Bassaw v. United Indus. Corp.

482 F.Supp.3d 80

Shivan BASSAW, individually and on behalf of all others similarly situated, Plaintiff,

v.UNITED INDUSTRIES CORPORATION and Spectrum Brands, Inc., Defendants.

19-CV-7759 (JMF)

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

Signed August 31, 2020

Yitzchak Kopel, Bursor & Fisher, P.A., New York, NY, for Plaintiff.

Jamie A. Levitt, Morrison & Foerster LLP, New York, NY, for Defendants.

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiff Shivan Bassaw, a New York resident, brings this putative class action against United Industries Corporations ("United Industries") and Spectrum Brands, Inc. ("Spectrum Brands"), alleging that they materially misled him and other consumers when they advertised that their product Hot Shot Concentrated Deep Reach Fogger ("Hot Shot") was effective in killing a variety of insects within the home. In particular, Bassaw asserts two sets of claims. First, on behalf of a nationwide class, Bassaw brings claims for unjust enrichment and breach of express warranty under New York law and the Magnuson-Moss Warranty Act ("MMWA"). See ECF No. 19 ("Am. Compl."), ¶¶ 46-60. Second, on behalf of a subclass of New York residents, Bassaw alleges that Defendants engaged in deceptive acts or practices and false advertising, in violation of Sections 349 and 350 of the New York General Business Law ("NYGBL"). See Am. Compl. ¶¶ 26-39. Defendants now move, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss Bassaw's claims. See ECF Nos. 20 ("Motion") & 21 ("Defs.’ Mem.").¹ For the reasons that follow, Defendants’ motion is denied in part and granted in part.

BACKGROUND

The following facts are, unless otherwise noted, taken from the Amended Complaint and are assumed to be true for purposes of this motion. See, e.g. , LaFaro v. N.Y. Cardiothoracic Grp., PLLC , 570 F.3d 471, 475 (2d Cir. 2009).

Bassaw lives in the Bronx, New York. See Am. Compl. ¶ 13. Spectrum Brands, a Delaware corporation with its principal place of business in Middleton, Wisconsin, is a leading supplier of consumer pest control products throughout the United States. See id. ¶ 15. United Industries is a subsidiary of Spectrum Brands; it too is a Delaware corporation, but its principal place of business is in Earth City, Missouri. Id. ¶ 14. United Industries manufactures its pest control products under the "Hot Shot" brand name, and Spectrum Brands markets and distributes the products nationwide. Id. ¶¶ 14-15.

Bassaw alleges that, on August 21, 2016, he purchased Hot Shot from an online retailer for approximately $6 and that he did so in reliance on statements contained in Hot Shot's packaging label promising that the product "kills on contact"; "controls heavy infestations"; "keeps killing for up to 2 months"; "kills roaches, fleas, ants (except fire ants), spiders & other listed insects"; and "kills hidden bugs" by "penetrat[ing] into crevices, cracks & carpet fibers." Id. ¶¶ 2, 13. Bassaw "used the product as directed" — though when and where the Amended Complaint does not say — but "it did not provide effective insect control as advertised." Id. ¶ 13. On August 9, 2019, Bassaw sent Defendants a letter alleging breaches of warranty and advising that he intended to bring a class action suit for damages if they did not remedy the breaches. Id. ¶ 51. Ten days later, Defendants’ having "failed to comply with the letter," id. , Bassaw filed this suit, see ECF No. 19.

LEGAL STANDARDS

Defendants’ motion is brought pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6). A Rule 12(b)(1) motion challenges the court's subject-matter jurisdiction to hear the case. "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). In reviewing a motion to dismiss under Rule 12(b)(1), a 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. , 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks and citation omitted), aff'd , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005).

By contrast, in the absence of discovery or an evidentiary hearing, a plaintiff seeking to defeat a motion to dismiss pursuant to Rule 12(b)(2) for absence of personal jurisdiction need only make a prima facie showing that jurisdiction exists. See, e.g. , Gulf Ins. Co. v. Glasbrenner , 417 F.3d 353, 355 (2d Cir. 2005). Such a showing "entails making ‘legally sufficient allegations ...,’ including ‘an averment of facts that, if credited[,] would suffice’ " to establish that jurisdiction exists. Penguin Grp. (USA) Inc. v. Am. Buddha , 609 F.3d 30, 35 (2d Cir. 2010) (quoting In re Magnetic Audiotape Antitrust Litig. , 334 F.3d 204, 206 (2d Cir. 2003) (per curiam)). See generally Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A. , 722 F.3d 81, 84-85 (2d Cir. 2013) (per curiam). A court must "view[ ] all facts in the light most favorable to the non-moving party." TradeComet.com LLC v. Google, Inc. , 647 F.3d 472, 475 (2d Cir. 2011).

Finally, a Rule 12(b)(6) motion tests the legal sufficiency of a complaint and requires a court to determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. See Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When ruling on a Rule 12(b)(6) motion, a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g. , Holmes v. Grubman , 568 F.3d 329, 335 (2d Cir. 2009). To survive such a motion, however, the plaintiff must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially 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." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

DISCUSSION

Defendants seek to dismiss some or all of Bassaw's claims on four grounds: first, that Bassaw lacks Article III standing because he fails to allege an injury-in-fact, see Defs.’ Mem. 10-11; second, that the Court lacks personal jurisdiction over the claims of putative class members outside of New York, see id. at 6-9; third, that Bassaw did not, among other things, provide timely notice of his express warranty claims, see id. at 17-19; and fourth, that Bassaw fails to state a claim under the NYGBL, see id. at 12-17.² The Court will address each argument in turn.

A. Article III Standing

Defendants’ standing challenge can be swiftly rejected. To establish an injury-in-fact sufficient to support Article III standing, a plaintiff must show that he "suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). An injury is particularized when it "affect[s] the plaintiff in a personal and individual way." Id. An injury is concrete when it "actually exists" or, put another way, when it is "real" rather than "abstract." Id. Notably, this "is a low threshold," and the plaintiff need not "be capable of sustaining a valid cause of action." Ross v. Bank of Am. N.A. (USA) , 524 F.3d 217, 222 (2d Cir. 2008).

Bassaw crosses the "low threshold" here. Bassaw alleges that he purchased Hot Shot in reliance on its prominent labeling asserting that the product would, among other things, "kill[ ] on contact"; "control[ ] heavy infestations"; "keep[ ] killing for up to 2 months"; and "kill[ ] hidden bugs" by "penetrat[ing] into crevices, cracks & carpet fibers." Am. Compl. ¶ 13. But when he used Hot Shot "as directed ... it did not provide effective insect control as advertised." Id. Although sparse, these allegations are sufficient to establish a particularized injury because Bassaw was affected in a "personal and individual way" when Hot Shot did not perform as advertised. See, e.g. , Poppiti v. United Indus. Corp. , 4:19-CV-2028 (SNLJ), 2020 WL 1433642, at *2 (E.D. Mo. Mar. 24, 2020) (holding that the plaintiffs had suffered particularized injury when candles did not ward off mosquitoes as advertised). Bassaw's injury "is also concrete in that [he] suffered an actual, non-speculative economic harm — even if only a few dollars" — having paid "too much for a product based on its misleading advertising." Id. Indeed, "[t]hat sort of ‘paid too much’ or ‘received too little’ harm is classic economic injury-in-fact." Alaska Electric. Pension Fund v. Bank of Am. Corp. , 175 F. Supp. 3d 44, 53 (S.D.N.Y. 2016). Thus, Bassaw has established that he suffered an injury-in-fact caused by Defendants that "is likely to be redressed by a favorable judicial decision." Spokeo, Inc. , ––– U.S. ––––, 136 S. Ct. at 1547. Accordingly, Defendants’ Rule 12(b)(1) motion must be and is denied.

B. Express Warranty Claims

With that, the Court turns to Bassaw's express warranty claims, beginning with Defendants’ contention that the Court lacks personal jurisdiction over the claims of putative class members residing outside of New York and then turning to the issue of timeliness.

1. Personal Jurisdiction

Like their subject-matter jurisdiction argument, Defendants’ contention that the Court lacks personal jurisdiction over the claims of...