12(b)(1)

A challenge to a plaintiff’s standing “implicates th[e] court’s subject matter jurisdiction.”
Long Term Care Partners, LLC v. United States, 516 F.3d 225, 230 (4th Cir. 2008); accord
White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005). The Plaintiff bears the

2

Plaintiff does not further explain the nature of her “lengthy and expensive medical procedure.” Plaintiff’s
Complaint is far from a picture of clarity, repeatedly leaving the reader grasping for more regarding the details
surrounding her use of Bravelle. However, as explained infra, it contains sufficient, albeit minimal, allegations to
state at least some claims for relief.

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burden of establishing subject-matter jurisdiction.

Frank Krasner Enterprises, Ltd. v.

Montgomery Cty., 401 F.3d 230, 234 (4th Cir. 2005) (“The burden of establishing standing to sue
lies squarely on the party claiming subject-matter jurisdiction.”); accord Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992).
B.

Standard for Dismissal under Rule 12(b)(6)

A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “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. An inference of a “mere possibility of
misconduct” is not sufficient to support a plausible claim. Id. at 679. However, “a well–pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable.” Twombly, 550 U.S. at 556. Even so, “[f]actual allegations must be enough to raise
a right to relief above the speculative level.” Id. at 555. “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’”

Iqbal, 556 U.S. at 678 (alteration in original) (citation omitted) (quoting

Twombly, 550 U.S. at 555, 557).
III. Analysis
Plaintiff alleges eight counts under Maryland state law against Defendant stemming from
her purportedly defective dose of Bravelle. Specifically, she asserts the following causes of
action: (1) negligence; (2) breach of express warranty; (3) breach of implied warranty; (4) unjust
enrichment; (5) negligent misrepresentation; (6) intentional misrepresentations; (7) breach of

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contract; (8) and a violation of the Maryland Consumer Protection Act (“MCPA”), Md. Code
Ann., Com. Law § 13-101, et seq. Essentially, Plaintiff contends that Defendant sold her a
defective product that it knew or should have known was incapable of working as advertised and
intended. Defendant primarily argues that Plaintiff has not plausibly alleged an injury-in-fact,
and therefore she lacks standing to bring any of her claims. And, even assuming Plaintiff does
have standing, Defendant contends that her Complaint fails to state a claim for relief, again
because she has not adequately alleged she suffered any injury. Defendant also makes several
additional arguments addressed to specific claims asserted by Plaintiff.
A.

Standing

At the outset, the Court must assure itself that Plaintiff has standing. If she does not, then
the Court lacks subject matter jurisdiction and must dismiss the case in its entirety.
A plaintiff’s standing to sue in federal court is “an integral component of the case or
controversy requirement” of Article III. Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). To
demonstrate standing, a plaintiff must show that: (1) she has suffered an injury in fact; (2) the
injury is fairly traceable to the defendant’s actions; and (3) the injury is likely to be redressed by
a favorable decision of the court. Lujan, 504 U.S. at 560–61. The injury alleged must be
“concrete and particularized.” Id. at 560. At the pleading stage, however, “general factual
allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to
dismiss we presume that general allegations embrace those specific facts that are necessary to
support the claim.” Hutton v. Nat’l Bd. of Examiners in Optometry, Inc., 892 F.3d 613, 620 (4th
Cir. 2018) (quoting Lujan, 504 U.S. at 561).
Defendant contends that Plaintiff has failed to allege sufficient facts in support of her
claimed injury. According to Defendant, Plaintiff alleges only that Bravelle “did not work and

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would not work as advertised and intended.” (Ferring Pharmaceuticals Inc.’s Mem. in Supp. of
its Mot. to Dismiss, ECF No. 18-1, at 7.) Defendant also notes that Plaintiff does not specifically
allege that “she did not ovulate or that she did not develop multiple follicles after using
Bravelle,” (id. at 7) nor does she offer any proof that her Bravelle was “tested and determined to
be subpotent,” (id. at 9).
Defendant misconstrues Plaintiff’s burden at this stage in the litigation. The parties agree
that Bravelle is intended to stimulate egg maturation and multiple follicular development.
Plaintiff alleges that she purchased Bravelle and used it as prescribed. (ECF No. 2 ¶ 5.) She
further alleges that the drug she purchased “did not and would not work.” (Id. ¶ 9.) And she
specifically alleges that “the . . . [B]ravelle that was sold to [her] was not capable of stimulating
egg maturation and multiple follicular development.” (Id. ¶¶ 15, 18 (emphasis added).) Later,
Plaintiff again states that the Bravelle that was sold to her “was not viable or effective.” (Id. ¶
36.) Indeed, by the Court’s count, Plaintiff alleges no less than seven times in her Complaint that
the Bravelle she purchased was incapable of working as intended and in fact did not work. In
other words, Plaintiff alleges, repeatedly, that her Bravelle was incapable of stimulating egg
maturation and multiple follicular development, the exact thing that the parties agree it was
intended to do.3 Plaintiff also alleges that she suffered both monetary and non-monetary injuries
as a result of purchasing ineffective Bravelle from Defendant. These claims are plausible;

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Defendant makes much of Plaintiff’s allegation that she did not become pregnant. Defendant notes,
correctly, that just because Plaintiff did not become pregnant does not mean that she did not ovulate or develop
multiple follicles. In other words, Plaintiff’s failure to become pregnant is certainly not dispositive evidence that her
Bravelle was defective. However, the fact that Plaintiff included this non-dispositive allegation does not detract
from her numerous other allegations in which she explicitly states that her Bravelle was incapable of stimulating egg
maturation or multiple follicular development.

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nothing more is required of Plaintiff at this stage in the proceeding to establish her standing.
Accordingly, the Court finds that Plaintiff has standing to pursue her claims against Defendant.4
B.

Negligence Claims

In Counts I and V, Plaintiff alleges negligence and negligent misrepresentation
respectively.
Under Maryland law, to state a claim for negligence, the plaintiff must allege facts
showing “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the
defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the
loss or injury proximately resulted from the defendant’s breach of the duty.” Horridge v. St.
Mary’s Cty. Dep’t of Soc. Servs., 854 A.2d 1232, 1238 (Md. 2004) (quoting Remsburg v.
Montgomery, 831 A.2d 18, 26 (Md. 2003)).
To state a claim for negligent misrepresentation in Maryland, a plaintiff must plausibly
allege that:
(1) The defendant, owing a duty of care to the plaintiff, negligently asserts a false
statement;
(2) The defendant intends that his statement will be acted upon by the plaintiff;
(3) The defendant has knowledge that the plaintiff will probably rely on the
statement, which, if erroneous, will cause loss or injury;
(4) The plaintiff, justifiably, takes action in reliance on the statement; and
(5) The plaintiff suffers damage proximately caused by the defendant’s
negligence.

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For the same reasons, the Court rejects Defendant’s general argument for dismissal under Rule 12(b)(6) on
the ground that Plaintiff fails to plead a plausible injury—an element of each of her claims. (ECF No. 18-1 at 8–9
(arguing that “plaintiff’s failure to adequately plead that she was injured also requires dismissal under Rule
12(b)(6)”). As explained above, Plaintiff has plausibly alleged that her Bravelle was defective and nothing more is
required. She certainly is not required to offer proof in her Complaint that her Bravelle “was tested and determined
to be subpotent,” (id. at 9) as suggested by Defendant. Accordingly, Defendant’s general argument for dismissal of
all counts on this ground is meritless.

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Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 130 A.3d 1024, 1046 (Md.
Ct. Spec. App. 2016) (quoting Flaherty v. Weinberg, 492 A.2d 618, 627–28 (Md. 1985)), cert.
granted sub nom. Beatty v. Rummel, Klepper & Kahl, 135 A.3d 416 (Md. 2016), and aff’d, 155
A.3d 445 (Md. 2017). Plaintiff’s claims for negligence and negligent misrepresentation are
closely related: Both “require[] a duty, breach of duty, injury and causation, the major difference
is that negligent misrepresentation focuses on affirmative statements made by the defendant that
were intended to, and indeed, had the effect of, inducing the plaintiff to carry out some action in
reliance on the false statements.” Lloyd v. Gen. Motors Corp., 916 A.2d 257, 274 n.10 (Md.
2007). Generally such claims do not merge into one so long as “the plaintiff would have a cause
of action based on the underlying negligence independent of the misrepresentation.” Village of
Cross Keys, Inc. v. U.S. Gypsum Co., 556 A.2d 1126, 1132 (Md. 1989) (citing Block v. Neal, 460
U.S. 289, 296–98 (1983)). Here, however, the only duty that Plaintiff has alleged Defendant
owed her is the duty to “transmit[] . . . accurate information about the drug and its
effectiveness.”5

(ECF No. 2 ¶24.)

In other words, Plaintiff has not alleged “negligence

independent of the misrepresentation,” Village of Cross Keys, 556 A.2d at1132. Accordingly,
the Court will consider only her negligent misrepresentation claim.
Defendant argues that the economic loss doctrine bars Plaintiff’s negligent
misrepresentation claim. “The economic loss doctrine represents a judicial refusal to extend tort
liability to negligence that causes purely economic harm in the absence of privity, physical
injury, or risk of physical injury.” Balfour Beatty Infrastructure, Inc. v. Rummel Klepper &
Kahl, LLP, 155 A.3d 445, 451 (Md. 2017) (emphasis added). Put differently, absent (1) privity
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Defendant again seemingly ignores straightforward allegations in Plaintiff’s Complaint. Defendant states
that “Plaintiff’s negligence claims are deficient because she has not alleged that Ferring owed her a duty of care.”
(ECF No. 10 (emphasis added).) As noted by the Court, this is true as to Plaintiff’s “ordinary” negligence claim, but
it is incorrect as to Plaintiff’s negligent misrepresentation claim. In support of the latter claim, Plaintiff plainly
alleges that Defendant had a duty to transmit accurate information to her about the effectiveness of Bravelle.

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between the plaintiff and defendant, or (2) negligent conduct that leads to physical injury (or the
risk of such injury), a plaintiff in Maryland may not recover economic losses resulting from a
defendant’s negligent misrepresentation. Id. (“In Maryland, the economic loss doctrine bars
recovery when the parties are not in privity with one another or the alleged negligent conduct did
not result in physical injury or risk of severe physical injury or death.”); see, e.g., Swinson v.
Lords Landing Village Condo., 758 A.2d 1008, 1016 (Md. 2000) (“As a general rule, when the
failure to exercise due care creates a risk of economic loss only, and not the risk of personal
injury, we have required an ‘intimate nexus’ between the parties as a condition to the imposition
of tort liability.

That ‘intimate nexus’ may be satisfied by contractual privity, . . . ‘or its

equivalent.’”).
Plaintiff has alleged both contractual privity and physical injury, and therefore the
economic loss doctrine does not bar her claim for negligent misrepresentation. First, Plaintiff
plainly alleges that “the parties entered into a contract.” (ECF No. 2 ¶ 33.) Defendant does not
dispute this.

This allegation alone is sufficient to overcome Defendant’s reliance on the

economic loss doctrine. Moreover, Plaintiff alleges that, in addition to her economic losses, she
suffered “severe emotional damages” and “she was subjected to physical pain and suffering
associated with the procedure.” (ECF No. 2, ¶ 12.) Plaintiff provides little to nothing in the way
of specifics regarding her emotional damages and physical pain. However, a careful review of
the Complaint reveals some clues. For example, Plaintiff alleges that the time lost in the course
of her defective treatment “has significantly decreased her chances of becoming pregnant.” (Id.
¶ 8.) And she alleges that her physical pain stemmed from her procedure. Viewing these
allegations in the light most favorable to Plaintiff, as the Court must at this early stage in the

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proceedings, the Court finds that Plaintiff has sufficiently alleged noneconomic injuries,
including physical injury, caused by Defendant’s alleged negligent misrepresentation.
Accordingly, Plaintiff’s claim for negligent misrepresentation will not be dismissed at
this stage of the litigation. However, because Plaintiff has not alleged Defendant owed her any
duty beyond the duty to provide accurate information, she may not pursue a free-standing claim
for negligence (i.e., Count One).
C.

Breach of Express Warranty and Breach of Contract

Defendant argues that Plaintiff’s breach of express warranty and breach of contract claims
must be dismissed because Plaintiff does not identify a specific statement or contractual
provision that Defendant breached. Defendant again misconstrues Plaintiff’s burden at the
pleading stage.
1.

Breach of Express Warranty

Under Maryland law, to state a claim for breach of express warranty, a plaintiff must allege:
“(1) a warranty existed; (2) the product did not conform to the warranty; and (3) the breach
proximately caused the injury or damage.” Robinson v. Am. Honda Motor Co., Inc., 551 F.3d
218, 223 (4th Cir. 2009) (quoting SpinCycle, Inc. v. Burcin Kalender, 186 F. Supp. 2d 585, 589
(D. Md. 2002)). Any “affirmation of fact or promise made by the seller to the buyer which
relates to the goods and becomes part of the basis of the bargain creates an express warranty that
the goods shall conform to the affirmation or promise.” Md. Code Ann., Com. Law § 2–
313(1)(a). Likewise, “[a]ny description of the goods which is made part of the basis of the
bargain creates an express warranty that the goods shall conform to the description.” Id. § 2–
313(1)(b). “To establish an express warranty by affirmation, promise, description or sample, the

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representation must form the basis of the bargain.” Thomas v. Ford Motor Credit Co., 429 A.2d
277, 283 (Md. Ct. Spec. App. 1981) (citing Md. Code Ann., Com. Law § 2-313).
According to Defendant, “[u]nder Maryland law, a plaintiff must identify a ‘specific
statement of fact or promise’ to support these claims.” (ECF No. 18-1, at 10 (quoting Stanley v.
Central Garden and Pet Corp., 891 F. Supp. 2d 757, 765 (D. Md. 2009)).) Defendant contends
that Plaintiff fails to state a claim because she does not identify a “specific statement of fact or
promise” made by Defendant in support of her breach of express warranty and contract claims.
(ECF No. 18-1, at 10.)
Defendant’s position is not supported by—and in fact is at odds with—Maryland law.
First, Defendant does not identify a single Maryland case that supports this purported specificity
requirement. Instead, Defendant relies entirely on one offhand comment in Stanley, which did
not cite to any Maryland case law in support. Moreover, in Stanley, the Court merely observed
that “[t]he amended complaint does not point to any specific statement of fact or promise by the
defendants that Stanley alleges was false.” 891 F. Supp. 2d at 765. Nowhere did the court
suggest that such a specific statement is a requirement under Maryland law.6 Defendant’s use of
a cherry-picked portion of a quote is thus misleading and inaccurate.
More importantly, Maryland case law directly refutes Defendant’s specificity argument. It
is true that a number of Maryland courts have stated generally that “a plaintiff must set forth the
‘terms and conditions of the warranty.’” Pulte Home Corp. v. Parex, Inc., 923 A.2d 971, 996
(Md. Ct. Spec. App. 2007) (quoting Thomas v. Ford Motor Credit Co., 429 A.2d 277, 283 (Md.
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Indeed, the court in Stanley appears to have relied more on the plaintiff’s opposition than on her complaint
in dismissing the breach of express warranty claim. The court concluded that a statement included in the plaintiff’s
opposition motion—not her complaint—“d[id] not represent that the specific . . . product Stanley purchased was safe
for her particular dog.” 891 F. Supp. 2d at 765. In other words, the plaintiff in Stanley did point to a specific
statement but that statement did not support her claim. True, the court also observed that “neither the opposition nor
the amended complaint describe[d] where this [specific] language [wa]s located,” id., but the court did not rely on
this alleged deficiency in dismissing the claim for breach of express warranty.

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Ct. Spec. App. 1981)), aff’d, 942 A.2d 722 (2008). However, placed in context, this statement
sets a low bar. This language originated in Thomas v. Ford Motor Credit Co. In Thomas, the
plaintiff purchased an automobile; included in the purchase price was a “two year extended
warranty.” Id. at 283. The Maryland Court of Special Appeals found that the plaintiff had failed
to state a claim for breach of express warranty because he did not set forth “the terms and
conditions of the warranty.” Id. In other words, it was not sufficient to merely allege a
“warranty” without alleging at some basic level what was warranted and how the defendant’s
product failed to perform as warranted. More recently, in Pulte, the Maryland Court of Special
Appeals affirmed dismissal of a breach of express warranty claim, relying on Thomas to do so.
In Pulte, the plaintiff alleged that it approved use of the defendant’s water barrier product “based
on express warranties of Parex given ‘by way of affirmations of fact, promises, descriptions,
and/or use of samples and/or models regarding the appearance, durability, and or waterresistance of [EIFS].’” Pulte Home Corp., 923 A.2d at 996. The court observed that the plaintiff
had merely parroted the language of the Maryland statute governing warranties and failed to
provide any factual allegations as to what specifically was warranted and how the product failed
to conform to the warranty.
Here, however, Plaintiff has specifically identified what Defendant warranted, the product’s
failure to conform to that warranty, and that the warranty formed the basis of the bargain.
Plaintiff alleges in her Complaint that:
(1) “defendant expressly warranted to the plaintiff that the drug bravelle was an
effective drug and that it would function as intended, that is, it would, if used
as directed, stimulate egg maturation and multiple follicular development in
women in general and in the plaintiff specifically,” (ECF No. 2¶ 14);
(2) “the drug bravelle that was sold to the plaintiff was not capable of
stimulating egg maturation and multiple follicular development in women,”
(id. ¶ 15); and
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(3) “the express warranty that the drug bravelle was capable of stimulating egg
maturation and multiple follicular development in women was the basis for
the purchase of the drug and the participation in the protocol,” (id. ¶ 16).
In other words, Plaintiff has concisely and plausibly alleged each element of a breach of
express warranty claim. She need not prove her claim at this stage in the litigation by citing to
specific provisions of Defendant’s advertising, marketing, or other materials.
Maryland courts have held that allegations similar in scope and specificity to those made by
Plaintiff are sufficient to state a claim for breach of express warranty. In Pittway Corp. v.
Collins, the Maryland Court of Appeals reversed the dismissal of a breach of express warranty
claim. 973 A.2d 771, 794 (Md. 2009). The plaintiffs alleged that the manufacturing defendants
“expressly warranted via their marketing, advertisements, warranties, sales literature, owners
manuals, and other representations that their product(s) and in particular the smoke/fire detector
at issue was fit for the purpose of [sic] it was intended, namely the detection and advance
warning of smoke and/or fires,” and “[t]hat by failing to equip the model/unit with a battery or
alternative safety power supply, the Manufacturer Defendants breached said express
warranties . . . .” Id. These allegations are strikingly similar to those made by Plaintiff in the
instant case. The Court of Appeals noted that it was improper for the circuit court to have
dismissed the claim without first “examining the User’s Manual, as well as marketing and
promotional literature and any other documents that Pittway published in order to market the
smoke detector to the public.” Id. Put differently, the plaintiffs were not obligated to include in
their complaint specific marketing, advertising or user manual statements in support of their
warranty claim. See also Collins v. Li, 933 A.2d 528, 578–79 (Md. Ct. Spec. App. 2007)
(reversing dismissal of breach of express warranty claim despite plaintiff’s failure to
“specifically identify [defendants’] marketing, advertisements, warranties, sales literature and
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other representations that extend the express warranties” because plaintiff had not yet been
“afforded the opportunity to produce the documents alleged to extend such warranties”).
The same is true here.

Plaintiff has plausible alleged that Defendant warranted that

Bravelle was effective at stimulating egg maturation and multiple follicular development.
Plaintiff has done enough to be “afforded the opportunity,” id., through discovery (or trial) “to
produce the documents,” id., and specific statements necessary to prove her claim. Accordingly,
the Court finds that Plaintiff has adequately stated a claim for breach of express warranty.7
2.

Breach of Contract

Defendant contends that Plaintiff’s breach of contract claim fails for the same reason as her
breach of express warranty claim: Plaintiff does not identify the specific contractual language
that Defendant breached.

Plaintiff must eventually muster evidence, including specific

contractual provisions, to support her claim, but she need not do so at this early stage in the
proceeding. Rather, Plaintiff must simply allege facts that state a plausible claim for relief.
Under Maryland law, “in order to state a claim for breach of contract, a plaintiff need only
allege the existence of a contractual obligation owed by the defendant to the plaintiff, and a
material breach of that obligation by the defendant.” RRC Ne., LLC v. BAA Maryland, Inc., 994
A.2d 430, 442 (Md. 2010); accord Taylor v. NationsBank, N.A., 776 A.2d 645, 651 (Md. 2001)
(“To prevail in an action for breach of contract, a plaintiff must prove that the defendant owed
the plaintiff a contractual obligation and that the defendant breached that obligation.”); see
Bezmenova v. Ocwen Fin. Corp., No. 8:13-CV-00003-AW, 2013 WL 1316445, at *2 (D. Md.
Mar. 27, 2013) (“Under Maryland law, the elements of a breach of contract are 1) a contractual
obligation and 2) a material breach of that obligation.”).
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Defendant did not move to dismiss Plaintiff’s breach of implied warranty claim (Count III) on any
independent grounds. Because the Court already rejected Defendant’s general arguments that all claims should be
dismissed for lack of standing and failure to allege injury, this claim survives as well.

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Plaintiff has plausibly alleged a breach of contract claim under Maryland law. She claims
that (1) “the parties entered into a contract,” (2) “the defendant agreed to provide a drug that
would act as advertised, promoted, and sold,” and (3) “the defendant breached the contract
between them by failing to provide a viable and effective drug.”

(ECF No. 2 ¶¶33–34.)

Defendant does not deny that the parties entered into a contract. Moreover, Defendant concedes
that at least some portion of the Bravelle it distributed may have been ineffective. Defendant’s
only argument is that Plaintiff failed to identify in her Complaint a specific provision of the
contract that states that Defendant agreed to provide a drug that performed as it was supposed
to.8 Plaintiff is not required to prove her allegations in the Complaint itself, however.
Taking Plaintiff’s allegations as true and drawing all inferences in her favor, as the Court
must, she has concisely stated a plausible claim for breach of contract under Maryland law.
D.

Fraud-Based Claims

In Counts Six and Eight, Plaintiff alleges that Defendant intentionally provided false
information about Bravelle to induce her to purchase it (Count Six) and engaged in unfair and/or
deceptive trade practices in violation of the Maryland Consumer Protection Act (“MCPA”)
(Count Eight). Defendant argues that both counts must be dismissed because they sound in fraud
and Plaintiff has failed to support these claims with the requisite particularity to satisfy Federal
Rule of Civil Procedure 9(b).

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Defendant also contends that “there are no allegations that Ferring failed to perform on” its contractual
obligations. (ECF No. 18-1, at 10.) This is bizarre given that Plaintiff plainly alleges that Defendant “fail[ed] to
provide a viable and effective drug.” (ECF No. 2 ¶ 34.) This appears to be a continuation of Defendant’s argument
that Plaintiff failed to allege an injury because she did not provide proof that she did not ovulate or did not produce
multiple follicles. However, as explained supra, Plaintiff alleges that the Bravelle she received was “not capable of
stimulating egg maturation and multiple follicular development in women.” (Id. ¶ 18 (emphasis added).) In other
words, it could not—and therefore did not—function as promised by Defendant. Plaintiff still must prove up this
claim through discovery (and perhaps trial), but she need not do so to survive Defendant’s motion to dismiss.

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Defendant is correct that both Count Six and Count Eight are based in fraud and therefore
must satisfy the heightened pleading requirements for such claims. See Haley v. Corcoran, 659
F. Supp. 2d 714, 724 (D. Md. 2009) (applying Rule 9(b)’s heightened pleading standard to
intentional misrepresentation and MCPA claims); Bradley v. Bradley, 56 A.3d 541, 548 (Md. Ct.
Spec. App. 2012) (noting that cause of action for intentional misrepresentation “is variously
known as fraud [or] deceit”). Rule 9(b) states, “[i]n alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake.” The “circumstances
constituting fraud or mistake” include “the time, place, and contents of the false representations,
as well as the identity of the person making the misrepresentation and what he obtained thereby.”
Weidman v. Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir. 2015) (quoting Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999)).
Plaintiff has not alleged any facts in support of her fraud claims with the requisite
particularity to satisfy Rule 9(b). For example, Plaintiff alleges that Defendant “intentionally
failed to provide accurate information to the plaintiff and it intentionally provided false
information about the effectiveness of the drug.” (ECF No. 2 ¶ 29.) Plaintiff also conclusorily
states that that “[b]y selling to the plaintiff a drug that was not viable or effective, the defendant
engaged in an unfair and/or deceptive trade practice in violation of § 13-301 et seq. of the
Maryland Consumer Protection Act.” (Id. ¶ 36.) Plaintiff does not allege what specific false
statements Defendant made, where or when they were made, or by whom. These general
allegations, without more, cannot support claims for fraud.9
Plaintiff’s allegations fall far short of satisfying Rule 9(b)’s requirements and therefore
Counts Six and Eight of her Complaint will be dismissed.

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Indeed, the majority of Plaintiff’s Complaint, which is similarly lacking in detail, provides just enough
factual specificity to satisfy Rule 8’s more liberal pleading standard.

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E.

Unjust Enrichment

Last, Defendant moves to dismiss Plaintiff’s unjust enrichment claim, arguing that it has
not been unjustly enriched because it offered to refund Plaintiff the purchase price of her
Bravelle, which she refused.
Under Maryland law,
[a] claim of unjust enrichment is established when: (1) the plaintiff confers a
benefit upon the defendant; (2) the defendant knows or appreciates the benefit;
and (3) the defendant’s acceptance or retention of the benefit under the
circumstances is such that it would be inequitable to allow the defendant to retain
the benefit without the paying of value in return.
Benson v. State, 887 A.2d 525, 546 (Md. 2005). Notably, “[a]n unjust enrichment action is not
premised on a contract[;] . . . . [r]ather, it is a remedy ‘to provide relief for a plaintiff when an
enforceable contract does not exist . . . .’” Wallace v. Brice, No. 1248 Sept. Term 2014, 2015
WL 6410174, at *6 (Md. Ct. Spec. App. Oct. 21, 2015) (emphasis added) (quoting Cty. Comm’rs
of Caroline Cty. v. J. Roland Dashiell & Sons, Inc., 747 A.2d 600, 607 (Md. 2000)); see Acorn
Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988) (“An action for unjust enrichment is
quasi-contractual in nature and may not be brought in the face of an express contract.”); see also
Dashiell, 747 A.2d at 608 n.8 (collecting cases holding that an action for unjust enrichment does
not lie where there is an express contract governing the parties’ relationship). Moreover, because
an unjust enrichment claim seeks restitution, the remedy is measured “by the defendant’s gain,”
not the plaintiff’s loss. Bank of Am. Corp. v. Gibbons, 918 A.2d 565, 569 (Md. Ct. Spec. App.
2007); Mogavero v. Silverstein, 790 A.2d 43, 53 (Md. Ct. Spec. App. 2002) (“Thus, the classic
measurement of unjust enrichment damages is the gain to the defendant, not the loss by the
plaintiff.” (internal quotations omitted)).

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Plaintiff’s allegations do not support her unjust enrichment claim. As an initial matter,
Plaintiff has alleged that the parties entered into an express contract and has brought a
corresponding claim for breach of contract. Thus, Plaintiff’s remedy, if any, lies in her claim for
breach of contract. Accordingly, unjust enrichment is not an available means of recovery for
her.10

Moreover, even if Plaintiff’s express contract claim did not foreclose her unjust

enrichment claim (and it does), she has alleged facts indicating that Defendant attempted to
disgorge itself of the benefit she provided. Plaintiff claims that “Ferring offered to reimburse its
customers for the cost of its drug; the plaintiff did not accept that offer.” (ECF No. 2 ¶ 7.)
Plaintiff cannot reject Defendant’s offer to reimburse her and then turn around and claim
Defendant has been unjustly enriched for retaining the money she paid for Bravelle.
Accordingly, Plaintiff’s claim for unjust enrichment will be dismissed.
IV. Conclusion
For the foregoing reasons, an Order shall enter GRANTING IN PART and DENYING IN
PART Defendant’s Motion to Dismiss (ECF No. 18).
DATED this 19th day of July, 2018.

BY THE COURT:

/s/
James K. Bredar
Chief Judge

10

A plaintiff may plead in the alternative—i.e., assert both contract and quasi-contract claims—“where the
existence of a contract concerning the subject matter is in dispute.” Swedish Civil Aviation Admin. v. Project Mgmt.
Enterprises, Inc., 190 F. Supp. 2d 785, 792 (D. Md. 2002). Here, however, neither party contests the existence of a
contract between them. Moreover, Plaintiff has alleged facts that support only her express contract claim.
Therefore, her quasi-contract (i.e., unjust enrichment) claim is not a valid alternative theory of recovery, but rather a
theory of recovery directly at odds with her factual allegations.

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