Sitt v. Nature's Bounty, Inc.
| Decision Date | 26 September 2016 |
| Docket Number | 15-CV-4199 (MKB) |
| Parties | CAROLYN SITT, individually and on behalf of all others similarly situated, Plaintiff, v. NATURE'S BOUNTY, INC. and NBTY, INC., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On July 17, 2015, Plaintiff Carolyn Sitt commenced the above-captioned putative class action on behalf of herself and all others similarly situated against Defendants Nature's Bounty, Inc. and NBRT, Inc.. (Compl., Docket Entry No. 1.) Plaintiff alleges claims of (1) deceptive, misleading and false practices and advertising in violation of the New York General Business Law ("GBL"), N.Y. Gen. Bus. Law §§ 349, 350 and 350-a(1), (2) deceptive, misleading and false practices in violation of consumer protection statutes in all fifty states, (3) common law fraud, (4) breach of express warranties pursuant to state law and the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the "MMWA"), (5) and unjust enrichment.1 Defendants move to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and for failure to state a claim. (Defs. Mot. to Dismiss ("Defs. Mot."), Docket Entry No. 22; Defs. Mem. of Law in Supp. of Defs. Mot. ("Defs.Mem."), Docket Entry No. 23-1; Defs. Reply Mem. of Law in Supp. of Defs. Mot. ("Defs. Reply"), Docket Entry No. 24.)
For the reasons set forth below, the Court finds that Plaintiff has Article III standing but does not have standing to seek injunctive relief. The Court grants in parts and denies in part Defendants' motion to dismiss. The Court grants Defendants' motion to dismiss Plaintiff's claim for unjust enrichment and denies Defendants' motion to dismiss Plaintiff's claims for fraud, breach of express warranty and violations of the MMWA, as well as Plaintiff's claims under GBL sections 349 and 350.
The following facts are taken from the Complaint and are accepted as true for the purposes of deciding the motion. Defendant Nature's Bounty, Inc., a wholly-owned subsidiary of Defendant NBTY, Inc., (Compl. ¶¶ 1, 48), manufactures and sells Black Cohosh 540 mg, (the "Product"), to remedy menopause symptoms, for an "average price of $9.59,"2 (id. ¶ 1). Plaintiff, a resident of Brooklyn, New York, purchased the Product "at retail stores and/or online in the Eastern District of New York." (Id. ¶ 45.) "Prior to purchasing the Product, Plaintiff read the Product's labeling and all of the [] representations on Nature's Bounty's website relevant to the Product." (Id. ¶ 45.)
Plaintiff alleges that the labeling and advertising of the Product are deceptive, misleading and false. (See, e.g., id. ¶ 1.) Plaintiff's allegations center on the inability of the Product to deliver promised remedies for menopause symptoms, the falsity of claims that the Product is"natural" and "non-synthetic," and the alleged contamination of the Product with unsafe levels of lead. (Id. ¶¶ 1-3.) The packaging of the Product represents that it "Helps Alleviate Hot Flashes, Night Sweats and Mild Mood Changes" and that "Studies document Black Cohosh's ability to help support the physical changes that occur in a woman's body over time." (Id. ¶ 6.) Plaintiff alleges that these claims of health benefits are contrary to the fact that "there are no scientifically sound, reliable studies demonstrating that black cohosh can provide any of these benefits" and "reliable studies of black cohosh have demonstrated that it does not help to alleviate hot flashes, night sweats, mild mood changes, or any other symptoms of menopause." (Id. ¶¶ 7, 8.)
Plaintiff alleges that the labeling of the Product also states that it is made "us[ing] only the finest quality herbs and spices." (Id. ¶ 15.) Plaintiff asserts that this representation is contrary to the fact that the Product is "contaminated" with "unsafe levels of lead," as demonstrated by the results of testing by an "independent laboratory" retained by Plaintiff to test the composition of the Product. (Id. ¶¶ 15, 16.) Plaintiff also asserts that "[t]here is no safe blood level of lead," explains many health risks of lead consumption, and states that Defendants nonetheless direct customers to consume the Product daily. (Id. ¶ 17.)
Plaintiff alleges that the Product is "prominently" labeled to represent that it is a "NATURAL WHOLE HERB" and a "non-synthetic choice for menopausal support" and offers "Natural Menopausal Relief." (Id. ¶¶ 20, 21.) Plaintiff asserts that "contrary to Defendants' representations, the Product is not 'natural' or 'non-synthetic'" because it contains magnesium stearate, a synthetic ingredient. (Id. ¶ 22.) Plaintiff also asserts that Defendants knew that the Product was neither natural nor non-synthetic and that representing it to have these characteristics would induce consumers to purchase it at a "premium price" based onperceptions the Product was healthier and safer than products containing synthetic ingredients. (Id. ¶¶ 34-36.)
Finally, Plaintiff alleges that, on the Nature's Bounty website, Defendants represent that their "facilities have been successfully audited by the United States Pharmacopeia" (the "USP"), a "scientific nonprofit that sets standards for the identity, strength, quality and purity of dietary supplements" and other products. (Id. ¶ 37.) Plaintiff asserts that this representation is a warranty as to compliance with the USP's specifications for manufacturing black cohosh and "[g]iven the stature and integrity of the USP, Defendants' representation of USP approval serves as a representation and warranty of the Product's quality." (Id. ¶ 37.) The results of testing by an "independent laboratory" hired by Plaintiff show that the composition of the Product does not comport with the USP's specifications. (Id. ¶¶ 38-40.)
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court "lacks the statutory or constitutional power to adjudicate it." Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)). The plaintiff has the burden to prove that subject matter jurisdiction exists, and in evaluating whether the plaintiff has met that burden, "'[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,' but 'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Morrison v. Nat'l Austl. Bank Ltd., 547F.3d 167, 170 (2d Cir. 2008) (citations omitted), aff'd, 561 U.S. 247 (2010). A court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010).
ii. Rule 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must "accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)); see also Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir. 2009)). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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." Matson, 631 F.3d at 63 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is "inapplicable to legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678.
Defendants argue that Plaintiff does not have Article III standing to assert claims on behalf of consumers in states where she does not live and in which she did not purchase the product, and that she does not have standing to seek injunctive relief because there is no threat offuture injury.3 (Defs. Mem. 6-11.) Plaintiff argues that she has Article III standing and, in any event, her ability to represent a nationwide class is not appropriately considered until class certification. (Pl. Mem. of Law in Opp'n to Defs. Mot. ("Pl. Opp'n") 4-10, Docket Entry No. 23.) Plaintiff also argues that she has standing to seek injunctive relief because Defendants' conduct is ongoing. (Id. at 10-11.) The Court considers separately whether Plaintiff, as the named plaintiff in this putative class action, has personally pled Article III standing, and whether Plaintiff has standing to seek injunctive relief.
Defendants contend that Article III precludes Plaintiff from asserting claims under the laws of any state other than New York, because Plaintiff does not allege that she purchased or was harmed by the Product in any state other than New York. (Defs. Mem. 6-10.) Plaintiff argues that she has demonstrated Article III standing and that Defendants' arguments as to whether or not Plaintiff can assert claims on behalf of a nationwide class can and should be addressed at the class certification stage...
To continue reading
Request your trial