Huskey v. Colgate-Palmolive Company et al

Filing 37

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Colgate's motion to dismiss or, in the alternative to strike the nationwide class allegations, is GRANTED in part and DENIED in part. (Doc. No. 28 ). Defendant's motion is granted as to Plaintiffs' claims for injunctive relief, breach of warranty, and breach of implied contract. As such, those claims are DISMISSED without prejudice. IT IS FURTHER ORDERED that Defendant Colgate shall file an answer to the surviving cla ims within thirty (30) days of this Order. IT IS FURTHER ORDERED that Defendant's November 26, 2020 motion to dismiss, which was filed before Plaintiffs' filed their amended complaints, is DENIED as moot. (Doc. No. 24 ). Signed by District Judge John A. Ross on 9/14/2020. (CLO)

UNITED STA TES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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DREW HUSKEY et al. ,

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Plaintiffs,
V.

COLGATE-PALMOLIVE COMPANY,

Defendant.

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No . 4 :19-cv-02710-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Colgate-Palmolive Company' s (hereinafter,
" Colgate") motion to dismiss, or, in the alternative, strike the nationwide class allegations. (Doc.
No. 28). The matter is fully briefed and ready for disposition. For the following reasons, the Court
will grant the motion in part and deny it in part.

I.

Background
Colgate markets Speed Stick and Lady Speed Stick Stainguard antiperspirant products

(hereinafter, " Stainguard products") as antiperspirant that " fights" yellow stains and white marks
on clothing (hereinafter, the " Challenged Claim").

Plaintiff Drew Huskey and Plaintiff Jamie

Richard both allege that, in or around July of 2019, they both purchased Stainguard products for
personal use and, after using the products, they experienced white marks and the development of
yellow stains on their clothing. Plaintiffs assert that these marks and stains were caused and
created by the aluminum zirconium tetrachlorohydrex GL Y (hereinafter, "aluminum") found
within the Stainguard products and that- because the product itself contains an ingredient that

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creates these marks-that Colgate' s claims that Stainguard products "fight" yellow stains and
white marks are false and misleading.
Plaintiff Huskey originally brought this class action petition in St. Louis County Circuit
Court against Colgate asserting claims for breach of warranty (Count One); breach of implied
contract (Count Two); and unjust enrichment (Count Three) on behalf of a nationwide putative
class. Huskey also asserted claims against Colgate for misleading, false and deceptive marketing
under the Missouri Merchandising Practices Act (hereinafter, "MMP A"), RS Mo. § 407. 010 et seq.,
(Count Four) and for injunctive relief (Count Five) on behalf of a putative subclass in the State of
Missouri. Colgate removed the action to this Court on October 4, 2019. (Doc. No. 1). Likewise,
Plaintiff Richards brought a substantively similar complaint-alleging the same claims against
Colgate-in St. Louis City Circuit Court. Colgate removed Richard ' s action on October 29, 2019,
and the cases were consolidated on November 12, 2019. (See Doc. No. 12, Richards v. Colgate-

Palmolive Company et al. , 4: 19-cv-02934-JAR).
II.

Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency

of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, "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) ). A claim for
relief "must include sufficient factual information to provide the ' grounds' on which the claim
rests, and to raise a right to relief above a speculative level." Schaaf v. Residential Funding Corp.,
517 F.3d 544,549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires

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a plaintiff to plead "more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do ." Twombly, 550 U.S. at 555.
When considering a motion to dismiss, the Court accepts as true all of the factual
allegations contained in the complaint, even if it appears that "actual proof of those facts is
improbable," id. at 556, and reviews the complaint to determine whether its allegations show that
the pleader is entitled to relief. Id. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court
must accept as true all of the allegations contained in a complaint does not apply to legal
conclusions, however. Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice"). In addition, all reasonable
inferences from the complaint must be drawn in favor of the nonmoving party. Young v. City of
St. Charles, Mo., 244 F.3d 623 , 627 (8th Cir. 2001).

III.

Discussion

Colgate moves to dismiss all of Plaintiffs' claims. First, Colgate argues that Plaintiffs have
failed to state a claim under the MMPA because (1) they have failed to allege sufficient facts
showing that a reasonable consumer would be deceived by the Challenged Claim and (2) their
allegations indicate that their purchases were made for the preconceived purpose of filing this
lawsuit, rather than for personal, family , or household use. Second, Colgate alleges that Plaintiffs'
claim for injunctive relief must fail because Plaintiffs do not allege a future intent to purchase the
Stainguard products and-even to the extent that they did- Missouri law does not recognize
injunctive relief as an independent cause of action. Third, Colgate argues that Plaintiffs' common
law claims must be dismissed because they are implausible. Further, Colgate argues that Plaintiffs
failed to sufficiently allege breach of warranty because they did not assert that they provided

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Colgate with pre-suit notice and that their breach of implied contract claim must fail because the
duty of good faith and fair dealing is not recognized in an implied-in-law contract.
Colgate also advances two arguments as to why Plaintiffs ' putative nationwide class
allegations for breach of warranty, breach of implied contract, and unjust enrichment should be
dismissed. First, Colgate argues that the allegations must be dismissed because Plaintiffs will be
unable to satisfy Rule 23(b)(3) due to the material variations in the laws of each consumer' s home
state which Colgate represents must be applied to their consumer protection claims. Second,
Colgate argues that, applying the principles in Bristol-Myers Squibb Co. v. Superior Court, 137 S.
Ct. 1773, 1781 (2017) (hereinafter, "Bristol-Myers" ), the Court lacks personal jurisdiction over
the claims of non-resident putative class members thereby necessitating the dismissal of the class
allegations.

A. MMP A Claims
The MMPA is a broad statute, prohibiting " [t]he act, use or employment by any person of
any deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or the
concealment, suppression, or omission of any material fact in connection with the sale or
advertisement of any merchandise in trade or commerce." Mo. Rev. Stat. § 407.020.1. To state a
claim under the MMP A, a plaintiff must show that (1) he purchased merchandise from the
defendant; (2) for personal, family , or household purposes; and (3) suffered an ascertainable loss;
(4) as a result of an unlawful practice. Mo. Rev. Stat. § 407.025(1). A complaint alleging
misrepresentations under the MMPA must also satisfy Rule 9(b) of the Federal Rules of Civil
Procedure, which requires that the allegations of fraud be pied with particularity. Vitello v. Natrol,
LLC, No. 4:18 CV 915 RWS, 2018 WL 6304900, at *1 (E.D. Mo. Dec. 3, 2018).
1. Whether the Challenged Claim Would Be Deceptive to a Reasonable Consumer

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Colgate first argues that Plaintiffs have failed to allege sufficient facts showing that the
Challenged Claim is deceptive to a reasonable consumer. Rather, Colgate argues, Plaintiffs rely
on conclusory arguments that do not meet the Rule 9(b) particularity requirement. In support of
this assertion, Colgate begins by attacking Plaintiffs' allegations that Colgate's Stainguard
products contain "nearly exactly the same ingredients" as non-Stainguard products-including
aluminum, which Plaintiffs assert causes the stains- and contains "no added ingredients to ' fight'
stains or white marks." Colgate contends that Plaintiffs cannot rely on their own assessments of
the Stainguard products' ingredients to prove the inability of the Stainguard formula "as a whole"
to "fight" stains. (Doc. No. 29 at 6-7 (citing Hodges v. Vitamin Shoppe, Inc. , No. 13-3381, 2014
WL 200270 (D.N.J. Jan. 15, 2014)).
In addition, Colgate argues that Plaintiffs' allegations that they noticed stains on their
clothing after using the products does not necessarily mean the Challenged Claim is false.
Specifically, Colgate argues that a reasonable consumer would not be deceived by its claim that
the Stainguard product fights stains because it is "common sense" that a product that claims to
fight stains does not mean that it prevents stains altogether. (Id. at 7). Colgate goes on to state
that, "[t]he only logical way to understand the Challenged Claim[] is in relation to conventional
antiperspirants that do not make such claims"; in other words, that "fights," taken in context,
should be understood to mean that the Stainguard products are formulated to relatively reduce the
staining effects typically associated with antiperspirants. (Doc.

o.29; Doc. No. 33 at 4 (citing

Becerra v. Dr Pepper/Seven Up, Inc. , 945 F .3d 1225 (9th Cir. 2019) (holding that, in context, the

use of the word diet is understood as a relative claim about that soft drink's caloric amount
compared to a regular soft drinks)). Colgate further urges the Court to take into consideration that
Plaintiffs admitted in their original complaints-although not in their amended complaints-that

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the Stainguard products "might in fact cause less staining" than other antiperspirants. Colgate
argues that the fact that Plaintiffs admitted that Stainguard was formulated to cause less staining
than other antiperspirants is fatal to their MMP A claims and requires that the claims be dismissed.
Plaintiffs, in response, argues that they have provided sufficient facts to state a claim under
the MMP A. Plaintiffs assert that they both observed first-hand that Colgate's Stainguard products
were creating and causing stains on their clothing after use. Plaintiffs state that these facts, taken
in conjunction with the "buttressing" allegations that the Stainguard products contain an ingredient
believed to cause those stains (i.e. , aluminum), provide ample factual support that Colgate' s
Challenged Claim was deceptive.

Further, Plaintiffs argue that the Court should not accept

Colgate's argument that the Challenged Claim can only logically be understood to mean that the
products "fights stains" relative to other antiperspirants. Plaintiffs argue that when they purchased
the products, which do not state that they fight stains or marks in comparison to other
antiperspirants, that they understood "fights stains" as meaning the products prevented 'them, rather
than causing them to some lesser degree.

Plaintiffs argue that this is a logical, alternative

interpretation of the phrase that the Court should credit over Colgate' s speculation as to how a
reasonable consumer would understand the Challenged Claim.
After considering the parties' arguments, the Court is unpersuaded, at this early stage of
the proceeding, that Plaintiffs' MMP A claims should be dismissed. On a motion to dismiss, the
"MMPA requires courts to make case-by-case determinations of whether a defendant's conduct
violates principles of fair dealing. " Tohen v. Bridgestone Retail Operations, LLC, 2013 WL
5406463, at *2 (E.D. Mo. Sept. 25, 2013), aff d, 751 F.3d 888 (8th Cir. 2014). Where a court "can
conclude as a matter of law that members of the public are not likely to be deceived ... dismissal
is appropriate." Kelly v. Cape Cod Potato Chip Co. , 81 F. Supp. 3d 754, 761 (W.D. Mo. 2015)

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(citation omitted). Courts applying the MMP A often recognize, however, that whether a reasonable
consumer would be deceived is often a question of fact that cannot be resolved on a motion to
dismiss. See Thornton v. Pinnacle Foods Grp. LLC, 20 16 WL 4073713 , at *3 n.3 (E.D. Mo. Aug.
1, 2016). As such, dismissals ofMMPA claims are only granted in the rare circumstance whereas a matter of law-a reasonable consumer would not be deceived by a representation about a
product. See id.
Here, the Court cannot say that as a matter of law a reasonable consumer would not be
deceived by Colgate's Challenged Claim. Taking Plaintiffs' allegations as true, the Court finds it
plausible that a reasonable consumer might rely on Colgate's representation that the Stainguard
products "fights stains" to mean that they would prevent yellow stains and white marks from
occurring. Plaintiffs have pleaded with sufficient particularity that the Challenged Claim was
false, as they both alleged that-following the use of the product-their clothes developed stains
and marks that they believed would be prevented, not caused, by Stainguard's products. As a
result, The Court will not dismiss Plaintiffs' MMP A claims at this early stage in litigation. See,
e.g. , Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 312-13 (Mo. App. 2016) (declining to

decide how a "reasonable consumer" would perceive the term "all natural" at an early stage of
litigation, and holding that the question is appropriately addressed on a motion for summary
judgment or trial).
2. Purchase for a Personal, Family, or Household Purposes
Colgate next argues that Plaintiffs' MMP A claims should be dismissed because they cannot
plausibly claim that they purchased the Stainguard products for personal use. Colgate points out
the fact that both Plaintiffs alleged purchasing the products " [i]n or around July of2019," but then
filed their lawsuits almost immediately after (Huskey on July 4, 2019, and Richards on July 8,

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2019). Colgate argues that this quick turnaround between purchase and filing their lawsuits, along
with the fact that Plaintiff Richards also filed four lawsuits against Conopco, Inc. , 1 alleging similar
claims against Dove and Degree branded antiperspirants in July, 2019, shows that the purchases
were made for the ulterior purpose of litigation rather than personal use. In response, Plaintiffs
assert that they both pleaded they purchased the Product for personal use and that they alleged that
they, in fact, personally used the product and were disappointed with its results. Plaintiffs argue
that Colgate reads too much into the " [i]n or around July" purchase time and that Colgate's
speculation as to Plaintiffs' motives cannot be used to grant a motion to dismiss.
Again, the Court agrees with Plaintiffs and finds that it would be inappropriate to dismiss
their MMP A claims at this time. Plaintiffs have alleged that they purchased the products for
personal use and the Court is required to take those allegations as true at the motion to dismiss
stage. Colgate' s argument-that Plaintiffs had an ulterior motive in making the purchases, as
shown by the speed in which they filed their lawsuits and the other ongoing litigation filed by
Plaintiff Richards- is better addressed at summary judgment or trial.

B. Injunctive Relief
"The MMPA expressly provides for injunctive relief, as well as damages and attorney fees,
§ 407.025.2, ' not only to remedy violations ... but also to prospectively deter prohibited conduct
and protect Missouri citizens."' Hawkins v. Nestle U S.A. Inc., 309 F. Supp. 3d 696, 706-07 (E.D.
Mo. 2018) (quoting Berry v. Volkswagen Grp. ofAm. , Inc. , 397 S.W.3d 425 , 433 (Mo. 2013) (en
bane)). Here, Plaintiffs seek injunctive relief from the Court to prevent Colgate from "continuing

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Richards v. Conopco, Inc., No. 4: 19-cv-02556-HEA (E.D. Mo.) ("Richards I"); Richards v.
Conopco, Inc. , No. 4: 19-cv-02558-SRC (E.D. Mo.) ("Richards II"); Richards v. Conopco, Inc. ,
No. 4: 19-cv-02726-AGF (E.D. Mo.) ("Richards III"); Richards v. Conopco, Inc. , No. 4: 19-cv02728-SRC (E.D. Mo.) ("Richards IV").
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to falsely state that the Stainguard Products ' fights ' white marks and/or yellow staining. (Doc.
No. 26 1 118; Doc. No. 271 116). Colgate, however, asserts that Plaintiffs do not have standing
to pursue injunctive relief under the MMP A because they have failed to allege facts showing that
they have a future intention to purchase the Stainguard products. As a result, Colgate argues,
Plaintiffs claim for injunctive relief must be dismissed because they have failed to allege that they
face a threat of harm.
Article III of the United States Constitution "confines the jurisdiction of federal courts to
justiciable cases and controversies." Meuir v. Greene Cnty. Jail Employees, 487 F.3d 1115, 1119
(8th Cir.2007) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555 , 559-60 (1992)). "To satisfy
this standing requirement, a plaintiff must establish (1) an injury in fact, which is (2) fairly
traceable to the defendant's conduct, and which (3) will likely be redressed by a favorable
decision." Hawkins , 309 F. Supp. 3d at 707 (citing Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). "Past exposure to illegal conduct does not in
itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any
continuing, present adverse effects." Kelly, 81 F. Supp. 3d at 762 (quoting Lujan, 504 U.S. at
564). Rather, " [t]o establish 'injury in fact' for purposes of injunctive relief, a plaintiff must show
that he ' faces a threat of ongoing or future harm. "' Id. (quoting Park v. US. Forest Serv., 205 F .3d
1034, 1037 (8th Cir. 2000)).
The Court has reviewed Plaintiffs' amended complaints and agree with Colgate's
conclusion: Plaintiffs lack standing to seek injunctive relief because the complaints contain no
,allegations that Plaintiffs intend to continue purchasing the Stainguard Products or purchase them
in the future. As a result, they have not alleged any "threat of ongoing or future harm." Plaintiffs
therefore lack standing to obtain injunctive relief under the MMPA and the claim will be dismissed.

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See Johnson v. Atkins Nutritionals, Inc.,

o. 2:16-CV-04213-MDH, 2017 WL 6420199, at *12

(W.D. Mo. Mar. 29, 2017) ("Plaintiffs complaint provides no indication of future intention to
purchase the products .... Therefore, Plaintiff lacks standing to obtain injunctive relief."); Kelly,
81 F. Supp. 3d at 763 ("Plaintiff is . .. not likely to purchase the Chips as they exist at present.
Further, the Petition contains no allegations that Plaintiff intends to purchase [the product] in the
future. Thus, ... Plaintiff lacks standing to seek injunctive relief."). 2
C. Breach of Warranty
Missouri has adopted the Uniform Commercial Code, including the requirement that a
"buyer must within a reasonable time after he discovers or should have discovered any breach
notify the seller of breach or be barred from any remedy." Mo. Rev. Stat.§ 400.2-607(3)(a). "The
purpose of this requirement is to provide the seller with an opportunity to correct any defects,
prepare for litigation, and prevent stale claims." Ridings v. Maurice, No. 15-00020-CV-W-JTM,
2019 WL 4888910, at *11 (W.D. Mo. Aug. 12, 2019) (quoting Kansas City v. Keene Corp., 855
S.W.2d 360,369 (Mo. 1993) (en bane)).
Here, Plaintiffs allege that they provided notice of the breach to Colgate upon the filing of
their complaints. Colgate argues that, as a result, Plaintiffs' breach of warranty claims must be
dismissed because they failed to allege that they provided pre-suit notice to Colgate about the
Challenged Claim. Although no Missouri courts have directly addressed whether pre-litigation
notice is required, Colgate cites to Budach v. NIBCO, Inc. as instructive. No. 14-04324, 2015 WL
6870145, at *4-5 (W.D. Mo. Nov. 6, 2015). In Budach, the Honorable Judge Nanette Laughrey

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The Court notes that Plaintiffs presented their request for injunctive relief under the MMP A as a
separate claim for relief in their amended complaints. Colgate correctly points out that "injunctive
relief is a remedy and not an independent cause of action." Wholesale All. , LLC v. Express Scripts,
Inc., 366 F. Supp. 3d 1069, 1082 (E.D. Mo. 2019). To the extent Plaintiffs were attempting to
bring a freestanding claim for injunctive relief, it would likewise necessitate dismissal.
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wrestled with whether Section 400.2-607(3)(a)- which only specifies the need for a buyer to alert
the seller within a "reasonable time"-required notice to occur pre-suit. 2015 WL 68 70145, at *3.
After examining decisions across the country, Judge Laughrey found that the "majority view" of
states that had adopted the UCC required that notice must be given pre-litigation. Id. at *4. Judge
Laughrey identified two persuasive reasons for concluding that Missouri would adopt the majority
view:
(1) the purposes underlying of 400.2-607(3)(a) - "to effect a cure, or to facilitate

an effort to negotiate a settlement, or to gather and preserve evidence for
possible litigation," to "prevent stale claims," and "defeat commercial bad
faith" - are best satisfied when a plaintiff provides pre-litigation notice of
breach; and
(2) the history of UCC Section 2-607 indicates that its drafters intended the
provision to require pre-suit notice.

Ridings, 2019 WL 4888910, at *12.

Judge Laughrey ultimately found that Missouri would require pre-litigation notice
for a breach of warranty claim. Other district courts- both in this District and the Western
District of Missouri-have since agreed that the Missouri Supreme Court would follow
this majority view and require that reasonable notice must be provided pre-suit. See, e.g. ,
Guilford v. Bos. Sci. Corp., No. 4:19-CV-00955-DGK, 2020 WL 1668279, at *3 (W.D.

Mo. Apr. 3, 2020) (dismissing plaintiff's breach of warranty claims, in part, for failing to
allege pre-suit notice); Ridings, 2019 WL 4888910, at *12 (granting summary judgment
on plaintiff's breach of warranty claims for failure to provide pre-suit notice); Gillan v.
Wright Med. Tech. Inc., 396 F. Supp. 3d 844, 849 (E.D. Mo. 2019) ("The buyer of the

product must give some type of a pre-suit notice to the seller in order to state an express
breach of warranty claim.").

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In response, Plaintiffs urge the Court not to adopt Budach' s holding and to instead follow
"the more well-reasoned approach" that allows for the filing of a complaint to serve as notice of
the breach. (Doc. No. 36 at 6-7 (citing In re Bridgestone/Firestone, Inc. Tires Prod. Liab. Litig. ,
155 F. Supp. 2d 1069, 1111 (S.D. Ind.) (finding it unlikely that the Michigan and Tennessee
Supreme Courts would find that the filing of a lawsuit can never satisfy the notice of breach
requirement)). Plaintiff argues that the Court should adopt the holding of the Bridgestone Court
because it is better aligned to the broad nature of the notice requirement of Section 400.2-607(3)(a)
and better serves to protect buyers from ongoing misconduct. Plaintiffs subsequently argue that,
even if the Court holds that pre-suit notice is required, that they did, in fact, provide pre-suit notice
in filing their complaint. Plaintiffs creatively argue that,
Once Plaintiffs amended their complaints, their previous lawsuits no longer had
any legal effect except for the fact that the serving of the previous complaints
constituted "notice to the seller of the nonconformity .... [A]s a strict matter of
law, Plaintiffs' previously-filed complaints, once the amended complaints were
filed, did become "pre-suit" in relation to the present, active lawsuits. [Thomas v.
United Steelworkers Local 1938, 743 F.3d 1134, 1139 (8th Cir. 2014)] ("when a
plaintiff files an amended complaint, the original complaint is superseded and has
no legal effect").
(Id. at 4-6) .

After consideration, the Court is persuaded by Judge Laughrey ' s analysis and agrees that
Missouri would require pre-suit notice of the breach of warranty claim. As such, Plaintiffs were
required to give Colgate notice of the Challenged Claim prior to filling their lawsuits. Plaintiffs
interesting interpretation on how an amended complaint can somehow render the original
complaint as "pre-suit notice" is unconvincing and not rooted in any analogous caselaw. Because
the Court does not find that the original complaint constituted pre-suit notice and there are no other
allegations of pre-litigation notice in Plaintiffs' complaints, the Court will dismiss Plaintiffs breach
of warranty claims.
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D. Breach oflmplied Contract
Under Missouri law, a claim for breach of the implied covenant of good faith and fair
dealing is a contract action. Koger v. Hartford Life Ins. Co. , 28 S.W.3d 405 , 413 (Mo. Ct. App.
2000). To establish a breach of the implied covenant of good faith and fair dealing, "the plaintiff
has the burden to establish that the defendant ' exercised a judgment conferred by the express terms
of the agreement in such a manner as to evade the spirit of the transaction or so as to deny [the
plaintiff] the expected benefit of the contract. "' Lucero v. Curators of the Univ. of Mo., 400
S.W.3d 1, 9-10 (Mo.Ct.App.2013) (quoting Mo. Consol. Health Care Plan v. Cmty. Health Plan,
81 S.W.3d 34, 46 (Mo. Ct. App. 2002)).
Here, Plaintiffs allege that they had an implied in law contract with Colgate and that
Colgate breached the implied contract' s covenant of good faith and fair dealing. (Doc. No. 26 ,i,i
95-99; Doc. No. 27 ,i,i 93 -97). Colgate, in response, argues that Plaintiffs' claims fai l because the
covenant of good faith and fair dealing does not ex ist in the context of an implied-in-law contract.
Specifically, Colgate asserts that "a claim for breach of the covenant of good faith and fair dealing
requires an existing contract" and, under Missouri Law, an implied in law contract "is not a
contract at all but an obligation to do justice even though it is clear that no promise was ever made
or intended." (Doc. No. 29 at 12 (quoting TCP Printing Co., LLC v. Enter. Bank & Tr., No. 15178, 2017 WL 4357378, at *6 (E.D. Mo. Sept. 29, 2017); and then Westerhold v. Mullenix Corp. ,
777 S.W.2d 257, 263 (Mo. Ct. App. 1989) (citation and internal quotation marks omitted))).
Plaintiffs did not address Colgate' s argument against their breach of implied contract
claims in their response in opposition. (Doc. No. 32). In its reply, Colgate pointed out that
Plaintiffs failed to respond and argued that the Plaintiffs had therefore abandoned the breach of

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implied contract claims. (Doc. No. 33 at 8). Subsequently, Plaintiffs filed a surreply where they
again did not address Colgate' s arguments against its breach of implied contract claims or even
acknowledged Colgate' s assertions that they had abandoned the claims. (Doc. No. 36). Because
"a plaintiffs failure to address a defendant' s arguments on a motion to dismiss operates as an
abandonment of those claims," the Court will treat Plaintiffs' failure to address Colgate's
arguments as a concession. Jarrett v. Henkel Corp., No. 4: 15-CV-0832-DGK, 2016 WL 409819,
at *2 (W.D. Mo. Feb. 2, 2016) (citing Ursery v. Fed. Drug Enf't Admin. , No. 4:12-cv-1911-HEA,
2014 WL 117627, at *2 (E.D. Mo. Jan. 13, 2014) (listing cases)); see also Demien Constr. Co. v.
0 'Fallon Fire Prot. Dist. , 72 F. Supp. 3d 967, 972 (E.D. Mo. 2014) ("Because Plaintiff fails to
address the [Defendant' s] arguments in its response, the Court finds Plaintiff has abandoned this
claim."), aff'd sub nom. , 812 F.3d 654 (8th Cir. 2016). The Court will, therefore, dismiss the
breach of implied contract claims.
E. Unjust Enrichment

To state a claim for unjust enrichment, a plaintiff must allege (1) a benefit was conferred
upon the defendant, (2) at the expense of the plaintiff, and (3) it would be unjust to allow the
defendant to retain the benefit. Federated Mut. Ins. Co. v. Peery 's Auto Parts, LLC, 2012 WL
3062720, at *2 (W.D. Mo. July 26, 2012). Here, Colgate briefly states that Plaintiffs have failed
to state a claim of unjust enrichment because the claim is "derivative of Plaintiffs' flawed
MMPA claims." (Doc. No. 29 at 2). However, as previously discussed, the Court has concluded
that Plaintiffs have stated a claim under the MMP A. Plaintiffs' allegations similarly state a claim
for unjust enrichment because Plaintiffs allege that a benefit was conferred on Colgate in the
form of payment and that it would be unjust to permit Colgate to retain the benefit in light of the
Challenged Claim, which misled purchasers about the stain fighting effects of the Stainguard

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products. Accordingly, the unjust enrichment claim is sufficiently pied and will not be
dismissed.
F. Nationwide Class Allegations
1. Material Variations in State Law

Colgate first moves to dismiss or strike the nationwide class allegations because class
certification on Plaintiffs' unjust enrichrnent3 claims is not appropriate under Rule 23(b)(3). FED.
R. Clv. PRO. 23(b)(3) (stating that, a "class action may be maintained if ... the court finds that the
questions of law or fact common to class members predominate over any questions affecting only
individual members").

Colgate asserts, and Plaintiffs agree, that Missouri ' s choice-of-law

principles call for application of "the law of the state where the transactions occurred." (Doc. No.
29 at 14 (quoting In re Dollar Gen. Corp. Motor Oil Mktg. & Sales Practices Litig. , No. 16-02709,
2019 WL 1418292,at *5 (W.D. Mo. Mar. 21 , 2019)). As a result, each putative class member' s
claims would be governed by the law of the state where they purchased the products, which
Colgate argues would render certification unmanageable. Colgate cites several cases in support of
that contention in which courts have struck class allegations where material variations in state law
would fail to meet Rule 23(b)(3)'s predominance requirement. In response, Plaintiffs do not
challenge the case law but instead assert that Colgate' s request is premature and argue that they
should be allowed to present argument as to Rule 23 when it moves for class certification.
The Court is aware that Eighth Circuit precedent allows for the dismissal of class claims at
the motion to dismiss stage of litigation, McCrary v. Stifel, Nicolaus & Co., 687 F .3d 1052, 1059
(8th Cir. 2012), and that Federal Rule of Civil Procedures 23(c)(l)(A) states that ""[a]t an early

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Colgate argues that Plaintiffs breach of warranty and breach of implied contract claims are
similarly inappropriate for adjudication as a class action. However, as discussed above, the
Court finds those claims are properly dismissed.
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practicable time after a person sues or is sued as a class representative, the court must determine
by order whether to certify the action as a class action." "However, while judges enjoy liberal
discretion to strike pleadings, the Eighth Circuit has also recognized that striking a party ' s pleading
'is an extreme and disfavored measure. ' Anglin v. Edgewell Pers. Care Co., No. 4:18-CV-00639NCC, 2018 WL 6434424, at *13 (E.D. Mo. Dec. 7, 2018) (quoting BJC Health Sys. v. Columbia

Cas. Co. , 478 F.3d 908, 91 7 (8th Cir. 2007)); see also Doyel v. McDonald 's Corp., No. 4:08-CV1198-CAS, 2009 WL 350627, at *5 (E.D. Mo. Feb. 10, 2009) (noting that " [s]triking plaintiffs'
class action allegations prior to discovery and the class certification stage is a rare remedy");

Nobles v. State Farm Mut. Auto. Ins. Co., No. 10-04175-CV-C-NKL, 2012 WL 4090347, at *2
(W.D. Mo. Sept. 17, 2012) ("The weight of authority indicates that courts should meet motions to

dismiss class allegations at the 12(b)(6) stage with a great deal of skepticism.").
After considering the caselaw provided by Colgate, the Court notes that it has serious
doubts as to whether Plaintiffs will be able to satisfy the predominance requirement. However,
the Court finds that the decision as to the survival of Plaintiffs' class allegations should be made
after allowing Plaintiffs to conduct discovery or on motion to the Court wherein they can provide
additional briefing to explain whether the prerequisites of Rule 23 can be satisfied. Given the
severity of striking class allegations at this early stage of the litigation, the Court-out of cautionwill decline to strike the nationwide class allegations at this time. Anglin, 2018 WL 6434424, at
* 13 (expressing concern as to plaintiffs' ability to prove predominance for nationwide unjust

enrichment claims but declining to strike the allegations at the motion to dismiss stage).

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2. Personal Jurisdiction Over Non-Resident Putative Class Members
Colgate, relying on Bristol-Myers, next moves to dismiss or strike the claims of non-resident
putative class members under the premise that the Court lacks personal jurisdiction.
background,
In Bristol-Myers, out-of-state plaintiffs, along with California plaintiffs, alleged a
host of state-law claims in mass tort. The Bristol-Myers Court held that it lacked
specific personal jurisdiction over the out-of-state defendant drug manufacturer
because there was no "affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that takes place in the forum
State." The [Supreme] Court reasoned that "the mere fact that other plaintiffs were
[harmed by the defendant] in California does not allow the State to assert specific
jurisdiction over the nonresidents' claims."
Harrison v. Gen. Motors Co. , No. 17-3128-CV-S-SRB, 2018 WL 6706697, at *6 (W.D.
Mo. Dec. 20, 2018) (internal citations omitted). In deciding Bristol-Myers the Supreme
Court did not clarify whether its holding extended to putative class actions. Krumm v.
Kittrich Corp. , No. 4: 19 CV 182 CDP, 2019 WL 6876059, at *4 (E.D. Mo. Dec. 17, 2019).
Colgate argues that the Court should extend the Bristol-Myers holding to the case
at hand, asserting that its rationale "applies equally" to nationwide class claims. Colgate
goes on to cite cases, including one from this District,4 holding that Bristol-Myers applies
in the class action context. In response, Plaintiff recognizes that there is a split as to
whether Bristol-Myers applies in the class action context but argues that the better reasoned
decisions have declined to extend its rationale. Plaintiff, likewise, directs the Court to
recently published decisions in our District that found that Bristol-Myers should not be
extended. 5

4

See In re Dicamba Herbicides Litig. , 359 F. Supp. 3d 711 (E.D. Mo. 2019).

5

See Krumm, WL 6876059; Swinter Grp. , Inc. v. Serv. Of Process Agents, Inc. , 2019 WL
266299, at *2 (E.D. Mo. Jan. 18, 2019).
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For

After consideration, the Court declines to apply Bristol-Myers in this class action and
"agree[s] with the ' better reasoned decision' of the numerous courts across the country that have
declined to extend BMS." See Krumm , 2019 WL 6876059, at *4 (quoting Swinter Grp., 2019 WL
266299, at *3); see, e.g., Moore v. Compass Grp. USA, Inc., No. 4:18CV1962 RLW, 2019 WL
4723077, at *9 (E.D. Mo. Sept. 26, 2019) (declining to dismiss nationwide breach of contract claim
after finding Bristol-Myers inapplicable); Harrison, 2018 WL 6706697, at *7 (declining to dismiss
nationwide breach of contract and unjust enrichment claims after finding Bristol-Myers
inapplicable); Knotts v. Nissan N Am. , Inc., 346 F. Supp. 3d 1310, 1334 (D. Minn. 2018)
(declining to dismiss nationwide breach of express warranty, breach of implied warranty, fraud,
and unjust enrichment claims after finding Bristol-Myers inapplicable). In so doing, the Court
adopts the reasoning elucidated by the Honorable Judge Catherine Perry in Krumm:
In a consolidated mass tort action, as in BMS, each plaintiff is a real party in
interest to independent lawsuits. Accordingly, in mass tort actions, the plaintiffs
must independently establish the jurisdictional prerequisites to pursue their
individual claims. Bristol-Myers, 137 S. Ct. at 1781. Here, by contrast, there is
only one lawsuit, brought by [two named plaintiffs], so there are just [two]
'part[ies]' for purposes of determining the Court' s jurisdiction. Id. ; see also Molock
v. Whole Foods Mkt., Inc., 297 F.3d 114, 126 (D.D.C. 2018). "Nonnamed class
members ... may be parties for some purposes and not for others." Devlin v.
Scardelletti, 536 U.S. 1, 9-10 (2002). While absent class members are considered
'parties' in certain procedural respects, such as being bound to certified class action
settlements, " [a]bsent class members are not parties for purposes of determining
whether there is complete diversity of citizenship in cases governed by substantive
state law." Al Haj v. Pfizer Inc. , 338 F. Supp. 3d 815 , 820 (N.D. Ill. 2018) (citing
Scardelletti, 536 U.S. at 10). If the residency of unnamed class members is not
considered in determining diversity of citizenship, it follows that the same should
not be considered in assessing the jurisdictional reach of Missouri's long-arm
statute. Id. at 822. Indeed, "[ e]ase of administration of class actions would be
compromised by having to consider the citizenship of all class members, many of
whom may even be unknown, in determining jurisdiction." Scardelletti, 536 U.S.
at 10 (citing Charles Alan Wright, et al. , FEDERAL PRACTICE AND PROCEDURE §
1755, pp. 63-64 (2d ed. 1986)).
[Further,] " [u]nlike mass tort, Rule 23 provides procedural due process safeguards
for class actions: numerosity, commonality, typicality, adequacy of representation,
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predominance, and superiority." Swinter, 2019 WL 266299, at *2. "Given these
safeguards, due process concerns for the defendant in the class action context are
far less compelling than in a mass tort such as BMS, where each joined plaintiff
may make different claims requiring different responses ." Knotts v. Nissan N Am.,
Inc. , 346 F. Supp. 3d 1310, 1334 (D. Minn. 2018). These safeguards "ensure that
the defendant will be ' presented with a unitary, coherent claim to which it need
respond only with a unitary; coherent defense. ' " Id. (quoting Sanchez v. Launch
Tech. Workforce Sols., LLC, 297 F.3d 1360, 1366 (N.D. Ga. 2018)).
2019 WL 6876059, at *5.
In addition to this thorough analysis as to why class and mass tort actions are properly
treated differently, the Court also agrees with Judge Perry that, holding that Bristol-Myers applies,
would mean finding that the Supreme Court would have "drastically limited the nationwide class
action mechanism without expressly stating its intent to do so." Id. The Court finds it highly
unlikely that the Supreme Court would have catalyzed such an extraordinary change in this
manner. See id. (quoting Al Haj, 33 8 F. Supp. 3d at 819 ("Had the Supreme Court truly sought to
bar certification of nationwide or multi state class actions on due process grounds in all but the one
or two States where the defendant is subject to general jurisdiction, it [is] implausible that it would
have done so obliquely, in a mass action .. . ."). For these reasons, the Court finds that BristolMyers does not apply in the class action context, and Colgate' s motion to dismiss for lack of
personal jurisdiction will be denied.
IV.

Conclusion

For the foregoing reasons, the Court shall grant Defendant' s motion in part, and deny it in
part.
Accordingly,
IT IS HEREBY ORDERED that Defendant Colgate' s motion to dismiss or, in the

alternative to strike the nationwide class allegations, is GRANTED in part and DENIED in part.
(Doc. No. 28). Defendant' s motion is granted as to Plaintiffs' claims for injunctive relief, breach
19

of warranty, and breach of implied contract. As such, those claims are DISMISSED without
prejudice.
IT IS FURTHER ORDERED that Defendant Colgate shall file an answer to the surviving

claims within thirty (30) days of this Order.
IT IS FURTHER ORDERED that Defendant' s November 26, 2020 motion to dismiss,

which was filed before Plaintiffs' filed their amended complaints, is DENIED as moot. (Doc. No.
24).

Dated this 14th day of September, 2020.

NA.ROSS
NITED STATES DISTRICT JUDGE

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