Ellen Macklin DiMURO, Margaret Ohayon, Dana Stein, and all others similarly situated, Plaintiffs-Appellants, v. CLINIQUE LABORATORIES, LLC, Estee Lauder Companies, Inc., Defendants-Appellees.
No. 13-4551-cv.
United States Court of Appeals, Second Circuit.
July 10, 2014.
PRESENT: BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, and CHRISTOPHER F. DRONEY, Circuit Judges.
2. Werner‘s Motion to Recall the Mandate
Preliminarily, we note that Werner‘s brief paragraph response adopting Nawaz‘s argument that the victims caused their own losses by refusing to proceed with the foreclosure sales using public bidding or an auction fails to respond to this Court‘s directive to address the effect of Robers on her motion to recall the mandate. Any argument on that point is thus waived. In addition, as stated above this argument is without merit.
It is well established that our power to recall our mandate must be “exercised sparingly, and reserved for exceptional circumstances.” Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir.1996) (internal citations and quotation marks omitted). When determining whether to recall a mandate, we consider “(1) whether the governing law is unquestionably inconsistent with the earlier decision; (2) whether the movant brought to the Court‘s attention that a dispositive decision was pending in another court; (3) whether there was a substantial lapse in time between the issuing of the mandate and the motion to recall the mandate; and (4) whether the equities ‘strongly favor’ relief.” Stevens v. Miller, 676 F.3d 62, 69 (2d Cir.2012) (quoting Sargent, 75 F.3d at 90). Werner fails to identify any extraordinary circumstance, and we see none. Additionally, Robers provides no basis to challenge this Court‘s decision affirming Werner‘s sentence nor to challenge the district court‘s calculation of Werner‘s restitution amount, in sum no basis for this Court to recall its mandate. Accordingly, Werner‘s motion is denied.
We have examined Nawaz and Werner‘s remaining arguments and find them to be without merit. For the foregoing reasons we AFFIRM the district court‘s judgment regarding restitution Nawaz is required to pay, and we DENY Werner‘s motion to recall the mandate.
Kenneth A. Plevan (Boris Bershteyn, Xiyin Tang, on the brief), Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, David R. Schaefer, Sean M. Fisher, Brenner, Saltzman & Wallman LLP, New Haven, CT, for Defendants-Appellees.
Plaintiffs-Appellants Ellen Macklin DiMuro, Margaret Ohayon, and Dana Stein (“Plaintiffs“) filed a putative class action complaint against Defendants Clinique Laboratories, LLC and Estee Lauder Companies, Inc. (“Clinique” or “Defendants“) asserting claims under Connecticut, New Jersey, and Illinois consumer fraud statutes, along with claims for breach of express warranty, breach of implied warranty, and unjust enrichment, arising from Defendants’ marketing of seven different cosmetic products sold under the “Repairwear” product line. The United States District Court for the District of Connecticut (Covello, J.), in a November 22, 2013, decision and order, granted Defendants’ motion to dismiss the Plaintiffs’ consolidated class action complaint with prejudice. This appeal followed. We assume the parties’ familiarity with the underlying facts and procedural history of the case, and with the issues on appeal.
I. Standing
Plaintiffs’ consolidated class action complaint asserts claims arising out of Clinique‘s marketing of seven different Repairwear products, but the named Plaintiffs only allege to have purchased and used three of the seven products. Plaintiffs argue that they have class standing to bring claims for Repairwear products that they did not buy under our decision in NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 162 (2d Cir.2012). For the following reasons, we disagree.
In NECA, we held that plaintiffs who had purchased certain securities had class standing to assert claims on behalf of purchasers of other related securities where the allegedly fraudulent conduct was a “nearly identical misrepresentation[ ] . . . common to every Certificate‘s registration statement.” Id. at 162. The fact that the nearly identical misrepresentation appeared in different offering documents made no difference because, in the circumstances there, “the location of the representations ha[d] no effect on a given purchaser‘s assertion that the representation was misleading.” Id. at 162-63. Thus we held that “claims brought by a purchaser of debt from one offering would raise a ‘set of concerns’ nearly identical to that of a purchaser from another offering.” Id. at 163. Here, by contrast, each of the seven different products have different ingredients, and Clinique made different advertising claims for each product.1 Entirely unique evidence will, therefore, be required to prove that the 35-some advertising statements for each of the seven different Repairwear products are false and misleading. As a result, we cannot say that “claims brought by a purchaser of” one product “would raise a ‘set of concerns’ nearly identical to that of a purchaser” of another Repairwear product. Accordingly, Plaintiffs lack class standing to bring claims for the four products that they did not purchase, and these claims were properly dismissed.
We next conclude that the district court properly dismissed Plaintiffs’ consumer fraud claims because Plaintiffs failed to plead them with the requisite “particularity.”
First, Plaintiffs’ group-pleading as to the products and the advertisements at issue is inconsistent with
Second, the consolidated complaint provides no factual allegations explaining how any specific advertising claims were fraudulent. See Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2d Cir.1971) (noting that conclusory allegations of fraud will be dismissed under
Third, the complaint fails to allege that any of the named Plaintiffs even used the product, let alone used the product as directed. See, e.g., Joint App‘x. 71 (Plaintiff DiMuro alleged that “purchases were for full retail price and for personal use,” but there is no allegation of actual use); id. at 72 (same for Plaintiff Ohayon); id. (same for Plaintiff Stein). Similarly the named Plaintiffs do not allege what results they received from their use of the product. They only allege that they received “no value,” “did not receive what they bargained for,” or “did not get what they paid for.” See, e.g., Joint App‘x. 95, 101, 103. Yet the complaint does not allege which particular advertising claims each of the named Plaintiffs relied on when purchasing the product, so the conclusion that they did not receive what they bargained for has no ascertainable meaning. From the allegations in the complaint we do not know: (1) if Plaintiffs used the products they purchased; (2) if Plaintiffs used the products as directed; (3) what specific benefits Plaintiffs expected to receive from the products based on false advertising claims and; (4) what benefits Plaintiffs hoped for but did not receive.
None of the Plaintiffs’ arguments that they alleged their consumer fraud claims with particularity are persuasive. Plaintiffs argue first that they pled their consumer fraud claims with particularity because they allege that Clinique‘s advertised results for Repairwear products could only be achieved by drugs and, as a result, the claims for these cosmetics (not drugs) must be false. This allegation is both conclusory and implausible, and wholly insufficient to establish particularity under
Finally, Plaintiffs argue that they alleged facts sufficient to show that Clinique‘s “dramatizations” are fraudulent. This argument seems to attack not the efficacy of the product itself but Clinique‘s
III. Unjust Enrichment
Plaintiffs’ unjust enrichment claim was also correctly dismissed by the district court. Plaintiffs concede that “where an unjust enrichment claim is asserted in concert with a claim sounding in fraud,” as is present here, “the unjust enrichment claim must be dismissed if the fraud claim is dismissed for failure to satisfy
IV. Breach of Express and Implied Warranty
We also affirm the district court‘s dismissal of Plaintiffs’ last two claims for breach of express and implied warranty. Even assuming arguendo, as Plaintiffs argue, that the more lenient standard under
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations and quotation marks omitted). The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully,” and mere conclusory allegations “are not entitled to the assumption of truth.” Id. at 678-79. Therefore complaints that only allege a scheme in a “wholly conclusory and speculative manner” and fail to “allege facts sufficient to establish the elements” are properly dismissed under
Plaintiffs’ claims for breach of express warranty and breach of implied warranty rely on allegations that the products did not perform as advertised. See Appellants’ Br. 43 (“Repairwear Products did not conform to express warrantees because Repairwear Products do not and cannot provide the promised results . . .“); Appellants’ Br. 53 (Clinique breached “implied warranties . . . as the products do not and cannot provide the ‘de-aging’ benefits promised . . .“). These allegations and the rest of the allegations in the consolidated complaint supposedly supporting these claims are wholly conclusory. They do not provide a sufficient factual basis to establish a plausible breach of any specifically identified express or implied warranty. Thus we affirm the dismissal of Plaintiffs’ final two claims.
V. Leave to Amend
Finally, we reject the Plaintiffs’ argument that the district court erred by denying their request for leave to amend the complaint. Under
The district court‘s decision to deny Plaintiffs leave to amend their complaint was not an abuse of discretion. First, the Plaintiffs have failed to provide any detail as to what facts they would (or could) plead to cure their pleading deficiencies. Second, much of the information necessary for a properly pled complaint is and has always been in the possession of the Plaintiffs. For example, Plaintiffs failed to plead which particular representations they relied upon, and failed to specifically allege that they had used the products and that the results were not beneficial. In light of these facts, and the district court‘s correct recognition that this is the fourth complaint regarding these matters, it was not an abuse of discretion for the district court to conclude that amendment would not likely cure the deficiencies in Plaintiffs’ complaint.
Plaintiffs make two arguments suggesting that the district court‘s denial was an abuse of discretion. First, they argue that the district court erroneously concluded that the Plaintiffs had previously amended their complaint four times. This argument mischaracterizes the district court‘s decision. The district court never stated or implied that the Plaintiffs previously amended their complaint four times. It merely noted—completely accurately—that this was the “fourth complaint filed in connection with this dispute.” Thus, the denial was not based on a clearly erroneous factual finding. Second, Plaintiffs argue that it was an abuse of discretion to deny them leave to amend because they made no amendment prior to or after the decision dismissing their complaint. This is no abuse of discretion. As we have held, Plaintiffs are “not entitled to an advisory opinion from the Court informing them of the deficiencies in the complaint and then an opportunity to cure those deficiencies.” Bellikoff, 481 F.3d at 118. The district court‘s denial of the Plaintiffs’ request to amend their consolidated complaint was not an abuse of discretion.
We have reviewed Plaintiffs’ remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.