Ashley Bradyand Stephanie Dalli Cardillo v. Basic Research, L.L.C.

• Citation: 101 F.Supp.3d 217
• Decision Date: 31 March 2015
• Docket Number: No. 13–CV–7169 SJF.,13–CV–7169 SJF.
• Parties: Ashley BRADYand Stephanie Dalli Cardillo, on behalf of themselves and all others similarly situated, Plaintiffs, v. BASIC RESEARCH, L.L.C., Zoller Laboratories, L.L.C., Nicole E. Polizzi a/k/a/ Snooki, Dennis W. Gay, Daniel B. Mowrey and Mitchell K. Friedlander, Defendants.
• Court: U.S. District Court — Eastern District of New York

101 F.Supp.3d 217

Ashley BRADYand Stephanie Dalli Cardillo, on behalf of themselves and all others similarly situated, Plaintiffs,

v.BASIC RESEARCH, L.L.C., Zoller Laboratories, L.L.C., Nicole E. Polizzi a/k/a/ Snooki, Dennis W. Gay, Daniel B. Mowrey and Mitchell K. Friedlander, Defendants.

No. 13–CV–7169 SJF.

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

Signed March 31, 2015.

Joseph Ignatius Marchese, Neal J. Deckant, Scott A. Bursor, Yitzchak Kopel, Bursor & Fisher P.A., Shane T. Rowley, Levi & Korsinsky LLP, New York, NY, for Plaintiffs.

Daniel Adam Schnapp, Fox Rothschild LLP, New York, NY, Jason Kerr, Ronald F. Price, Price Parkinson & Kerr, PLLC, Salt Lake City, UT, Ryan Becker, Fox Rothschild LLP, Warrington, PA, Stephanie Resnick, Gerald Arth, Fox, Rothchild, O'Brien & Frankel, LLP, Philadelphia, PA, for Defendants.

OPINION AND ORDER

FEUERSTEIN, District Judge.

Defendants Basic Research, L.L.C., Zoller Laboratories, L.L.C., Dennis Gay, Daniel Mowrey and Mitchell Friedlander (“Basic Research defendants”) move to dismiss the First Amended Complaint (“FAC”) pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) and (6)and to strike certain paragraphs in the FAC pursuant to FRCP 12(f); defendants Dennis Gay, Daniel Mowrey and Mitchell Friedlander (“individual defendants”) move to dismiss pursuant to FRCP 12(b)(2); and defendant Nicole E. Polizzi (“Polizzi”) moves to dismiss pursuant to FRCP 12(b)(1) and (6).

For the following reasons: (1) the Basic Research defendants' motion to strike pursuant to 12(f) is DENIED;(2) Basic Research's and Polizzi's motions to dismiss the claims against Power Crystals pursuant to 12(b)(1) are DENIED;Polizzi's motion to dismiss plaintiff Brady's claims pursuant to 12(b)(1) is GRANTED;the individual defendants' motion to dismiss pursuant to 12(b)(2) is GRANTEDas to Mowrey and DENIEDas to Gay and Friedlander; Basic Research's motion to dismiss pursuant to 12(b)(6) is GRANTEDin part and DENIEDin part; and Polizzi's motion to dismiss pursuant to 12(b)(6) is GRANTEDin part and DENIEDin part.

I. Background

This is a proposed class action on behalf of the purchasers of Zantrex–3 (“Zantrex–3”), Zantrex–3 High Energy Fat Burner (“Fat Burner”), and Zantrex–3 Power Crystals (“Power Crystals”; collectively “Zantrex”), which are marketed by defendants as clinically proven weight control supplements. FAC ¶ 1.

Parties

Plaintiff Ashley Brady (“Brady”) is a citizen of New York who purchased a bottle of Zantrex–3 from a CVS pharmacy located in Nassau County, New York. Id.at ¶ 16. Plaintiff Stephanie Cardillo (“Cardillo”) is a citizen of New Jersey who purchased Fat Burner through the Amazon website for delivery to her residence in Snow Hill, Maryland. Id.at ¶ 17.

Defendant Basic Research, LLC (“Basic Research”), a limited liability company with its principal place of business at 5742 Harold Gatty Drive, Salt Lake City, Utah, develops, manufactures, promotes, markets, distributes, and/or sells Zantrex in the United States. Id.at ¶ 19. Defendant Zoller Laboratories, LLC (“Zoller”) is a limited liability company and a wholly owned subsidiary of Basic Research created for the sole purpose of manufacturing, promoting, marketing, distributing, and/or selling Zantrex in the United States; Zoller's corporate office is also 5742 Harold Gatty Drive, Salt Lake City, Utah. Id.at ¶¶ 23–24. Defendant Dennis Gay (“Gay”) is a citizen of Utah and an officer and principal shareholder of Basic Research and Zoller, who formulates, directs, controls or participates in the alleged acts and/or business practices.Id.at ¶ 25. Defendant Daniel Mowrey (“Mowrey”) is a citizen of Utah and principal shareholder of Basic Research and the Director of Scientific Affairs. Id.at ¶ 28. Defendant Mitchell Friedlander (“Friedlander”), a citizen of Utah, is a marketing consultant in the development, manufacture, endorsement, advertising, marketing and promotion of Zantrex. Id.at ¶ 32. Defendant Nicole E. Polizzi is a citizen of New York and a paid spokesperson for Zoller, and has appeared in nearly every advertisement for Zantrex. Id.at ¶ 38.

Plaintiffs' Claims

Plaintiffs allege that defendants: (1) violated the Magnuson–Moss Warranty Act, 15 U.S.C. § 2301 et seq.;(2) breached express warranties; (3) violated New York's General Business Law § 349; (4) the Maryland Consumer Protection Act; (5) negligently and (6) fraudulently misrepresented Zantrex's effectiveness; and (7) were unjustly enriched.

II. Discussion

A. Basic Research Defendants' Motion to Strike

1. Legal Standard

Pursuant to FRCP 12(f), the court may, sua sponteor upon motion, “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “ ‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief, and ‘impertinent’ material consists of statements that do not pertain to, and are not necessary to resolve, the disputed issues.' ” Lynch v. Southampton Animal Shelter Found., Inc.,278 F.R.D. 55, 63 (E.D.N.Y.2011)(quoting In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.,402 F.Supp.2d 434, 437 (S.D.N.Y.2005)). “A scandalous allegation is one that reflects unnecessarily on the defendant's moral character, or uses repulsive language that detracts from the dignity of the court.” Cabble v. Rollieson,No. 04 Civ. 9413, 2006 WL 464078, at *11 (S.D.N.Y. Feb. 27, 2006).

“[M]otions to strike ‘are not favored and will not be granted unless it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation.’ ” Crespo v. New York City Transit Auth.,No. 01 Civ. 0671, 2002 WL 398805, at *11 (E.D.N.Y. Jan. 07, 2002)(quoting Lennon v. Seaman,63 F.Supp.2d 428, 446 (S.D.N.Y.1999)). To prevail on a 12(f) motion, the moving party must demonstrate that: “(1) no evidence in support of the allegations would be admissible; (2) that the allegations have no bearing on the issues in the case; and (3) that to permit the allegations to stand would result in prejudice to the movant.” Roe v. City of New York,151 F.Supp.2d 495, 510 (S.D.N.Y.2001)(citing Koch v. Dwyer,No. 98 Civ. 5519, 2000 WL 1458803, at *1 (S.D.N.Y. Sept. 29, 2000)).

2. Basic Research Defendants' Motion to Strike Under FRCP 12(f)

The Basic Research defendants seek to strike paragraphs 33–35 of the FAC on the grounds they are immaterial and impertinent. The paragraphs at issue pertain to defendant Freidlander and relate to past censures by government agencies. The FAC alleges that on September 10, 1985, the United States Postal Service (“USPS”) issued “Cease and Desist” and “False Representation” orders against Freidlander in connection with his activities concerning the marketing and sale of weight loss dietary supplements.¹FAC ¶ 33. The USPS found that reports cited by Friedlander did not support the products' claims that they: (1) caused weight loss in virtually all users without dieting or exercise; (2) prevented foods from being converted into stored fat; (3) were supported by scientifically sound clinical studies; and (4) allowed obese users to lose weight without changing their eating habits.Id.The USPS orders required Friedlander and his companies to cease and desist from further false claims about the effectiveness of the weight loss products. Id.

On September 30, 1985, the USPS issued another decision finding that Friedlander's advertisements for three (3) breast enlargement

products were materially false as a matter of fact. FAC ¶ 34. Contrary to Friedlander's advertisements, the products would not cause an increase in breast size and the USPS ordered Friedlander to cease and desist from further false claims about the effectiveness of his products. Id.

On February 26, 1986, following a six (6) day bench trial in an action brought by the Department of Justice and the Federal Trade Commission, the Southern District of Florida permanently enjoined Friedlander from advertising that his products caused weight loss without requiring users to restrict calorie intake or exercise. Id.at ¶ 35.

Plaintiffs argue that the allegations are not offered as evidence of Friedlander's character,²but to show his knowledge, intent and willfulness, which are admissible purposes under Federal Rule of Evidence (“FRE”) 404(b)(2), which provides: “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

“The Second Circuit follows an ‘inclusionary’ approach to ‘other crimes, wrongs, or acts' evidence, that is, such evidence is admissible to prove matters other than the defendant's criminal propensity.” Carofino v. Forester,450 F.Supp.2d 257, 271 (S.D.N.Y.2006)(citing United States v. Pascarella,84 F.3d 61, 69 (2d Cir.1996); United States v. Ortiz,857 F.2d 900, 903 (2d Cir.1988); Ismail v. Cohen,706 F.Supp. 243, 252 (S.D.N.Y.1989)).

Evidence supporting the allegations is admissible under FRE 404(b)(2)to demonstrate that defendant: (1) intended to defraud plaintiffs by making false representations concerning Zantrex; (2) knew plaintiffs would rely upon the false representations; and (3) knew that making such false statements about his weight loss products was actionable. See Tuccillo v. Geisha NYC, LLC,635 F.Supp.2d 227, 236 n. 4 (E.D.N.Y.2009)(finding evidence of a prior attempt to register an identical or virtually identical mark “highly probative” on the issue of intent and knowledge under FRE 404(b)).

The allegations have bearing on this case because the nature of the false advertising claims for which Friedlander was censured, i.e., weight loss and breast enhancement, are virtually identical to the FAC's allegations concerning Friedlander's weight loss claims with respect to Zantrex. See, e.g.,FAC ¶¶ 7, 56–61. Although permitting the allegations to stand may result in prejudice to Friedlander, their probative value outweighs any prejudice. SeeFed.R.Evid. 403³; 404(b). In addition, this evidence may...