Bruaner v. Musclepharm Corp., Case No. CV 14-8869 FMO (AGRx)

• Decision Date: 11 August 2015
• Docket Number: Case No. CV 14-8869 FMO (AGRx)
• Court: U.S. District Court — Central District of California
• Parties: JAKE BRUANER, on behalf of himself and all others similarly situated, Plaintiff, v. MUSCLEPHARM CORPORATION, et al. Defendants.

JAKE BRUANER, on behalf of himself and all others similarly situated, Plaintiff, v. MUSCLEPHARM CORPORATION, et al. Defendants.

Case No. CV 14-8869 FMO (AGRx)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

August 11, 2015

ORDER RE: MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT

Having reviewed the briefing filed with respect to defendant's Motion to Dismiss Plaintiff's Second Amended Complaint ("Motion"), the court concludes that oral argument is not necessary to resolve the Motion. See Fed. R. Civ. P. 78; Local Rule 7-15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001).

INTRODUCTION

Jake Bruaner ("Bruaner" or "plaintiff") filed this action, individually and on behalf of others similarly situated, against MusclePharm Corporation ("MPC" or "defendant") on November 14, 2014. (See Complaint). In response to defendant's motion to dismiss, plaintiff filed a Second Amended Complaint ("SAC") on June 17, 2015. (See SAC). Plaintiff alleges that defendant "knowingly and willfully misrepresent[s] the contents of" MusclePharm Combat Protein Powder ("the Product" or "Combat Powder") to consumers and asserts causes of action for (1) violation of California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750, et seq.; (2) violation of California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500, et seq.; (3) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq.; (4) unjust enrichment; and (5) breach of express warranty. (See FAC at ¶¶ 1 & 63-116). Plaintiff seeks declaratory and injunctive relief, restitution and disgorgement, compensatory damages, exemplary damages, and "other further relief as the nature of the case may require[.]" (See id. at 22-23, Relief Requested).

On June 24, 2015, defendant filed the instant Motion, asserting that the Food and Drug Administration ("FDA") has primary jurisdiction over dietary supplements; that plaintiff's claims are preempted by the Federal Food, Drug, and Cosmetic Act ("FDCA") and the FDA's regulations; that plaintiff lacks standing to assert claims based upon MPC's website; that plaintiff fails to plead fraud with particularity; and that plaintiff fails to state a claim for unjust enrichment. (See Motion at 1-2 & 15).

FACTUAL ALLEGATIONS

Plaintiff purchased Combat Powder in 2014 from a Costco store in Marina Del Rey, California. (See SAC at ¶ 22). He alleges that "[t]he FDA method for determining a product's protein content is measured by the total nitrogen content found in a serving of a food or dietary supplement." (Id. at ¶ 3). The FDA uses this method because "protein [is] the only macronutrient that provides nitrogen, which comes from protein's chains of amino acids[,]" and as a result, "the FDA allows the total nitrogen content to be attributed to protein." (Id.) (emphasis in original). According to plaintiff, however, "[i]t is important to note that many other non-macronutrient ingredients do indeed contain nitrogen[,]" and thus, "not all ingredients that contain nitrogen are protein." (Id. at ¶ 4). Plaintiff alleges that MPC has "stuff[ed] [its] product with these other non-protein, nitrogen-containing ingredients in order to artificially boost [its] stated protein content[.]" (Id. at ¶ 5).

Although stating protein content this way is "technically correct when place[d] in the nutritional content box per the FDA guidelines," plaintiff alleges that statements are misleading and false because MPC "holds itself out to calculating protein content without including the nitrogen attributed to non-protein nitrogen sources." (SAC at ¶¶ 5-6). For example, MPC states in its "Brand Promise" that it does not "'include amino acids, creatine[,] and other non-protein, nitrogen sources in [its] protein content.'" (Id. at ¶ 6) (emphasis omitted). Plaintiff alleges that such statements "permeate[] Defendant's marketing strategy through all marketing channels[.]" (Id. at ¶ 7; see also id. at ¶ 37) (alleging that defendant misleads the public "by the way it labels its product, the advertisements it makes, and by producing test results from tests that include non-protein, nitrogen sources which are directly contrary to the 'Brand Promise'"). In addition, plaintiff alleges that MPC lists ingredients on the Combat Powder product label "that the Product does not contain, and [] fail[s] to claim ingredients that the Product does contain." (Id. at ¶ 19).

Plaintiff alleges that he and the putative class members reasonably relied on MPC's representations regarding protein content (see SAC at ¶¶ 22-23), and that "[a]s a result of [MPC's] deceptive, fraudulent, unfair and misleading practices, Plaintiff and the Class Members have been unfairly deceived into purchasing the Product which they would not otherwise have purchased, or would have purchased only at a lower price than that charged by [MPC]." (Id. at ¶ 24).

LEGAL STANDARD

I. MOTIONS TO DISMISS.

A motion to dismiss for failure to state a claim should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly (Twombly), 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007); see Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009); Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; see Cook, 637 F.3d at 1004; Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010). The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. at 1965; Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; see also Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004), cert. denied, 544 U.S. 974 (2005) ("[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.") (citations and internal quotation marks omitted). "Specific facts are not necessary; the [complaint] need only give the defendant[s] fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200 (2007) (per curiam) (citations and internal quotation marks omitted); see Twombly, 550 U.S. at 555, 127 S.Ct. at 1964.

In considering whether to dismiss a complaint, the court must accept the allegations of the complaint as true, Erickson, 551 U.S. at 93-94, 127 S.Ct. at 2200; Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 810 (1994), construe the pleading in the light most favorable to the pleading party, and resolve all doubts in the pleader's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849 (1969); Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). Dismissal for failure to state a claim can be warranted based on either a lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint may be dismissed also for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. See Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).

II. PRIMARY JURISDICTION.

Even if plaintiff's claims are sufficiently pled such that they would typically survive a motion to dismiss, the court may stay the proceedings or dismiss the complaint if the matters raised in the case are within the primary jurisdiction of the FDA. "Primary jurisdiction is a prudential doctrine that permits courts to determine 'that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.'" Astiana v. Hain Celestial Group, Inc., 783 F.3d 753, 760 (9th Cir. 2015) (quoting Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008)). The doctrine applies when there is "(1) the need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration." Syntek Semiconductor Co., Ltd. v. Microchip Technology, Inc., 307 F.3d 775, 780 (9th Cir. 2002).

"Not every case that implicates the expertise of federal agencies warrants invocation of primary jurisdiction. Rather, the doctrine is reserved for a limited set of circumstances that requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency." Astiana v. Hain Celestial, 783 F.3d at 760 (internal quotation marks omitted). The Ninth Circuit has stated that "even when agency expertise would be helpful, a court should not invoke primary jurisdiction when the agency is aware of but has expressed no interest in the subject matter of the litigation[,]" or when "referral to the agency would significantly postpone a ruling that a court is otherwise competent to make." Id. at 761. Courts should also take into account "whether invoking primary jurisdiction would needlessly delay the resolution of claims." Id. at 760.

If a court determines that the doctrine of primary jurisdiction applies, it must either stay the case pending an administrative ruling or dismiss the case without prejudice. See Astiana v. Hain Celestial, 783 F.3d at 761. "When the purpose of...