HOFFMAN v. NORDIC NATURALS, INC.
Filing
35
OPINION fld. Signed by Judge Susan D. Wigenton on 4/17/14. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
HAROLD M. HOFFMAN, individually :
and on behalf of those similarly situated, :
:
:
Plaintiff,
:
:
v.
:
:
NORDIC NATURALS, INC.,
:
:
Defendant.
:
Civil Action No. 12-cv-05870 (SDW) (MCA)
OPINION
April 17, 2014
WIGENTON, U.S.D.J.:
This matter comes before the Court upon motion by Defendant Nordic Naturals, Inc.
(“Defendant” or “Nordic Naturals”) for judgment on the pleadings under Fed. R. Civ. P. 12(c)
and to strike the class allegations pursuant to Fed. R. Civ. P. 12(f). (June 14, 2013, ECF No. 24).
Pursuant to Fed. R. Civ. P. 78, no oral argument was heard. Based on the following and for the
reasons expressed herein, Defendant’s motion for judgment on the pleadings is granted and the
Complaint filed by Harold M. Hoffman (“Plaintiff” or “Hoffman”) (ECF No. 1-1) is dismissed
without prejudice.
I.
BACKGROUND 1
On August 15, 2012, Plaintiff, an attorney, filed a pro se class action Complaint against
Defendant in the Superior Court of New Jersey, Bergen County, Law Division. (ECF No. 1-1).
In the Complaint, Plaintiff asserts that he purchased Defendant’s product, Nordic Naturals
Ultimate Omega (“Ultimate Omega”), an Omega-3/Omegal-9 fatty acid fish oil supplement, “in
or about May of 2012.” (Compl. ¶ 1). Plaintiff alleges that Defendant presented false
1
The facts set forth in this Opinion are taken from the parties’ respective moving papers and filings.
1
representations about the quality, testing and labelling standards it employed with respect to
Ultimate Omega. (Compl. 1-2, ¶ 10). Specifically, Plaintiff claims that “based upon
sophisticated, independent laboratory analysis, Defendant’s product contained 311% of the
claimed concentration of Omega-9 Oleic Acid, a mono-unsaturated fatty acid associated with
increased risk of certain cancers as well as respiratory distress syndrome.” (Compl. at
Overview). Based on these allegations, Plaintiff asserted the following claims: (1) Violations of
the New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. 56:8-1 (Counts I-V); (2) Common
Law Fraud (Count VI); (3) Unjust Enrichment (Count VII); (4) Breach of Express Warranty
(Count VIII); and (5) Breach of the Implied Warranty of Merchantability (Count IX).
On September 19, 2012, Nordic Naturals removed the matter to federal court pursuant
to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2). (Notice of Removal, ECF
No. 1). On September 24, 2012, Plaintiff filed a motion to remand the case to state court. (ECF
No. 6). Plaintiff argued that he would be unable to represent both himself and a putative class
because a named Plaintiff may not also serve as class counsel in federal court. Thus, Plaintiff
claimed that his dual role as class representative negates CAFA jurisdiction because it nullifies
class certification in federal court thereby making it impossible for Plaintiff to recover the
$5,000,000 minimum jurisdictional amount required under the CAFA. On April 3, 2013,
Magistrate Judge Joseph A. Dickson (“Judge Dickson”) issued a Report and Recommendation
(“R&R”) expressly rejecting Plaintiff’s argument that his dual role unilaterally stripped this
Court of subject matter jurisdiction. (ECF No. 16). On April 15, 2013, this Court adopted Judge
Dickson’s R&R in its entirety as the Opinion of the Court. (ECF No. 19).
Presently before the Court is Defendant’s motion for judgment on the pleadings and to
strike class allegations. First, Defendant argues that Plaintiff’s Complaint is preempted by
2
federal law because food labeling requirements are governed by the Food, Drug, and Cosmetic
Act, 21 U.S.C. §§ 301 et seq., as amended by the Nutrition Labeling and Education Act, 21
U.S.C. §§ 341, et seq., and Plaintiff’s challenges would create conflicting obligations. Even if
the Complaint were not preempted, Defendant asserts that dismissal is still warranted for failure
to state a cognizable claim. Defendant argues that Plaintiff’s NJCFA claim fails because he has
not adequately pled ascertainable loss or causation. In addition, Defendant contends that
Plaintiff has failed to plead any specific facts setting forth the elements of common law fraud,
unjust enrichment, or breach of warranty. Defendant also seeks to strike the class allegations, as
even Plaintiff has conceded in his motion to remand, that he cannot serve as both class counsel
and class representative in this Court.
II.
LEGAL STANDARD
a. Motion for Judgment on the Pleadings
“A motion to dismiss for failure to state a claim under Rule 12(c) is identical to one filed
under Rule 12(b)(6), except Rule 12(c) allows for the motion to be filed after the filing of an
answer, while Rule 12(b)(6) allows for the motion to be made in lieu of an answer.” Wellness
Pub. v. Barefoot, No. 02-3773, 2008 U.S. Dist. LEXIS 1514, 2008 WL 108889, at * 6 (D.N.J.
Jan. 9, 2008); see also Fed. R. Civ. P. 12(h)(2)(B). In either instance, a court is to use the same
standard in evaluating the motions. Reinbold v. U.S. Post Office, 250 Fed. Appx. 465, 466 (3d
Cir. 2007) (citing Turbe v. Gov’t of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991)).
In deciding a motion under Rule 12(b)(6), a district court is “required to accept as true all
factual allegations in the complaint and draw all inferences in the facts alleged in the light most
favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).
“[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”
3
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations
omitted). “[A court is] not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, assuming that the factual
allegations in the complaint are true, those “[f]actual allegations must be enough to raise a right
to relief above a speculative level.” Twombly, 550 U.S. at 555.
A complaint will survive a motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
misconduct alleged.” Id. “Determining whether the allegations in a complaint are ‘plausible’ is
a ‘context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Young v. Speziale, Civ. No. 07-03129, 2009 WL 3806296, at *3 (D.N.J. Nov.
10, 2009) (quoting Iqbal, 556 U.S. at 679). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has
not ‘shown’–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679.
b. Heightened Pleading Standard under Fed. R. Civ. P. 9(b) for Fraud Claims
Fed. R. Civ. P. 9(b) requires that “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). Plaintiffs
“alleging fraud must state the circumstances of the alleged fraud[ulent act] with sufficient
particularity to place the defendant on notice of the ‘precise misconduct with which [it is]
4
charged.’” Park v. M&T Bank Corp., No. 09-cv-02921, 2010 U.S. Dist. LEXIS 24905, 2010
WL 1032649, at *5 (D.N.J. Mar. 16, 2010) (citing Lum v. Bank of America, 361 F.3d 217, 22324 (3d Cir. 2004)). Plaintiffs can satisfy this standard by alleging dates, times, places and other
facts with precision. Park, 2010 U.S. Dist. LEXIS 24905, 2010 WL 1032649, at *5.
III.
DISCUSSION
a. Preemption
Defendant challenges Plaintiff’s claims on the ground that they are preempted by the
Federal Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301, et seq., as amended by the
Nutrition Labeling and Education Act (“NLEA”), 21 U.S.C. §§ 341, et seq.. Under the NLEA’s
preemption provision, a state may not impose “any requirement for nutritional labeling of food
that is not identical to the requirement[s]” imposed by the Act. 21 U.S.C. § 343(1)(a)(4). As
defined by the Dietary Supplement Health and Education Act of 1994, 21 U.S.C. § 321 (ff), “a
dietary supplement shall be deemed to be a food within the meaning of the [FDCA].” Thus, the
NLEA’s preemption provision applies to the labeling of dietary supplements.
Oleic acid, a type of omega-9, is a naturally-occurring monounsaturated fatty acid. 2 The
FDA only requires manufacturers to list the amount of monounsaturated fat in dietary
supplements under certain circumstances. 3 If monounsaturated fat is listed, the FDA requires the
nutrient content to be “at least equal to 80 percent of the value for that nutrient declared on the
label.” 21 C.F.R. § 101.9(g)(4)(ii). Defendant contends that the FDA does not impose an upper
2
See HAWLEY’S CONDENSED CHEMICAL DICTIONARY 820 (13th Ed. 1997) (defining “oleic acid” as “[a]
monounsaturated fatty acid” that is “a component of almost all natural fats, as well as all oil” and stating that
“[m]ost oleic acid is derived from animal tallow or vegetable oils”); see also STEDMAN’S MEDICAL DICTIONARY 1242
(26th ed. 1995) (defining “oleic acid” as “an unsaturated fatty acid that is the most widely distributed and abundant
fatty acid in nature”).
3
See 21 C.F.R. § 101.9(c)(1)(iv) (“[A] statement of the number of grams of monounsaturated fat in a serving . . .
may be declared voluntarily except that when polyunsaturated fat is declared, or when a claim about fatty acids or
cholesterol is made on the label or in the labelling of a food other than one that meets the criteria . . . for a claim for
“fat free,” label declaration of monounsaturated fat is required.”).
5
limit on the amount of monounsaturated fats that appear in a product over the amount declared
on the label. (Def.’s Br. 10). However, this is not entirely accurate. Although no particular
percentage is listed, the FDA only permits “reasonable excesses” of a monounsaturated fat “over
labeled amounts . . . within current good manufacturing practices.” 21 C.F.R. § 101.9(g)(6).
Plaintiff has alleged that Ultra Omega contains a concentration of fatty acids 311%
greater than what is listed on the label. However, neither party has presented an argument as to
whether this alleged 311% excess is or is not “within good manufacturing practices.” Thus the
Court cannot determine whether Plaintiff’s claims are in line with the requirements of the FDA
or whether they impose requirements not identical to those listed in the FDCA and thus warrant
preemption. As the Court is unable to make this determination, it will rule on Defendant’s
preemption argument. Instead, the Court will proceed to address Defendant’s other arguments.
b. NJCFA Claims (Counts I-V)
To succeed on a claim under the NJCFA, a plaintiff must show (1) an unlawful practice
by defendant, (2) an ascertainable loss on the part of plaintiffs, and (3) a causal relationship
between the defendant’s unlawful conduct and the plaintiffs’ loss. Cox v. Sears Roebuck & Co.,
138 N.J. 2, 24 (1994). Additionally, NJCFA claims must meet the heightened pleading
requirement of Fed. R. Civ. P. 9(b). Defendant asserts that Plaintiff’s NJCFA claims fail because
he is unable to articulate the manner in which he suffered an ascertainable loss, he fails to plead
unlawful conduct or causation and does not plead his claim with particularity.
The first element of an NJCFA claim, an unlawful practice by defendant, “typically
involves an affirmative act of fraud and can arise from an affirmative act, an omission, or a
violation of an administrative regulation.” Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp.
2d 496, 501 (D.N.J. 2006). “The misrepresentation has to be one which is material to the
6
transaction and which is a statement of fact, found to be false, made to induce the buyer to make
the purchase.” Gennari v. Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350, 366 (1997).
Next, to properly plead an ascertainable loss, a plaintiff must allege facts showing “either an outof-pocket loss or a demonstration of loss in value.” Dist. 1199P Health and Welfare Plan v.
Janssen, L.P., 784 F. Supp. 2d 508, 530 (D.N.J. 2011) (internal citations omitted). Finally, a
plaintiff must show a causal nexus between the misrepresentation or concealment of the material
fact by defendant and the loss suffered by any person. Dewey v. Volkswagen AG, 558 F. Supp.
2d 505, 526 (D.N.J. 2008).
Plaintiff has failed to assert viable claims under the NJCFA. Plaintiff contends that
Defendant misrepresented the quality, testing and labeling standards of its product because
Ultimate Omega allegedly contains 311% of the claimed concentration of Omega-9 Oleid Acid.
(Compl. at Overview). He further asserts that Defendant claimed it is “committed to delivering
[to consumers] the world’s safest . . . omega oils” and that it has achieved “award-winning”
purity levels. (Compl. ¶ 3). This appears to be the basis of Plaintiff’s “unlawful practice” claim.
However, Plaintiff fails to provide any specific facts about where these alleged claims by
Defendant appear, when he viewed them, or that he relied on them in deciding to purchase
Ultimate Omega. Moreover, even taking Plaintiff’s claim that Ultimate Omega contained 311%
more Omega-9 Oleic Acid as true, does not necessarily make Defendant’s claims of “world’s
safest” and “award winning” false. This would depend on how Defendant’s products compare to
others in the industry, which Plaintiff does not specify. Thus Plaintiff has failed to plead an
unlawful practice under the NJCFA with the requisite specificity.
The second element of the NJCFA, “ascertainable loss,” is defined as “a cognizable and
calculable loss due to the alleged [NJCFA] violation.” Solo v. Bed Bath & Beyond, Inc., 2007
7
U.S. Dist. LEXIS 31088, *7-8 (D.N.J. April 26, 2007) (quoting Thiedemann v. Mercedes-Benz
USA, LLC, 183 N.J. 234, 249 (2005)). Ascertainable loss may occur “when a consumer
received less than what was promised.” Union Ink Co. v. AT&T Wireless, 352 N.J. Super. 617,
646 (N.J. App. Div. 2002). “A plaintiff may show ascertainable loss by ‘either out-of-pocket
loss or a demonstration of loss in value.’” Green v. Green Mtn. Coffee Roasters, Inc., 279
F.R.D. 275, 281 (D.N.J. 2011) (quoting Thiedemann, 183 N.J. at 248). An actionable loss is not
“hypothetical or illusory.” Thiedemann, 183 N.J. at 248.
Plaintiff alleges that he suffered ascertainable losses “in the form of actual out of pocket
payment and expenditure” and by receiving “a tainted product less than, and different from, the
product promised by defendant.” (Compl. ¶¶ 23-25). These broad and conclusory allegations do
not provide the specificity that is required in pleading ascertainable loss. See e.g. Solo v. Bed
Bath & Beyond, Inc., No. 06-1908, 2007 U.S. Dist. LEXIS 31088, at *10 (D.N.J. Apr. 26, 2007)
(stating that “broad and conclusory allegations are not sufficient to demonstrate an ascertainable
loss”); Lieberson v. Johnson and Johnson Consumer Cos., 2011 U.S. Dist. LEXIS 107596, *27
(D.N.J. Sept. 21, 2011) (“[A]bsent any specific information concerning the price of the Products
or the price of any comparable products, Plaintiff’s allegations concerning the ascertainable loss
are nothing more than unsupported conclusory statements that are insufficient to withstand a
motion to dismiss.”).
Under the NJCFA, a plaintiff must also demonstrate that his or her ascertainable loss was
“attributable to conduct made unlawful by the [Act].” Thiedemann, 183 N.J. at 246. A plaintiff
must therefore “plead and prove a causal nexus between the alleged act of consumer fraud and
the damages sustained.” New Jersey Citizen Action v. Schering-Plough Corp., 367 N.J. Super.
8, 15 (N.J. App. Div. 2003). Here, Plaintiff does not allege that he purchased Ultimate Omega
8
because of its representation of oleic acid and therefore he cannot establish causation. See
Franulovic v. Coca-Cola Co., Civ. No. 07-539, 2007 U.S. Dist. LEXIS 79732, at *25-26 (D.N.J.
October 25, 2007) (finding plaintiff did not allege “causation as required in order to maintain a
CFA claim” because she did not allege that she purchased the product “because of a certain
misleading ad”). Instead, Plaintiff merely alleges that he “was seeking and in need of a product
that would, among other things, slow the progression of osteoarthritis and reduce pain associated
with such condition.” (Compl. ¶ 11). Because Plaintiff has failed to adequately plead any of the
elements required under the NJCFA, Plaintiffs NJCFA claims (Counts I-V) are dismissed
without prejudice.
c. Common Law Fraud (Count VI)
To adequately plead a fraud claim under New Jersey law, a plaintiff must establish the
following elements: “(1) a material misrepresentation of a presently existing or past fact; (2)
knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on
it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.” Banco
Popular N. Am. v. Gandi, 184 N.J. 161, 172-73, 876 A.2d 253 (2005) (quoting Gennari v.
Weichert Co. Realtors, 148 N.J. 582, 610, 691 A.2d 350 (1997)). Additionally, a fraud claim
must be pled with particularity pursuant to Fed. R. Civ. P. 9(b).
Here, Plaintiff fails to plead a viable fraud claim. Plaintiff alleges that Ultimate Omega
contains 311% of the labeled concentration of oleic acid but fails to plead specific facts to show
that Defendant’s representations about Ultimate Omega were false. In addition, Plaintiff “fails to
identify with specificity the nature of the misrepresentations, when they were made, which
representations he relied on, and how he relied on them.” Hoffman v. Cogent Solutions Group,
LLC., Civ. No. 13-00079, 2013 U.S. Dist. LEXIS 176056, at *12 (D.N.J. Dec. 16, 2013).
9
Finally, Plaintiff has not sufficiently pled any resulting damages from the product. See Hoffman
v. Nutraceutical Corp., No. 12-5803, 2013 U.S. Dist. LEXIS 81559, at *3 (D.N.J. June 10, 2013)
(dismissing fraud claim because “Plaintiff failed to identify the resulting damages”). Thus
Plaintiff’s common law fraud claim (Count VI) is dismissed without prejudice.
d. Unjust Enrichment (Count VII)
To state a claim for unjust enrichment under New Jersey law, a plaintiff must show that
“(1) a defendant received a benefit from the plaintiff; (2) retention of the benefit by the defendant
without payment would be unjust; (3) plaintiff expected remuneration from defendant at the time
he performed or conferred a benefit on defendant; and (4) the failure of remuneration enriched
the defendant beyond its contractual rights.” Alin v. American Honda Co., No. 08-4525, 2010
U.S. Dist. LEXIS 32584, at *39 (D.N.J. Mar. 31, 2010). In addition, “under New Jersey law, an
indirect purchaser cannot succeed on a claim for unjust enrichment. When an individual
purchases a consumer product from a third-party store and not the manufacturer, the purchaser
has not conferred a benefit directly to the manufacturer such that the manufacturer could be
found to have been unjustly enriched.” Weske v. Samsung Elecs. Am., Inc., 2012 U.S. Dist.
LEXIS 32289, at *23 (D.N.J. Mar. 12, 2012); see also Hughes v. Panasonic Consumer
Electronics, Co., 2011 U.S. Dist. LEXIS 79504, at *27 (D.N.J. July 21, 2011) (dismissing unjust
enrichment claim on Rule 12(b)(6) motion where plaintiffs in purported class action purchased
allegedly defective product from third-party sellers).
Here, Plaintiff fails to state a claim for unjust enrichment against Defendant. Plaintiff
alleges that Defendant is “indebted to class members for the sums paid by class members to
Defendant for purchase of a misrepresented product. Retention of said sums would result in the
unlawful, unjust and inequitable enrichment of Defendant.” (Compl. ¶ 57). However, “[u]njust
10
enrichment is not a viable theory . . . in circumstances in which a consumer purchases specific
goods and receives those specific goods.” In re Cheerios Mktg. & Sales Practices Litig., No. 09cv-2413, 2012 U.S. Dist. LEXIS 128325, at *13 (D.N.J. Sept. 10, 2012). In this case, Plaintiff
purchased and received Ultimate Omega. Plaintiff does not allege that no value was received for
purchasing the product. Moreover, Plaintiff does not articulate how Ultimate Omega “failed to
function as advertised, that he consumed and was thereby injured by the product, or why it was
unjust for Defendant to retain the money paid for the product.” Cogent Solutions Group, LLC.,
2013 U.S. Dist. LEXIS 176056, at *13-14. In addition, Plaintiff does not allege whether he
purchased the product directly from Defendant or from a third-party seller. This information is
necessary to discern whether Plaintiff has an adequate unjust enrichment claim since “under New
Jersey law, an indirect purchaser cannot succeed on a claim for unjust enrichment.” Weske,
2012 U.S. Dist. LEXIS 32289, at *23. Accordingly, Plaintiff’s claim for unjust enrichment
(Count VII) is dismissed without prejudice.
e. Breach of Warranty Claims (Counts VIII-IX)
Plaintiff raises claims of breach of express and implied warranties. Specifically, Plaintiff
alleges that he entered into a contract with Defendant for the purchase of Ultimate Omega and
that, in the contract, Defendant made express promises as to the “purity, labeling and high
quality” of the product. (Compl. ¶¶ 61-62). Additionally, Plaintiff alleges that Defendant
breached the implied warranty of merchantability because the product, Ultimate Omega, “failed
to conform to Defendant’s promises of purity, constituent ingredients and quality” and “was not
fit for the ordinary purpose for which it was intended to be used.” (Compl. ¶ 70).
To establish a claim for breach of express warranty under New Jersey law, a plaintiff
must allege: “(1) that Defendant made an affirmation, promise or description about the product;
11
(2) that this affirmation, promise or description became part of the basis of the bargain for the
product; and (3) that the product ultimately did not conform to the affirmation, promise or
description.” Snyder v. Farnam Companies, Inc., 792 F. Supp. 2d 712, 721 (D.N.J. 2011)
(citations omitted). However, “an affirmation merely of the value of the goods or a statement
purporting to be merely the seller’s opinion or commendation of the goods does not create a
warranty.” N.J. Stat. Ann. § 12A:2-313(2). To recover damages for breach of express warranty,
a plaintiff must establish that such damages were reasonably foreseeable at the time that the
contract was entered into. See Spring Motors Distribs., Inc. v. Ford Motor Co., 98 N.J. 555, 57980, 489 A.2d 660 (1985).
To state a claim for breach of the implied warranty of merchantability under New Jersey
law, a plaintiff must allege “(1) that a merchant sold goods, (2) which were not ‘merchantable’ at
the time of sale, (3) injury and damages to the plaintiff or its property, (4) which were [] caused
proximately and in fact by the defective nature of the goods, and (5) notice to the seller of
injury.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 600 n.8 (3d Cir. 2012) (internal
citations omitted). “If the buyer, expressly or by implication, makes known to the seller the
particular purpose for which the article is required and it appears that he has relied on the seller’s
skill or judgment, an implied warranty arises of reasonable fitness for that purpose.” Henningsen
v. Bloomfield Motors, Inc., 32 N.J. 358, 370, 161 A.2d 69 (1960). To establish a breach of
either warranty, Plaintiffs “must show that the equipment they purchased from defendant was
defective.” Crozier v. Johnson & Johnson Consumer Companies, Inc., 901 F. Supp. 2d 494, 509
(D.N.J. 2012) (internal citation omitted). Specifically, a claim under either implied warranty
“requires a showing regarding the product’s functionality, not the advertisements that allegedly
induced a customer to purchase it.” Crozier, 901 F. Supp. 2d at 509.
12
Here, Plaintiff fails to state a claim for breach of an express or implied warranty.
Plaintiff merely makes broad conclusory statements and essentially recites the elements required
under each claim. Plaintiff fails to provide any details about Defendant’s alleged promise or to
explain how the product failed to conform to this promise. Plaintiff also neglects to provide why
any representations by the Defendant would not be considered the “seller’s opinion” or a
“commendation of the goods.” In addition, Plaintiff does not provide any details about the
product’s functionality and how or why it was defective. Finally, Defendant fails to allege that
he even ingested the product or to identify any injuries or specific damages that were caused by
the product. Accordingly, Plaintiff’s breach of warranty claims (Counts VIII-IX) are dismissed
without prejudice.
f. Motion to Strike Class Allegations
As all of Plaintiff’s claims have been dismissed, Defendant’s request to strike the class
allegations is denied as moot.
IV.
CONCLUSION
For the foregoing reasons, Defendant’s motion for judgment on the pleadings is granted
and Plaintiff’s Complaint is dismissed without prejudice. Plaintiff is granted leave to amend
the Complaint. An appropriate Order accompanies this Opinion.
s/Susan D. Wigenton
Susan D. Wigenton, U.S.D.J.
Date:
Original:
cc:
April 17, 2014
Clerk’s Office
Hon. Madeline C. Arleo, U.S.M.J.
All Counsel of Record
File
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?