Nigen Biotech, LLC v. Abbott
Filing
61
Memorandum Opinion and Order Granting 52 Motion to Dismiss filed by Gregg Abbott. (Ordered by Senior Judge A. Joe Fish on 7/21/2014) (cea)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NIGEN BIOTECH, LLC, a Nevada
limited liability company,
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Plaintiff,
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VS.
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GREG ABBOTT, as the Attorney General )
of the State of Texas,
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Defendant.
CIVIL ACTION NO.
3:11-CV-3341-G
MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendant, Greg Abbott, in his official
capacity as the Attorney General of the State of Texas (“Abbott”), for dismissal
(docket entry 52). For the reasons discussed below, the motion is granted.
I. BACKGROUND
NiGen BioTech, LLC (“NiGen”) manufactures, distributes, and sells two
dietary supplements, Isodrene Weight Loss Solution (“Isodrene”) and The HCG
Solution (“The HCG Solution”) (together the “products”), in Texas. Plaintiff’s
Second Amended Complaint (“Complaint”) at 2-3 and ¶ 6 (docket entry 49). Both
of the products include the letters “HCG” in large, bold font on their packaging. See
id. ¶¶ 27, 31. Human chorionic gonadotropin hormone (“HCG”) is a naturally
occurring hormone found in the bodies of most pregnant women and is an ingredient
in some prescription drugs. Id. ¶ 12. In the 1970s, a diet combining the use of HCG
with very low calorie diets became popular. Id. ¶ 15. The letters “HCG” and the
term “HCG diet plans” now often are associated with effective weight loss. Id. ¶ 17.
NiGen alleges that the products, “in their pure form, contain all of the amino acids in
the same proportions as the human chorionic gonadatropin hormone” but do not
contain HCG. Id. ¶ 19. Further, NiGen alleges that “both Isodrene and The HCG
Solution are at least the functional equivalent of human chorionic gonadatropin [sic]
hormone when ingested orally.” Id. ¶ 22.
On October 26, 2011, the State of Texas (“State”), by and through an
Assistant Attorney General in the Consumer Protection Division of the Office of the
Attorney General of Texas, sent NiGen a letter notifying NiGen that NiGen’s use of
“HCG” in the packaging and labeling of the products as dietary supplements sold for
weight loss was false, misleading, or deceptive. Id. ¶¶ 37-39, 42. The letter warned
that it was the State’s position that each sale of NiGen’s products in Texas was a
separate violation of the Texas Deceptive Trade Practices Act (“DTPA”), TEX. BUS. &
COMM. CODE ANN. § 17.41, et seq. Id. ¶ 46. Thereafter, Abbott contacted NiGen’s
customers and threatened them with fines. Id. ¶ 63. As a result, Walmart,
Walgreens, and CVS Pharmacy removed the products from their shelves. Id. ¶ 64.
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On November 18, 2011, and on November 29, 2011, counsel for NiGen met
with two Assistant Attorneys General (“AAGs”) from the Consumer Protection
Division of the Office of the Attorney General of Texas to discuss the DTPA notice.
Id. ¶¶ 49, 53-57; Brief in Support of Defendant’s Motion to Dismiss Plaintiff’s
Second Amended Complaint (“Motion”) at 4 (docket entry 52-1). Counsel for
NiGen audio taped the November 29, 2011 without the knowledge or permission of
the two AAGs. Motion at 4.
On December 2, 2011, NiGen filed this suit. NiGen claims that Abbott
violated its constitutional and civil rights pursuant to 42 U.S.C. §§ 1983 and 1988
and under the First Amendment and the Fourteenth Amendment to the United
States Constitution, and the Commerce Clause and Supremacy Clause of the United
States Constitution. NiGen also seeks relief for tortious interference with existing
business relations, as well as preliminary and permanent injunctive relief. See generally
Complaint.
II. ANALYSIS
Abbott moves to dismiss NiGen’s complaint on numerous grounds. See
generally Motion. Abbott asserts that, as an official of the State of Texas, he is
entitled to immunity from suit in this court under the Eleventh Amendment to the
Constitution. Motion at 13. He argues that since suits against state officials in their
official capacity should be treated as suits against the state, e.g., Hafer v. Melo, 502
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U.S. 21, 25 (1991), he is entitled to the same Eleventh Amendment immunity as the
State of Texas. Id. The Eleventh Amendment prohibits suits in federal court against
state governments by a state’s own citizens. U.S. CONSTITUTION amend. XI. As
such, Abbott is immune to suit in federal court under the Eleventh Amendment of
the United States Constitution. See Aguilar v. Texas Department of Criminal Justice, 160
F.3d 1052, 1054 (5th Cir. 1998)(finding the Eleventh Amendment bars suit against a
state or a state entity regardless of whether money damages or injunctive relief is
sought); see also Anderson v. Abbott, 83 Fed. Appx. 594, 594-95 (5th Cir. 2003);
Kemppainen v. Texas, No. 2:11-CV-0071-J, 2011 WL 2181850, *3 (N.D. Tex.
May 26, 2011) (Averitte, M.J.), adopted, 2011 WL 2183282 (N.D. Tex. June 3,
2011) ( Robinson, J.). NiGen’s claims against Abbott should be dismissed.
III. CONCLUSION
For the reasons stated above, Abbott’s motion to dismiss is GRANTED.
A judgment of dismissal will be entered.
SO ORDERED.
July 21, 2014.
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A. JOE FISH
Senior United States District Judge
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