Early v. Henry Thayer Company Inc.
| Decision Date | 22 July 2021 |
| Docket Number | 4:20-CV-1678 RLW |
| Parties | CYNTHIA EARLY, on behalf of herself And all others similarly situated, Plaintiff, v. HENRY THAYER COMPANY, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Cynthia Early brings this suit against Henry Thayer Company, Inc. (“Thayer”) for violations of the Missouri Merchandising Practices Act, Mo. Rev. Stat. §§ 407.025, et seq. (“MMPA”), breach of express warranty, and for unjust enrichment. Plaintiff Early brings suit on behalf of herself and those similarly situated. This matter is before the Court on Thayer's motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Thayer also moves that the Court transfer the above-captioned case to the United States District Court for the Western District of Pennsylvania under the first-filed doctrine or, in the alternative, that the Court stay this matter until the action in Pennsylvania has concluded. Plaintiff opposes both motions, which are fully briefed and ripe for review.[1] For the reasons that follow, the Court denies Thayer's motion to transfer or stay, and grants in part, its motion to dismiss for failure to state a claim.
In this putative class action, Plaintiff Cynthia Early alleges Thayer has misled and continues to mislead consumers into believing its products are natural and do not contain synthetic ingredients. Plaintiff Early seeks to represent consumers who were allegedly misled into purchasing Thayer's products at a premium price under the false representation that they were natural, when in fact they contained synthetic ingredients.
Thayer manufactures a variety of personal care products under the name THAYERS® Natural Remedies, which are sold in drug stores, grocery stores, and other retail stores nationwide. ECF No. 1 at 18, ¶ 59. This matter is before the Court on the basis of diversity jurisdiction. Thayer is a Delaware corporation with its principal place of business in Connecticut, and Plaintiff Cynthia Early is a citizen of Missouri residing in St. Louis County. Plaintiff alleges she has purchased Thayer's products from physical retail stores in the last five years. Specifically, she alleges she purchased THAYERS® Natural Remedies Rose Petal Facial Toner at a CVS store in Missouri.
Plaintiff alleges that Thayer manufactures, advertises, and sells its THAYERS® Natural Remedies products, representing that the products are “Natural, ” and “Natural Remedies.” Id. at 1, ¶ 1. According to Plaintiff, the front label on each of Thayer's products prominently reinforces the claims that Thayer's products are natural. Id. 2 & 3 at ¶¶ 3 & 9. Plaintiff also alleges Thayer represents that its products are “natural” on its website and social media platforms. Plaintiff contends Thayer's claims that its products are “natural” are false, misleading, and designed to deceive consumers into paying a price premium and to choose Thayer's products over a competitor's product. Id. at 4 ¶¶ 14-15. Plaintiff attached to her Complaint a list of 31 Thayer's products, which she contends fail to conform to Thayer's representations that the products are “natural, ” because the products contain several synthetic, unnatural ingredients and preservatives, including phenoxyethanol, sodium benzoate, potassium sorbate, polysorbate-20, and ascorbic acid. Id. at Ex. A.
In her Complaint, Plaintiff brings the following six claims against Thayer: (1) violation of the MMPA for selling products that are deceptively represented as “natural” (Count I); (2) violation of the MMPA for misrepresenting that its products were “natural” (Count II); (3) violation of the MMPA for concealing and omitting the material facts that its products are not “natural” (Count III); (4) violation of the MMPA for making half-truths about the ingredients in its products (Count IV); (5) breach of express warranty (Count V); and (6) unjust enrichment (Count VI).
Plaintiff seeks to bring claims on behalf of herself and two classes of consumers. She seeks an order under Rule 23 of the Federal Rules Civil Procedure certifying a state-wide class and a national class. She also asks the Court to enter an order declaring Thayer's conduct violates the MMPA and other Missouri state laws. Plaintiff seeks compensatory and punitive damages, as well as injunctive relief and attorneys' fees.
Before this suit was filed, a plaintiff in Pennsylvania filed suit in October 2019 against Thayer alleging a number of its products were improperly labeled and marketed as “natural” because they contained synthetic ingredients. See Lisowski v. Henry Thayer Co., No. 2:19-CV-1339 MJH (W.D. Pa., filed Oct. 19, 2019). The plaintiff in the Lisowski case, who is represented by the same counsel as the plaintiff here, alleged violations of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) on behalf of a Pennsylvania class, and breach of express warranty and unjust enrichment on behalf of a nationwide class. Four months after that suit was filed, the complaint in Lisowski was amended to add a plaintiff from Maryland and claims under Maryland's Consumer Protection Act. Thayer moved to dismiss the Lisowski complaint based on a number of the same arguments the company has made in this case. Thayer also moved to dismiss the Maryland plaintiff, arguing there was no personal jurisdiction over that plaintiff in Pennsylvania.
On November 17, 2020, the Honorable Marilyn J. Horan granted in part and denied in part Thayer's motion to dismiss. Lisowski v. Henry Thayer Co., Inc., 501 F.Supp.3d 316 (W.D. Pa. 2020), on reconsideration in part, No. CV 19-1339, 2021 WL 1185924 (W.D. Pa. Mar. 30, 2021). Judge Horan dismissed the Maryland plaintiff's claims for lack of personal jurisdiction. Id. at 326. The court agreed with Thayer that there was no basis to assert general jurisdiction over Thayer in Pennsylvania. Id. With regard to specific jurisdiction, the Maryland plaintiff alleged he purchased the products in Maryland and his alleged injuries occurred in Maryland, therefore, according to the district court, there was no specific personal jurisdiction over the Maryland plaintiff's claims in Pennsylvania. Id. All of the Maryland plaintiff's claims were dismissed for lack of personal jurisdiction. Id.
As for the Pennsylvania plaintiff's claims, the court in Lisowski dismissed the breach of warranty claims, UTPCPL claims, and unjust enrichment claims based on the use of the word “natural” on Thayer's product labels and website. Id. at 339. Judge Horan denied Thayer's motion to dismiss the UTPCPL and unjust enrichment claims with respect to two dry mouth products containing the label “preservative-free, ” leaving only two Pennsylvania state law claims and two products in the case.[2] Id.
In the case at bar, Thayer moves the Court to transfer this cause of action to the United States District Court for the Western District of Pennsylvania under the first-filed rule. In the alternative, Thayer asks the Court to stay these proceedings pending resolution of the Pennsylvania case. Thayer also moves to dismiss Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6) on a number of grounds. Thayer argues some of Plaintiff's claims are preempted by the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq. (“FDCA”). Thayer also argues that its trade name, “THAYERS® Natural Remedies, ” cannot create an express warranty, and that Plaintiff improperly takes the term “natural” out of context. Thayer further argues Plaintiff's MMPA claims fail to state a claim for relief in that she has failed to allege any unfair practices or ascertainable loss, and she cannot sue over products she did not purchase or online statements she did not see. Thayer argues Plaintiff's claim for injunctive relief under the MMPA fails because she has not shown redressability. And finally, Thayer argues Plaintiff's unjust enrichment claim is not an independent cause of action and must be dismissed.
Thayer moves to transfer this case to the Western District of Pennsylvania under the first-filed rule. In the alternative, Thayer requests that the Court stay this matter pending resolution of the Pennsylvania case. As the Eighth Circuit has explained, “the doctrine of federal comity permits a court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.” Orthmann v. Apple River Campground, Inc., 765 F.2d 119, 121 (8th Cir. 1985) (citing Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-5 (9th Cir. 1982)). Known as the first-to-file rule, the Eighth Circuit held “where [there are] two courts [with] concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.” Id. (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982)). “The purpose of this rule is to promote efficient use of judicial resources.” Id. Courts enjoy wide discretion in applying the first-filed doctrine, and the rule “is not intended to be rigid, mechanical, or inflexible, but should be applied in a manner serving sound judicial administration.” Id. at 121; see also Nw. Airlines, Inc. v. Am. Airlines, Inc., 989 F.2d 1002, 1004 (8th Cir. 1993) ().
In general, courts look at three factors when deciding to apply the first-to-file rule: (1) timing of events; (2) the similarity of the parties involved, and (3) the similarity of the claim or issues at stake. Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th Cir. 2016). Courts have held that the...
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