Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JAN MOUZON, et al. ,
Plaintiffs
v. Civil Action No. 15-1142 (CKK) RADIANCY, INC.,
Defendant
YESENIA OLIVO, et al. ,
Plaintiffs
v. Civil Action No. 15-1926 (CKK) RADIANCY, INC., et al. ,
Defendants MEMORANDUM OPINION and ORDER
(August 2, 2016)
This consolidated action represents the second coming of a putative class action
regarding the no!no! Hair removal device to this Court. The Court previously dismissed all of the
claims asserted in the original action, captioned
Mouzon v. Radiancy
and numbered 14-cv-722.
Mouzon v. Radiancy, Inc.
,
Before the Court is Defendant Radiancy’s [20] Renewed Motion to Dismiss for Failure to State a Claim and Defendant Rafaeli’s [13] Renewed Motion to Dismiss for Failure to State a Claim. Upon consideration of the pleadings, [3] the relevant legal authorities, and the record as a whole, the Court DENIES Defendant Radiancy’s [20] Renewed Motion to Dismiss and GRANTS Defendant Rafaeli’s [21] Renewed Motion to Dismiss. In contrast to the original *3 Complaint filed in Mouzon I , the Court concludes that Plaintiffs’ have adequately pleaded all of their claims against Radiancy. But the Court also concludes that the Consolidated Amended Complaint fails to state a claim against Rafaeli. Accordingly, all claims against Rafaeli are DISMISSED WITH PREJUDICE.
I. BACKGROUND
The Court presented the background of this case at length in its Memorandum Opinion
accompanying the Order dismissing .
See generally
II. LEGAL STANDARD
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
,
III. DISCUSSION
Defendant Radiancy moves to dismiss under Rule 12(b)(6), arguing that the Consolidated Amended Complaint fails to state a claim. Defendant Rafaeli moves to dismiss, as well, under Rule 12(b)(6) for failure to state a claim. He joins all of Radiancy’s arguments and presents additional arguments as to why the Consolidated Amended Complaint fails to state a claim against him. The Court turns first to Radiancy’s arguments, followed by Rafaeli’s arguments. A. Complaint States a Claim against Radiancy
Defendant Radiancy moves to dismiss the Consolidated Amended Complaint on the basis that it fails to state a claim. The Court first addresses Radiancy’s arguments regarding the implied and express warranty claims, followed its arguments regarding the state-specific consumer protection act claims.
1. Warranty Claims
Plaintiffs asserts claims for breach of express warranty; for breach of implied warranty of merchantability; and for violations of the Magnuson-Moss Warranty Act, which provides a federal cause of action for certain state warranty claims. As in , the parties disagree about what source of law governs these claims, with Plaintiffs asserting that New York law governs each of the warranty claims and Defendants asserting that the warranty claims are governed, respectively, by the state law of each plaintiff’s state of residence. 85 F. Supp. 3d at 383. The Court need not decide the choice-of-law question at the present time because the *5 Court concludes that the warranty claims survive Radiancy’s motion to dismiss regardless of the source of law.
With respect to the breach of express warranty claims, the Court dismissed those claims without prejudice in Mouzon I based on the following analysis:
Plaintiffs identify a series of allegations in the complaint that contain representations about the product, which they allege are false. 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.” 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.
Mouzon I
,
With respect to the breach of implied warranty of merchantability claims, the Court previously dismissed the claims against Radiancy without prejudice based on the following analysis:
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.
Mouzon I
,
*7 Lastly, with respect to the Magnuson-Moss Warranty Act claims, the parties agree that, if the other warranty claims survive the motion to dismiss, so too do the Magnuson-Moss claims. Because the Court concludes that the Consolidated Amended Complaint states express and implied warranty claims against Radiancy, the Court concludes that it states Magnuson- Moss claims, as well, against Radiancy.
Accordingly, for all of these reasons, the Court DENIES Radiancy’s Motion to Dismiss with respect to the warranty claims.
2. State Consumer Protection Law Claims
In
Mouzon I
, the Court dismissed the state-specific consumer protection claims asserted
by the plaintiffs because those fraud-based claims had not been pleaded with particularity as
required by Federal Rule of Civil Procedure 9(b).
In addition to continuing to argue that the state-specific consumer protection claims are not pleaded with particularity, Defendants also present several arguments about why the *8 Consolidated Amended Complaint fails to state a claim with respect to individual specific state- specific consumer protection claims. The Court reviews each of those arguments, in turn, and concludes that none of them are successful.
First, Defendants argue that the Consolidated Amended Complaint fails to state a claim under the California Legal Remedies Act because Plaintiffs did not provide adequate pre-suit notice as required by that statute. The Court agrees with Plaintiffs that their April 16, 2014, notice letter complies with the requirements of the California Legal Remedies Act, strictly construed: it gave Defendants notice of the alleged violations and gave them an opportunity to cure those violations before this litigation ensued. Cal. Civ. Code § 1782(a). Because that notice was provided more than 30 days before this consolidated action was filed, the notice requirement does not bar this suit.
Second, Defendants argue that the Consolidated Amended Complaint fails to state a
claim with respect to several of the specific claims under California, District of Columbia,
Maryland, and Virginia law because of the respective statutes of limitations. However, in this
Circuit, it is well established that “[b]ecause statute of limitations issues often depend on
contested questions of fact, dismissal is appropriate only if the complaint on its face is
conclusively time-barred.”
Bregman v. Perles,
Third, Defendants argue that a class action cannot be pursued under the Virginia Consumer Protection Act because Virginia law does not allow class actions, absent explicit authorization not present here. Plaintiffs argue that the availability of a class action remedy is governed by the Federal Rules of Civil Procedure rather than by Virginia law. The Court concludes that it is unnecessary to resolve this question at this stage of the proceedings. Plaintiffs are not—yet—seeking to certify any classes in this action. The question of whether a class action may be maintained with respect to the Virginia Consumer Protection Act is proper to consider at the class certification stage rather than in considering a motion to dismiss, particularly given that Defendants are not arguing (on this basis) that the Consolidated Amended Complaint fails to state a claim as to the named Virginia plaintiffs.
*10 Fourth, and finally, Defendants argue that, even if the Court concludes that Plaintiffs have pleaded their state consumer protection act claims with particularity, they have not adequately pleaded reliance and/or proximate cause as required for certain state law claims in this case. The Court agrees with Plaintiffs that the Consolidated Amended Complaint adequately pleads reliance and/or proximate cause insofar as it is required for the claims under California, Florida, Illinois, Maryland, Virginia, West Virginia, and Pennsylvania law. See Mouzon I , 85 F. Supp. 3d at 378 (outlining requirements under the several state statutes). Particularly because of the additional allegations in the Consolidated Amended Complaint, in comparison to the original Mouzon I complaint, the Court concludes that Plaintiffs have adequately alleged that they, individually, relied on the representations in the Defendants’ advertising materials and those representations caused their alleged injuries. Compl. ¶¶ 175-206. No more is necessary at this stage of the proceedings.
In addition to the state-specific consumer protection claims discussed above, the Consolidated Amended Complaint includes a claim under the New York General Business Law on behalf of the New York named plaintiffs—who were not parties to the original action—and on behalf of a putative New York subclass.
First, the Court concludes that
Mouzon I
does not pose any barrier to the newly added
claim. Previously, the Court concluded that a New York General Business Law claim could not
be asserted on behalf of
out-of-state
plaintiffs, and, therefore, dismissed such a claim with
prejudice.
See Mouzon I
,
Second, the parties dispute whether the heightened pleading standard of Rule 9(b) applies to the New York General Business Law claim. The Court need not decide this question now: the Court concludes that, even if the heightened pleading standard of Rule 9(b) is applicable, the Consolidated Amended Complaint satisfies that standard. Specifically, just as the Court concludes that the additions to the Consolidated Amended Complaint have remedied the deficiencies that the Court previously identified with respect to the other state-specific claims asserted in , the Court concludes that the Consolidated Amended Complaint states a claim under the New York General Business Law (the analogous New York law claim).
For all of these reasons, the Court DENIES Radiancy’s motion to dismiss with respect to all of the state-specific consumer protection act claims brought in this action.
B. Complaint Fails to State a Claim against Rafaeli
As explained above, Rafaeli moves to dismiss all of the claims asserted against him, adopting all of Radiancy’s arguments and presenting several additional arguments as to why the Consolidated Amended Complaint fails to state a claim against him. Because the Court has already rejected all of Radiancy’s arguments above, the Court now turns to Rafaeli’s separate arguments as to why the claims against him, in particular, fail to state a claim. The Court addresses the warranty claims, followed by the state-specific consumer protection act claims.
1. Warranty Claims
Rafaeli argues that the warranty claims against him fail because he is a corporate officer and cannot be held liable for warranty claims absent contractual privity between him and the *12 Plaintiffs who purchased the device. Plaintiffs respond that Rafaeli can be held liable as an “agent” for Radiancy and that they have adequately pled contractual privity through the Consolidated Amended Complaint. The Court agrees with Defendants that the Consolidated Amended Complaint fails to state warranty claims against Rafaeli because of the absence of allegations supporting contractual privity.
As noted above, Plaintiffs maintain that New York law applies to all of the warranty
claims in this case, while Defendants maintain that the law of the state of residence of the
individual plaintiffs applies, respectively, to each plaintiff’s warranty claims. Regardless of the
source of law, privity of contract is required between a plaintiff and a defendant to state a
warranty claim.
Am. Fin. Int’l Grp.-Asia, L.L.C. v. Bennett
, No. 05 CIV. 8988 (GEL), 2007
WL 1732427, at *2 (S.D.N.Y. June 14, 2007) (under New York law, no basis for warranty claims
against corporate officer absent heightened showing necessary to pierce corporate veil);
Bell v.
Manhattan Motorcars, Inc.
, No. 06CV4972GBD,
In support of their argument, Plaintiffs primarily rely on
Hodgson, Russ, Andrews, Woods
& Goodyear, LLP, v. Isolatek Int’l Corp
,
In this case, by contrast, there is no such chain of connections that establishes privity between the Plaintiffs as purchasers and Rafaeli. Plaintiffs claim that Rafaeli appears in the advertisements of the no!no! Hair removal device and that he orchestrated the allegedly misleading advertising campaign. Plaintiff’s allegations, however, are simply not enough to create the links necessary to state warranty claims against Rafaeli. Indeed, Plaintiffs’ theory would sweep in numerous warranty claims against corporate officers. Whether such liability would be beneficial as a matter of policy is not for the Court to say. It is enough, instead, for the *14 Court to conclude that there is no basis in law for Plaintiffs’ remarkably broad interpretation of the scope of warranty law.
Because the Consolidated Amended Complaint does not adequately plead facts supporting a conclusion that Plaintiffs and Rafaeli were in privity, the Court dismisses the warranty claims against Rafaeli.
2. State Consumer Protection Act Claims Rafaeli argues that, with respect to the state-specific consumer protection act claims, Plaintiffs have (1) failed to identify false representations made by Rafaeli, (2) failed to identify false representations by Rafaeli that were heard or read by Plaintiffs, and (3) failed to identify any nexus to Rafaeli that suggests fraudulent misrepresentations. Plaintiffs’ only response, specifically with respect to Rafaeli, is to point to the allegation that Rafeli appeared himself in “some” of the advertising segments. Comp. ¶ 92 (“Likewise, in television commercials, infomercials, and sponsored segments on HSN and QVC, Radiancy spokespersons, including CEO Rafaeli himself in some of the segments, repeatedly and forcefully reinforced and elaborated these claims of permanent hair removal with statements such as the following … ”). However, notwithstanding the fact that Consolidated Amended Complaint includes individualized allegations pertaining to specific individual Plaintiffs that were missing from the complaint—as discussed above—none of those individualized allegations reference Rafaeli himself. See id. ¶¶ 174-200. In short, none of Plaintiffs ever allege having been exposed to any misrepresentations by Rafaeli. Without any such exposure, the consumer protection *15 claims against Rafaeli cannot proceed in this action. For that reason, the Court dismisses the state-specific consumer protection act claims against Rafaeli.
* * *
Plaintiffs have now had two opportunities to attempt to plead warranty and state
consumer protection act claims against Rafaeli—in and in this action—and they have
twice failed to do so successfully. Therefore, the Court concludes that “ ‘the allegation of other
facts consistent with the challenged pleading could not possibly cure the deficiency,’ ” and
dismissal of these claims with prejudice is warranted.
Rudder v. Williams
,
IV. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ORDERED that Defendant Radiancy’s [20] Renewed Motion to Dismiss is DENIED and Defendant Rafaeli’s [21] Renewed Motion to Dismiss is GRANTED.
It is further ORDERED that all claims against Rafaeli are DISMISSED WITH PREJUDICE.
The Court will set an Initial Scheduling Conference by a separate Order.
Dated: August 2, 2016
/s/ COLLEEN KOLLAR-KOTELLY
United States District Judge
Notes
[1] After was dismissed, the case numbered 15-cv-1142 ( Mouzon v. Radiancy, Inc. ) was filed in this District, and other plaintiffs filed a similar case in the Southern District of New York. The latter case was transferred to this district with the parties’ consent, and the Court consolidated both actions in this case. ECF No. 12 (consolidating cases number 15-cv-1142 and 15-cv-1926 ( Olivo v. Radiancy, Inc. )).
[2] In , Plaintiffs asserted a consumer protection claim under the New York General
Business law for a putative nationwide class.
[3] The Court’s consideration has focused on the following documents: • Def. Radiancy, Inc.’s Renewed Mot. to Dismiss for Failure to State a Claim (“Radiancy Mot.”), ECF No. 20; • Def. Dolev Rafaeli’s Renewed Mot. to Dismiss for Failure to State a Claim (“Rafaeli Mot.”), ECF No. 21; • Pls.’ Joint Mem. of Points and Authorities in Opp’n to Defs.’ Mots. To Dismiss Pls.’ Amended Class Action Complaint (“Pls.’ Opp’n”), ECF No. 22; and • Defs.’ Joint Reply Mem. in Supp. of Defs.’ Indiv. Mots. to Dismiss (“Defs.’ Reply”), ECF No. 25. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. LCvR 7(f).
[4] This conclusion allows the Court to resolve the choice-of-law question, which is often fact dependent, later in these proceedings upon a more fully developed factual record.
[5] Defendants are correct that the Court noted previously that “pursuant to New York law, the
question of ‘fit’ appears to be closely aligned with safety.” ,
[6] Defendants provide no authority for their assertion that the notice effectively became stale after the first action was filed and subsequently dismissed. There is no basis to conclude that the notice was only effective for allowing , but not for allowing this action.
[7] Plaintiffs assert that the statute of limitations was tolled for all Plaintiff during the pendency of the action. Pls.’ Opp’n at 35. That is simply incorrect. As the Court previously noted, the statute of limitations is only tolled only for unnamed putative class members. Mouzon II , 309 F.R.D. at 65. Plaintiffs may not twist the Court’s words to suggest the contrary.
[8] As the parties note, the Court did not reach this issue in because it concluded that the
state-specific claims had not been pleaded with the requisite particularity.
[9] Plaintiffs cite
G.D. Searle & Co. v. Medicore Commc’ns, Inc.
,