McAteer v. Target Corp.

Megan McAteer, individually and on behalf of all others similarly situated, Plaintiff, v. Target Corporation, Defendant.

Civil No. 18-349 (DWF/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

July 26, 2018

MEMORANDUM OPINION AND ORDER

Genevieve M. Zimmerman, Esq., Meshbesher & Spence LTD; Francis J. Flynn, Jr., Esq., Law Office of Francis J. Flynn, Jr.; Jasper D. Ward IV, Esq. and Alex Davis, Esq., Jones Ward PLC, counsel for Plaintiff.

John Q. Lewis, Esq., Karl A. Bekeny, Esq., and Jennifer L. Mesko, Esq., Tucker Ellis LLP, George W. Soule, Esq., Melissa R. Stull, Esq., and Anna L. Veit-Carter, Esq., Soule & Stull, counsel for Defendant.

INTRODUCTION

This class action lawsuit involves Up & Up Makeup Remover Cleansing Towelettes - Evening Calm ("Makeup Remover Wipes") manufactured and sold by Defendant Target Corporation ("Target") and purchased by Plaintiff Megan McAteer ("Plaintiff") and consumers ("Class") throughout the United States. (Doc. No. 1 ("Compl.") ¶ 1.) This matter is before the Court on a Motion to Dismiss brought by Defendant. (Doc. No. 20.) For the reasons set forth below, the Court grants in part and denies in part the motion as follows: Counts I through IV and Counts VIII through XIV are dismissed without prejudice and Counts V through VII are dismissed with prejudice.

BACKGROUND

Plaintiff is a resident of Los Angeles, California. (Compl. ¶ 5.) In the Beverly Connection Target store in Los Angeles County, Plaintiff purchased a 25-count package of Makeup Remover Wipes for personal and/or household purposes from Target to wash her face. (Compl. ¶ 6; Doc. No. 28 at 23.). Target manufactures, designs, and sells the Makeup Remover Wipes in Target stores and on Target.com. (Compl. ¶ 7.) After using the Makeup Remover Wipes, Plaintiff experienced a burning sensation and her face turned bright red. (Id. ¶ 6.) Plaintiff used the over-the-counter medicines, Cortisone 10 and Benadryl, to treat these injuries. (Id.)

Plaintiff claims that Target markets the Makeup Remover Wipes with the following misleading statements: (1) "With up & up your satisfaction is 100% guaranteed or your money back"; (2) "[U]ltra soft cloths" that "gently removes makeup, even waterproof mascara"; (3) "No rinsing necessary. For all skin types"; (4) "Compare to Neutrogena® Night Calming Makeup Remover Cleansing Towelettes"; (5) "[H]ypoallergenic"; and (6) "[A]lcohol free." (Id. ¶¶ 11, 12, 16, 17, 19, 20.) Plaintiff asserts that contrary to these representations, Target uses multiple "harsh chemicals and known human allergens in the Makeup Remover Wipes," which render the Makeup Remover Wipes "dangerous and unsafe for sale as an over the counter product." (Id. ¶¶ 22, 33.)

Plaintiff asserts fourteen causes of action relating to the allegedly misleading statements: (1) breach of contract (Count I); (2) breach of express warranty (Count II); (3) breach of implied warranty of merchantability (Count III); (4) violation of the Magnuson Moss Warranty Act (Count IV); (5) violation of the MN Consumer Fraud Act (Count V); (6) violation of the MN Uniform Deceptive Trade Practices Act (Count VI); (7) violation of the False Statement in Advertisement Act (Count VII); (8) negligence (Count VIII); (9) fraud (Count IX); (10) unjust enrichment (Count X); (11) declaratory judgment (Count XI); (12) violation of the CA Unfair Competition Law (Count XII); (13) violation of the CA Consumer Legal Remedies Act (Count XIII); and (14) false and misleading advertising (Count XIV).

Plaintiff alleges that she and the class suffered "injury in fact" and "lost money" because of their use of the Makeup Remover Wipes. (Id. ¶¶ 35, 145.) Specifically, Plaintiff claims that she and the Class did not receive "the benefit of their bargain," sustained "economic loss equal to the total purchase price of these unfit Products, or the difference in value between the Products as warranted and the Products as actually sold," and incurred "consequential and incidental damages." (Id. ¶¶ 61, 71, 78, 87.) Plaintiff also seeks declaratory judgment, disgorgement, and injunctive relief. (Id. ¶¶ 117, 159, 162, 178, 207.)

Target moves to dismiss Plaintiff's Complaint in its entirety. (Id.)

DISCUSSION

I. Legal Standard

In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so, however, a court does not need to accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8^th Cir. 1999), or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court deciding a motion to dismiss may consider the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint. See Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).

To survive a motion to dismiss, a complaint must contain "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). Although a complaint need not contain "detailed factual allegations," it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. As the Supreme Court reiterated, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). In summation, this standard "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Twombly, 550 U.S. at 556.

Federal Rule of Civil Procedure 9(b) provides that claims that sound in fraud or mistake, must be pled with particularity, including false advertising, unlawful trade practices, consumer fraud, and deceptive trade practices under Minnesota and California law. See, e.g., Fed. R. Civ. P. 9(b); United States ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006); Kearns v Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009); Tuttle v. Lorillard Tobacco Co., 118 F. Supp. 2d 954, 963 (D. Minn. 2000); Select Comfort Corp. v. Sleep Better Store, LLC, 796 F. Supp. 2d 981, 983-84 (D. Minn. 2011). To satisfy Federal Rule of Civil Procedure 9(b), the complaint must plead the "who, what, where, when, and how" of the alleged fraud. St. Luke's Hosp., 441 F.3d at 556 (citations omitted). "[C]onclusory allegations that a defendant's conduct was fraudulent and deceptive are not sufficient to satisfy the rule." Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 746 (8th Cir. 2002) (quoting Commercial Prop. v. Quality Inns Int'l, Inc., 61 F.3d 639, 644 (8th Cir. 1995)).

II. Minnesota Statutory Claims

Plaintiff brings Counts V through VII under various Minnesota state consumer protection statutes. (Compl. ¶¶ 88-134.) The Court first considers Article III standing as a threshold issue because Plaintiff is neither a Minnesota resident, nor alleges that she purchased the Makeup Remover Wipes in Minnesota.

Standing under state law is not equivalent to standing under federal law. Article III standing is an absolute requirement to litigate in federal court. Gill v. Whitford, ___ U.S. ___, 138 S. Ct. 1916, 1929 (2018). Standing has three elements:

First, the plaintiff must have suffered an "injury in fact"—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (quotations, citations, and footnote omitted).

Article III standing for state-law claims is necessarily lacking when no plaintiff is alleged to have purchased a product within the relevant state. See, e.g., In re Capacitors Antitrust Litig., 154 F. Supp. 3d 918, 926 (N.D. Cal. 2015) (collecting cases). This is because injury in fact is not established. Id. The Supreme Court has explicitly defined "injury in fact" as "an invasion of a legally protected interest" that is "not conjectural or hypothetical." Lujan, 504 U.S. at 560 (emphasis added). Without a named Plaintiff who has purchased a product within the relevant state, there can be no determination that an interest was harmed that was legally protected under the relevant state's laws.¹

To be sure, the Minnesota statutes may permit non-residents to bring suit, and the Minnesota state judiciary is not constrained by Article III's requirements. See U.S. Const. art. III § 1. Plaintiff may have perfectly viable causes of action in Minnesota state court. But Plaintiff cannot satisfy the Article III injury-in-fact requirement. Plaintiff isnot a Minnesota resident and acknowledges that she purchased the Makeup Remover Wipes in California. Consequently, Plaintiff lacks the requisite Article III standing to litigate these causes of action in federal court. Based on the foregoing, the Court must dismiss Counts V through VII for lack of constitutional standing.²

III. Plaintiff's Material Misrepresentations and Omissions Claims

Plaintiff alleges that she was deceived by Target's representations that the Makeup Remover Wipes "gently remove makeup" and are "hypoallergenic" because she developed an allergic reaction causing her to experience a burning sensation that turned her face bright red. (Compl. ¶¶ 3, 6, 12, 19.) Plaintiff argues that "reasonable consumers" would...