Ostermeier-McLucas v. Rite Aid Hdqtrs. Corp.

549 F.Supp.3d 276

Gina OSTERMEIER-MCLUCAS, Individually and on Behalf of All Others Similarly Situated, Plaintiff,

v.RITE AID HDQTRS. CORP. & Rite Aid of New York, Inc., Defendants.

20-CV-2915 (ARR) (SJB)

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

Signed July 15, 2021

Rachel Dapeer, Dapeer Law, P.A., Andrew Shamis, Shamis & Gentile P.A., Miami, FL, Melissa S. Weiner, Pearson Simon & Warshaw, LLP, Minneapolis, MN, for Plaintiff.

Ezra D. Church, Pro Hac Vice, John P. Lavelle, Pro Hac Vice, Morgan, Lewis & Bockius LLP, Philadelphia, PA, Regina Schaffer-Goldman, Morgan Lewis & Bockius LLP, New York, NY, Sean J. Radomski, Pro Hac Vice, Morgan, Lewis & Bockius LLP, Princeton, NJ, for Defendants.

Opinion & Order

ROSS, United States District Judge:

On July 1, 2020, plaintiff, Gina Ostermeier-McLucas, commenced this putative class action against Rite Aid Corporation, claiming violations of the New York General Business Law ("NYGBL") and the Magnuson-Moss Warranty Act ("MMWA") as well as breach of express warranty and unjust enrichment. Compl. ¶¶ 1, 57–104, ECF No. 1. Plaintiff later amended her complaint, replacing defendant Rite Aid Corporation with defendants Rite Aid Hdqrtrs. Corp. ("RAHC") and Rite Aid of New York, Inc. ("RAoNY") and removing her MMWA and breach of express warranty claims. Am. Compl. ¶¶ 1, 60–87, ECF No. 19. On March 16, 2021, defendants moved to dismiss plaintiff's amended complaint in its entirety. Defs.’ Mot. Dismiss 1 ("Def.’s Mot."), ECF No. 32-1. Plaintiff filed her opposition on April 16, 2021, Pl.’s Opp'n, ECF No. 35, and defendants filed their reply on May 7, 2021, Defs.’ Reply, ECF No. 36. For the following reasons, defendants’ motion is granted.

BACKGROUND

Rite Aid owns and operates retail stores throughout the United States. Am. Compl. ¶ 2. From these stores, Rite Aid distributes its own brand of Infants’ Fever Reducer & Pain Reliever ("Infants’ Products") and Children's Fever Reducer & Pain Reliever ("Children's Products") (collectively, the "Products"). Id. ¶ 3. Acetaminophen, the active ingredients in the products, "can be dangerous, and perhaps even fatal, if taken in large doses." Id. ¶ 4. The Food and Drug Administration ("FDA") warns caregivers to "[b]e very careful when you're giving your infant acetaminophen." Id. Plaintiff alleges that Rite Aid exploits parents’ and caregivers’ fears of administering dangerous doses to their infants by packaging the products in a way that "deceives reasonable consumers into thinking that infants cannot safely take Children's Products." Id. ¶¶ 4, 6. Although the Infants’ Products contain the same active ingredient and formulation (i.e., 160 mg per 5 mL of acetaminophen ) as the Children's Products, Rite Aid charges approximately three times as much per ounce for the Infants’ Products as for the Children's Products. Id. ¶ 36. The packaging highlights the words "infants’ " and "children's" in "distinctive and colored lettering." Id. ¶ 34.

The Amended Complaint includes images of the front labels of the products:

Id. Both labels note the active ingredient and concentration: acetaminophen 160 mg/5 mL. Id. The labels also note several differences. The Infants’ Products are marketed to consumers of "ages 2-3 years" while the Children's Products are marketed to consumers of "ages 2-11 years." Id. The Infants’ Products are available in "2 FL OZ (59 mL)" while the Children's Products are available in "4 FL OZ (118 mL)." Id. The products also come with different dosing instruments, with the infants’ label stating caregivers must "use only enclosed syringe." Id. Finally, only the Infants’ Products are labeled as having a "DYE-FREE non-staining formula." Id.

Plaintiff has one nine-year-old child and one three-year-old grandchild. Id. ¶ 11. She first purchased the Infants’ Products in or around 2010 when she lived in New York. Id. Relying on the Products’ packaging and labeling, she believed that the Infants’ Products were specifically formulated and designed for infants. Id. ¶ 13. If she had known that the Products did not contain different medicines, she "would not have purchased the Infants’ Products or paid a price premium for the Infants’ Products." Id. Plaintiff "desires to purchase ‘Infants’ products in the future and regularly visits retail locations where such products are sold," but currently "cannot purchase the Infants’ Products because she remains unsure whether the labeling of the Products is, and will be, truthful and non-misleading." Id. ¶¶ 15–16.

Plaintiff seeks to represent a class of all "persons who purchased Infants’ Products for personal use in the United States" (the "Nationwide Class") as well as a class of all "persons who purchased Infants’ Products for personal use in New York" (the "New York Subclass"). Id. ¶¶ 46–48. On behalf of herself and the Nationwide Class, plaintiff brings a common law cause of action for unjust enrichment. Id. ¶¶ 81–87. On behalf of herself and the New York Subclass, she claims violations of NYGBL §§ 349 and 350. Id. ¶¶ 60–80.

STANDARD OF REVIEW

Defendants move to dismiss plaintiff's amended complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), for lack of personal jurisdiction under Rule 12(b)(2),¹ for failure to state a claim under Rule 12(b)(6), and for failure to plead her claims with sufficient particularity under Rule 9(b).² "To survive a motion to dismiss, a complaint must plead ‘enough facts to state a claim to relief that is plausible on its face,’ ... and ‘allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Rush v. Canfield , 649 F. App'x 70, 70 (2d Cir. 2016) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

In reviewing a 12(b)(6) motion, the court must "constru[e] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Bacon v. Phelps , 961 F.3d 533, 540 (2d Cir. 2020) (citation omitted). I may consider only those "facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc. , 945 F.2d 40, 44 (2d Cir. 1991). If I find that the complaint does not "contain sufficient factual matter ... to state a claim to relief that is plausible on its face," I must dismiss the case. Cnty. of Erie v. Colgan Air, Inc. , 711 F.3d 147, 149 (2d Cir. 2013) (citation omitted).

The standard of review for a motion to dismiss under 12(b)(1) is substantively "identical" to the standard for a 12(b)(6) motion. Moore v. PaineWebber, Inc. , 189 F.3d 165, 169 n.3 (2d Cir. 1999). However, whereas the moving party bears the burden of proof in a 12(b)(6) motion, in a 12(b)(1) motion the party invoking the court's jurisdiction bears this burden. See Baskerville v. Admin. for Children's Servs. , No. 19-CV-602 (AMD) (LB), 2020 WL 59826, at *1 (E.D.N.Y. Jan. 6, 2020). Dismissal is proper under Rule 12(b)(1) for lack of subject matter jurisdiction "when the district court lacks the statutory or constitutional power to adjudicate" the claim. Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000).

DISCUSSION

I. Plaintiff's NYGBL claims are dismissed.

a. Plaintiff lacks standing to seek injunctive relief.

Defendant argues that I should dismiss plaintiff's claims for injunctive relief, see Am. Compl. ¶¶ 62, 69, 80, for lack of standing, Defs.’ Mot. 17–18. To establish Article III standing to seek injunctive relief, a plaintiff must "allege a risk of future injury." Sitt v. Nature's Bounty, Inc. , No. 15-CV-4199 (MKB), 2016 WL 5372794, at *7 (E.D.N.Y. Sept. 26, 2016). A plaintiff does not necessarily have standing to seek injunctive relief even when it is clear that she has standing to seek damages. See City of Los Angeles v. Lyons , 461 U.S. 95, 105–06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ; Nicosia v. Amazon.com, Inc. , 834 F.3d 220, 239 (2d Cir. 2016). In her amended complaint, plaintiff states that she "desires to purchase ‘Infants’ products in the future and regularly visits retail locations where such products are sold. If Plaintiff knew that the Infants’ Products’ labels were truthful and non-misleading, she would continue to purchase the Infants’ Products in the future." Am. Compl. ¶ 15. This allegation is not sufficient to demonstrate that plaintiff is likely to be injured by defendants’ conduct in the future. "[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.’ " Lyons , 461 U.S. at 95–96, 103 S.Ct. 1660 (quoting O'Shea v. Littleton , 414 U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ). Because a plaintiff in a false advertisement case has necessarily become aware of the alleged misrepresentations, "there is no danger that they will again be deceived by them." Elkind v. Revlon Consumer Prods. Corp. , No. 14-CV-2484 (JS) (AKT), 2015 WL 2344134, at *3 (E.D.N.Y. May 14, 2015). Although some district courts have allowed claims for injunctive relief to proceed in similar circumstances, see, e.g., Belfiore v. Procter & Gamble Co. , 94 F. Supp. 3d 440, 445 (E.D.N.Y. 2015) ; Ackerman v. Coca-Cola Co. , No. 09-CV-395 (DLI) (RML), 2013 WL 7044866, at *15 n.23 (E.D.N.Y. July 18, 2013) (R. & R.), these cases are inconsistent with Article III and with Supreme Court and Second Circuit case law, see Nicosia , 834 F.3d at 239 ; Buonasera v. Honest Co., Inc. , 208 F. Supp. 3d 555, 564–65, 565 n.3 (S.D.N.Y. 2016) ("[T]he Court declines to follow the reasoning in Ackerman as...