1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 JOHN D. KELLER, Case No. 4:20-cv-0232-YGR

5 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION 6 v. TO DISMISS PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 7 CAMELBAK PRODUCTS, LLC, ET AL., Re: Dkt. No. 18 Defendants. 8

9 At its core, this case is Bursor & Fisher’s attempt to revive Rachel Lepkowski v. CamelBak 10 Products, LLC et al, 4:19-cv-04598-YGR (N.D. Cal.) (“Lepkowski action”) dismissed by this 11 Court only a few months ago. The changed allegations in the pending amended complaint fare no 12 better than the first. For the reasons set forth more fully below, the Court again concludes that 13 plaintiff John D. Keller lacks Article III standing to pursue the claims in this matter. Accordingly, 14 the Court GRANTS defendants CamelBak Products, LLC’s and CamelBak International, LLC’s 15 (collectively, “CamelBak”) motion to dismiss. 16 I. BACKGROUND 17 Plaintiff John D. Keller bring this action against CamelBak.1 As Lepkowski did, Keller 18 here brings an amended class action complaint concerning all CamelBak eddy water bottles, and 19 alleges violations of various consumer protection laws as to the bottles’ “spill-proof” claims. 20 Therein, Keller alleges anecdotal statements from the internet that some of the water bottles 21 spilled, including some at altitude. Specifically, Keller asserts ten claims including: (i) violation 22 of the Magnuson-Moss Warranty Act,

; (ii) breach of express warranty; 23 (iii) breach of the implied warranty of merchantability; (iv) unjust enrichment; (v) violation of 24 California’s Legal Remedies Act (“CLRA”),

, et seq.; (vi) violation of 25 California’s Unfair Competition Law (“UCL”),

, et seq.; 26 1 Shortly after the conclusion of the briefing on the motion to dismiss, former named 27 plaintiff Jessica Stewart filed a notice of dismissal of her claims without prejudice (Dkt. No. 25), 1 (vii) violation of California’s False Advertising Law (“FAL”),

, 2 et seq.; (viii) negligent misrepresentation; (ix) fraud; (x) violation of New York’s General 3 Business Law § 349; and (x) violation of New York’s General Business Law § 350. 4 The standards for this motion are not in dispute and are well known. Rule 12(b)(1) 5 provides that an action may be dismissed for lack of subject matter jurisdiction. Federal courts are 6 of “limited jurisdiction” and plaintiff bears the burden to prove the requisite federal subject matter 7 jurisdiction. Kokkonen v. Guardian Life Ins. Of Am.,

(1994). A challenge 8 pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee,

(9th 9 Cir. 2000). A facial 12(b)(1) motion involves an inquiry confined to the allegations in the 10 complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the complaint to 11 extrinsic evidence. Wolfe v. Strankman,

(9th Cir. 2004). Thus, in a factual 12 12(b)(1) motion, the Court may consider evidence outside the complaint to resolve factual 13 disputes in the process of determining the existence of subject matter jurisdiction. McCarthy v. 14 United States,

(9th Cir. 1988). Courts consequently need not presume the 15 truthfulness of a plaintiff’s allegations in such instances. Safe Air for Everyone v. Meyer,

(9th Cir. 2004) (citing White v. Lee,

(9th Cir. 2000)). 17 The Court limits the following summary to the facts relevant in deciding the disposition of 18 this motion. This case cannot be fairly analyzed without appropriate reference to the Lepkowski 19 action. Having failed to assert Article III standing in that action after CamelBak sent a 20 replacement bottle and unconditional $20.00 check to plaintiff Lepkowski, the same attorneys for 21 the new plaintiffs here attempted an end-run around the prefiling requirement. Thus: 22 On December 12, 2019, this Court dismissed the Lepkowski action and required that an 23 amended complaint, if consistent with Rule 11, be filed by January 17, 2020. Thereafter, Bursor 24 & Fisher, on behalf of Stewart and Keller, sent a “Notice and Demand Letter” pursuant to the 25 Magnuson-Moss Warranty Act, the CLRA, and the UCC corollaries, certified and dated January 26 10, 2020 to CamelBak. Therein, they demand that CamelBak “(1) issue a mandatory recall of 27 CamelBak eddy Water Bottles and (2) make full restitution to all purchasers of the CamelBak 1 noted that, unlike in other cases, the demand letter was devoid of any support for its overarching 2 statement that “due to a defect, CamelBak Water Bottles leak” other than the presumably accurate 3 claim that in the case of Keller and Stewart specifically, each experienced a water bottle that 4 leaked. 5 On that same day, Friday, January 10, 2020, Keller and Stewart filed the instant action. On 6 Monday, January 13, 2020, CamelBak responded noting that Keller and Stewart “did not provide 7 proper notice or make a proper warranty claim, but nonetheless providing a full refund and 8 reminding them that replacement bottles are also readily available at no charge, with an invitation 9 to choose their specific replacement water bottles.” (Dkt. No. 18 at 13-14; see also Dkt. No. 18-1 10 at 12-17 (Maiden Decl. at Ex. B).) Keller does not dispute CamelBak’s recitation:

11 Plaintiff[’s] counsel admitted receipt of the full refunds and availability of the replacement 12 bottles, but sought to return the full refund and decline the free replacement bottles by mischaracterizing the readily available remedy as a “settlement offer,” even though the 13 letter plainly states that eh payments and replacement bottle are Plaintiff[’s] to keep unconditionally, and with no return consideration required. (Id. at Exhs. B-C). Defendants 14 returned the full refund and provided replacement bottles to Plaintiff[] with a reminder that they are Plaintiff[’s] to keep unconditionally, without consideration, and that Plaintiff[] 15 may do with them whatever they wish. (Id. at Exh. D.) Despite Plaintiff[’s] continued 16 attempts to return the refunds and bottles, the fact that they are fully available remains true to this day. 17 (Dkt. No. 18 at 13-14.) 18 II. MOTION TO DISMISS 19 CamelBak moves to dismiss Keller’s complaint under Rules 12(b)(1) and (b)(6). Because 20 the Court concludes that Keller lacks standing under Rule 12(b)(1), the Court limits its discussion 21 and analysis to Rule 12(b)(1), and declines to address CamelBak’s remaining arguments under 22 Rule 12(b)(6). 23 Article III of the United States Constitution provides that federal courts may only 24 adjudicate “cases” and “controversies.” U.S. Const. Art. III, § 2. The constitutional standing 25 inquiry “focuses on whether the plaintiff is the proper party to bring this suit.” Raines v. Byrd, 26

(1997). To establish standing under Article III, “[t]he plaintiff must have (1) 27 suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, 1 and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136

, 1547 (2016) (citing Lujan v. Defenders of Wildlife,

,

2130,

(1992)). In multi-count actions, standing is analyzed on a claim-by-claim 4 basis. Allen v. Wright,

(1984). 5 As the Court found in the Lepkowski action, Keller has failed to allege a concrete injury. 6 At its core, Keller’s argument hinges on the notion of gamesmanship, i.e. that a plaintiff attempts 7 to ignore the statutory mechanisms implemented to resolve consumer issues informally and 8 without litigation by not giving the defendant an opportunity to correct the defect. While 9 circumstances may exist rendering compliance with this notice provision pointless, this is not one 10 of them. Keller intentionally sought to circumvent those procedures by filing suit immediately 11 upon mailing the required notice, providing no opportunity for defendants to respond. Such 12 gamesmanship will not be countenanced. CamelBak made Keller unconditionally whole. Keller’s 13 preemptive filing of this lawsuit does not convert the corrective action into “post-suit” conduct. 14 Accordingly, the rationale previously articulated in the Court’s prior ruling in the Lepkowski 15 action is and remains persuasive and applicable.2 16 III. CONCLUSION 17 For the foregoing reasons, the Court GRANTS CamelBak’s motion to dismiss Keller’s first 18 amended class action complaint. This is Bursor & Fisher’s fourth attempt at a complaint (two in 19 the Lepkowski action and two here). Again, in light of this analysis, the Court does not believe 20 that amendment to the complaint is possible. However, in light of Keller’s request, leave to 21 amend is GRANTED as long as such amendment can be made consistent with Rule 11. 22 To the extent Keller decides to file a second amended complaint, the same shall be filed no 23

24 2 As noted, in light of this ruling, the Court declines to address the other grounds for dismissal. However, the Court does note that it has significant concerns regard the scope of the 25 alleged claims. Keller has pled that two water bottles have not been “spill proof” but has articulated no plausible theory to extend that claim to other types of bottles. Further, while the 26 Court agrees that whether a nationwide class claim can be stated is typically addressed during class certification, they have been routinely narrowed after the Ninth Circuit’s ruling in Mazza v. 27 American Honda Motor Co. Inc.,

(2012). Plaintiffs entire approach to this litigation, 1 later than June 19, 2020. Failure to do so will result in a sua sponte dismissal with prejudice 2 effective June 22, 2020. 3 This Order terminates Docket Number 18. 4 IT Is SO ORDERED. 5 6 Dated: May 29, 2020 7 YVONNE GONZALEZ ROGER 8 UNITED STATES DISTRICT JUDGE 9 10 11 a 12

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