Catholdi-Jankowski v. CVS Health Corp.

656 F.Supp.3d 412

Marysusan CATHOLDI-JANKOWSKI, individually and on behalf of all others similarly situated, Plaintiff, v. CVS HEALTH CORPORATION, a Rhode Island Corporation,and CVS Pharmacy, Inc., a Rhode Island Corporation, Defendants.

6:22-CV-06227 EAW

United States District Court, W.D. New York

Signed February 16, 2023

Daniel A. Schlanger, Schlanger Law Group, LLP, New York, NY, Thiago M. Coelho, Pro Hac Vice, Wilshire Law Firm, PLC, Los Angeles, CA, for Plaintiff.

Anthony G. Hopp, Pro Hac Vice, Steptoe & Johnson LLP, Chicago, IL, Christopher M. Paparella, Steptoe & Johnson LLP, New York, NY, Richard A. McGuirk, Nixon Peabody LLP, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

INTRODUCTION

Plaintiff Marysusan Catholdi-Jankowski ("Plaintiff") brings this putative class action against defendants CVS Health Corporation ("CVS Health Corp.") and CVS Pharmacy, Inc. ("CVS Pharmacy") (collectively "Defendants"), alleging violations of the New York General Business Law as well as common law claims of fraud and unjust enrichment. (Dkt. 1). Presently before the Court are Defendants' respective motions to dismiss the complaint. (Dkt. 7; Dkt. 8). For the reasons that follow, the Court grants Defendants' motions to dismiss, and conditionally grants Plaintiff's request to file an amended complaint.

FACTUAL BACKGROUND

Plaintiff alleges that Defendants "sell at their stores and elsewhere" CVS-brand alcohol-based hand sanitizer. (Dkt. 1 at ¶ 2). According to Plaintiff, the bottles in which CVS-brand hand sanitizer is packaged contain statements that the product kills 99.99% of germs. (Id.). In addition, "[t]he front label of each bottle of Defendant's [sic] hand sanitizer contains an asterisk, which leads to the statement on the back label, in miniscule font, that reads: 'In as little as 15 seconds, kills more than 99.99% of many common germs that may cause illness.' " (Id. at ¶ 6). Plaintiff takes the position that these statements, "in that they are made with a degree of certainty to the hundredth digit, necessarily imply that a scientific study proves that the product in fact kills 99.99% of germs." (Id. at ¶ 3).

However, "it is scientifically proven that alcohol-based hand-sanitizer does not kill many types of germs," including non-enveloped viruses such as the norovirus, bacterial spores, protozoan cysts, certain parasites (including Giardia), and "the diarrhea-causing bacterium Clostridium difficile." (Id. at ¶ 4). This means, according to Plaintiff, that "no scientific study can prove with any degree of certainty the overall percentage of germs which alcohol-based hand-sanitizer kills." (Id.). Plaintiff further elaborates that, "[t]here is estimated to be somewhere between 100 billion and 1 trillion different microbial species on earth. The current catalogued species of microbes accounts for approximately 0.001% of germs in existence. In other words, 99.999% of germs are yet to be discovered and identified." (Id. at ¶ 8).

Plaintiff claims to have purchased CVS-brand alcohol-based sanitizer, the label of which "stated prominently that the product . . . 'kills 99.99% of germs.' " (Id. at ¶ 16). This statement contained an asterisk, leading to a statement on the back label that read: "In as little as 15 seconds, kills more than 99.99% of many common germs that may cause illness." (Id. at ¶ 17). Plaintiff did not read the statement included on the back label, but did read the statement on the front of the label, and believed that it "meant that it was scientifically proven that the hand-sanitizer would kill 99.99% of all known germs." (Id. at ¶ 18). Plaintiff asserts that she "purchased the hand-sanitizer in reliance on the representation, believing that it had in fact been scientifically proven that the hand-sanitizer killed 99.99% of all germs." (Id. at ¶ 25). Plaintiff further claims to have paid a "price premium" based on this understanding and her belief that the CVS-brand hand sanitizer was more effective at killing germs than competitors' brands that did not have similar statements. (Id. at ¶¶ 26-31). Plaintiff further alleges that she "continues to desire to purchase hand sanitizer which will actually kill 99.99% of germs" and that she "would purchase Defendant's [sic] hand sanitizer again if Defendant [sic] reformulates its hand sanitizers to actually kill 99.99% of germs." (Id. at ¶ 33).

PROCEDURAL BACKGROUND

Plaintiff filed the complaint on May 18, 2022. (Dkt. 1). Defendants filed the instant motions to dismiss on June 16, 2022. (Dkt. 7; Dkt. 8). Plaintiff filed her response on July 7, 2022. (Dkt. 16; Dkt. 17). CVS Pharmacy filed a reply on July 14, 2022. (Dkt. 19). The Court held oral argument on February 13, 2023, and reserved decision. (Dkt. 22).

DISCUSSION

I. CVS Health Corp.'s Motion to Dismiss

CVS Health Corp. seeks dismiss of the claims against it on multiple grounds. It notes that it has been named as "CVS Health Corporation, a Rhode Island Corporation," but that "[t]here is no Rhode Island Corporation by the name of CVS Health Corporation," inasmuch as it is incorporated in Delaware. (Dkt. 7-2 at 5). It further notes that it "neither manufactured, distributed, nor sold the hand sanitizer Product at issue," and asserts that the Court lacks personal jurisdiction over it. (Id.). It additionally argues that "the Complaint should be dismissed under Fed. P. Civ. R. 8, 12(b)(1) and (6) because Plaintiff impermissibly lumps CVS Health and CVS Pharmacy together, and she makes no specific allegations as to CVS Health." (Id.).

In her response, Plaintiff states that she "does not oppose Defendant CVS Health Corporation's . . . motion to dismiss." (Dkt. 16 at 11 n.1). At oral argument, Plaintiff's counsel confirmed that Plaintiff consented to the dismissal of the claims against CVS Health Corp. on the merits and with prejudice. Without objection by Plaintiff, the Court grants CVS Health Corp.'s request for dismissal with prejudice.

II. CVS Pharmacy's Motion to Dismiss

CVS Pharmacy seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) on the basis that Plaintiff lacks standing, as well as pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. "When the issue before the Court involves a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), the Court must consider the Rule 12(b)(1) motion first, because disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." Gonzalez v. Inn on the Hudson LLC, No. 20 CIV. 9196 (ER), 2022 WL 974384, at *2 (S.D.N.Y. Mar. 30, 2022) (citations and quotation omitted). The Court accordingly turns first to CVS Pharmacy's arguments made under Rule 12(b)(1).

A. Legal Standard—Rule 12(b)(1)

"A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction if the court lacks the statutory or constitutional power to adjudicate it, such as when . . . the plaintiff lacks constitutional standing to bring the action." Cortlandt St. Recovery Corp. v. Hellas Telecomms, S.á.r.l, 790 F.3d 411, 416-17 (2d Cir. 2015) (quotation and citation omitted). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "When considering a motion to dismiss for lack of subject matter jurisdiction . . . , a court must accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). In addition, a court is not limited to the allegations in the complaint and can "refer to evidence outside the pleadings," Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002), but it "may not rely on conclusory or hearsay statements contained in the affidavits." J.S. v. Attica Central Schools, 386 F.3d 107, 110 (2d Cir. 2004). "Indeed, a challenge to the jurisdictional elements of a plaintiff's claim allows the Court to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Celestine v. Mt. Vernon Neighborhood Health Ctr., 289 F. Supp. 2d 392, 399 (S.D.N.Y. 2003) (quotation omitted), aff'd, 403 F.3d 76 (2d Cir. 2005).

B. Article III Standing

Like all Article III courts, this Court may only hear "cases and controversies." Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Whitmore v. Arkansas, 495 U.S. 149, 154-55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ("Article III, of course, gives the federal courts jurisdiction over only 'cases and controversies . . . .' "). While the Constitution does not define "case" or "controversy," "the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process." Whitmore, 495 U.S. at 155, 110 S.Ct. 1717. The Second Circuit has explained:

To satisfy the requirements of Article III standing, plaintiffs must demonstrate "(1) [an] injury-in-fact, which is a concrete and particularized harm to a legally protected interest; (2) causation in the form of a fairly traceable connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief."

Hu v. City of New York, 927 F.3d 81, 89 (2d Cir. 2019) (quoting Selevan v. New York Thruway Auth., 711 F.3d 253, 257 (2d Cir. 2013)).

CVS Pharmacy contends that Plaintiff lacks Article III standing as to all of her claims because she has not suffered an injury-in-fact. (Dkt. 19 at 12). More particularly, CVS Pharmacy argues that Plaintiff does not allege that the product she purchased did not actually sanitize her hands, and so "her alleged injury is not concrete and particularized and actual or imminent, not conjectural or hypothetical[.]" (Id. (quotations omitted)). The Court is unpersuaded by this argument.

In support of this...