United States District Court, D. Rhode Island
RONDA KAUFMAN, on behalf of herself and all others similarly situated, Plaintiffs
CVS CAREMARK CORPORATION and CVS PHARMACY, INC., Defendants.
ORDER AND MEMORANDUM
MARY M. LISI SENIOR UNITED STATES DISTRICT JUDGE
The plaintiff in this action, Ronda Kaufman (“Kaufman”) has brought claims against CVS Pharmacy, Inc. (“CVS”) and its holding company, CVS Caremark Corporation (“CVS Caremark”, together with CVS, the “Defendants”), related to the allegedly fraudulent labeling of CVS-brand vitamin E supplements. The matter before the Court is the Defendants’ motion to dismiss the complaint. For the reasons that follow, the Defendants’ motion is GRANTED.
I. Factual Background
Kaufman asserts that, on an unspecified date, she purchased CVS vitamin E 400 IU Softgels (100 count) at a CVS located in Plainview, New York. According to Kaufman, “[p]rior to making her purchases, [she] read and reviewed the representation regarding heart health made on the product packing and, in reliance upon those statements, ” she bought the supplement. Complaint at 3. Kaufman further alleges that she believed the supplement would “provide the promised heart health benefits” and that, “[a]s a result of her purchases, ” she “suffered injury in fact and lost money.” Id. Finally, Kaufman asserts that she would not have purchased the supplement, “had she known the truth about Defendant’s misrepresentations and omissions.” Id. It is unstated whether Kaufman actually consumed any of the supplements or whether she has any concerns regarding her risk of heart health. In essence, Kaufman’s claim is based on the assertion that CVS’s deceptive marketing caused her to lose money.
According to the Complaint, in addition to the product purchased by Kaufman, six other CVS vitamin E supplements (one vitamin E oil preparation and five different softgel capsules) feature a “Heart Health” label on the front, see depiction on page 4 of the Complaint. In addition, the soft gel bottles contain the statement “Vitamin E helps maintain healthy blood vessels and promotes heart health.” Complaint at 5. As evident from the complete label provided by CVS in its memorandum in support of its motion to dismiss (Dkt. No. 10), that statement is followed by another statement that “Vitamin E also supports the immune system, ” both of which are marked with asterisks, as are the term “Heart Health” and the phrase “Supports Antioxidant Health.” In a separate text box, the asterisks are explained as follows: “These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease.” CVS Mem. at 4. The same label also indicates that the product is subject to a “CVS Quality Money Back Guarantee.” Id.
Based on the information provided on the label, Kaufman asserts that she was “misled by Defendants’ statements to believe its vitamin E products would reduce her risk of heart disease when they do not.” Complaint at 7. Kaufman’s assertion that Defendants misrepresented the benefit of their products is based on (1) a selection of seven medical journal articles referenced in her Complaint and subsequently submitted to this Court; and (2) the unsupported contention that other, unnamed studies “finding any benefit to consuming vitamin E are generally either epidemiological, flawed, or are findings that occurred by chance.” Complaint at 7. Kaufman claims that “[a]s a result of Defendants’ deceptive marketing, [she] and other consumers suffered injury in fact and lost money or property.” Complaint at
II. Procedural History
On May 2, 2014, Kaufman filed a three-count Complaint, alleging (Count I) violation of the Rhode Island Deceptive Trade Practices Act, R.I. Gen. Laws § 6-13.1 et seq.; (Count II) violation of the New York Consumer Protection Act (“NYCPA”), codified at New York General Business Law § 349; and (Count III) Unjust Enrichment/Restitution. Kaufman brings the action on her own behalf and on behalf of (1) a proposed class of United States residents who purchased CVS vitamin E products featuring a “heart health” label or stating that “Vitamin E helps maintain healthy blood vessels and promotes heart health;” and (2) two subclasses of (a) Rhode Island and (b) New York State residents, who made such purchases. In addition to class certification, Kaufman seeks a permanent injunction against the Defendants; disgorgement of profits; actual, statutory, and punitive damages; attorneys’ fees, costs, and prejudgment interest. Complaint at 14.
On August 7, 2014, the Defendants filed a motion to dismiss (Dkt. No. 9) the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the grounds that (1) Kaufman’s claims are moot; (2) Kaufman fails to plead a false or fraudulent act; and (3) Kaufman’s claims are preempted by Federal Law and/or exempted by the New York Consumer Protection Act. Defs.’ Mem. (Dkt. No. 10).
On August 25, 2014, Kaufman filed a response (Dkt. No. 11) in opposition to the Defendants’ motion, to which the Defendants filed a reply on September 4, 2014 (Dkt. No. 12).
Following a telephone conference with the parties on October 23, 2014, the Court advised the parties that it would hold Defendants’ motion to dismiss the Complaint in abeyance, pending a decision by the First Circuit Court of Appeals in the case of Bais Yaakov of Spring Valley v. Act, Inc., 798 F.3d 46 (1st Cir. 2015).
On August 21, 2015, the First Circuit issued a decision in Bais Yaakov, holding that “a rejected and withdrawn offer of settlement of the named plaintiff's individual claims in a putative class action made before the named plaintiff moved to certify a class did not divest the court of subject matter jurisdiction by mooting the named plaintiff's claims.” Bais Yaakov, 798 F.3d at 46. The First Circuit’s decision was based on the determination that the defendant’s offer did not moot the litigation because the plaintiff had not “received complete relief.” Id. at 55.
Days after the Bais Yaakov opinion was issued, the Defendants submitted an additional briefing to this Court, seeking to distinguish the instant case from the facts in Bais Yaakov (Dkt. No. 13). Kaufman promptly filed a response in opposition (Dkt. No. 15), to which the Defendants filed a reply (Dkt. No. 16). On October 14, 2015, Kaufman filed a motion for leave to file a supplemental brief (Dkt. No. 17) in opposition to the Defendants’ motion to dismiss the Complaint. After her motion was granted, Kaufman filed the supplemental brief on October 26, 2015 (Dkt. No. 19). The following day, the Defendants filed a motion for leave to file a response (Dkt. No. 20) to Kaufman’s supplemental memorandum. That motion having been granted as well, the Defendants filed a Reply Memorandum on November 17, 2015 (Dkt. No. 22). Finally, on December 10, 2015, Kaufman filed a motion for a hearing (Dkt. No. 23) on the Defendants’ motion to dismiss her Complaint. However, given the extensive and thorough briefing the Defendants’ motion has generated, the Court is of the opinion that no such hearing is necessary and proceeds to render a decision without oral argument.
III. Standard of Review
A motion to dismiss for lack of subject matter jurisdiction is governed by Fed.R.Civ.P. 12(b)(1). A motion to dismiss for failure to state a claim upon which relief may be granted is governed by Fed.R.Civ.P. 12(b)(6). If a motion is brought under both 12(b)(1) and 12(b)(6), “a district court, absent good reason to do otherwise, should ordinarily decide the 12(b)(1) motion first.” De La Cruz v. Irizarry, 946 F.Supp.2d 244, 249 (1st Cir. 2013)(quoting Northeast Erectors Ass'n of BTEA v. Secretary of Labor, Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir.1995) (citing 5A Charles Wright & Arthur Miller, Federal Practice and Procedure § 1350, at 210 (1990)).
The standard of review accorded a dismissal under either Rule 12(b)(1) or 12(b)(6) is “similar.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). Accordingly, in considering a motion to dismiss a complaint the Court must construe the complaint in the light most favorable to the plaintiff, taking all well-pleaded facts as true, and giving the plaintiff the benefit of all reasonable inferences. Arruda v. Sears, Roebuck & Co., 310 F.3d 13 (1st Cir. 2002). In order to withstand a motion to dismiss, a claim “must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Katz v. Pershing, LLC, 672 F.3d 64, 72-73 (1st Cir. 2012)(citations omitted). The complaining party must include “factual content that allows the court to draw a reasonable inference” in the pleader’s favor. Id. “If, under any theory, the allegations are sufficient to state a cause of action in accordance with the law, ” the motion to dismiss must be denied. Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.1994). The Court ignores, however, “statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action-elements.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). In addition, “the party invoking the jurisdiction of a federal court carries the burden of proving its existence.” Johansen v. United States, 506 F.3d 65, 68 (1st Cir.2007).
In a case alleging fraud or mistake, Federal Rule 9 requires that a party “must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). The First Circuit has explained that “‘Rule 9 requires specification of the time, place, and content of an alleged false representation, but not the circumstances or evidence from which fraudulent intent could be inferred.’” Doyle v. Hasbro, Inc., 103 F.3d 186, 194 (1st Cir. 1996)(quoting McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir.1980), and noting that the heightened pleading requirement imposed by Rule 9 is intended to “give notice to defendants of the plaintiffs' claim, to protect defendants whose reputation may be harmed by meritless claims of fraud, to discourage ‘strike suits, ’ and to prevent the filing of suits that simply hope to uncover relevant information during discovery”). In other words, a plaintiff alleging fraud must “set forth what is false or misleading about a statement, and why it is false.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.1994) (en banc), superseded by statute on other grounds as stated in Ronconi v. Larkin, 253 F.3d 423, 429 n. 6 (9th Cir.2001).
Although the Court generally may not consider documents outside of the complaint unless it converts the motion to dismiss pursuant to Rule 12(b)(6) into one for summary judgment, it may make an exception “for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to the plaintiffs’ claim; or for documents sufficiently referred to in the complaint.”Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). The Court may also ...