COLLEEN KOLLAR-KOTELLY, United States District Judge
This action arises from the advertising and sale of a product called the no!no! Hair removal device (the "product") by Defendant Radiancy, Inc. ("Radiancy"). Thirteen plaintiffs from Washington, D.C., California, Florida, Illinois, Maryland, Virginia, Pennsylvania, Colorado, West Virginia, and Tennessee bring this putative class action against Radiancy, Inc., and its CEO Dolev Rafaeli. Together Plaintiffs bring the claims in this action on their own behalf and on behalf of a putative nationwide class, or alternatively, on behalf of ten subclasses, each limited to the residents of a single state. First, all Plaintiffs bring a claim pursuant to New York General Business Law §§ 349-350, on their own behalf and on behalf of the putative nationwide class, alleging that Defendants engaged in "a scheme to deceive customers and the public" (Count 1). Second, Plaintiffs bring claims pursuant to state consumer protection laws on their behalf and on behalf of the respective putative state
Before the Court is Defendant Radiancy's [14] Motion to Dismiss and Defendant Rafaeli's [13] Motion to Dismiss Putative Class Action Complaint. Upon consideration of the pleadings,
For the purposes of the motion before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff's Complaint. The Court does "not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.Cir.2014). The Court recites the principal facts pertaining to the issues raised in the pending motions, reserving further presentation of the facts for the discussion of the individual issues below.
The no!no! Hair removal device is manufactured and distributed by Defendant Radiancy. Compl. ¶ 1. Radiancy has marketed the device as capable of permanent or "long term" hair removal by suppressing hair growth. Id. ¶ 2. However, Plaintiffs allege that this claim is false and that the device cannot destroy hair follicles or suppress the ability of hair to regrow. Id. ¶ 4. Plaintiffs further allege that Radiancy engaged in a deceptive marketing campaign, using television and Internet advertisements that misrepresent the characteristics of the devices. Id. ¶ 6. With respect to Rafaeli, Plaintiffs allege that he "personally supervised, controlled, directed, and profited from" the marketing campaign. Id. ¶ 7.
Plaintiffs are thirteen individuals from nine different states and the District of Columbia who purchased the device between June 2010 and December 2013. See id. ¶¶ 13-25. Plaintiffs are one resident of the District of Columbia, one resident of California, two residents of Florida, one resident of Illinois, two residents of Maryland, two residents of Virginia, one resident of Pennsylvania, one resident of Colorado, one resident of West Virginia, and one resident of Tennessee. See id. The Plaintiffs allege the following regarding each individual plaintiff:
Id. ¶¶ 13-25. With respect to each individual, Plaintiffs allege the name, the state of residence, and the date or approximate date of the purchase of the product; those details are reproduced in full in the margin.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "[A] complaint [does not] suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility 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. In deciding a Rule 12(b)(6) motion, a court may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," or "documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss." Ward v. District of Columbia Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted).
When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990). At this stage, Plaintiffs "can satisfy that burden with a prima facie showing.'" Mwani v. bin Laden, 417 F.3d 1, 7 (D.C.Cir.2005) (quoting Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C.Cir.1991)). To do so, the plaintiff cannot rest on bare allegations or conclusory statements but "must allege specific acts connecting [the] defendant with the forum." Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C.Cir.2001) (internal quotation marks omitted). "To make such a showing, the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for
In order to obtain jurisdictional discovery a "plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant." Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C.Cir.1998); see also Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1, 11 (D.D.C.2009) (holding that [j]urisdictional discovery . . . is justified only if the plaintiff reasonably `demonstrates that it can supplement its jurisdictional allegations through discovery.'") (quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 89 (D.D.C.2006)). "Mere conjecture or speculation" is not enough to justify jurisdictional discovery. FC. Investment Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C.Cir.2008).
Defendant Radiancy moves to dismiss, arguing that the Complaint fails to state a claim. Defendant Rafaeli moves to dismiss, as well, arguing that this Court does not have personal jurisdiction over him. He also joins Radiancy's arguments with respect to the failure to state a claim and presents additional arguments about why the Complaint fails to state a claim against him. The Court first considers whether it has jurisdiction over Rafaeli. Because the Court concludes it does not have personal jurisdiction over Rafaeli in this action, it does not consider his arguments that the Complaint fails to state a claim against him. The Court also concludes that jurisdictional discovery with respect to Rafaeli is not warranted. The Court next considers Radiancy's arguments that the Complaint fails to state a claim, considering in turn the arguments with respect to each claim in the Complaint. The Court concludes that the Complaint does not state a claim against Radiancy.
Plaintiffs assert that the Court has specific jurisdiction
The (a)(1) prong of the District of Columbia's long-arm statute "extends as far as the Fifth Amendment's Due Process Clause permits." Flocco v. State Farm Mut. Auto. Ins. Co., 752 A.2d 147, 162 (D.C.2000). The exercise of personal jurisdiction must "comport with `traditional notions of fair play and substantial justice.'" Wiggins v. Equifax, Inc., 853 F.Supp. 500, 502 (D.D.C.1994) (quoting Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 107, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). To comply with the requirements of due process, a court can only exercise jurisdiction over a defendant who has purposely established minimum contacts with the forum state. Id.
Under the fiduciary shield doctrine, personal jurisdiction over a corporate officer may not be asserted based on "contacts with the forum [that] are exclusively in relation to the defendant's corporate responsibility." Nat'l Cmty. Reinvestment Coal v. NovaStar Fin., Inc., 631 F.Supp.2d 1, 5 (D.D.C.2009). However, when a corporate officer is "more than an employee" of the corporation, the fiduciary shield doctrine does not shield actions of such an individual conducted in that individual's capacity as a corporate employee. See id. at 6 (holding that president of corporation who personally developed and implemented discriminatory policies of corporation and exerted significant influence was not protected by the fiduciary shield doctrine). A corporate officer that exerts significant influence over a corporation's policies and operations and is personally involved in developing the policies at issue may be considered "more than an employee." See id. at 7-8. While such an individual is not shielded from jurisdiction, "as a general rule, courts cannot exert jurisdiction over individual corporate officers or employees `just because the court has jurisdiction over the corporation.'" Kopff, 425 F.Supp.2d at 84 (quoting Flocco, 752 A.2d at 162); see also Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n. 13, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ("[J]urisdiction over an employee does not automatically follow from jurisdiction over the corporation which employs him."). The contacts necessary for the Court to exercise personal jurisdiction must be assessed individually for each defendant. Keeton, 465 U.S. at 781 n. 13, 104 S.Ct. 1473 (citing Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980)).
Assuming that Rafaeli qualifies as "more than an employee" of Radiancy as the chief executive of the company,
Rafaeli, in his personal capacity and on his own behalf, did not transact any business within the District of Columbia. While Plaintiffs argue that Radiancy has transacted business in the District of Columbia by virtue of its sale of at least one no!no! Hair removal device to a resident of the District of Columbia,
Similarly, Plaintiffs have not shown that jurisdiction over Rafaeli is proper under the (a)(4) prong of the District of Columbia's long-arm statute, which applies to a person "causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia." This prong requires one of three "plus factors": that the alleged tortfeasor "`regularly do[ ] or solicit[] business' in the District, or `engage[ ] in [some] other persistent course of conduct' in the District, or `derive [] substantial revenue from goods used or consumed, or services rendered' in the District." Kopff, 425 F.Supp.2d at 82 (citing Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987) and D.C.Code § 13-423(a)(4)). Plaintiffs have not presented a prima facie case that Rafaeli has satisfied any of these "plus factors." Even if Plaintiffs had shown that Radiancy has satisfied one of these factors, Rafaeli's role as the CEO of Radiancy does not automatically mean that he regularly solicited business or engaged in a persistent course of conduct in the District of Columbia. Further, even if Radiancy derived substantial revenue from the District of Columbia,
As neither subsection (a)(1) nor subsection (a)(4) of the District of Columbia's long arm statute confers personal jurisdiction over Rafaeli, the Court dismisses all claims against Defendant Rafaeli.
In the alternative, Plaintiffs request the opportunity to conduct jurisdictional discovery in the event that Plaintiff's briefs are insufficient to establish personal jurisdiction in the District of Columbia over Defendant Rafaeli. See Pls.' Rafaeli Opp'n at 14. Defendant challenges this request as "a fishing expedition." See Rafaeli Reply 7-8. The Court concludes that jurisdictional discovery is not warranted.
To be granted jurisdictional discovery a "plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant." Caribbean Broad. Sys. Ltd., 148 F.3d at 1090. "Mere conjecture or speculation" is not enough to justify jurisdictional discovery. FC Investment Group LC, 529 F.3d at 1094.
Plaintiffs fail to identify information that could be the basis for jurisdiction over Rafaeli. Plaintiffs state that Rafaeli "directed and controlled Radiancy's policies and deceptive marketing campaign" and that this campaign led to the purchase of the no!no! Hair removal device in the District of Columbia.
The Court notes that any contacts that Rafaeli may have had with attorneys in the District of Columbia in connection with the FDA may fall under the "government contacts" exception to personal jurisdiction. Under the government contacts exception, "the entry into the District of Columbia by nonresidents for the purpose of contacting federal agencies is not a basis for assertion of in personam jurisdiction." Envtl. Research Int'l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 813 (D.C.1976). If a nonresident defendant's "sole contact with the District consists of dealing with a federal instrumentality," the defendant is deemed not to be transacting business such that he falls under the jurisdiction of the District of Columbia long-arm statute. See Rose v. Silver, 394 A.2d 1368, 1372-73 (D.C.1978) (quoting Envtl. Research Int'l, 355 A.2d at 813). Rafaeli's alleged meetings with District of Columbia attorneys related to the business of the company before the FDA
The Court need not resolve the applicability of the government contacts exception to these facts because, even if Rafaeli attended meetings with attorneys in the District of Columbia and those meetings are not excluded from the jurisdictional inquiry due to the government contacts exception, such meetings would not provide the necessary contacts to show that Rafaeli specifically targeted the marketing campaign for the no!no! Hair removal device towards the District of Columbia. These alleged contacts, as described by Plaintiffs, would not show that Rafaeli entered the District of Columbia to transact business in a way that is directly related to targeting the District of Columbia market or Plaintiffs' resultant injuries. Plaintiffs do not suggest any nexus between communications with D.C. lawyers regarding FDA testing requirements and any marketing or sales strategy by Radiancy that specifically targets the District of Columbia, and the Court does not find any such connection. Accordingly, jurisdictional discovery regarding the meetings would not provide information supporting the necessary contacts for personal jurisdiction over Rafaeli. Without presenting any more details about information relevant to the jurisdictional inquiry that Plaintiffs seek to obtain, Plaintiff's request for discovery is purely speculative. Plaintiffs do not present "a good faith belief that such discovery will enable [them] to show that the court has personal jurisdiction over the defendant," Caribbean, 148 F.3d at 1090. They do not explain how such discovery would yield information that would establish jurisdiction over Rafaeli regarding the alleged deceptive marketing campaign for the no!no! Hair removal device. Accordingly, jurisdictional discovery is not warranted, and Plaintiffs' request for such discovery is denied.
Defendant Radiancy moves to dismiss the Complaint on the basis that it fails to state a claim. The Court analyzes, in turn, each of the claims brought by Plaintiffs and Defendants' arguments in response.
Plaintiffs claim that the "acts engaged in by the Defendants were deceptive, misleading, unfair, and/or show a pattern of untruthful statements, false representations, concealment, intent to mislead that were all part of a scheme to deceive customers and the public," in violation of New York General Business Law §§ 349(a) and 350-a(1). Defendants argue that this statute does not apply here because it does not apply to out-of-state transactions. The Court agrees with Defendants that these statutory provisions are not applicable to the transactions at issue in this case.
Pursuant to section 349 of the New York General Business Law, "deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful." N.Y. Gen. Bus. Law § 349(a) (emphasis added). The statute creates a private right of action for "any person who has been injured by reason of any violation of this section." Id.
In Goshen v. Mutual Life Insurance Company, the New York Court of Appeals interpreted the limiting phrase "in this state" in sections 349(a) and 350 to mean "that the transaction in which the consumer is deceived must occur in New York." 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190, 1195 (2002). See also Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 122 (2d Cir.2013). Subsequently, in Cruz v. FxDirectDealer, LLC, the Second Circuit Court of Appeals "recognized that a split of authority has developed subsequent to Goshen about the appropriate territorial test to employ under sections 349 and 350." 720 F.3d at 122. The Second Circuit identified "a `transaction-based' test on the one hand, or, on the other hand, a test premised on where the victim is deceived, regardless of where the transaction occurs." Id. Ultimately, the Second Circuit concluded that the "appropriate test in this case is to focus on the location of the transaction, and in particular the strength of New York's connection to the allegedly deceptive transaction." Id. The Court need not dwell on whether the Second Circuit correctly interpreted New York state law because both interpretations yield the same result in this case: Plaintiffs have identified no plaintiffs deceived in New York state and have identified no transactions that occurred in New York.
Plaintiffs provide remarkably few details about the transactions at stake. Plaintiffs allege that each plaintiff saw an infomercial regarding the no!no! Hair removal device and subsequently purchased the product. See Compl. ¶¶ 13-25. Plaintiffs also allege that each plaintiff resides in one of the following jurisdictions: the District of Columbia, California, Florida, Illinois, Maryland, Virginia, Pennsylvania, Colorado, West Virginia, and Tennessee. See id. No plaintiff resides in New York. See id. Plaintiffs do not allege where each plaintiff saw the respective infomercial or where each plaintiff purchased the product. See id. Plaintiffs include numerous allegations about a nationwide deceptive marketing scheme, but they do not allege that any plaintiff was exposed to that marketing scheme other than viewing a single infomercial. See, e.g., id. ¶¶ 75-77. The Complaint nowhere suggests that any plaintiff purchased the product in New York, was exposed to any part of a marketing campaign in New York, or used the product in New York.
Plaintiffs rely on the Second Circuit Court of Appeal's opinion in Cruz to argue that the emanation of Radiancy's deceptive marketing strategy from New York, Radiancy's principal place of business, is enough for the transactions to be covered by the statutory provision. See Pls.' Radiancy Opp'n at 15-16. However, Cruz does not stand for that proposition. In Cruz, the Second Circuit Court of Appeals noted that that case "involved a series of allegedly deceptive transactions that occurred in New York and implicate the interests of New York." 720 F.3d at 123. In a case involving a complex series of financial transactions, that court outlined "various alleged ties between the customer transactions and New York," and concluded that "some part of the underlying transaction. . . occur[red] in New York State," which established a basis for the claim. Id. at 124 (alterations in original and citation omitted). The complex series of financial transactions in Cruz is a far cry from this case. In this case, there is an alleged deceptive marketing campaign launched from New York, but customers were exposed to deception outside of New York and acted upon that exposure outside of the state. In any event, regardless of the Second Circuit's discussion of New York law in Cruz, it is the New York Court of Appeals' holding in Goshen—that the "transaction in which the consumer is deceived must occur in New York"—that is binding on this Court. 746 N.Y.S.2d 858, 774 N.E.2d at 1195. Here, the Complaint does not identify any deceptive transaction that occurred in New York.
The reasoning of the New York Court of Appeals interpreting section 349 further supports this conclusion. "To apply the statute to out-of-state transactions in the case before us would lead to an unwarranted expansive reading of the statute, contrary to legislative intent, and potentially leading to the nationwide, if not global application of General Business Law
In conclusion, the Complaint fails to state a claim pursuant to New York General Business Law sections 349 and 350 because the Complaint fails to identify any transactions that occurred in New York in which Plaintiffs—who are not New York residents—were deceived. Because "`the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency,'" dismissal of this claim with prejudice is warranted. Rudder v. Williams, 666 F.3d 790, 794 (D.C.Cir.2012) (quoting Belizan v. Hershon, 434 F.3d 579, 583 (D.C.Cir.2006)). Accordingly, Count 1 is dismissed with prejudice.
As an alternative to the application of New York General Business Law §§ 349 and 350 to all plaintiffs, Plaintiffs assert claims pursuant to the consumer protection laws of California, the District of Columbia, Florida, Illinois, Maryland, Virginia, West Virginia, Colorado, and Pennsylvania on their own behalf and on behalf of putative subclasses of the respective states.
"[W]hile a federal court will examine state law to determine whether the elements of fraud have been pled sufficiently to state a cause of action, the Rule 9(b) requirement that the circumstances of the fraud must be stated with particularity is a federally imposed rule." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,
While federal courts in Florida are split about the applicability of Rule 9(b) to claims pursuant to Florida Deceptive and Unfair Trade Practices Act, the Court concludes that the claim pursuant to that statute in this case requires pleading with particularity. Some courts have found the particularity requirement of Rule 9(b) applicable to this statute. See, e.g., Begualg Inv. Mgmt. Inc. v. Four Seasons Hotel Ltd., No. 10-22153-CIV, 2011 WL 4434891, at *5 (S.D.Fla. Sept. 23, 2011); Llado-Carreno v. Guidant Corp., No. 09-20971-CIV, 2011 WL 705403, at *5 (S.D.Fla. Feb. 22, 2011); Stires v. Carnival Corp., 243 F.Supp.2d 1313, 1322 (M.D.Fla.2002). Others have found the particularity requirement inapplicable. See, e.g., Galstaldi v. Sunvest Cmties. USA, LLC, 637 F.Supp.2d 1045, 1058 (S.D.Fla.2009); Toback v. GNC Holdings, Inc., No. 13-80526-CIV, 2013 WL 5206103, at *2 (S.D.Fla. Sept. 13, 2013) ("Rule 9(b)'s requirements are implicated by allegations of fraud, but because [the statute] was enacted to provide remedies for conduct outside the reach of traditional common law torts like fraud, "the plaintiff need not
"[T]o satisfy Rule 9(b), `the pleader [must] . . . state the time, place and content of the false misrepresentations, the fact misrepresented . . . [,] what was retained or given up as a consequence of the fraud,' and `identify individuals allegedly involved in the fraud.'" Jefferson, 905 F.Supp.2d at 289 (quoting United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C.Cir. 2004)). "And when a fraud claim is based on omissions rather than affirmative misstatements, Rule 9(b) requires the plaintiff to plead, among other things, who omitted the facts, what facts were omitted, why the omission was misleading, and when the disclosure should have been made." Id. at 289-90.
With respect to each individual plaintiff, the Complaint contains a single allegation. Each of these allegations contains identical language—with the exception of the name of the plaintiff, the state of the plaintiff's residence, and the date (or approximate date) of the purchase of the device. See Compl. ¶¶ 13-25. For example, with respect to the single California plaintiff, Plaintiffs allege as follows:
Id. ¶ 14. Plaintiffs do not allege any specific facts regarding Plaintiff Coe's exposure to the alleged fraudulent advertising campaign. They do not state the circumstances under which she viewed the infomercial, whether she was exposed to any advertising other than a single infomercial, or detail the role that the infomercial played in her decision to purchase the no!no! Hair removal device. Similarly, none of the allegations regarding other individual plaintiffs provide any additional specific facts about their exposure to this advertising campaign. Each allegation pertaining to an individual plaintiff is limited to the exact same conclusory language as the allegation regarding Plaintiff Coe. See id. ¶¶ 13-25.
Although the Complaint includes numerous allegations regarding the advertising
The Court, above, concluded that Plaintiffs' claim pursuant to the West Virginia Consumer Credit and Protection Act,
In order to pursue a claim pursuant to the West Virginia Consumer Protection Act, a plaintiff must provide notice to the would-be defendants prior to filing suit. See Rawls v. Associated Materials, LLC, No. 1:10-CV-01272, 2012 WL 3852875, at *6 (S.D.W.Va. Sept. 5, 2012); Stanley v. Huntington Nat. Bank, 492 Fed.Appx. 456, 457 (4th Cir.2012) (unpublished). While Plaintiffs sent a notice to Defendants, the content of that notice does not meet the statutory requirements.
In a footnote, Plaintiffs ask that, if the Court determines that the notice is insufficient, they be afforded an opportunity to send a corrected letter. If the Court were to allow this request now, it would contradict the purpose of the statutory notice requirement: to provide Defendants notice of Plaintiffs' intent to file a suit pursuant to the West Virginia statute before the suit was filed. Accordingly, that request is denied.
Both because the Complaint fails to plead this claim with particularity as required by Rule 9(b) and because Plaintiffs failed to comply with the pre-suit notification requirements of the West Virginia statute, the Court dismisses Count 11.
In sum, the Court dismisses without prejudice each of the state-specific consumer protection claims brought on behalf of Plaintiffs and putative state-specific subclasses. Because the Court cannot conclude, with respect to these claims, that
Plaintiffs also bring express and implied warranty-based claims. The Court first discusses the law to apply to these claims. Plaintiffs argue that New York law applies to each of the warranty claims. Compl. ¶ 171. In the alternative, they argue that the law of each plaintiff's home state should be applied to the claims of the respective individual plaintiffs. Id. ¶ 172. Defendants first argue that, if New York law is applied to the several warranty claims, as Plaintiffs propose, the Complaint fails to state a claim with respect to each of the warranty claims. They also argue that New York law should not be applied to these claims and that, applying the law of Plaintiffs' respective home states to each claim, each claim would fail as well. In turn, Plaintiffs respond that the Complaint states a claim with respect to the several warranty claims under New York law; they also argue that, if the Court rejects their argument that New York law governs these claims and instead applies the law of the states in which Plaintiffs, respectively, reside, the claims survive as well. See Pls.' Radiancy Opp'n at 22-30. Notably, neither party maintains that the choice of law affects the outcome: Plaintiffs argue that the claims survive regardless of the law applied, and Defendants argue that the claims fail regardless of the law applied. In addition, Plaintiffs argue that, in a putative class action, the choice of law analysis should be postponed until after the conclusion of discovery. Accordingly, with respect to the motions to dismiss currently pending before the Court, the Court applies New York law in evaluating the warranty claims as Plaintiffs propose. The Court concludes, below, that the Complaint fails to state a claim with respect to any of the warranty claims and dismisses those claims. Having applied the body of law that Plaintiffs argue is applicable to these claims, the Court declines to evaluate whether the result would differ if the Court applied the law of the ten other states in which Plaintiffs live, as Plaintiffs suggest in the alternative.
"Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." Goldemberg v. Johnson & Johnson Consumer Companies, Inc., 8 F.Supp.3d 467, 482 (S.D.N.Y.2014). "To state a claim for breach of express warranty under New York law, a plaintiff must allege (1) the existence of a material statement amounting to a warranty, (2) the buyer's reliance on this warranty as a basis for the contract with the immediate seller, (3) breach of the warranty, and (4) injury to the buyer caused by the breach." Id. (citations omitted). "The critical question is not whether the buyer believed in the truth of the warranted information . . . but `whether [it] believed [it] was purchasing the [seller's] promise [as to its truth]." CBS Inc. v. Ziff-Davis Pub. Co., 75 N.Y.2d 496, 554 N.Y.S.2d 449, 553 N.E.2d 997, 1000-01 (1990) (citation omitted and alterations in original).
Defendants argue that Plaintiffs have failed to allege the existence of an applicable warranty or to allege reliance on that
In support of their argument, Plaintiffs identify a series of allegations in the complaint that contain representations about the product, which they allege are false. See Pls.' Radiancy Opp'n at 29 (citing Compl. ¶¶ 84, 86, 90-91, 99-100, 112-113, 116-117). However, none of those allegations even so much as suggest that Plaintiffs were exposed to those particular representations or to the advertising containing those representations. Because Plaintiffs never allege that they actually were exposed to the specific representations that they identify as the basis for this claim, these representations cannot serve as a basis for the bargain in which Plaintiffs entered when they purchased the product. Furthermore, Plaintiffs argue that they have adequately alleged reliance, relying on the allegation that the individual plaintiffs "would not have bought the product" if they knew that the product "was unable to prevent hair regrowth and could not live up to its other representations." Id. (citing Compl. ¶¶ 13-25). However, because Plaintiffs did not allege the circumstances under which they were exposed to the specific representations they identified—or indeed whether they were exposed to them at all—those representations cannot be the basis for a claim of a breach of express warranty. Accordingly the Court dismisses the claim for a breach of an express warranty without prejudice.
"The UCC's concept of a `defective' product requires an inquiry only into whether the product in question was `fit for the ordinary purposes for which such goods are used.' The latter inquiry focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners." Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 662 N.E.2d 730, 736 (1995). "A warranty of fitness for ordinary purposes `does not mean that the product will fulfill [a] buyer's every expectation.' Rather, it has been observed, such a warranty `provides for a minimal level of quality.'" Id. 639 N.Y.S.2d 250, 662 N.E.2d at 736 n. 4 (citations omitted). Given these principles, "[u]nder New York law, `[a] breach of implied warranty claim requires proof of the following three elements: (1) that the product was defectively designed or manufactured; (2) that the defect existed when the manufacturer delivered it to the purchaser or user; and (3) that the defect is the proximate cause of the accident.'" Simon v. Smith & Nephew, Inc., 990 F.Supp.2d 395, 407 (S.D.N.Y. 2013) reconsideration denied, 18 F.Supp.3d 423 (S.D.N.Y.2014) (citation omitted).
Defendants argue that Plaintiffs have not adequately alleged that the no!no! Hair removal device, as sold, was unfit for its ordinary purpose, which they frame as
The Court agrees with Defendants that the existence of a factual issue about the nature of Plaintiffs' use of the product is not relevant at this stage of the proceedings. The only question is whether Plaintiffs have adequately pleaded facts supporting a claim for breach of the implied warranty of merchantability pursuant to New York law. However, this dispute reveals an even more fundamental problem: Plaintiffs have not adequately alleged that they have used the device and that it was not fit for the ordinary purpose for which it was intended. Even if Plaintiffs are right that the "ordinary purpose" of the product is the sort of long term hair removal that they allege was advertised, they have provided insufficient allegations to support that claim. Each individual plaintiff alleges purchasing the product but never alleges using it; as a result, they also do not allege that they were injured by its unfitness through their personal use. Plaintiffs do claim that their loss includes "the money and time expended by Plaintiffs and members of the Class in purchasing and testing the Product, which they wrongly expected would prevent unwanted hair growth." Compl. ¶ 204. However, this single reference to testing the product—disconnected from the experience of any individual—is not enough to support an inference that each plaintiff actually used the product, where the allegations pertaining to the individual plaintiffs do not make any such suggestion. See, e.g., id. ¶ 13. Moreover, Plaintiffs have not alleged that they experienced the alleged defect personally. Instead, they suggest that their injury occurred upon learning of the fact that the product would not function as they expected. See id. ¶ 167 (Plaintiffs "could only have possibly learned of their claims when Radiancy's internal documents were first revealed"). Accordingly, the Court concludes that Plaintiffs have not stated a claim for breach of the implied warranty of merchantability, and this claim is dismissed without prejudice.
"For an implied warranty of fitness for a particular purpose claim to arise, the buyer must establish that the seller had reason to know, at the time of contracting, the buyer's particular purpose for which the goods are required and that the buyer was justifiably relying upon the seller's skill and judgment to select and furnish suitable goods, and that the buyer did in fact rely on that skill." Saratoga Spa & Bath, Inc. v. Beeche Sys. Corp., 230 A.D.2d 326, 656 N.Y.S.2d 787, 790 (1997). (quoting U.C.C. 2-315). "`The existence of this warranty, therefore, depends in part upon the comparative knowledge and skill of the parties.'" Id. (quoting Blockhead, Inc. v. Plastic Forming Co., 402 F.Supp. 1017, 1024 (D.Conn.1975))). Moreover, "[a] `particular purpose' differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question." N.Y. U.C.C. Law § 2-315 (McKinney) (cmt. 2).
Defendants argue that the Complaint fails to allege that Plaintiff informed Radiancy of the particular purpose for which they were purchasing the product or that they were relying on Radiancy's expertise in choosing that product. Plaintiffs' respond that, "whether Plaintiffs have sufficiently shown that Radiancy should have known of Plaintiffs' particular purposes in purchasing the device is a factual question to be addressed through discovery." Pls.' Radiancy Opp'n at 25. However, Plaintiffs have not, in fact, responded to Defendants' argument. The question before the Court now is not whether Plaintiffs have shown that Plaintiffs had made Defendants aware of their particular purposes; it is whether Plaintiffs have alleged that Defendants had reason to know of the particular purposes that Plaintiffs had for the device. Plaintiffs have not done so. Indeed, they have not even alleged that they had a particular purpose for using the device. In fact, they allege—and argue throughout their briefing—that their purpose in purchasing the device was the precise purpose for which they claim Radiancy was marketing the device—long-term hair removal. Moreover, even assuming that Plaintiffs had a particular purpose for using the device, the Complaint does not include any allegations suggesting that Radiancy was aware of any particular purpose that Plaintiffs may have had for the device. Nor have Plaintiffs alleged that any plaintiff communicated with Defendants such that they would have had reason to know that Plaintiffs maintained a particular purpose for purchasing the device. In sum, Plaintiffs have not identified a purpose for using the device that "differs from the ordinary purpose for which the goods are used" or "a specific use by the buyer which is peculiar to the nature of his business." N.Y. U.C.C. Law § 2-315, cmt. 2. For all of these reasons, the Court concludes that the Complaint fails to state a claim for breach of implied warranty of fitness for particular purpose. Because "`the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency,'" dismissal of this claim with prejudice is warranted. Rudder, 666 F.3d at 794.
The Magnuson-Moss Warranty Act provides a federal class action remedy for a breach of warranty. 15 U.S.C. § 2310(d). The parties agree that the viability of this
In a single sentence in the conclusion to Plaintiffs' Opposition to Radiancy's Motion to Dismiss, Plaintiffs request, in the alternative, leave to amend their Complaint if the Court "sees any technical defects in the Complaint." Pls.' Radiancy Opp'n at 30. Plaintiffs do not attach a proposed amended complaint nor do they suggest how this amended complaint would fix any "technical defects" with the Complaint. Accordingly, the request is denied.
For the foregoing reasons, the Court GRANTS Defendant Radiancy's [14] Motion to Dismiss and GRANTS Defendant Rafaeli's [13] Motion to Dismiss Putative Class Action Complaint. All claims against Rafaeli are DISMISSED for want of personal jurisdiction, and Plaintiffs' alternative request to conduct jurisdictional discovery with respect to Rafaeli is denied. All claims against Radiancy are DISMISSED because the Complaint fails to state a claim against Radiancy. Specifically, the claim pursuant to New York General Business Law §§ 349350 (Count 1) and the implied warranty of fitness for a particular purpose claim (Count 14, part 2) are dismissed WITH PREJUDICE. The state-specific consumer protection claims (Counts 2 through 12), the express warranty claim (Count 13), the implied warranty of merchantability claim (Count 14, part 1), and the Magnuson-Moss Warranty Act claim (Count 15) are dismissed WITHOUT PREJUDICE. Finally, Plaintiffs' cursory request to amend the complaint is DENIED. This action is dismissed in its entirety.
An appropriate Order accompanies this Memorandum Opinion.
In their Opposition, Plaintiffs reference a claim pursuant to Tennessee law on behalf of a Tennessee subclass. See Pls.' Radiancy Opp'n at 3. However, while the Complaint references a Tennessee subclass, see Compl. ¶ 176(g), it does not include any claim pursuant to Tennessee law.
