Lisowski v. Henry Thayer Co.

• Decision Date: 17 November 2020
• Docket Number: Civil No. 19-1339
• Citation: 501 F.Supp.3d 316
• Parties: Christopher LISOWSKI, and Robert Garner, individually and on behalf of all others similarly situated, Plaintiffs, v. HENRY THAYER COMPANY, INC., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

501 F.Supp.3d 316

Christopher LISOWSKI, and Robert Garner, individually and on behalf of all others similarly situated, Plaintiffs,

v.HENRY THAYER COMPANY, INC., Defendant.

Civil No. 19-1339

United States District Court, W.D. Pennsylvania.

Signed November 17, 2020

Steffan T. Keeton, The Keeton Firm LLC, Pittsburgh, PA, Michael A. Mills, Pro Hac Vice, The Mills Law Firm, Houston, TX, for Plaintiffs.

Franco A. Corrado, Pro Hac Vice, Morgan, Lewis & Bockius LLP, Philadelphia, PA, John K. Gisleson, Morgan, Lewis & Bockius LLP, Pittsburgh, PA, for Defendant.

OPINION

Marilyn J. Horan, United States District Court Judge

Plaintiffs Christopher Lisowski and Robert Garner, individually and on behalf of all others similarly situated, bring the within putative class action against Henry Thayer Company, Inc. (Thayer) under Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. § 201-1 et seq. (Count I), the Magnusson-Moss Warranty Act (MMWA) (Count II); breach of express warranty (Count III); unjust enrichment (Count IV); negligent and fraudulent misrepresentation (Counts V & VI); and the Maryland Consumer Protection Act (MCPA) (Count VII). ECF No. Am. Compl. ECF No. 5. Presently before the Court is Thayer's Motion to Dismiss Plaintiffs’ Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). ECF No. 6. At the June 24, 2020 oral argument, Plaintiffs moved for dismissal of Counts II, V, and VI, with prejudice, which the Court granted. ECF No. 14. For the reasons that follow, Thayer's Motion to Dismiss will be granted, in part, and denied in part, with respect to Counts I, III, IV, and VII.

I. Factual Background

Thayer is a Delaware corporation with its principal place of business in Easton, Connecticut. Am. Compl. ¶ 65. Thayer manufactures a variety of personal care products and product lines under the name THAYERS® Natural Remedies. Id. ¶¶ 3, 65. Thayer sells its products through major retailers around the country as well as from its own e-commerce store. Id. ¶¶ 1, 67. Christopher Lisowski is a citizen of Pennsylvania, residing in Allegheny County. Id. ¶ 63. Mr. Lisowski has made several purchases of Thayer's Products from various physical retail stores in Pennsylvania and from e-commerce stores that shipped products to his residence in Pennsylvania. Id. Mr. Lisowski has purchased the following products: THAYERS® Natural Remedies Unscented Deodorant, THAYERS® Natural Remedies Unscented Facial Mist, THAYERS® Natural Remedies Peppermint Dry Mouth Spray, and THAYERS® Natural Remedies Tangerine Slippery Elm Lozenges. Id. Robert Garner is a citizen of Maryland, residing in Wicomico County. Id. ¶ 64. Mr. Garner has made several purchases of Thayer's Products from various physical retail stores in Maryland. Id. Mr. Garner has purchased, at a minimum, THAYERS® Natural Remedies Rose Petal Facial Mist. Id.

Plaintiffs allege that Thayer manufactures, advertises and sells its THAYERS® Natural Remedies products, representing that the products are "Natural," provide "Natural Remedies," and are "preservative-free." Id. ¶¶ 1-8. According to Plaintiffs, the front label on each of Thayer's products prominently reinforces said claims. Id. at ¶¶ 73-77. Plaintiffs contend that Thayer's claims that its products are "natural" are false, misleading, and designed to deceive consumers to pay a price premium and to choose THAYERS® Natural Remedies over a competitor's product. Id. ¶ 1. The alleged false and misleading claims that Thayer's products are "natural" also appear on the trademark name for the product line, "THAYERS® Natural Remedies." Id. Plaintiffs also allege that Thayer deceptively markets its dry mouth sprays as "Preservative-Free," when the products actually contain preservatives. Id. ¶ 2. Plaintiffs allege that all of Thayer's products identified in the Amended Complaint 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. ¶¶ 24, 27.

II. Standard of Review

Thayer moves for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2) and 12(b)(6).

A. 12(b)(1)

A court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim. Fed. R. Civ. P. 12(b)(1). "A motion to dismiss for want of standing is ... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter." Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007). A Rule 12(b)(1) motion may be presented by the movant as either a facial or factual challenge to the court's subject matter jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a facial attack, "the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elec. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a factual attack, the court may consider evidence outside the pleadings. Id. (citing Mortensen, 549 F.2d at 891 ). The plaintiff has the burden of establishing that the court has subject matter jurisdiction. Mortensen, 549 F.2d at 891.

B. 12(b)(2)

Federal Rule of Civil Procedure 12(b)(2) permits a party to move for dismissal of a pleading for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Whether personal jurisdiction may be exercised over an out-of-state defendant is a question of law for the court. Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Products Co., 75 F.3d 147, 150 (3d Cir. 1996). The plaintiff bears the burden of establishing personal jurisdiction. O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007). A federal court may exercise personal jurisdiction over a non-resident defendant to the extent permissible under the law of the forum state. Fed. R. Civ. P. 4(k)(1)(A). Personal jurisdiction may be either general or specific, and both the quality and quantity of the necessary contacts differs according to which sort of jurisdiction applies. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 412, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

C. 12(b)(6)

When reviewing a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) ). "To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Plaintiff's allegations must be accepted as true and construed in the light most favorable to plaintiff when determining if the complaint should be dismissed. Trzaska v. L'Oreal USA, Inc., 865 F.3d 155, 162 (3d Cir. 2017), as amended (Aug. 22, 2017). Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal conclusions cast in the form of factual averments. Morse v. Lower Merion School District, 132 F.3d 902, 906, n. 8 (3d Cir. 1997).

If the court decides to grant a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the court must next decide whether leave to amend the complaint must be granted. The United States Court of Appeals for the Third Circuit has "instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." Phillips, 515 F.3d at 236 (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) ).

"Courts ‘generally consider only the allegations contained in the complaint, exhibits attached to the complaint[,] and matters of public record’ when evaluating whether dismissal under Rule 12(b)(6) [is] proper." Levins v. Healthcare Revenue Recovery Grp. LLC, 902 F.3d 274, 279 (3d Cir. 2018) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). A court, however, may consider "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit., 998 F.2d at 1196. "Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied." Id. The United States Court of Appeals for the Third Circuit explains that consideration of such documents are proper because " ‘the primary problem raised by looking to documents outside the complaint—lack of notice to the plaintiff—is dissipated where the plaintiff has actual notice ... and has relied upon [those] documents in framing the complaint.’ " Levins, 902 F.3d at 279-80 (quoting Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)) (internal quotation marks, alteration, and citation omitted). Here, Thayer has attached Plaintiffs’ "Amended Notice Letter," as purported notice to Defendant of its alleged breach of warranty to satisfy U.C.C. and state law requirements.

ECF No. 7-2. Consideration of the letter is proper because Plaintiffs refer to and rely upon it in their Amended Complaint.

III. Discussion

Thayer moves to dismiss all claims asserted by Mr. Garner, a...