Brady v. Basic Research, L.L.C. et al

Filing 47

OPINION & ORDER: SO ORDERED that the Basic Research defts' motion to strike pursuant to 12(f) is DENIED; the Basic Research defts' and Polizzi's motions to dismiss the claims against Power Crystals pursuant to 12(b)(1) are DENIED; Poli zzi's motion pursuant to 12(b)(1) to dismiss plaintiff Brady's claims under New York law is GRANTED; individual defts' motion to dismiss pursuant to 12(b)(2) is GRANTED as to Mowrey and DENIED as to Gay and Friedlander; Basic Research dets' motion to dismiss pursuant to 12(b)(6) is DENIED as to the MMWA and breach of express warranties claims and GRANTED as to plaintiffs' New York GBL § 349, MCPA, fraud, negligent misrepresentation and unjust enrichment claims; Poli zzi's motion to dismiss pursuant to 12(b )(6) is DENIED as to the MMW A and the Maryland based express warranty claims and GRANTED as to plaintiff Cardillo's MCPA, fraud, negligent misrepresentation and unjust enrichment claims. Ordered by Judge Sandra J. Feuerstein on 3/31/2015. (Florio, Lisa)

FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ASHLEY BRADY and STEPHANIE DALLI
CARDILLO, on behalf of themselves and all others
similarly situated,

IN CLERK'S OFFICE
U S DISTRICT COURT E D NY

*

MAR 3 1 2015

*

LONG ISLAND OFFICE

Plaintiffs,
OPINION AND ORDER
13-CV-7169 (SJF)

-against-

BASIC RESEARCH, L.L.C., ZOLLER
LABORATORIES, L.L.C., NICOLE E. POLIZZI
alkla/ SNOOKI, DENNIS W. GAY, DANIEL B.
MOWREY and MITCHELL K. FRIEDLANDER,
Defendants.

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FEUERSTEIN, District Judge.
Defendants Basic Research, L.L.C, Zoller Laboratories, L.L.C., Dennis Gay, Daniel
Mowrey and Mitchell Friedlander ("Basic Research defendants") move to dismiss the First
Amended Complaint ("F AC") pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(I)
and (6) and to strike certain paragraphs in the FAC pursuant to FRCP 12(f); defendants Dennis
Gay, Daniel Mowrey and Mitchell Friedlander ("individual defendants") move to dismiss
pursuant to FRCP 12(b)(2); and defendant Nicole E. Polizzi ("Polizzi") moves to dismiss
pursuant to FRCP 12(b)(l) and (6).
For the following reasons: (I) the Basic Research defendants' motion to strike pursuant to
12(f) is DENIED; (2) Basic Research's and Polizzi's motions to dismiss the claims against
Power Crystals pursuant to 12(b)(l) are DENIED; Polizzi's motion to dismiss plaintiff Brady's
claims pursuant to 12(b)(l) is GRANTED; the individual defendants' motion to dismiss
pursuant to 12(b)(2) is GRANTED as to Mowrey and DENIED as to Gay and Friedlander; Basic

Research's motion to dismiss pursuant to 12(bX6) is GRANTED in part and DENIED in part;
and Polizzi's motion to dismiss pursuant to 12(b)(6) is GRANTED in part and DENIED in part.

I.

Background
This is a proposed class action on behalf of the purchasers of Zantrex-3 ("Zantrex-3"),

Zantrex-3 High Energy Fat Burner ("Fat Burner"), and Zantrex-3 Power Crystals ("Power
Crystals"; collectively "Zantrex"), which are marketed by defendants as clinically proven weight
control supplements. FAC ~ I.
Parties

Plaintiff Ashley Brady ("Brady") is a citizen of New York who purchased a bottle of
Zantrex-3 from a CVS pharmacy located in Nassau County, New York. Id.

at~

16. Plaintiff

Stephanie Cardillo ("Cardillo") is a citizen ofNew Jersey who purchased Fat Burner through the
Amazon website for delivery to her residence in Snow Hill, Maryland. I d. at ~ 17.
Defendant Basic Research, LLC ("Basic Research"), a limited liability company with its
principal place of business at 5742 Harold Gatty Drive, Salt Lake City, Utah, develops,
manufactures, promotes, markets, distributes, and/or sells Zantrex in the United States. Id.

at~

19. Defendant Zoller Laboratories, LLC ("Zoller") is a limited liability company and a wholly
owned subsidiary of Basic Research created for the sole purpose of manufacturing, promoting,
marketing, distributing, and/or selling Zantrex in the United States; Zoller's corporate office is
also 5742 Harold Gatty Drive, Salt Lake City, Utah. /d.

at~~

23-24. Defendant Dennis Gay

("Gay") is a citizen of Utah and an officer and principal shareholder of Basic Research and
Zoller, who formulates, directs, controls or participates in the alleged acts and/or business
practices. /d. at ~ 25. Defendant Daniel Mowrey ("Mowrey") is a citizen of Utah and principal
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shareholder of Basic Research and the Director of Scientific Affairs. !d. at '1[28. Defendant
Mitchell Friedlander ("Friedlander"), a citizen of Utah, is a marketing consultant in the
development, manufacture, endorsement, advertising, marketing and promotion of Zantrex. !d.
at '1[32. Defendant Nicole E. Polizzi is a citizen of New York and a paid spokesperson for Zoller,
and has appeared in nearly every advertisement for Zantrex. !d. at '1[38.

Plaintiffs' Claims
Plaintiffs allege that defendants: (1) violated the Magnuson-Moss Warranty Act, 15
U.S.C. §§ 2301 et seq.; (2) breached express warranties; (3) violated New York's General
Business Law§ 349; (4) the Maryland Consumer Protection Act; (5) negligently and (6)
fraudulently misrepresented Zantrex' s effectiveness; and (7) were unjustly enriched.

II.

Discussion

A.

Basic Research Defendants' Motion to Strike
1.

Legal Standard

Pursuant to FRCP 12(f), the court may, sua sponte or upon motion, "strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter." "'Immaterial' matter is that which has no essential or important relationship to the
claim for relief, and 'impertinent' material consists of statements that do not pertain to, and are
not necessary to resolve, the disputed issues.' " Lynch v. Southampton Animal Shelter Found.,

Inc., 278 F.R.D. 55, 63 (E.D.N.Y. 2011) (quoting In re Methyl Tertiary Butyl Ether (MTBE)
Prods. Liab. Litig., 402 F. Supp. 2d 434,437 (S.D.N.Y. 2005)). "A scandalous allegation is one
that reflects unnecessarily on the defendant's moral character, or uses repulsive language that
detracts from the dignity of the court." Cabbie v. Rollieson, No. 04 Civ. 9413,2006 WL 464078,
-3-

at *II (S.D.N.Y. Feb. 27, 2006)).
"[M]otions to strike 'are not favored and will not be granted unless it is clear that the
allegations in question can have no possible bearing on the subject matter of the litigation.' "

Crespo v. New York City Transit Auth., No. 01 Civ. 0671,2002 WL 398805, at *11 (E.D.N.Y.
Jan. 07, 2002)(quoting Lennon v. Seaman, 63 F. Supp. 2d 428,446 (S.D.N.Y. 1999)). To prevail
on a 12(t) motion, the moving party must demonstrate that: "(I) no evidence in support of the
allegations would be admissible; (2) that the allegations have no bearing on the issues in the case;
and (3) that to permit the allegations to stand would result in prejudice to the movant." Roe v.

City ofNew York, !51 F. Supp. 2d 495, 510 (S.D.N.Y. 2001) (citing Koch v. Dwyer, No. 98 Civ.
5519,2000 WL 1458803, at *I (S.D.N.Y. Sept. 29, 2000)).

2.

Basic Research Defendants' Motion to Strike Under FRCP 12(f)

The Basic Research defendants seek to strike paragraphs 33-35 of the FAC on the
grounds they are immaterial and impertinent. The paragraphs at issue pertain to defendant
Freidlander and relate to past censures by government agencies. The FAC alleges that on
September 10, 1985, the United States Postal Service ("USPS") issued "Cease and Desist" and
"False Representation" orders against Freidlander in connection with his activities concerning the
marketing and sale of weight loss dietary supplements.' FAC '1f 33. The USPS found that reports
cited by Friedlander did not support the products' claims that they: (1) caused weight loss in
virtually all users without dieting or exercise; (2) prevented foods from being converted into
stored fat; (3) were supported by scientifically sound clinical studies; and (4) allowed obese users

1

These supplements are not at issue in this case.
-4-

to lose weight without changing their eating habits. !d. The USPS orders required Friedlander
and his companies to cease and desist from further false claims about the effectiveness of the
weight loss products. !d.
On September 30, 1985, the USPS issued another decision finding that Friedlander's
advertisements for three (3) breast enlargement products were materially false as a matter of fact.
FAC, 34. Contrary to Friedlander's advertisements, the products would not cause an increase in
breast size and the USPS ordered Friedlander to cease and desist from further false claims about
the effectiveness of his products. !d.
On February 26, 1986, following a six (6) day bench trial in an action brought by the
Department of Justice and the Federal Trade Commission, the Southern District of Florida
permanently enjoined Friedlander from advertising that his products caused weight loss without
requiring users to restrict calorie intake or exercise. !d. at, 35.
Plaintiffs argue that the allegations are not offered as evidence of Friedlander's character,'
but to show his knowledge, intent and willfulness, which are admissible purposes under Federal
Rule of Evidence ("FRE") 404(b)(2), which provides: "[t]his evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident."
"The Second Circuit follows an 'inclusionary' approach to 'other crimes, wrongs, or acts'
evidence, that is, such evidence is admissible to prove matters other than the defendant's criminal
2

Federal Rule of Evidence 404(b)(l) provides: "Evidence of a crime, wrong, or other act
is not admissible to prove a person's character in order to show that on a particular occasion the
person acted in accordance with the character.".
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propensity." Carojino v. Forester, 450 F. Supp. 2d 257,271 (S.D.N.Y. 2006) (citing United

States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996); United States v. Ortiz, 857 F.2d 900,903 (2d
Cir. 1988); Ismail v. Cohen, 706 F. Supp. 243,252 (S.D.N.Y. 1989)).
Evidence supporting the allegations is admissible under FRE 404(b)(2) to demonstrate
that defendant: (1) intended to defraud plaintiffs by making false representations concerning
Zantrex; (2) knew plaintiffs would rely upon the false representations; and (3) knew that making
such false statements about his weight loss products was actionable. See Tuccillo v. Geisha
NYC, LLC, 635 F. Supp. 2d 227, 236 n.4 (E.D.N.Y. 2009) (finding evidence of a prior attempt to

register an identical or virtually identical mark "highly probative" on the issue of intent and
knowledge under FRE 404(b)).
The allegations have bearing on this case because the nature of the false advertising
claims for which Friedlander was censured, i.e., weight loss and breast enhancement, are
virtually identical to the FAC's allegations concerning Friedlander's weight loss claims with
respect to Zantrex. See, e.g., FAC ~~ 7, 56-61. Although permitting the allegations to stand may
result in prejudice to Friedlander, their probative value outweighs any prejudice. See Fed. R.
Evid. 403 3 ; 404(b). In addition, this evidence may be used to impeach Friedlander's credibility.
For these reasons Basic Research defendants' motion to strike is denied.

3

"The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
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B.

Basic Research Defendants' and Polizzi's Motions to Dismiss Pursuant to FRCP
12(b)(l)
1.

Legal Standard

Pursuant to Article III, § 2 of the United States Constitution, the jurisdiction of the federal
courts is limited to "Cases" and "Controversies," which "restricts the authority of the federal
courts to resolving 'the legal rights of litigants in actual controversies.' " Genesis Healthcare

Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013) (quoting Valley Forge Christian Col!. v. Ams.
United for Separation ofChurch and State, Inc., 454 U.S. 464,471 (1982)). Thus, federal courts
require that a party have a legally cognizable interest in a case's outcome to "ensure[] that the
Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and
concrete disputes, the resolutions of which have direct consequences on the parties involved."

!d.
Where there is no case or controversy, FRCP 12(b)(1) provides that a party may move to
dismiss a case for lack of subject matter jurisdiction. See Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000) ("A case is properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to
adjudicate it."). In order to survive a defendant's motion to dismiss for lack of subject matter
jurisdiction, a plaintiff must allege facts "that affirmatively and plausibly suggest that it has
standing to sue." Amidax Trading Grp. v. S. WLF.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). In
deciding such a motion, the Court may consider materials beyond the pleadings, Makarova, 201
F.3d at 113, and must "accept as true all material factual allegations in the complaint," Atl. Mut.

Ins. Co. v. Balfour MacLaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992).

-7-

2.

Basic Research Defendants' and Polizzi's 12(b)(l) Motions

Basic Research defendants and Polizzi move to dismiss plaintiffs' claims against Power
Crystals because the F AC fails to allege that either named plaintiff used Power Crystals and
therefore states no injury-in-fact.
"The hallmark of a case or controversy is the presence of adverse interests between
parties who have a substantial personal stake in the outcome of the litigation." Evans v. Lynn,
537 F.2d 571,591 (2d Cir. 1975). Standing to sue, in the Constitutional sense, "is the showing
by a plaintiff that his particular grievance meets this standard, the 'essence' of which is the
presence of'injury in fact' suffered by the plaintiff as a result of the defendant's actions." !d.
(internal footnotes omitted). "'Article III standing consists of three 'irreducible' elements: (1)

injury-in-fact, which is a 'concrete particularized' harm to a 'legally protected interest'; (2)
causation in the form of a 'fairly traceable' connection between the asserted injury-in-fact and
the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that
the injury can be remedied by the requested relief.' " In re Vivendi Universal, S.A. Sec. Litig.,
605 F. Supp. 2d 570, 574 (S.D.N.Y. 2009) (quoting WR. Huff Asset Mgmt. Co., LLC v. Deloitte

& Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008)).
Plaintiffs contend that under NECA-IBEW Health & Welfare Fund v. Goldman Sachs &

Co., 693 F.3d 145, 158 n.9 (2d Cir. 2012),' similar arguments are premature at the pleading stage

4

The Second Circuit held that the district court mistakenly assumed that plaintiff, a
health and welfare fund, could serve as class representative only on behalf of individuals who had
purchased the same securities. NECAIBEW Health & Welfare Fund v. Goldman Sachs & Co.,
693 F.3d 145, 158 n.9 (2d Cir. 2012). "What the district court thought was a 'standing' issue was
in reality a class certification issue." !d.
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and should be addressed at the class certification stage. In DiMuro v. Clinique Labs., LLC, 572
Fed. App'x 27,29 (2d Cir. 2014), the Second Circuit distinguished NECA, holding that when
identical representations are in different offering documents, where they are made does not effect
the allegation that the representations are false. 5 Id.
The F AC alleges that Zantrex advertises that it provides "rapid weight loss and incredible
energy." FAC '1['1[56. Zantrex-3 is "the first and only non-ephedra 'diet pill' with a kick," that is
a "new category of bifurcated weight-loss compounds providing both rapid weight loss and
incredible energy combined into a single power-packed Super Pill." I d. at 'If 57. Fat Burner
allegedly provides the same high energy component that the Zantrex brand is famous for and
contains a clinically tested fat burner. Jd. at '1[60. Power Crystals, allegedly Zantrex-3 in a
different form, is described as "the same high-energy weight-loss formula as the original
Zantrex-3, but in a convenient great tasting drink mix." Id. at '1[61.
"Courts are split as to whether plaintiffs have standing to assert claims relating to
products they themselves did not purchase, but which are substantially similar to products they
did purchase." Quinn v. Walgreen Co., 958 F. Supp. 2d 533, 541 (S.D.N.Y. 2013). "Some
federal courts have held, as a matter of law, that a plaintiff lacks standing to assert ciaims relating

5

In DiMuro, by contrast, the seven (7) different products at issue had different
ingredients and defendant Clinique had made different advertising claims for each product. 572
Fed. App'x at 29. The court held that unique evidence would be required to prove that each
product's advertising claims were false and misleading and thus, claims by the purchaser of one
(I) product would not raise concerns "nearly identical" to claims by purchasers of a different
product, and accordingly, the class had no standing to brings claims for the unpurchased
products. Jd.

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to products they did not purchase." Jove/ v. !-Health, Inc., No. 12 Civ. 5614,2013 WL 5437065,
at *10 (E.D.N.Y. Sept. 27, 2013) (citing cases). "Other courts have held that 'the standing
inquiry is more appropriately resolved on a motion for class certification.' "Quinn, 958 F. Supp.
2d at 541 (quoting Brown v. Hain Celestial Group, Inc., 913 F. Supp. 2d 881, 890 (N.D. Cal.
2012)). "Accordingly, such courts routinely deny rule 12(b)(l) motions to dismiss and, instead,
reserve the standing analysis until a motion for class certification." !d. (citing Force/lati v.
Hyland's Inc., 876 F. Supp. 2d 1155, 1161 (C.D. Cal. 2012)) ("[W]e agree with the numerous
recent decisions that have concluded that Defendants' argument is better taken under the lens of
typicality or adequacy of representation, rather than standing.").
"[W]here courts have held that plaintiffs may have standing to assert claims for unnamed
class members based on products the plaintiffs themselves did not purchase, the 'critical inquiry
seems to be whether there is sufficient similarity between the products purchased and not
purchased.'" Jove/, 2013 WL 5437065, at *10 (quotingAstiana v. Dreyer's Grand Ice Cream,
Inc., No. 11 Civ. 2910, 2012 WL 2990766, at *11 (N.D. Cal. July 20, 2012)).
Accepting the FAC's allegations regarding the similarities of the Zantrex-3 product line
as true, there are sufficient similarities between the purchased products and Power Crystals to
withstand the motion at this time. See Jove/, 2013 WL 543 7065, at *I 0 (holding that in light of
the sufficient similarities among the products at issue, questions of whether common issues
predominated or whether the named plaintiff could adequately represent absent class members
would be addressed during class certification). For these reasons, the Basic Research defendants'
and Polizzi's motion to dismiss the claims against Power Crystals pursuant to FRCP 12(b)(l) are
denied.
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3.

Polizzi's 12(b)(l) Motion to Dismiss Brady's Claims

Defendant Polizzi moves to dismiss plaintiff Brady's claims against her because Brady's
2010 purchase predated Polizzi's 2011 endorsement ofZantrex-3. FAC ~ 16; Dec.

Daines~~

5-

6. The FAC alleges that in purchasing Zantrex-3, Brady read and relied on the representations
contained on the packaging but does not allege she relied upon Polizzi's advertisements. FAC ~
16.
As discussed above, Article III standing requires that plaintiff have an injury-in-fact, i.e.,
a concrete particularized harm to a legally protected interest. Given the FAC's allegations, Brady
cannot plausibly allege an injury traceable to Polizzi and, accordingly, Polizzi's motion to
dismiss Brady's claims for lack of subject matter jurisdiction is granted and Brady's claims are
dismissed as to Polizzi.

C.

Individual Defendants' Motion to Dismiss Pursuant to FRCP 12(b)(2)
1.

Legal Standard

Federal Rule of Civil Procedure 12(b)(2) "permits a defendant to challenge a court's
personal jurisdiction over it prior to the filing of an answer or the commencement of discovery."
A. W.L.l Group, Inc. v. Amber Freight Shipping Lines, 828 F. Supp. 2d 557, 562 (E.D.N.Y.
2011). In considering a motion to dismiss for lack of personal jurisdiction, a court may rely on
materials beyond the pleadings. Phillips v. Reed Group, Ltd., 955 F. Supp. 2d 201, 225
(S.D.N.Y. 2013) (when considering a 12(b)(2) motion, "the Court may also rely on submitted
affidavits and other supporting materials submitted in relation to the motion"). "When
responding to a Rule 12(b)(2) motion to dismiss ... the plaintiff bears the burden of establishing
that the court has jurisdiction over the defendant." Bank Brussels Lambert v. Fiddler Gonzalez &
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Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Where a court opts to determine the jurisdictional

issue without an evidentiary hearing or discovery, a plaintiff need "make only a prima facie
showing of jurisdiction through its own affidavits and supporting materials." Marine Midland
Bank. N.A. v. Miller, 664 F.2d 899,904 (2d Cir. 1981). When, however, a court permits the

parties to engage in jurisdictional discovery, the party seeking to establish jurisdiction bears "the
burden of proving by a preponderance of the evidence that personal jurisdiction exists." Landoil
Res. Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990). In any

event, the "pleadings and affidavits are construed in the light most favorable to the plaintiff, and
all doubts are resolved in its favor." Mazloum v. Int'l Commerce Corp., 829 F. Supp. 2d 223,
227 (S.D.N.Y. 2011).
To determine personal jurisdiction over individual defendants, a court first looks to the
law of the state in which the district court sits. Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242
(2d Cir. 2007) (citing Kronisch v. United States, !50 F.3d 112, 130 (2d Cir. 1998)); see
Arrowsmith v. United Press Intern., 320 F.2d 219,223 (2d Cir. 1963) (personal jurisdiction over

a defendant in a "diversity action is determined by the law of the forum in which the court sits.").
If a court determines that it has personal jurisdiction under state law, it must then consider
"whether asserting jurisdiction under that provision would be compatible with requirements of
due process established under the Fourteenth Amendment to the United States Constitution." !d.
See Jnt 'I Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

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B.

Individual Defendants' 12(b)(2) Motion
1.

New York's CPLR § 302

Plaintiffs argue that tbe Court has personal jurisdiction over tbe individual defendants
because corporate defendants Basic Research and Zoller acted as tbeir agents in New York.
Pursuant to New York's Civil Practice Law and Rules§ 302(a)(l)-(3), a "court may exercise
personal jurisdiction over any non-domiciliary ... who in person or through an agent: I. transacts
any business witbin tbe state or contracts anywhere to supply goods or services in tbe state; or 2.
commits a tortious act within tbe state ... ; or 3. commits a tortious act without tbe state causing
injury to person or property within tbe state ... if he (i) regularly does or solicits business, or
engages in any other persistent course of conduct, or derives substantial revenue from goods used
or consumed or services rendered, in tbe state, or (ii) expects or should reasonably expect the act
to have consequences in tbe state and derives substantial revenue from interstate or international
commerce. N.Y. C.P.L.R. § 302 (McKinney 2015).

In Kreutter v. McFadden Oil Corp., tbe New York Court of Appeals held that "tbe
fiduciary shield rule is not available to defeat jurisdiction under the New York long-arm statute,"
522 N.E.2d 40,47 (N.Y. 1988), and tbus, "an out-of-state corporate officer who has not
personally transacted business in New York, can still be subject to personal jurisdiction under §
302(a)(l)6 of New York's long-arm statute, if it can be shown that tbe corporation transacted
business in New York as tbe officer's agent," Karabu Corp. v. Gitner, 16 F. Supp. 2d 319, 323

6

The holding applies to§ 302 in its entirety. Kinetic Instruments, Inc. v. Lares, 802 F.
Supp. 976,984 (S.D.N.Y. 1992) (citing Kreutter, 522 N.E.2d at 44).
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(S.D.N.Y. 1998). "Further, this Court may exercise jurisdiction over a defendant who acted
through an agent even if that defendant never physically entered New York." In re Sumitomo

Copper Litig., 120 F. Supp. 2d 328,336 (S.D.N.Y. 2000) (citing Kreutter, 522 N.E.2d at 45).
"To establish that the out-of-state defendant acted through an agent," plaintiffs need not establish
a formal agency relationship, but need "only convince the court that [the agent] engaged in
purposeful activities in this State in relation to [plaintiffs'] transaction for the benefit of and with
the knowledge and consent of the []defendants and that they exercise[d) some control over [the
agent] in the matter." !d (citing Karabu Corp., 16 F. Supp. 2d at 323; Kreutter, 522 N.E.2d at
44). "Plaintiffs' allegations must "sufficiently detail the defendants' conduct so as to persuade a
court that the defendant was a 'primary actor' in the specific matter in question; control cannot be
shown based merely upon a defendant's title or position within the corporation, or upon
conclusory allegations that the defendant controls the corporation.' "Id (quoting Karabu Corp.,
16 F. Supp. 2d at 324).

a.

Defendant Gay

The FAC alleges that Basic Research and Zoller promote, market, distribute and/or sell
Zantrex to hundreds of thousands of consumers in New York. FAC ~~ 19, 24. These allegations,
directly related to plaintiffs' claims, are sufficient to show that the corporations engaged in
purposeful activities in New York. The FAC also alleges that Gay is an officer, principal
shareholder and CEO of Basic Research and Zoller with final decision making authority over

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labeling, advertising, and media placement for Zantrex, including the content of the advertising. 7

Id at 1[25; Dec. Gay 1[8. Within the Basic Research business enterprise, Gay is ultimately
responsible for placing the advertisements for Zantrex into the stream of commerce. !d. These
allegations demonstrate Gay's control over the corporations and that they acted with his
knowledge and consent and therefore Basic Research and Zoller served as Gay's agents and
plaintiff has established a prima facie showing of personal jurisdiction pursuant to § 302(a)( 1).

Due Process Considerations
If a court determines that it may exercise personal jurisdiction over a defendant in
accordance with the forum state's law, it must then consider whether the exercise of personal
jurisdiction comports with due process. "A court may exercise jurisdiction over only those
defendants that have 'minimum contacts' with the forum state 'such that the maintenance of the
suit does not offend 'traditional notions offair play and substantial justice.' " Phillips v. Reed

Group, Ltd., 955 F. Supp. 2d 201, 227 (S.D.N.Y. 2013) (quoting lnt'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). "In judging minimum contacts, a court properly focuses on 'the
relationship among the defendant, the forum, and the litigation.' " Calder v. Jones, 465 U.S.
783, 788 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). To establish the
minimum contacts necessary to justify "specific" jurisdiction, the claim must arise out of or
relate to the defendant's contacts with the forum state, Helicopteros Nacionales de Columbia,
7

Defendant Gay's declaration in support states that he is employed by Bydex
Management, LLC ("Bydex"), an employee management company whose employees provide
services to other companies, including Basic Research and Zoller. Dec. Gay 1[8. An online
search for Bydex reveals that its corporate address is the same as Basic Research's and Zoller's
and that its web page link is "www. basicresearch.org." See
http://www.manta.com/c/mb5k2v5/bydex-management-llc (last visited Mar. 27, 2015).
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S.A. v. Hall, 466 U.S. 408, 414 (1984), such that defendant "purposefully availed" itself of doing
business and could foresee being "haled into court" in the state. World-Wide Volkswagon Corp.

v. Woodson, 444 U.S. 408,414 (1980).
Plaintiffs' claims arise out of Gay's agents' contacts with New York through which the
corporations conducted business in the state. "If the court finds that [a] defendant has
"purposefully availed" himself of the forum, it may also consider such other factors as: the
burden on the defendant, the interests of the forum state, plaintiff's interest in obtaining relief, as
well as judicial economy, and the 'shared interest of the several States in furthering fundamental
substantive social policies.'" Kinetic Instruments, 802 F. Supp. at 986 (quoting World-Wide

Volkswagon, 444 U.S. at 292). In light of Gay's position as CEO of defendants Basic Research
and Zoller, it was reasonably foreseeable that he would be haled into a foreign jurisdiction to
answer for the corporations' actions. Additionally, New York has an interest in addressing the
alleged injuries to its citizens caused by Zantrex, which outweighs any burden on defendant.
Further, because this Court has personal jurisdiction over defendant corporations, judicial
economy will be served by litigating all the issues in one (1) forum. For these reasons, the
exercise of personal jurisdiction over Gay comports with due process.

b.

Defendant Mowrey

The FAC alleges that Mowrey (allegedly responsible for developing Zantrex), is a citizen
of Utah, a principal shareholder in Basic Research and Director of Scientific Affairs. FAC ~~ 28,
29. According to Mowrey's declaration, he had an underlying ownership interest in Basic
Research which he sold in 2004 and was employed by Bydex from January 2008 until October

-16-

2010 when he retired. Dec. Mowrey'lf'lf 7, 8. While employed by Bydex, Mowrey's primary
responsibilities were research and product development and he had no control over, nor did he
determine, which products Basic Research or Zoller marketed, distributed or sold. !d. at 'If 9.
These allegations are insufficient to show that Basic Research or Zoller acted as
Mowrey's agent or that Mowrey exercised control over the companies. Courts have, however,
"defined 'agent' broadly to include not only a defendant's formal agents, but also, under certain
circumstances, a defendant's co-conspirators." Chrysler Capital Corp. v. Century Power Corp.,
778 F. Supp. 1260, 1266 (S.D.N.Y. 1991) (citing Lehigh Valley Indus., Inc. v. Birenbaum, 389 F.
Supp. 798, 806-07 (S.D.N. Y.1975). "It is well established that acts committed in New York by
the co-conspirator of an out-of-state defendant pursuant to a conspiracy may subject the
out-of-state defendant to jurisdiction under CPLR 302(a)(2)." !d. (citing cases). To establish
jurisdiction on a conspiracy theory, a plaintiff must: (1) establish a prima facie factual showing of
a conspiracy; and (2) allege specific facts warranting the inference that the defendant was a
member of the conspiracy. !d. (citing Singer v. Bell, 585 F. Supp. 300, 303 (S.D.N.Y. 1984).
"A prima facie factual showing of conspiracy must allege, in addition to the primary tort,
four elements: '(a) a corrupt agreement between two or more persons, (b) an overt act in
furtherance of the agreement, (c) the parties' intentional participation in the furtherance of a plan
or purpose, and (d) the resulting damage or injury.'" Johnson &Johnson v. Azam Intern.

Trading, No. 07 Civ. 4302, 2013 WL 4048295, at *7 (E.D.N.Y. Aug. 9, 2013) (quoting In re
Sumitomo, 120 F. Supp. 2d at 339). In addition to the primary tort of fraud, plaintiffs allege: (1)
that Gay, Mowrey and Friedlander conspired with each other and with Basic Research and Zoller

-17-

to commit fraud by producing, marketing and selling Zantrex in New York knowing that the
products were worthless and ineffective (FAC ~~ 172-77); (2) Basic Research and Zoller
performed an overt act in furtherance of the fraud by marketing and selling the product in New
York; (3) the individual defendants intended to induce and actually induced Brady and the
putative class members to purchase Zantrex based upon fraudulent marketing (id.

at~

176); and

(4) that they suffered economic and bodily harm. ld at ~~ 16-18.
To establish Mowrey's part of the conspiracy, plaintiffs cite to testimony by Mowrey and
Gay at the Hearing before the Subcommittee on Oversight and Investigations on June 16, 2004.
Dec. Koppel, Exh. A. Although Gay states that he relied upon Mowrey's and another expert's
knowledge to create Zantrex, based upon the age of the testimony, its content and the fact that
Mowrey sold his interest in Basic Research in 2004 and retired from Bydex in 20 I 0, the
allegations are insufficient to establish that Mowrey was part of a conspiracy. Accordingly,
Mowrey's motion to dismiss for lack of personal jurisdiction is granted.

c.

Defendant Friedlander

Plaintiffs allege that Friedlander is the self-proclaimed "marketing guru" for Basic
Research and has been described as the "idea man" behind numerous dietary supplement
advertising campaigns on behalf of Gay, Mowrey, Basic Research and Zoller. Friedlander
derives revenue from sales of Zantrex pursuant to a 1993 royalty agreement and/or a covenant
not to sue between himself and Basic Research. FAC ~ 32. Friedlander alleges that he lived in
Utah, presently resides in Nevada and is employed by Bydex to perform services for Basic
Research and Zoller, including leading a collaborative team to create advertisements for Basic

-18-

Research and its affiliates. Dec.

Friedlander~~

3, 4, 9.

In order to establish that Basic Research was Friedlander's agent in New York, plaintiffs
must show that the corporations (I) engaged in purposeful activities in New York, (2) for the
benefit of and with the knowledge and consent of Friedlander and (3) that he exercised some
control over the corporations in that transaction. See In re Sumitomo, 120 F. Supp. 2d at 336. As
discussed above, Basic Research and Zoller engaged in purposeful activities in New York; for
the benefit and on behalf of Friedlander, who received royalties from the sale of Zantrex in New
York; and through Bydex, where Friedlander worked and exercised control over the
corporation's advertising for the Zantrex line. For these reasons, the Court has personal
jurisdiction over Freidlander pursuant to CPLR § 302(a)(l).

Due Process Considerations
Plaintiffs' claims arise out of, inter alia, Basic Research's marketing and advertising in
New York. Based upon the prior investigations and censures and Friedlander's declaration that
he is responsible for Basic Research's advertising, it was foreseeable that he could be sued in a
foreign state to respond to allegations about false advertising in connection with Zantrex. In
addition, judicial economy will be served by litigating the claims against Friedlander in this
forum and, thus, the exercise of personal jurisdiction comports with due process. Friedlander's
motion to dismiss for lack of personal jurisdiction is therefore denied.

-19-

D.

Basic Research Defendants' and Polizzi's Motions to Dismiss Pursuant to FRCP
12(b)(6)

1.

Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides that upon motion, a FAC may be
dismissed for failure to state a claim upon which relief may be granted. To determine whether a
complaint should be dismissed for failure to state a claim, the court must assume as true all
allegations contained in the complaint. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
However, it is "well settled that conclusory allegations merely stating general legal conclusions
necessary to prevail on the merits of a claim, unsupported by factual averments will not be
accepted as true." ECOR Solutions, Inc. v. Malcolm Pirnie, Inc., No. 02 Civ. 1103,2005 WL
1843253, at *3 (N.D.N.Y. July 29, 2005). Thus, when considering FRCP 12(b)(6) motions, the
court must assess the legal feasibility of the complaint and whether a plaintiff pleaded claims for
which he or she is entitled to discovery. Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000); Chance,
143 F.3d at 701. The Supreme Court has held that a "plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550

u.s. 544, 555 (2007).
In Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), the Court held that courts should entertain
a motion to dismiss by following a two-pronged approach: "a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the

-20-

framework of a complaint, they must be supported by factual allegations. When there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief."
The Federal Rules of Civil Procedure require a "short plain statement of the claim
showing that the pleader is entitled to relief." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 319 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). The pleading must also set forth facts to
provide a defendant with fair notice of the nature of the claim. Leatherman v. Tarrant Cnty.

Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) (quoting Conley v.
Gibson, 355 U.S. 41,47 (1957)).

2.

Basic Research Defendants' and Polizzi's 12(b)(6) Motions

a.

Magnuson-Moss Warranty Act

The Magnuson-Moss Warranty Act ("MMWA") provides that" 'a consumer who is
damaged by the failure of a supplier, warrantor, or service contractor to comply with any
obligation under this chapter, or under a written warranty, implied warranty, or service contract,
may bring suit for damages .... ". Enobakhare v. Carpoint, LLC, No. 08 Civ. 4798, 2011 WL
703920, at *8 (E.D.N.Y. Jan. 10, 2011) (quoting 15 U.S.C. § 2310(d)(l)).
Pursuant to 15 U.S.C. § 230!(6)(A), the term "written warranty" is defined as: "any
written affirmation of fact or written promise made in connection with the sale of a consumer
product by a supplier to a buyer which relates to the nature of the material or workmanship and
affirms or promises that such material or workmanship is defect free or will meet a specified
level of performance over a specified period of time." Defendants argue that if a product does
not affirm or promise (I) that it is defect free or (2) will meet a specific level of performance, it is
-21-

not a written warranty within the meaning of the MMWA.
Courts have held that "the MMWA makes a warrantor directly liable to a conswner for
breach of a written warranty," Diaz v. Paragon Motors of Woodside, Inc., 424 F. Supp. 2d 519,
540 (E.D.N.Y. 2006) (citing Shuldman v. DaimlerChrysler Corp., 768 N.Y.S.2d 214,216 (N.Y.
App. Div. 2003)), and that the MMWA "merely incorporates and federalizes state-law breach of
warranty claims, including state-law standards for liability and damages," Ebin v. Kangadis Food
Inc., No. 13 Civ. 3311,2013 WL 3936193, at *3 n.2 (S.D.N.Y. July 26, 2013), and thus,

plaintiffs' breach of express warranty and MMWA claims stand or fall together.
Plaintiffs' FAC alleges that Zantrex products are conswner products as defined by 15
U.S.C. § 2301(1); plaintiffs and the proposed class members are conswners as defined by 15
U.S.C. § 2301(3); and defendants are suppliers and warrantors as defined by 15 U.S.C. § 2301(4)
and (5). FAC mf 142-144. Defendants issued written warranties, as defined by 15 U.S.C. §
2301(6), representing that it would provide conswners with "Rapid Weight Loss" and "456%
More Weight Loss Than America's #1 selling Ephedra-Based Diet Pill," in "a little over 6
weeks" of use "WITHOUT diet and exercise." !d.

at~

145. As to Power Crystals, defendant

issued written warranties that it would provide conswners with "Rapid Weight Loss." /d.

at~

146. With respect to Fat Burner, defendants issued written warranties representing that it would
provide conswners with "Rapid Fat Loss"; is effective for "weight loss"; and is a "clinically
tested fat burner shown to encourage lipolysis" and inhibit the activity of phosphodiesterase." /d.
at~

147. The Zantrex products do not conform to these representations because they are false

8

Defined as the release of fat from mature cells.
-22-

and misleading as demonstrated by competent and reliable scientific evidence and thus

'

'

defendants violated the MMWA and caused injuries and economic damages to plaintiffs. !d. at

w148-150.
b.

Breach of Express Warranty

New York Law
"New York breach of express warranty claims require (I) a material statement amounting
to a warranty; (ii) the buyer's reliance on this warranty as a basis for the contract with his
immediate seller; (iii) the breach of this warranty; and (iv) injury to the buyer caused by the
breach." Avo/a v. Louisiana-Pacific Corp., 991 F. Supp. 2d. 381, 391 (E.D.N.Y. 2013) (citing

CBS Inc. v. Ziff-Davis Pub. Co., 553 N.E.2d 997, 1000-01 (N.Y. 1990)).
The FAC alleges that defendants advertised and marketed Zantrex with the warranties
and statements in the preceding section, see~~ 153-155; that plaintiff Brady relied upon the
representations in purchasing Zantrex-3, see~ 16; that the warranties are false and misleading
based upon reliable scientific evidence, see ~~ 51-112; and that plaintiffs and the proposed class
were injured as a direct and proximate result of defendants' breaches, see~ 157.
Defendants argue that the claim fails for lack of privity. However, "courts have held that
a plaintiff need not be in privity with a defendant to bring ... a claim based on
misrepresentations contained in 'public advertising or sales literature.' " Weisblum v. Prophase

Labs, Inc., No. 14 Civ. 3587,2015 WL 738112, at *10 (S.D.N.Y. Feb. 20, 2015) (quoting Prue
v. Fiber Composites, LLC, No. II Civ. 3304, 2012 WL 1314114, at *9 (E.D.N.Y. Apr. 17,
2012)). Based upon the foregoing, Basic Research defendants' motion to dismiss the MMWA
and New York breach of express warranty claims pursuant to 12(b)(6) is denied. As discussed,
-23-

supra, Brady's claims against Polizzi are dismissed for lack of subject matter jurisdiction.

Maryland Law
"Under Maryland law, recovery for breach of warranty requires proof of three elements:
(I) the existence of a warranty, (2) a breach of the warranty, and (3) harm proximately caused by
the breach." Klein v. Sears Roebuck and Co., 773 F.2d 1421, 1424 (4th Cir. 1985) (citing

Mattos, Inc. v. Hash, 368 A.2d 993 (Md. 1977)).
That FAC alleges that plaintiff Cardillo purchased Fat Burner from Zoller, which
represented that it was a safe and effective "fat burner" providing "Rapid Fat Loss" of "actual
body fat." FAC ~ 17. After two (2) days of taking the product as directed, Cardillo fell ill and
was admitted to the hospital where doctors determined that she was experiencing heart
palpitations from using the product. Id

at~

18. Based upon the allegations, the FAC states a

breach of express warranty claim under Maryland law and the MMWA and Basic Research
defendants' motion to dismiss for failure to state a claim is denied.
With respect to Polizzi, the FAC alleges that Cardillo saw and relied upon Polizzi's
representations in Life & Style Magazine and elsewhere that Fat Burner was safe and effective
for fat loss and also saw and relied upon Polizzi's advertisement "Snooki's Dirty Little Secret,"
which also promoted Fat Burner. FAC ~ 17, 117. Accepting these allegations as true, Polizzi's
motion to dismiss the breach of express warranty and MMWA claims pursuant to 12(b)( 6) is
denied.

c.

New York's General Business Law§ 349

New York's General Business Law ("GBL") § 349(a) provides: "Deceptive acts or
-24-

practices in the conduct of any business, trade or commerce or in the furnishing of any service in
this state are hereby declared unlawful." GBL § 349 "prohibits deceptive and misleading
business practices and its scope is board indeed," Wilner v. Allstate Ins. Co., 893 N.Y.S.2d 208,
213 (N.Y. App. Div. 2010), as it encompasses "virtually all economic activity" and" 'provides
needed authority to cope with the numerous, ever-changing types of false and deceptive business
practices which plague consumers in our State,' "Karlin v. IVF America, Inc., 712 N.E.2d 662,
665 (N.Y. 1999) (quoting N.Y. Dept of Law, Mem to Governor, 1963 N.Y. Legis. Ann., at 105).

"In order to properly plead a cause of action under GBL § 349, the party pleading the claim
"should identifY consumer-oriented misconduct which is deceptive and materially misleading to
a reasonable consumer, and which causes actual damages." Wilner, 893 N.Y.S.2d 208 at 214.
The FAC alleges that Zantrex's warranties, directed at consumers, misrepresented that the
products would provide consumers with rapid weight loss within approximately six (6) weeks of
use, without diet and exercise. FAC '1['1[160, 161. In addition, it alleges that defendants'
misrepresentations are materially misleading as to the safety and efficacy of Zantrex, which
induces consumers to purchase the products. !d. at '1[162.
Defendants move to dismiss plaintiffs' GBL claim, arguing that (I) plaintiffs do not point
to a representation that is false; and (2) they improperly used the alleged deception as both the act
and injury, which is foreclosed by Small v. Lorillard Tobacco Co., Inc., 720 N.E.2d 892 (N.Y.
1999). In Small, New York's Court of Appeals held that a plaintiff must establish that the injury
resulted from the deception, e.g., where a consumer pays a higher price for an item because of the
misrepresentation. 720 N.E.2d 892 at 898 n.5. The court specifically rejected the argument that

-25-

consumers "who buy a product that they would not have purchased, absent a manufacturer's
deceptive commercial practices, have suffered an injury." Id at 898. The FAC alleges that
"Brady and members of the New York subclass were injured as a result [of the deception
regarding the safety and efficacy of Zantrex] because they paid for Zantrex products, which they
would not have purchased had they known the true facts."9 FAC mfl62-63.
In addition, the Zantrex packaging in the FAC does not represent that the product is safe

and cannot, therefore, amount to a material misrepresentation as a matter of law. Id at mf 56, 72.
For the foregoing reasons, Basic Research defendants' motion to dismiss this claim is granted. 10

d.

Maryland's Consumer Protection Statute

Maryland's Consumer Protection Act ("MCPA") makes unlawful any: "Unfair or
deceptive trade practices includ[ing] any [d]eception, fraud, false pretense, false premise,
misrepresentation, or knowing concealment, suppression, or omission of any material fact with
the intent that a consumer rely on the same in connection with ... [t]he promotion or sale of any
consumer goods," Md. Code Ann., Com. Law§ 13-301(9)(i), and that "[a]ny practice prohibited
by this title is a violation of this title, whether or not any consumer has in fact been misled,
deceived, or damaged as a result of that practice." Consumer Prot. Div. v. Morgan, 874 A.2d
919,941 (Md. 2005) (quoting Md. Code Ann., Com. Law§ 13-302).
9

Cf. Ackerman v. Coca-Cola Co., No. 09 Civ. 0395,2010 WL 2925955, at *23
(E.D.N.Y. July 21, 2010) (liability under GBL § 349 where "plaintiffs ... explicitly allege that
"[d]efendants command a premium price for vitaminwater by distinguishing it from soft drinks
(including their own), and by marketing and advertising it as a fortified beverage, a dietary
supplement in liquid form."
10

Polizzi's motion to dismiss plaintiff Brady's New York claims was granted, supra, for
lack of subject matter jurisdiction.
-26-

The FAC alleges that plaintiff Cardillo is a consumer and that Zantrex is a consumer
good under the MCPA. FAC ~~ 186-87. Defendants allegedly committed unfair or deceptive
acts and practices by making false representations about Zantrex, which were materially
misleading as to the safety and efficacy of the products, to induce consumers to purchase the
goods. !d.

at~~

189-91. As a result, Cardillo was injured by paying for Zantrex, which she

would not have purchased had she known the true facts. !d.

at~

193.

Zantrex does not represent that it is safe and, therefore, Cardillo cannot allege reliance on
a statement defendants did not make. Additionally, the packaging included in the FAC
represents that Zantrex provides rapid weight loss, intense energy and "546% more weight loss

than the leading ephedra-based diet pill, (emphasis added)" which may amount to a warranty,
but not to actionable fraud. Therefore, Basic Research defendants' and Polizzi's motions to
dismiss are granted for failure to state a claim under the MCPA.

e.

Plaintiffs' Fraud and Negligent Misrepresentation Claims

Under New York law, a claim for fraud requires a false misrepresentation of a material
fact, Kottler v. Deutsche BankAG, 607 F. Supp. 2d 447,462 (S.D.N.Y. 2009), as do claims for
negligent misrepresentation, which require "a false representation that [a defendant] should have
known was incorrect, Childers v. New York and Presbyterian Hosp., 36 F. Supp. 3d 292, 310
(S.D.N.Y. 2014). As plaintiffs have not established a false representation, Basic Research
defendants' motion to dismiss the New York based fraud and negligent misrepresentation claims
is granted.
With respect to claims under Maryland law, "[f]raud and negligent misrepresentation

-27-

share common elements. Both require the making of a false statement." Gross v. Sussex Inc.,
630 A.2d 1156, 1162 (Md. 1993). Accordingly, plaintiffs do not state a claim under Maryland
law and Basic Research defendants' and Polizzi's motions to dismiss the MCPA fraud and
negligent misrepresentation claims are granted pursuant to 12(b)( 6).

f.

Unjust Enrichment

Under New York law, "[i]t is well settled that where a valid warranty governs the subject
matter of a suit, a plaintiff cannot recover in quasi-contract, and it is appropriate to dismiss an
unjust enrichment claim." Haag v. Hyundai Motor Amer., 969 F. Supp. 2d 313, 317 (W.D.N.Y.
2013). As plaintiff Brady has stated a claim with respect to the breach of express warranty, the
unjust enrichment claim is dismissed as duplicative.
"In Maryland, a claim of unjust enrichment has three elements: '(1) a benefit conferred

upon the defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the
bene!it; and (3) the acceptance or retention by the defendant of the benefit under such
circumstances as to make it inequitable for the defendant to retain the benefit without the
payment of its value.'" Stanley v. Central Garden and Pet Corp., 891 F. Supp. 2d 757, 766 (D.
Md. 2012) (quoting Hill v. Cross Country Settlements, LLC, 936 A.2d 343, 351 (Md. 2007)).
The complaint alleges that plaintiffs conferred a benefit upon defendants by purchasing
Zantrex; that defendants had knowledge of the benefits; and have been unjustly enriched in
retaining the revenue derived from plaintiff's purchase. FAC

~~

180-182. This claim is

dismissed because Cardillo received the product she purchased, and therefore, retention of the
purchase price by defendants is not inequitable. Accordingly, Basic Research defendants' and

-28-

Polizzi's motions to dismiss the Maryland unjust enrichment claim is granted.

E.

Plaintiffs' Request for Leave to Amend the First Amended Complaint
Plaintiffs' request for leave to amend is denied. Plaintiffs' dismissed claims is are either

barred as a matter oflaw or are not actionable based upon the facts and, thus, leave to replead
will not cure the defects. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

III.

Conclusion
For the foregoing reasons, the Basic Research defendants' motion to strike pursuant to

12(f) is DENIED; the Basic Research defendants' and Polizzi's motions to dismiss the claims
against Power Crystals pursuant to 12(b)(1) are DENIED; Polizzi's motion pursuant to 12(b)(1)
to dismiss plaintiff Brady's claims under New York law is GRANTED; individual defendants'
motion to dismiss pursuant to 12(b)(2) is GRANTED as to Mowrey and DENIED as to Gay and
Friedlander; Basic Research defendants' motion to dismiss pursuant to 12(b)(6) is DENIED as to
the MMWA and breach of express warranties claims and GRANTED as to plaintiffs' New York
GBL § 349, MCPA, fraud, negligent misrepresentation and unjust enrichment claims; Polizzi's
motion to dismiss pursuant to 12(b)(6) is DENIED as to the MMWA and the Maryland based
express warranty claims and GRANTED as to plaintiff Cardillo's MCPA, fraud, negligent
misrepresentation and unjust enrichment claims.
SO ORDERED.
Dated: March 31, 2015
Central Islip, New York

s/ Sandra J. Feuerstein
Sandra J. Feuerstein, U.S.D.J.
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