Hidalgo v. Johnson & Johnson Consumer Cos.

• Decision Date: 08 December 2015
• Docket Number: 15-cv-5199 (SAS)
• Court: U.S. District Court — Southern District of New York
• Parties: Jinette Hidalgo, on behalf of herself and all others similarly situated, Plaintiff, v. Johnson & Johnson Consumer Companies, Inc., Defendant.

148 F.Supp.3d 285

Jinette Hidalgo, on behalf of herself and all others similarly situated, Plaintiff,

v.Johnson & Johnson Consumer Companies, Inc., Defendant.

15-cv-5199 (SAS)

United States District Court, S.D. New York.

Signed December 8, 2015

For Plaintiff: Kim E. Richman, Esq., Richman Law Group, 195 Plymouth Street, Brooklyn, NY 11201, (212) 687-8291, James C. Shah, Esq., Natalie Finkelman Bennett, Esq., Shepherd, Finkelman, Miller & Shah LLP, 35 East State Street, Media, PA 19063, (610) 891-9880, Jayne A. Goldstein, Esq., Pomerantz LLP, 1792 Bell Tower Lane, Suite 203, Weston, FL 33326, (954) 315-3454

For Defendant: V. David Rivkin, Esq., Mark A. Neubauer, Esq., Carlton Fields Jorden Burt LLP, 405 Lexington Avenue, 36th Floor, New York, NY 10174, (212) 380-9605

OPINION AND ORDER

SHIRA A. SCHEINDLIN, UNITED STATES DISTRICT JUDGE:

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.¹

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 Federal Rules of Civil Procedure

.² For the following reasons, the motions to dismiss under Rules 12(b)(1) and 12(b)(6) are GRANTED in part and DENIED in part, and the motion to strike under Rule 12(f) is DENIED in full.

II. BACKGROUND³

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.”⁴ However, the Complaint alleges, J&J “knew that the [Bedtime] Products themselves are not clinically proven”⁵ but were subjected to clinical tests only as part of a three-step routine of bath, massage, and quiet time outlined on the back of Bedtime Products bottles and other J&J marketing materials.⁶ The Complaint further alleges that based on these “clinically proven” representations, J&J was able to sell the Bedtime Products at a premium of at least 25 percent over its “plain baby lotion and wash products.”⁷

B. Hidalgo's Purchase and Use of the Bedtime Products

Hidalgo's “claims are based on the [Bedtime] Products' labels.”⁸ She asserts that, while shopping for baby wash “within the past five years,”⁹ she read J&J's labeling that the Bedtime Products were “clinically proven” to help babies sleep better and that, based on these representations, purchased the Bedtime Products for a premium price.¹⁰ Hidalgo “used the Bedtime Bath, in conjunction with the Bedtime Lotion, in accordance with [the] 3-step routine” described on the Bedtime Products bottles.¹¹ However, “[a]fter using the Bedtime Products as part of the 3-step nightly routine for a period of time with her children, [she] discontinued use” upon determining the Products to be ineffective in helping her children sleep.¹² 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].”¹³

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.”¹⁴ The Complaint “seeks injunctive relief, actual damages, restitution and/or disgorgement of profits, statutory damages, attorneys' fees, costs, and all other relief available to the Class.”¹⁵

III. LEGAL STANDARD

A. Rule 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.”¹⁶ “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.”¹⁷ “Thus, to survive ... [a] Rule 12(b)(1) motion to dismiss, [a plaintiff] must allege facts that affirmatively and plausibly suggest that it has standing to sue.”¹⁸ However, “[w]hen standing is challenged on the basis of the pleadings, we ‘accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.’ ”¹⁹

2. Article III Standing

“Under Article III of the Constitution, the jurisdiction of federal courts is limited to the resolution of ‘cases' and ‘controversies.’ ”²⁰ “In order to ensure that this ‘bedrock’ case-or-controversy requirement is met, courts require that plaintiffs establish their ‘standing’ as ‘the proper part[ies] to bring’ suit.”²¹ Article III's “irreducible constitutional minimum of standing contains three elements”:²²

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.”²⁴ Accordingly, in actions brought under consumer protection statutes, many courts have declined to find Article III standing for injunctive relief where the plaintiff “demonstrated that she is, in fact, unlikely to purchase [the challenged] products again.”²⁵

Further, Article III standing is a separate issue from that of “class standing.”²⁶ Article III “[s]tanding cannot be acquired through the back door of a class action.”²⁷ Rather, “the named class plaintiffs must allege and show that they personally have been injured, not that the injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”²⁸ Thus, “ ‘for every named defendant there must be at least one named plaintiff who can assert a claim directly against that defendant, and at that point standing is satisfied and only then will the inquiry shift to a class action analysis.’ ”²⁹

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.”³⁰ However, “[m]otions to strike under Rule 12(f) are rarely successful”³¹ —particularly in the class-action context where such a motion “ ‘requires a reviewing court to preemptively terminate the class aspects of litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification.’ ”³² “Put differently, motions to strike class allegations are often denied as premature.' ”³³ Accordingly, “to succeed on a motion to strike class allegations, a defendant must ‘demonstrate from the face of the [c]omplaint that it would be impossible to certify the alleged class regardless of the facts [the] [p]laintiffs may be able to obtain during discovery.”³⁴ In other words, “a motion to strike that addresses issues separate and apart from the issues that will be decided on a class certification motion is not procedurally premature.”³⁵

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'³⁶ ... and (2) that such conduct implicates the ‘same set of concerns' as the conduct alleged to have caused injury to other members of the putative class by the same defendants.”³⁷

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 plaintiff's favor.”³⁸ The court evaluates the sufficiency of the complaint under the “two-pronged approach” set forth by the Supreme Court in Ashcroft v. Iqbal.³⁹ Under the first prong, a court may “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.”⁴⁰ For example, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”⁴¹ Under the second prong of Iqbal, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”⁴² A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”⁴³ Plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.”⁴⁴ When deciding a 12(b)(6) motion to dismiss, “the Court is entitled to consider facts alleged in the complaint and documents attached to it or incorporated in it by reference, documents ‘integral’ to the complaint and relied upon it, and facts of which judicial notice may properly...