Hidalgo v. Johnson & Johnson Consumer Companies
Hidalgo v. Johnson & Johnson Consumer Companies
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
On July 2, 2015, Jinette Hidalgo filed a putative class action alleging that Johnson & Johnson Consumer Companies, Inc. (“J&J”) had engaged in deceptive marketing practices with respect to certain of its products, including Bedtime Bath and Bedtime Lotion (collectively, the “Bedtime Products”). Hidalgo’s two claims — brought under New York General Business Law Section 349 (“Section 349”) and state common law — focus on J&J labels and advertisements indicating that the Bedtime Products are “clinically proven” to help babies sleep better.
On October 1, 2015, J&J moved to (1) dismiss Hidalgo’s request for injunctive relief and other aspects of the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure; (2) strike Hidalgo’s class allegations pursuant to Rule 12(f) of the Federal Rules of Civil Procedure; and (3) dismiss both of Hidalgo’s claims pursuant to Rule 12(b)(6) of the
II. BACKGROUND
A. Bedtime Products Labels and Advertisements
The Complaint alleges that “[s]ince the launch of the [Bedtime] Products to the present, J&J has consistently and uniformly stated on its labeling and in other advertisements. that the Products are clinically proven to help babies sleep better.”
B. Hidalgo’s Purchase and Use of the Bedtime Products
Hidalgo’s “claims are based on the [Bedtime] Products’ labels.”
C.Class Allegations and Claims for Relief
Hidalgo seeks to assert her claims on behalf of herself and “[a]ll persons who purchased the Bedtime, Products within New York, not for resale or assignment.”
III. LEGAL STANDARD
A. Ruie 12(b)(1) Motion to Dismiss for Lack of Standing
1. Generally
“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.”
2. Article III Standing
“Under Article III of the Constitution, the jurisdiction of federal courts is limited to the resolution of ‘cases’ and ‘controversies.’ ”
First, the plaintiff must have suffered an ‘injury in fact’ ... which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.... Second, ... the injury has to be fairly trac[eable] to the challenged' action of the defendant.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.23
However, “[a] plaintiff seeking injunctive ... relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.”
B. Rule 12(f) Motion to Strike Class Allegations
1. Generally
Rule 12(f) provides that a court may “strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter.”
2. Class Standing
The Second Circuit has held that “[i]n a putative class action, a plaintiff has class standing if [s]he plausibly alleges (1) that [s]he ‘personally has suffered some actual ... injury as a result of the putatively illegal conduct of the defendant’
C. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
1. Generally
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must “accept ] all factual allegations in the complaint as true and draw[] all reasonable inferences in the plaintiffs favor.”
2. Statute of Limitations Defense
“Timeliness is ‘material when testing the sufficiency of a pleading.’ ”
D. Leave to Amend
Federal Rule of Civil Procedure 15(a)(2) provides that,''other than amendments as a matter of course, a party may aménd its pleading “only with the opposing party’s written consent or the court’s leave.” Although “[t]he court should freely give leave when justice so requires,”
IV. APPLICABLE LAW
A. Section 349
“New York - General Business Law § 349, a consumer protection measure, provides, in relevant part: ‘[deceptive acts or practices in the conduct of any business, trade or commerce' or in the furnishing of any service in [New York] are hereby declared unlawful.’ ”
Generally, “[a]etions brought pursuant to Section 349 must be commenced within three years of the date of accrual.”
B. Unjust Enrichment
“To state a claim for. unjust enrichment [under New York law],, a plaintiff must plead that (1) the defendant was enriched (2) at the plaintiffs expense and (3) under the circumstances of such enrichment equity and good conscience require the defendant to make restitution.”
Y. DISCUSSION
A. Rule 12(b)(1) Motion to Dismiss for Lack of Standing
The Court will first consider J&J’s jurisdictional arguments that Hidalgo, in her individual capacity, lacks Article III standing to seek injunctive relief, pursue claims accruing prior to 2010, or assert claims based on advertising other than J&J’s labeling of the Bedtime Products.
1. Injunctive Relief
A plaintiff lacks standing to bring an action for injunctive relief when, as here, she does not allege that she will suffer any future injury as a result of defendant’s continued conduct.
Furthermore, amendment would be futile given that the Complaint effectively asserts that regardless of whether J&J’s allegedly deceptive practices are enjoined, Hidalgo will refrain from purchasing the Bedtime Products, Specifically, the Complaint states that had J&J “not engaged in false and misleading advertising” and “disclosed all material information regarding the [Bedtime Products], ... [Hidalgo] would not have purchased the [Bedtime Products].”
2. Claims Arising from Pre-2010 Purchases or Advertisements Other than Bedtime Products Labeling
J&J also challenges Hidalgo’s individual standing to assert claims arising out of pre-2010 purchases of the Bedtime Products or based on advertising other than the labels on J&J’s Bedtime Product bottles (such as Internet advertisements).
B. Rule 12(f) Motion to Strike Class Allegations
The only remaining issue is J&J’s standing-related arguments under Rule 12(f) — namely, those regarding Hidalgo’s standing to represent a class pursuing claims arising out of pre-2010 purchases or advertising other than the Bedtime Products labels.
C. Rule 12(b)(6) Motion to Dismiss For Failure to State a Claim
1. Section 349 Claim
J&J offers two arguments in support of its position that the Section 349 claim should be dismissed for failure to state a claim — neither of which is persuasive.
Second, J&J argues that the Complaint fails to plausibly allege that J&J’s representations about-the Bedtime Products were “materially misleading” - and thus, likely to mislead a reasonabl' customer — -as required to support this cause of action.
2. Unjust Enrichment Claim
Hidalgo’s remaining claim for unjust enrichment, however, must be dismissed because “ ‘it simply duplicates, or replaces, a conventional contract or tort claim.’ ”
VI. CONCLUSION
For the foregoing reasons, J&J’s motions. to dismiss, under Rules 12(b)(1) and 12(b)(6) are GRANTED in part and DENIED in part, and-Hidalgo’s request for injunctive relief and unjust enrichment claim are dismissed with prejudice. J&J’s Rule 12(f) motion to. strike is DENIED in full.
SO ORDERED.
. This Court has original jurisdiction over this case under the Class Action Fairness Act of 2005. See 28 U.S.C. § 1332(d)(2). As alleged in the Complaint (“Compl,”), the amount in controversy exceeds $5,000,000, and there is minimal diversity because defendant and certain members of the class are citizens of different states. See id.
. Although J&J does not cite any statutory bases for its motion, the Court has construed J&J’s arguments as seeking applicable relief under these Rules.
. The following background is drawn from the Complaint.
. Compl. ¶ 35.
. Id.
. Id. ¶ 36.
. Id. ¶ 38.
. Id. ¶ 40.
. Id.
. See id. ¶¶ 40-42.
. Id. ¶¶ 26, 40.
. Id. ¶ 45.
. Id. ¶¶ 72-73.
. Id. ¶ 49.
. id. ¶ 7.
. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
. Id.
. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).
. United States v. Vazquez, 145 F.3d 74, 81 (2d Cir. 1998) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)) (further citations omitted).
. Amidax, 671 F.3d at 145 (quoting United States.Const. art. III § 2).
. Id. (quoting W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (alteration in original) (further quotation omitted)).
. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
. Id. at 560-61, 112 S.Ct. 2130 (quotation marks and citations omitted) (alterations in original).
. Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).
. Tomasino v. Estee Lauder Cos., 44 F.Supp.3d 251, 256 (E.D.N.Y. 2014). Accord Vaccariello v. XM Satellite Radio, 295 F.R.D, 62, 68 (E.D.N.Y. 2013); In re ConAgra Foods,
. See NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 158 (2d Cir. 2012).
. Wallace v. Ahearn, No. 13 Civ. 2520, 2014 WL 4659307, at *9 (E.D.N.Y. July 15, 2014) (quoting Allee v. Medrano, 416 U.S. 802, 829, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) (Burger, C.J., concurring in part and dissenting in part)).
. Central States SE & SW Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 433 F.3d 181, 199 (2d Cir. 2005) (quotation marks and citations omitted).
. Central States SE & SW Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 504 F.3d 229, 241 (2d Cir. 2007) (quoting 1 Newberg on Class Actions § 2:6 n.3 (4th ed. 2002)).
. Additionally, Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure provides that "[a]t an early practicable time after a person sues or is sued as a class , representative, the court must determine by order whether to certify the action as a class action.”
. Reynolds v. Lifewatch, Inc., No. 14 Civ. 3575, 136 F.Supp.3d 503, 511, 2015 WL 5730792, at *4 (S.D.N.Y. Sept. 29, 2015). Accord Emilio v. Sprint Spectrum L.P., 68 F.Supp.3d 509, 514 (S.D.N.Y. 2014) ("Motions to strike are viewed with disfavor and infrequently granted.” (quotation marks omitted)).
. Reynolds, 136 F.Supp.3d at 511, 2015 WL 5730792, at *4 (quoting Belfiore, 94 F.Supp.3d at 447) (further citations omitted).
. Id.
. Id. (alterations in original) (quoting Mayfield v. Asta Funding, 95 F.Supp.3d 685, 696 (S.D.N.Y. 2015)).
. Chen-Oster v. Goldman Sachs & Co,, 877 F.Supp.2d 113, 117 (S.D.N.Y. 2012) (quotation marks and citation omitted).
. NECA-IBEW, 693 F.3d at 162 (quoting Blum v. Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)).
. Id. (quoting Gratz v. Bollinger, 539 U.S. 244, 267, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003)). Accord id. (”[I]n the context of claims alleging injury based on misrepresentations, the misconduct alleged will almost always be the same: the making of a false or misleading statement. Whether that conduct implicates the same set of concerns for distinct sets of plaintiffs, however, will depend on the nature and content of the specific misrepresentation alleged.”); In re Frito-Lay N.A., Inc. All Natural Litig., No. 12 MD 2413, 2013 WL 4647512, at *13 (E.D.N.Y. Aug. 29, 2013) ("Whether the plaintiffs’ injuries are sufficiently similar to those of the putative class members who purchased other products— and whether plaintiffs will therefore adequately represent the interests of the class — is a question the Court will consider on a Rule 23 certification motion,”).
. Grant v. County of Erie, 542 Fed.Appx. 21, 23 (2d Cir. 2013).
. See 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937 (citation omitted).
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937 (citation omitted).
. Id. (quotation marks omitted).
. Heckman v. Town of Hempstead, 568 Fed.Appx. 41, 43 (2d Cir. 2014) (citing Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)) (further citation omitted).
. Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) (quoting Fed. R. Civ. P. 9(f)).
. Id. Accord Estate of Leventhal ex rel. Bernstein v. Wells Fargo Bank, No. 14 Civ. 8751, 2015 WL 5660945, at *7 (S.D.N.Y., Sept. 25, 2015) (declining to “decide [on motion to dismiss] whether Plaintiffs claims [were] time-barred because it [was] not clear on the face of the Complaint when ... those claims began to accrue”).
. Fed. R. Civ. P. 15(a)(2).
. Franconero v. UMG Recordings, Inc., 542 Fed.Appx, 14, 17 (2d Cir. 2013) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)).
. Heckman, 568 Fed.Appx. at 43 (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)).
. See Smith v. United States, 554 Fed.Appx. 30, 32 (2d Cir. 2013).
. Dimond v. Darden Rests., No. 13 Civ. 5244, 2014 WL 3377105, at *4 (S.D.N.Y. July 9, 2014).
. Tomasino, 44 F.Supp.3d at 257 (quotation marks omitted).
. Weisblum v. Prophase Labs, Inc., 88 F.Supp.3d 283, 292 (S.D.N.Y. 2015) (citations omitted).
. Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007) (quoting Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)).
. Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F.Supp.3d 467, 478 (S.D.N.Y. 2014) (citations omitted).
. Koenig v. Boulder Brands, 995 F.Supp.2d 274, 288 (S.D.N.Y. 2014) (citations omitted).
. Marshall v. Hyundai Motor Am., 51 F.Supp.3d 451, 461 (S.D.N.Y. 2014).
. Statler v. Dell, Inc., 775 F.Supp.2d 474, 484 (E.D.N.Y. 2011).
. Statler v. Dell, Inc., 841 F.Supp.2d 642, 647 (E.D.N.Y. 2012).
. Goldemberg, 8 F.Supp.3d at 483.
. Id. (quotation marks and citation omitted).
. Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 (2012). Accord Trend & Style Asia HK Co. v. Pacific Worldwide, Inc., No. 14 Civ. 9992, 2015 WL 4190746, at *6 (S.D.N.Y. July 10, 2015) ("[I]f the ... Defendants admit that there was a contract even while denying liability under it, then the Court will dismiss as duplicative the quasi-contract allegations.”)
. See, e.g., Deshawn E., 156 F.3d at 344; Tomasino, 44 F.Supp.3d at 256; Vaccariello, 295 F.R.D. at 68; In re ConAgra Foods, 90 F.Supp.3d at 979; Morgan, 2014 WL 1017879, at *6.
. The Second Circuit has not opined on - whether a plaintiff maintain? standing to seek injunctive relief for consumer protection claims when she admits that she will not repurchase the challenged products. Hidalgo points to a few district court cases that have found standing under these circumstances. See, e.g., Belfiore, 94 F.Supp.3d at 445; Henderson, 2011 WL 1362188, at *7. This Court, however, finds those cases to be irreconcilable with Article III’s firm injury-in-fact requirement — a bedrock limitation on the jurisdiction of the federal courts. See Lujan, 504 U.S. at 559, 112 S.Ct. 2130; Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660.
. Compl. ¶¶ 72-73.
. J&J also apparently challenges Hidalgo’s individual standing to pursue claims based on post-2013 purchases, citing the Complaint’s allegation that J&J changed relevant language on some advertising materials "sometime between [January 2013] and the present." Compl. ¶ 32 n.6. This argument is a red herring, as the Complaint further alleges that even after this change, the “clinically proven” representation continued to appear on the Bedtime Products’ labels. See id. ¶ 20 (“While the language on some of these [advertising] materials has changed slightly between January 2013 and the present, the wording on the Product labels has remained constant to this day: that the Bedtime Products are clinically proven to help babies sleep better.” (emphasis added)).
. See NECA-IBEW, 693 F.3d at 162.
. J&J similarly attempts to challenge Hidalgo’s class standing to pursue claims arising out of post-2013 purchases due to the alleged change in J&J advertising. This argument fails for the reason stated at note 67, supra.
. Compl. ¶ 49.
. NECA-IBEW, 693 F.3d at 162 (quoting Gratz, 539 U.S. at 267, 123 S.Ct. 2411).
. J&J also submits sources outside the Complaint in support of its position (including Internet reviews of the Bedtime Products and filings from other cases). The Court declines to consider these materials in deciding this motion, as they are neither part of Hidalgo’s Complaint nor integral to her claims. See Heckman, 568 Fed.Appx. at 43.
. Compl. ¶ 40.
. See Staehr, 547 F.3d at 425.
. J&J does not challenge the Complaint’s sufficiency with respect to any other element of the Section 349 claim.
. Compl. ¶ 25 (emphasis added).
. See, e.g., id. ¶¶ 21, 25-26, 28, 36.
.' Defendant’s Memorandum of Law in Support of Its Motion to Dismiss and Strike Class Allegations ("Def. Mem.”) at 11.
. See Compl. ¶¶ 35-36, 38.
. See Goldemberg, 8 F.Supp.3d at 478.
. Def. Mem. at 16 (quoting Corsello, 18 N.Y.3d at 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177).
. Plaintiff’s Memorandum of Law in Opposition to Defendant’s. Motion to Dismiss and Strike Class Allegations at 23 (citing Trend & Style, 2015 WL 4190746, at *5-*6).
Reference
- Full Case Name
- Jinette HIDALGO, on behalf of herself and all others similarly situated v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC.
- Cited By
- 20 cases
- Status
- Published