LeGrand v. Abbott Labs.

655 F.Supp.3d 871

Condalisa LEGRAND, et al., Plaintiffs, v. ABBOTT LABORATORIES, Defendant.

Case No. 22-cv-05815-TSH

United States District Court, N.D. California

Signed February 8, 2023

Melanie Rae Persinger, Caroline Emhardt, Jack Fitzgerald, Paul K. Joseph, Trevor Matthew Flynn, Fitzgerald Joseph, LLP, San Diego, CA, for Plaintiffs.

Mark Edward McKane, Kirkland & Ellis LLP, San Francisco, CA, Elizabeth Hedges, Pro Hac Vice, Gregg LoCascio, Pro Hac Vice, Michael Adam Glick, Pro Hac Vice, Terence J. McCarrick, Jr., Pro Hac Vice, Tracie Lynn Bryant, Kirkland and Ellis LLP, Washington, DC, for Defendant.

ORDER RE: MOTION TO DISMISS

Re: Dkt. Nos. 18, 29, 32

THOMAS S. HIXSON, United States Magistrate Judge

I. INTRODUCTION

Pending before the Court is a Motion to Dismiss, filed by Defendant Abbott Laboratories ("Abbott") pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(2) and Rule 12(b)(6). ECF No. 18. Plaintiffs filed an Opposition (ECF No. 29) and Abbott filed a Reply (ECF No. 32). The Court finds this matter suitable for disposition without oral argument and VACATES the February 9, 2023 hearing. See Civ. L.R. 7-1(b). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court GRANTS IN PART AND DENIES IN PART Abbott's motion for the following reasons.¹

II. BACKGROUND

Abbott is an Illinois corporation with its principal place of business in Abbott Park, Illinois. ECF No. 1 ¶ 10. Abbott sells a line of "nutrition" drinks under the "Ensure" brand ("Ensure Nutrition Drinks"), including Ensure Original Nutrition Shake, Ensure Complete Nutrition Shake, Ensure Enlive Advanced Nutrition Shake, Ensure Compact Therapeutic Nutrition Shake, Ensure Clear Nutrition Drink, and Ensure Original Nutrition Powder. Id. ¶¶ 1, 14-34. Abbott markets the Ensure Nutrition Drinks with health and wellness labeling, such as "#1 Doctor Recommended Brand," and "Complete, Balanced Nutrition for everyday health." Id. ¶ 1. Abbott sells Ensure Nutrition Drink on a nationwide basis, including in New York and California, and did so for the four years prior to filing of the instant action. Id. ¶ 11.

Condalisa LeGrand is a California resident, and Larissa Bates is a New York resident. Id. ¶¶ 8-9. LeGrand purchased the Ensure Original Nutrition Shake at different times in California in the four years prior to filing the Complaint. Id. ¶ 106. Bates purchased Ensure Complete Nutrition Shakes in New York in the four years preceding filing. Id. ¶ 108. In purchasing the Ensure Nutrition Drinks, both Plaintiffs were exposed to, and relied on, Abbott's label representations, such as that the products were "Doctor Recommended" and "nutrition shake[s]." Id. ¶¶ 107, 109. There is a vast body of scientific evidence demonstrating that consuming sugar-sweetened beverages harms, rather than supports, overall health. Id. ¶ 2. Abbott adds up to 22 grams of sugar per serving to the Ensure Nutrition Drinks. Id. As a result of this sugar content and scientific evidence, Plaintiffs allege that the labeling on Ensure Nutrition Drinks advertising them as balanced, nutritious, and healthy is false and misleading. Id.

Plaintiffs filed the instant action on October 6, 2022, seeking to bring a class action under Rule 23 on behalf of themselves and other consumers who bought Ensure Nutrition Drinks. Id. ¶ 124. Plaintiffs define members of a nationwide class, as well as California and New York subclasses, as "all persons in the United States, and subclasses of all persons in California and in New York, who, at any time from four years preceding the date of the filing of this Complaint to the time a class is notified (the 'Class Period'), purchased, for person or household use, and not for resale or distribution, any of the Ensure Nutrition Drinks (the 'Class')." Id. Plaintiffs bring the following causes of action: 1) violation of the Unfair Competition Law ("UCL") (California subclass); 2) violation of the False Advertising Law ("FAL") (California subclass); 3) violation of the Consumer Legal Remedies Act ("CLRA") (California subclass); 4) breach of Express Warranties under Cal. Com. Code § 2313(1) (California subclass); 5) breach of Implied Warranty of Merchantability under Cal. Com. Code § 2314 (California subclass); 6) violation of N.Y. Gen. Bus. L. § 349 (New York subclass); 7) violation of N.Y. Gen. Bus. L. § 350 (New York subclass); 8) Unjust Enrichment; 9) Negligent Misrepresentation; and 10) Intentional Misrepresentation. Id. ¶¶ 133-214.

On December 12, 2022, Abbott filed the present Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6). ECF No. 18. On December 27, 2022, Plaintiffs filed an opposition. ECF No. 29. On January 6, 2023, Abbott filed a reply. ECF No. 32.

III. LEGAL STANDARD

A. Rule 12(b)(2)

Rule 12(b)(2) governs motions to dismiss for lack of personal jurisdiction. The plaintiff bears the burden of establishing that the court has jurisdiction over the defendant. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). However, this demonstration requires that the plaintiff "make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Love v. Associated Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010). To make this showing, "the plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant." Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). "Uncontroverted allegations in the complaint must be taken as true, and conflicts over statements contained in affidavits must be resolved in [plaintiff's] favor." Love, 611 F.3d at 608.

Courts properly exercise personal jurisdiction over a defendant "if it is permitted by a long-arm statute and if the exercise of jurisdiction does not violate federal due process." Pebble Beach Co., 453 F.3d at 1154. "Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons." Daimler AG v. Bauman, 571 U.S. 117, 125, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). Because "California's long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution," a court's inquiry centers on whether exercising jurisdiction comports with due process. Id.; see Cal. Civ. Proc. Code § 410.10 ("A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States."). Due process requires that nonresident defendants have "minimum contact" with the forum state such that the exercise of personal jurisdiction "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotations omitted).

A court may exercise either general or specific jurisdiction over a nonresident defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). General jurisdiction exists where a defendant has "substantial" or "continuous and systematic" contacts with the forum. Id. at 415, 104 S.Ct. 1868. If general jurisdiction exists, the forum has jurisdiction over the defendant regardless of where the events giving rise to the litigation occurred. Id.

If a defendant's contacts with the forum are not sufficient to establish general jurisdiction, specific jurisdiction may still be shown. The Court may assert specific jurisdiction over a nonresident defendant if three requirements are met:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (citation omitted). The plaintiff bears the burden of demonstrating the first two prongs. CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th Cir. 2011).

B. Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citations and quotations omitted). Rule 8 provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Thus, 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility does not mean probability, but it requires "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 687, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint must therefore provide a defendant with "fair notice" of the claims against it and the grounds for relief. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quotations and citation omitted).

In considering a motion to dismiss, the Court accepts factual allegations in the complaint as true and construes the pleadings in the light most favorable to the nonmoving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). However, "the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Therefore, the Court is not required to "accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec...