MEMORANDUM DECISION
Plaintiffs Rosemary Quinn and Alan Ducorsky bring this putative class action on behalf of themselves and similarly-situated individuals who purchased from defendant Walgreen Co. (“Walgreens”) certain dietary supplements that claim to “help rebuild cartilage.” Plaintiffs allege these products do not perform as advertised because it is, in fact, impossible to “rebuild cartilage.” Plaintiffs assert claims under New York and Connecticut consumer protection statutes, N.Y. Gen. Bus. Law § 349 and Conn. Gen.Stat. Ann. § 42-110a et seq., as well as claims for breach of express warranty and unjust enrichment.
Walgreens has moved to stay this action under the “first-filed” rule pending the determination of a motion pending before the United States District Court for the Northern District of Illinois (Doc. # 10), and, alternatively, to dismiss the class action complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. # 13).
For the following reasons, the motion to stay is DENIED, and the motion to dismiss is GRANTED in part and DENIED in part.
The Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d).
BACKGROUND
For purposes of deciding the pending motions, the Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in favor of plaintiffs.
Walgreens sells a line of dietary supplements containing glucosamine and chondroitin (the “Glucosamine Supplements”) in its stores throughout the country, including in New York and Connecticut. The labels of the Glucosamine Supplements claim the products “help rebuild cartilage.” Defendant’s line of Glucosamine Supplements consists of six different products that vary in formulation, strength, and quantity. Each of the Glucosamine Supplements includes glucosamine hydrochloride and chondroitin sulfate among its ingredients; however, each product also contains various other ingredients.
Four of the Glucosamine Supplements, “Glucosamine Chondroitin Complex Double Strength,” “Glucosamine Chondroitin Complex Triple Strength,” “Glucosamine Chondroitin Complex Triple Strength with Vitamin D,” and “Glucosamine Chondroitin MSM Complex MSM Hyaluronic Acid,” have labels that state: “Formulated to Help: • With Joint Comfort • Rebuild Cartilage & Lubricate Joints.” That statement is qualified by the disclaimer: “This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, care, or prevent any disease.”
The labels of the other two Glucosamine Supplements, “Glucosamine Chondroitin Complex Advanced 2 Per Day” and “Glucosamine Chondroitin Advanced MSM,” state: “Glucosamine & Chondroitin Help Rebuild Cartilage & Lubricate Joints.” That representation is subject to the same disclaimer as the other products. The packaging of all six Glucosamine Supplements also contains a warranty promising “100% Satisfaction Guaranteed with all Walgreens Products or Your Money Back.”
Plaintiffs contend defendant’s claims that the Glucosamine Supplements “help rebuild cartilage” are false and deceptive
In 2011, plaintiff Rosemary Quinn purchased Glucosamine Supplements at Walgreens stores in Scarsdale, New York, and Danbury, Connecticut. Quinn “read and reviewed” the representation on the label that the products would “help rebuild cartilage” before she purchased them. Quinn subsequently took the supplements, but her cartilage was not rebuilt, as it is “biologically impossible” to rebuild cartilage.
Also in 2011, plaintiff Alan Ducorsky purchased a Glucosamine Supplement at a Walgreens store in New York. Like Quinn, Ducorsky alleges he “read and reviewed” the representation that the product would “help rebuild cartilage” before he purchased it, and he subsequently consumed the supplement but his cartilage was not rebuilt. Plaintiffs contend they would not have purchased the Glucosamine Supplements had they known the products would not “help rebuild cartilage” as advertised.
Plaintiffs commenced this action on November 9, 2012. Walgreens now seeks a stay pending the disposition of a motion to dismiss pending in an earlier filed suit, Guilin v. Walgreen Co., No. 11-07763 (N.D.Ill.). In the alternative, Walgreens moves to dismiss the complaint for failure to state a claim and because plaintiffs lack standing to pursue certain of their claims, pursuant to Rules 12(b)(1) and 12(b)(6).
DISCUSSION
I. Motion to Stay
A. The Earlier Filed Action
On November 1, 2011, approximately one year before the commencement in this case, Ehrman v. Walgreen Co., No. 11-07763 (N.D.Ill), was filed in the United States District Court for the Northern District of Illinois. On April 16, 2012, the court granted Ehrman’s motion to withdraw as named plaintiff and substitute Luis Guilin as named plaintiff and alleged class representative. Guilin has subsequently filed several amended complaints, and his fourth amended complaint, filed October 10, 2012, is currently subject to a motion to dismiss filed by Walgreens on December 4, 2012. The motion is fully briefed, and a conference is scheduled for August 29, 2013.
The complaint in Guilin alleges Walgreens “markets, sells and distributes Glucosamine Chondroitin Complex, a line of ... dietary supplements” with “promises that [the products] will help build cartilage, lubricate joints and improve joint comfort.” Guilin alleges the packaging for this line of supplements is deceptive because the products do not rebuild cartilage, lubricate joints, or improve joint comfort.
Guilin, who purchased the glucosamine product in California, asserts claims under various California consumer protection statutes. Additionally, pursuant to Rule 23, plaintiff seeks certification of a multi-state class against Walgreens for violations of the California consumer protection statutes, and similar consumer protection statutes in thirty-two other states, including New York and Connecticut.
“As part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit.” Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). The first-filed rule is a well-settled principle in the Second Circuit, establishing that “[w]here there are two competing lawsuits, the first suit should have priority.” First City Nat’l Bank and Trust Co. v. Simmons,
When applying the first-filed rule to assertedly duplicative actions, the court must carefully consider whether the suits are, in fact, duplicative, and must “not to be swayed by a rough resemblance between the two suits without assuring itself that beyond the resemblance already noted, the claims asserted in both suits are also the same.” Curtis v. Citibank, N.A., 226 F.3d at 136.
Moreover, although the rule creates a general presumption that a first-filed suit has priority, that presumption is not “applied in a ‘rigid’ or ‘mechanical’ way.” Dornoch Ltd. v. PBM Holdings, Inc.,
“Although it is typically invoked in non-class contexts, the first-filed rule has been applied to class action suits filed by different plaintiff classes against the same defendant. In that setting, for the rule to apply, ‘identical or substantially similar parties and claims [must be]’ present in both courts.” Bukhari v. Deloitte & Touche LLP,
C. Analysis
Here, because this case presents neither identical issues nor identical parties as the Guilin action, the Court finds the first-filed rule does not apply. In this action, plaintiffs raise claims under New York and Connecticut law and seek certification of New York and Connecticut classes. Conversely, the plaintiff in Guilin purchased defendant’s product in California and asserts claims under California law. Although the Guilin action also seeks certification of a multi-state class that could potentially encompass New York and Connecticut consumers, no nationwide class has, in fact, been certified in Guilin. Therefore, neither the parties nor the issues in this case are identical to those in Guilin. See Bukhari v. Deloitte & Touche LLP,
Importantly, Walgreens does not seek dismissal of this action or transfer of the action to the Northern District of Illinois, it merely seeks a stay pending the Guilin court’s disposition of the pending motion to dismiss. However, the disposition of that motion cannot be dispositive of the case at bar. Whether the motion is granted or denied, this Court must still decide the motion to dismiss pending in this case; the decision of a district court in another district in a case involving different plaintiffs and different law certainly is not binding on this Court. Therefore, the Court finds “considerations of judicial administration and conservation of resources” do not counsel in favor of staying this case pending the disposition of the motion to dismiss pending in Guilin. Emp’rs Ins. of Wausau v. Fox Entm’t Grp., Inc.,
Accordingly, the motion for a stay is denied.
II. Motion to Dismiss
A. Standard of Review
1. Rule 12(b)(1)
“[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont,
2. Rule 12(b)(6)
“The function of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc.,
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal,
B. Plaintiffs’ Standing to Bring Claims Relating to Products They Did Not Purchase
Walgreens moves to dismiss plaintiffs’ claims relating to products they did not purchase for lack of standing pursuant to Rule 12(b)(1). Defendant argues that because the named plaintiffs purchased only one Glucosamine Supplement — Glucosamine Chondroitin Complex Triple Strength — they lack standing to assert claims relating to the five other Glucosamine Supplements manufactured and sold by defendant. The Court disagrees.
Standing is a prerequisite to bringing suit in federal court. The Supreme Court has held that constitutional standing requires a plaintiff to establish at minimum three elements: (1) she suffered an “injury in fact”; (2) a causal connection between the injury and defendant’s conduct; and (3) a federal court decision is likely to redress the injury. Lujan v. Defenders of Wildlife,
Courts are split as to whether plaintiffs have standing to assert claims relating to products they themselves did not purchase, but which are substantially similar to products they did purchase. See, e.g., Donohue v. Apple, Inc.,
“The majority of the courts that have carefully analyzed the question hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” Brown v. Hain Celestial Grp., Inc.,
Recently, district courts have disagreed on this issue in the specific context of glucosamine supplements. In Pearson v. Target Corp., plaintiff alleged defendant violated an Illinois consumer protection statute by selling and distributing a line of glucosamine supplements it knew to be ineffective.
Other courts have taken a different— and, in this Court’s view, better — approach. For example, in Cardenas v. NBTY, Inc.,
The Court finds the reasoning in Cardenas v. NBTY, Inc. persuasive. There is no question plaintiffs have standing to assert claims relating to the product they did purchase. Further, there are substantial similarities between all of defendants’ Glucosamine Supplements, and the alleged misrepresentations on the labels of the Glucosamine Supplements are nearly identical. Therefore, the Court finds the appropriate time to consider whether plaintiffs can bring claims on behalf of purchasers of all of the various Glucosamine Supplements is at the class certification stage, not on a motion to dismiss. See Cardenas v. NBTY, Inc.,
Accordingly, the motion to dismiss plaintiffs’ claims relating to products they did not purchase is denied.
1. New York and Connecticut Consumer Protection Statutes
New York General Business Law § 349 provides “[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.” To establish a prima facie case under Section 349, plaintiffs must demonstrate that “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith,
The scope of Section 349 is notably broad in three important respects. First, claims brought under Section 349 are not subject to the heightened pleading requirements set forth in Rule 9(b). See Pelman ex rel. Pelman v. McDonald’s Corp.,
The Connecticut Unfair Trade Practices Act (“CUTPA”) provides, in relevant part, that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen.Stat. § 42-110b(a). CUTPA is intended to be liberally construed “in an effort to effectuate its public policy goals.” Sportsmen’s Boating Corp. v. Hensley,
Under either statute, whether a particular act or practice is deceptive is usually a question of fact. See, e.g., Sims v. First Consumers Nat. Bank,
Here, plaintiffs have plausibly alleged that defendant’s representation that the Glucosamine Supplements “help rebuild cartilage” is false or deceptive. Plaintiffs sufficiently “point to the specific statements that form the basis” of their claims, Pelman v. McDonald’s Corp.,
The Court finds unavailing defendant’s contention that plaintiffs’ claims should be dismissed because the studies plaintiffs cite do not, in fact, support the precise propositions for which they are cited. Whether or not the studies support plaintiffs proposition that it is “biologically impossible” to rebuild cartilage is an issue of fact the Court cannot resolve on a motion to dismiss. See Pearson v. Target Corp.,
Finally, to the extent Walgreens argues plaintiffs’ claims merely amount to a non-actionable “lack of substantiation” claim, that argument is also unavailing. Contrary to defendant’s contentions, the thrust of plaintiffs’ complaint is not merely “that Walgreens’ marketing of the [Glucosamine Supplements] is deceptive because ... the statements on the labels are not substantiated by scientific studies.” Rather, plaintiffs allege the “helps rebuild cartilage” statement is affirmatively false because, as a matter of scientific fact, it is impossible to rebuild cartilage. Further, plaintiffs cite to clinical studies that allegedly support their allegation that the Glucosamine Supplements cannot “help rebuild cartilage” under any circumstances. Therefore, the Court does not construe plaintiffs’ claims as based on a nonactionable, “lack of substantiation” theory. See Hughes v. Ester C Co.,
In sum, the Court finds plaintiffs have stated plausible claims under Section 349 and CUTPA, and the motion to dismiss those claims is denied.
2. Breach of Warranty
To assert a breach of warranty claim under both New York and Connecticut law, a buyer must provide the seller with timely notice of the alleged breach of warranty. N.Y. U.C.C. § 2-607(3)(a) (“Where a tender has been accepted the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.”); Conn. Gen. Stat. § 42a-2-607(3)(a) (same); see Hubbard v. Gen. Motors Corp.,
Here, plaintiffs have failed to allege they provided Walgreens with timely notice of the alleged breach of warranty. Accordingly, plaintiffs’ breach of warranty claims are dismissed.
“To prevail on a claim for unjust enrichment in New York, a plaintiff must establish (1) defendant was enriched; (2) the enrichment was at plaintiffs expense; and (3) the circumstances were such that equity and good conscience require defendant ] to make restitution.” Hughes v. Ester C Co.,
Plaintiffs have alleged Walgreens benefited from plaintiffs’ purchases of Glucosamine Supplements, and permitting Walgreens to retain that benefit in the event the Glucosamine Supplements do not work as advertised would be unjust. Consequently, plaintiffs have stated claims for unjust enrichment under both New York and Connecticut law.
CONCLUSION
Defendant’s motion for a stay is DENIED.
Defendant’s motion to dismiss the complaint is GRANTED in part and DENIED in part.
The Clerk is instructed to terminate the motions. (Docs. # 10,13).
SO ORDERED.
Notes
. The Court declines to determine at this time whether plaintiffs can recover treble or punitive damages should they prevail on any or all of their surviving claims. (See Def.’s Br. at 24-25).