Dragoslavic v. Ace Hardware Corporation

Filing 31

MEMORANDUM OPINION AND ORDER re Defendant Ace Hardware Corporation's Motion to Dismiss Plaintiffs Class Action Complaint. Defendants Motion to Dismiss 13 is GRANTED. Clarifying that this dismissal is WITHOUT prejudice, the Court GRANTS Plaintiff leave to amend its Complaint within fourteen days of this Order. Signed by Judge Rodney Gilstrap on 8/16/2017. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
SAM DRAGOSLAVIC
on behalf of himself
and others similarly situated,
Plaintiff,
v.
ACE HARDWARE CORPORATION,

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CIVIL ACTION NO. 2:17-CV-00141-JRG

Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Ace Hardware Corporation’s (“Ace Hardware”) Motion to
Dismiss Plaintiff’s Class Action Complaint (Dkt. No. 13) (“the Motion”). Having considered each
Parties’ arguments and for the reasons set forth below, the Motion is GRANTED.
I.

Background
On February 17, 2017, Plaintiff Sam Dragoslavic (“Dragoslavic” or “Plaintiff”) filed this

lawsuit, on behalf of himself and a proposed class of others similarly situated, alleging that
Defendant Ace Hardware made false or misleading statements about its products. Specifically,
Plaintiff argues that Ace Hardware labeled “certain products” as “Solid Brass” even though these
products are not entirely made of brass. (Dkt. No. 1 at ¶ 1.) The Complaint includes no further
description of the products at issue except for mention of two examples. (Id. at 17-20.)
Plaintiff Dragoslavic has sought relief on behalf of himself and putative class members
under the Texas Deceptive Trade Practices Consumer Protection Act and the laws of 44 other
states and the District of Columbia. (Dkt. No. 1 at ¶¶ 37–86.) Plaintiff does not allege that he
purchased products or resides in any of these states, except Texas. (Id. at ¶ 5.)

Defendant Ace Hardware is incorporated in Delaware and has its primary place of business
in Illinois. (Id. at ¶ 6.) It operates as a nationwide cooperative in which stores in various
communities, including throughout Texas, operate under the same name. (Id.)
On April 25, 2017, Ace Hardware filed the instant Motion seeking to dismiss Plaintiff’s
claims for lack of subject matter jurisdiction and failure to state a claim. (Dkt. No. 13.)
II.

Legal Standard
A. Dismissal for Lack of Subject Matter Jurisdiction
“Congress and the Constitution together prescribe the bounds of federal courts’ subject

matter jurisdiction.” Genband US LLC v. Metaswitch Networks Ltd, No. 2:16-CV-00582-JRG,
2017 WL 1246366, at *2 (E.D. Tex. Mar. 31, 2017). Article III of the Constitution in particular
limits the exercise of the judicial power to “Cases” and “Controversies.” U.S. CONST. art. III,
§ 2. “[T]he doctrine of standing serves to identify those [cases and controversies] which are
appropriately resolved through the judicial process.” Whitmore v. Arkansas, 495 U.S. 149, 155
(1990). It imposes several requirements. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
First, a plaintiff must establish an “injury in fact” that is “concrete and particularized” rather than
“conjectural or hypothetical.” Id. at 560 (internal quotation marks omitted). Second, a plaintiff
must draw a “fairly traceable” causal connection between their injury and the defendant. Id.
(internal ellipses and brackets omitted). Third, “it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks
omitted). Finally, when a plaintiff seeks injunctive relief “an additional inquiry is required, namely
that Plaintiffs show that they are likely to suffer future injury by the defendant and that the soughtafter relief will prevent that future injury.” James v. City of Dallas, Tex., 254 F.3d 551, 563 (5th

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Cir. 2001), abrogated on other grounds by M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839–
41 (5th Cir.2012).
Each of these elements must be supported “with the manner and degree of evidence
required at the successive stages of the litigation.” Id. Here, Defendant has raised a “facial attack.”
(Dkt. No. 13 at 2-3.) Therefore, the Court “is required merely to look to the sufficiency of the
allegations in the complaint because they are presumed to be true.

If those jurisdictional

allegations are sufficient the complaint stands.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th
Cir. 1981). See also Martin v. Local 556, Transp. Workers Union of Am. AFL-CIO, No. 3:14-CV0500-D, 2014 WL 4358480, at *1 n.1 (N.D. Tex. Sept. 3, 2014) (“When a party makes a Rule
12(b)(1) motion without including evidence . . . [t]he court assesses [the] challenge as it does a
Rule 12(b)(6) motion . . . .”).
B. Dismissal for Failure to State a Claim
A motion to dismiss should generally be granted when a complaint fails to state a plausible
claim for relief even where all well-pleaded facts are accepted as true and viewed in the light most
favorable to the plaintiff. Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010).
However, claims based in fraud must go further by “stat[ing] with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). “Directly put, the who, what, when, and where must be
laid out before access to the discovery process is granted.” Williams v. WMX Techs., Inc., 112
F.3d 175, 178 (5th Cir. 1997).
When considering such a motion, the court may rely on “the complaint, any documents
attached to the complaint, and any documents attached to the motion to dismiss that are central to
the claim and referenced by the complaint.” Lone Star Fund V (U.S.) L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010). “[M]atters or theories raised in a response are not part of the

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pleadings” and do not supplement the allegations in the complaint. Lohr v. Gilman, No. 3:15-CV1931-L, 2017 WL 1178259, at *11 (N.D. Tex. Mar. 30, 2017).
III.

Discussion
A. Subject Matter Jurisdiction
The Court begins by considering whether Plaintiff has standing to bring claims either in an

individual or representative capacity. Willoughby v. U.S. ex rel. U.S. Dep't of the Army, 730 F.3d
476, 479 (5th Cir. 2013) (“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, the court should consider the Rule 12(b)(1) jurisdictional attack . . . .”).
1. Plaintiff’s Individual Sanding
i.

Fraud Claims

Defendant argues that because Plaintiff does not identify the false statements that he relied
on with particularity – i.e. what products Plaintiff purchased, where he purchased them, and when
– Plaintiff lacks standing to bring his claims. (Dkt. No. 13 at 4.) Obviously, if Plaintiff did not
purchase any products from Ace Hardware, then he would lack standing to bring a claim based on
false statements made in relation to Ace Hardware products. However, Plaintiff does allege that
he purchased products from Ace Hardware in reliance on allegedly false statements about whether
those products were solid brass. (Dkt. No. 1 at ¶¶ 1, 16, 27, 35.) Defendant’s insistence that
Plaintiff identify which products he purchased, including where he purchased them and when,
conflates Article III with Federal Rule of Civil Procedure 9(b). Each demands a distinct inquiry.
At the pleading stage, Article III requires no more than “general factual allegations” of an injury
that is concrete, particularized to the plaintiff, and which is actual or imminent as well as traceable
to the defendant and redressable by the Court. Lujan, 504 U.S. at 561.1 Here, Plaintiff alleges that

1

See also Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009) (applying the Lujan standard with regard to standing
for claims based on fraud); Taylor v. Nike, Inc., No. 3:16-CV-00661-MO, 2017 WL 663056, at *2 (D. Or. Feb. 17,

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he purchased products from Ace Hardware believing they were made entirely of brass because of
specific statements Ace Hardware made about its products. (Dkt. No. 1 at ¶¶ 1, 15, 16, 27, 35.)
According to Plaintiff, however, these products are actually not made of solid brass and, as a result,
Plaintiff avers that he (and his putative class members) overpaid for inferior products.2 (Dkt. No.
1 at ¶¶ 9-16 (describing why solid brass products are superior).) These allegations are sufficient
to confer standing under Article III. See Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir.
2007) (finding allegations “sufficient for standing purposes” where plaintiffs sought “recovery for
their actual economic harm (e.g., overpayment, loss in value, or loss of usefulness) emanating from
the loss of their benefit of the bargain”). Such allegations also directly connect the alleged injury
– overpaying for certain products – to the defendant, who allegedly made the statements upon
which Plaintiff relied. Finally, the harm alleged by Plaintiff can be redressed through a favorable
decision.
Accordingly, the Court finds that Plaintiff does have standing under Article III to bring his
claims against Ace Hardware.
ii.

Injunctive Relief

Defendant argues that Plaintiff lacks standing to pursue injunctive relief because “[t]he
Complaint . . . fails to allege that Plaintiff intends to purchase such products again in the future.”
(Dkt. No. 13 at 6.) Here, the Court agrees. At most, the Complaint alleges an unspecified
“imminent likelihood of continuing irreparable injury.” Such a conclusory allegation is not
sufficient to confer standing for injunctive relief. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)

2017) (“[E]ven if Ms. Taylor's claims are insufficient under the heightened pleading standard of Rule 9(b), they are
sufficient to provide Ms. Taylor with standing under Article III.”); Bilodeau v. McAfee, Inc., No. 12-CV-04589-LHK,
2013 WL 3200658, at *5-7 (N.D. Cal. June 24, 2013) (finding Article III satisfied even though Rule 9(b) was not);
Chicago Faucet Shoppe, Inc. v. Nestle Waters N. Am. Inc., 24 F. Supp. 3d 750, 756 (N.D. Ill. 2014) (same).
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Defendant did not ask the Court to dismiss this case because the products Plaintiff purchased are not actually lower
quality. (Dkt. No. 13 at 1-2 (asserting that products as sold were actually “stronger” than pure brass components, but
concluding that “these issues need not be addressed now”).)

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(“These bare assertions . . . are conclusory and not entitled to be assumed true.”). See also Hidalgo
v. Johnson & Johnson Consumer Companies, Inc., 148 F. Supp. 3d 285, 296 (S.D.N.Y. 2015) (no
standing without allegation of intent to purchase product in the future); In re ConAgra Foods, Inc.,
90 F. Supp. 3d 919, 980-81 (C.D. Cal. 2015) (same and collecting cases); In re Herbal Supplements
Mktg. & Sales Practices Litig., No. 15-CV-5070, 2017 WL 2215025, at *8 (N.D. Ill. May 19,
2017) (same); Barron v. Snyder's-Lance, Inc., No. 13-62496-CIV, 2015 WL 11182066, at *11
(S.D. Fla. Mar. 20, 2015) (same); Mladenov v. Wegmans Food Markets, Inc., 124 F. Supp. 3d 360,
379 (D.N.J. 2015) (same); City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). Plaintiff argues
in its Response that “[t]aken in the light most favorable to Dragoslavic, these allegations [discussed
supra] must mean Dragoslavic is likely in the future to rely upon the ‘Solid Brass’ statement by
Ace and purchase a product from Ace that is not made of solid brass.” (Dkt. No. 17 at 6.) However,
construing allegations in favor of the Plaintiff does not mean the Court should, or can, buttress the
Complaint based on new arguments raised in a response. “[A] court is limited to consideration of
the pleadings, and matters or theories raised in a response are not part of the pleadings.” Lohr,
No. 3:15-CV-1931-L, 2017 WL 1178259, at *11.
Accordingly, the Court finds that Plaintiff lacks standing to pursue injunctive relief based
on the allegations in the Complaint.3
2. Standing on Behalf of Putative Class Members
Defendant argues that Plaintiff cannot pursue claims on behalf of putative class members
from states in which Plaintiff himself did not purchase any products and does not reside. (Dkt.

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The Court declines to resolve whether the allegation that Dragoslavic would purchase a product from Ace Hardware
satisfies Article III, see, e.g., Belfiore v. Procter & Gamble Co., 94 F. Supp. 3d 440, 445 (E.D.N.Y. 2015) (finding
standing but noting contrary authority); Neuman v. L'Oreal USA S/D, Inc., No. 1:14-CV-01615, 2014 WL 5149288,
at *2 (N.D. Ohio Oct. 14, 2014) (finding no standing but noting contrary authority); Duran v. Creek, No. 3:15-CV05497-LB, 2016 WL 1191685, at *6-7 (N.D. Cal. Mar. 28, 2016) (collecting various approaches), because that
question is not presented here based on the allegations in the Complaint.

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No. 13 at 10–12.) This argument raises an important question with respect to Article III and class
actions. See, e.g., Davis v. Am. Nat. Bank of Texas, No. 4:12CV382, 2013 WL 1195695, at *3
(E.D. Tex. Mar. 22, 2013) (noting “lack of clarity in the case law” on this issue); In re: McCormick
& Co., Inc., 217 F. Supp. 3d 124, 143 (D.D.C. 2016) (collecting various approaches).
Plaintiff responds by pointing to Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) and
Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997))), declaring categorically that “Rule 23
certification issues should be addressed before examining the standing requirements for other class
members.” (Dkt. No. 17 at 9-10.) In Ortiz and Amchem, the Supreme Court recognized that in
some cases class certification issues are “logically antecedent” to standing issues and therefore
should be resolved first. Ortiz, 527 U.S. at 831; Amchem, 521 U.S. at 592. The Fifth Circuit has
described this approach as a “limited exception” to the requirements of Article III that is available
when “class certification . . . create[s] the jurisdictional issue.” Rivera v. Wyeth-Ayerst Labs., 283
F.3d 315, 319 n.6 (5th Cir. 2002). Otherwise, the general rule is that standing must be assessed
before a class is certified. Id. at 319.
Courts are divided on whether a plaintiff’s standing to bring claims under the laws of
multiple states on behalf of putative class members of those states is considered “logically
antecedent” to class certification. Compare Sheet Metal Workers Nat. Health Fund v. Amgen Inc.,
No. CIV. A. 07-5295 SRC, 2008 WL 3833577, at *9 (D.N.J. Aug. 13, 2008) (“[T]he question of
Article III standing to bring each state antitrust claim arises precisely because SMW seeks to
prosecute the state claims on behalf of a class . . . .”) with Smith v. Pizza Hut, Inc., No. 09-CV01632-CMA-BNB, 2011 WL 2791331, at *7 (D. Colo. July 14, 2011) (concluding that whether
plaintiff has standing to bring claims under the laws of various states is not “logically antecedent”
to class certification because “[t]he question is relevant whether or not the class is certified”).

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Other courts have limited the “logically antecedent” approach taken in Ortiz and Amchem to cases
in which the court is “facing simultaneous class certification and Article III standing issues.”
Catlin v. Hanser, No. 1:10-CV-0451-LJM-DML, 2011 WL 1002736, at *7 (S.D. Ind. Mar. 17,
2011). Some courts have also limited Ortiz and Amchem, which both involved complex asbestos
class actions, to “extremely complex case[s] defying customary judicial administration.” In re
AllianceBernstein Mut. Fund Excessive Fee Litig., No. 04 CIV. 4885(SWK), 2005 WL 2677753,
at *9 (S.D.N.Y. Oct. 19, 2005).
On balance, the Court is persuaded that the “limited exception” recognized in Ortiz and
Amchem does not apply here. Plaintiff seeks redress “[o]n behalf of himself and other Class
members.” (Dkt. No. 1 at ¶ 86 (emphasis added).) The underlying question of whether he has
standing to bring claims under the laws of states in which he does not reside and was not injured
will therefore be relevant regardless of whether the putative class is certified. See, e.g., Valverde
v. Xclusive Staffing, Inc., No. 16-CV-00671-RM-MJW, 2017 WL 1386351, at *8 (D. Colo. Feb.
23, 2017). It is not “logically antecedent” to class certification because the latter has no effect on
the former. Id.
Turning to the question of standing, Defendant argues that a putative class representative
lacks Article III standing to bring claims under the laws of states in which he does not reside or
was not injured. (Dkt. No. 13 at 11.) However, this Court is not persuaded that where a plaintiff
resides or suffers an injury has anything to do with Article III standing. Judge Easterbrook
addressed a similar issue in Morrison v. YTB Int'l, Inc., 649 F.3d 533 (7th Cir. 2011) and reached
the same conclusion. In Morrison, plaintiffs sought to represent a class of consumers from
multiple states in claims against an Illinois company under the Illinois Consumer Fraud Act. 649
F.3d at 535. Defendants argued that putative class members from states other than Illinois lacked

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standing because they did not live in Illinois. Id. Judge Easterbrook reasoned that where the
putative class members lived had nothing to do with standing because the “class members (no
matter where they live) have an Article III controversy with [the defendant].” Id. at 536. He then
explained that Article III demands a concrete injury traceable to the defendant that is redressable
by a judicial decision and “[n]othing more.” Id. This Court agrees.
Gratz v. Bollinger, 539 U.S. 244 (2003) is also instructive. In Gratz, the dissent argued
that the named plaintiff lacked standing to bring claims on behalf of class members who had sought
admission to the University of Michigan through the undergraduate freshman admissions process
because the representative plaintiff had sought admission through the undergraduate transfer
admissions process. 539 U.S. at 262-63. Writing for the majority, Chief Justice Rehnquist began
by acknowledging that there was “tension” in prior Supreme Court cases regarding “whether such
an inquiry . . . is appropriately addressed under the rubric of standing or adequacy.” Id. at 263
n.15. However, the Court concluded that standing, even if it were the appropriate inquiry, was
“clearly satisfied” because the use of race in undergraduate and transfer admissions “[did] not
implicate a significantly different set of concerns.” Id. at 263, 265.
Defendant’s insistence that standing is linked to residency or the location of an injury is at
best imprecise and at worst invites into the standing analysis extraneous arguments about whether
a plaintiff has stated a claim for relief or demonstrated that class certification is appropriate.
Neither inquiry is appropriately resolved through the doctrine of standing. See Lexmark Int’l, Inc.
v. Static Control Components, Inc., 134 S. Ct. 1377 n.4 (2014) (Scalia, J.) (“[T]he absence of a
valid . . . cause of action does not implicate subject-matter jurisdiction”); Gratz, 539 U.S. at 263
n.15. “Like the out-state-plaintiffs in Morrison, the fact that [Plaintiff] does not live, nor was
injured, in the [several] states under which his claim may arise is of no constitutional moment.”

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Le v. Kohls Dep't Stores, Inc., 160 F. Supp. 3d 1096, 1112 (E.D. Wis. 2016). Other tools and
doctrines are available to address the propriety of resolving claims arising under the laws of
multiple states in a single lawsuit. See, e.g., Morrison, 649 F.3d at 536 (noting that the difficulty
of managing “a class action arising under the consumer-fraud laws of all 50 states” “has nothing
to do with standing” and should be addressed through other means); In re: McCormick & Co.,
Inc., 217 F. Supp. 3d 124, 144 (D.D.C. 2016) (“It is more logical to consider named plaintiffs’
ability to raise other state-law claims as a question of commonality, typicality, and adequacy under
Rule 23, rather than a question of standing.”); Porter v. NBTY, Inc., No. 15 CV 11459, 2016 WL
6948379, at *4 (N.D. Ill. Nov. 28, 2016) (“Plaintiffs may lack prudential standing to pursue claims
under the laws of other states, plaintiffs might not have claims on the merits of other states’
laws . . ., and plaintiffs might not be adequate class representatives, but these are not Article III
problems.”); Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137
S. Ct. 1773, 1781 (2017) (“The mere fact that other plaintiffs were prescribed, obtained, and
ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—
does not allow the State to assert specific jurisdiction over the nonresidents’ claims.”).
Ultimately, Defendant’s reliance on Article III to attack whether Dragoslavic can or should
represent putative class members from other states is misplaced. Said another way, standing is the
wrong conceptual framework for this purpose. Dragoslavic has been injured and he seeks to bring
claims on behalf of himself and others who have purportedly suffered a similar injury at the hands
of the same defendant based on the same allegedly misleading statements. This clearly presents a
case or controversy between Plaintiff, the putative class members, and Defendant (as in Morrison).
Article III demands “[n]othing more.” Morrison, 649 F.3d 536.

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Defendant’s remaining arguments, such as the propriety of certifying a nationwide class or
permitting Plaintiff to proceed with classwide fraud claims, also do not implicate standing. See,
e.g., Morrison, 649 F.3d. at 536 (“That a plaintiff's claim under his preferred legal theory fails has
nothing to do with subject-matter jurisdiction . . . .”); Gratz, 539 U.S. at 263 n.15. Therefore, the
Court proceeds to analyze Defendant’s arguments under 12(b)(6).
B. Failure to State a Claim
1. The Scope of Rule 9(b)
At the outset, the Parties dispute the extent to which Rule 9(b)’s heightened pleading
standard should be applied here. In particular, Plaintiff argues that its negligent misrepresentation
claim is not subject to the requirements of Rule 9(b). (Dkt. No. 17 at 2 n.2.) To support their
position, Plaintiff cites American Realty Trust, Inc. v. Hamilton Lane Advisors, Inc., 115 F. App’x
662 (5th Cir. 2004) (unpublished), in which the Fifth Circuit distinguished and narrowed several
previous decisions where it had suggested that negligent misrepresentation claims are subject to
Rule 9(b)’s heightened pleading standards. 115 F. App’x at 669 n.30 (citing Benchmark Elecs.,
Inc. v. J.M. Huber Corp., 343 F.3d 719, 723 (5th Cir.2003)). However, in Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383 (5th Cir. 2010), the Fifth Circuit concluded that claims
based on “fraud and negligent misrepresentation . . . must [be] plead . . . with particularity under
Fed. Rule Civ. Proc. 9(b).” 594 F.3d at 387 (citing Benchmark, 343 F.3d at 723–24 (5th
Cir.2003)). See also SHS Inv. v. Nationwide Mut. Ins. Co., 798 F. Supp. 2d 811, 815 (S.D. Tex.
2011) (concluding that Rule 9(b) applies “to all averments of fraud, whether they are part of a
claim of fraud or . . . statutory claims based on allegations of fraud” and collecting cases). This
Court therefore applies the heightened pleading standard established by Rule 9(b) to all of

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Plaintiff’s claims in light of Lone Star Fund and because the gravamen of Plaintiff’s allegations is
fraud. See (Dkt. No. 1 at ¶ 28.)
2. Application of Rule 9(b)
Defendant’s central argument is that Plaintiff has failed to state his claim with particularity
because he leaves open the question of exactly what he purchased, when he purchased it, and
where. Plaintiff argues that this sort of detail is not necessary. As Plaintiff explains, the Complaint
identifies what the allegedly fraudulent statements were (that products were solid brass), who made
them (Ace Hardware), and where they were made (on product packaging). (Dkt. No. 17 at 2-5.)
The Court finds that the Complaint contains at least two fatal defects. First, the “Falsely
Marked Products” at issue in this case are described in the Complaint only as “certain products”
that were at some point allegedly marked as “Solid Brass.” (Dkt. No. 1 at ¶ 1.) However, Rule
9(b) does not permit a Plaintiff to proceed to discovery based on allegations against an entirely
open-ended category of products without some additional specificity. See, e.g., Keczer v. Tetley
USA, Inc., No. 5:12-CV-02409 EJD, 2013 WL 4455282, at *3 (N.D. Cal. Aug. 16, 2013)
(explaining that Plaintiff’s allegations against “‘Misbranded Food Products’ purport[ed] to
encapsulate an open-ended class of . . . products” and concluding that such allegations failed to
satisfy Rule 9(b)); Whiddon v. Chase Home Fin., LLC, 666 F. Supp. 2d 681, 691 (E.D. Tex. 2009)
(“Rule 9(b) does not permit a party to make conclusory allegations and then, through the discovery
process, gain more specific information and amend his pleadings to satisfy the particularity
requirement.”); Webb v. Everhome Mortg., No. 17-10243, 2017 WL 3121983, at *2 (5th Cir. July
21, 2017) (dismissal under Rule 9(b) is appropriate even where “missing details . . . can be easily
determined through discovery”). Second, the Complaint does not identify when or where Plaintiff
purchased any of the “Falsely Marked Products.” Rule 9(b) requires these details to be set forth

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with particularity in the Complaint. See, e.g., Gedalia v. Whole Foods Market Servs., Inc., 53 F.
Supp. 3d. 943, 959 (S.D. Tex. 2014) (dismissing claims because the complaint identified only “a
general time frame” during which products were allegedly purchased and failed to identify specific
.
locations where the products were sold).
Accordingly, the Court is persuaded that Plaintiff has not satisfied Rule 9(b).4
IV.

Conclusion
For the reasons set forth herein, Defendant’s Motion to Dismiss (Dkt. No. 13) is

GRANTED. Clarifying that this dismissal is without prejudice, the Court GRANTS Plaintiff
leave to amend its Complaint within fourteen days of this Order.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 16th day of August, 2017.

____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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The Court does not resolve Defendant’s remaining arguments because they are now moot. Defendant may re-urge
these arguments should Plaintiff amend its Complaint as allowed herein.

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