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Caryn Lieberson, On Behalf of Herself and All Others Similarly Situated v. Johnson & Johnson Consumer Companies

September 21, 2011

CARYN LIEBERSON, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS
v.
JOHNSON & JOHNSON CONSUMER COMPANIES, INC., DEFENDANT



The opinion of the court was delivered by: Wolfson, United States District Judge:

FOR PUBLICATION [11]

OPINION

Presently before the Court is a motion by Defendant Johnson & Johnson Consumer Companies, Inc. ("J&J" or "Defendant") to dismiss Plaintiff's Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and to dismiss certain allegations pursuant to Fed. R. Civ. P. 12(b)(1) for lack of standing. The instant motion arises out of an Amended Complaint filed by Plaintiff Caryn Lieberson ("Lieberson" or "Plaintiff") on behalf of herself and a putative class alleging violations of the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 et seq. ("NJCFA") as well as breach of the implied warranty of merchantability relating to the marketing and efficacy of a line of baby bath products manufactured by Defendant. Specifically, Plaintiff alleges that Defendant made various misrepresentations and omissions concerning the baby bath products that were deceptive and misleading and that Plaintiff has suffered damages as a result thereof. For the reasons set forth below, Defendant's motion is GRANTED; Count I of the Complaint is DISMISSED WITHOUT PREJUDICE and Count II of the Complaint is DISMISSED WITH PREJUDICE.

I. BACKGROUND

In addressing Defendant's Motion to Dismiss, this Court must accept as true the allegations contained in the Complaint. See Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir.2003); Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1301 (3d Cir.1996). Thus, the facts recited herein are taken from the Amended Complaint and do not represent this Court's factual findings.

In 2000, J&J launched a line of baby bath products comprised of Johnson's Bedtime Bath, Johnson's Bedtime Moisture Wash, Johnson's Bedtime Lotion, and Johnson's Bedtime Baby Bubble & Wash (collectively, the "Bedtime Bath Products" or the "Products"). Compl. ¶¶ 1, 13. The front label of each of the products, with the exception of the Bubble Wash, contains the following statement, "*Clinically Proven* Help Baby Sleep Better." Id. ¶ 15. In addition, each of the products, with the exception of the Bubble Wash, contains a statement on the back label that Defendant "has created a nightly routine that is clinically proven to help your baby fall asleep easier and sleep through the night better." Id. ¶ 16; Tierney Aff. Exs. A, B, C.

Separately, the Bubble Wash contains the following statement on the front label, "help baby sleep better*." Id. ¶ 17; Tierney Aff, Ex. D. Unlike the other three products, the Bubble Wash does not include any references to clinical proof. However, the Bubble Wash does advise using the product as part of a "3-step, nightly routine to help your baby sleep better." Tierney Aff., Ex. D.

In or around January 2008, when her first child was four months old, Plaintiff purchased the Bedtime Moisture Wash and Bedtime Lotion at a Shop Rite in Mt. Laurel, New Jersey. Plaintiff alleges that she purchased these products after viewing television commercials and print advertisements for the Bedtime Bath Products as well as the Product labels themselves. Compl. ¶ 26. However, after using the Products "daily as part of a 3-step nightly routine for a few months," Plaintiff determined that neither the Products nor the "routine" helped her baby sleep better. Compl. ¶¶ 27, 30. Thereafter, in or around January 2010, when her second child was approximately four months old, Plaintiff alleges that she again saw television commercials and print advertisements for the Bedtime Bath Products, as well as the Product labels themselves, and that she purchased the Bedtime Moisture Wash and Bedtime Lotion for a second time. Compl. ¶ 28. However, as with Plaintiff's first purchase, after using the Products, Plaintiff again determined that neither the Products nor the "routine" helped her child sleep better. Id. ¶ 30.

On or around November 24, 2010, Plaintiff filed an initial Complaint against J&J. Thereafter, on February 18, 2011, Plaintiff filed an Amended Complaint against J&J in which she alleges violations of the NJCFA and a breach of the Implied Warranty of Merchantability. Specifically, Plaintiff's NJCFA claim alleges that J&J made various misrepresentations concerning the Bedtime Bath Products that were disseminated through television commercials, printed advertisements, websites, materials and Product packaging.*fn1 In addition, Plaintiff alleges that J&J made certain omissions regarding the Products, and, specifically, that J&J did not disclose the lack of clinical proof to support its claims regarding the Products' ability to help babies sleep. Compl. ¶¶ 18, 19, 21. Based on these alleged misrepresentations and omissions, Plaintiff contends that J&J marketed and sold the Bedtime Bath Products in a manner that made consumers believe that the Products were "clinically proven to help babies sleep better and were also part of a 'routine' that was clinically proven to help babies sleep better." Compl. ¶ 52. However, Plaintiff contends that this marketing was deceptive because no clinical studies existed to support these claims. Moreover, Plaintiff contends that if it were not for Defendant's alleged misrepresentations and omissions regarding the Products' ability to help her babies sleep better, she would not have purchased the Bedtime Bath Products. Id. ¶ 61. In addition, Plaintiff alleges that J&J breached the implied warranty of merchantability because the Bedtime Bath Products were "not fit for the ordinary purpose for which they were advertised, in that they are not clinically proven to do anything." Compl.¶ 67.

Defendant filed the instant Motion to Dismiss contending that Plaintiff's Complaint fails to satisfy the NJCFA because: (1) the statements upon which Plaintiff bases her claim are not misleading; (2) Plaintiff did not plead her fraud claim with sufficient particularity; (3) the statements upon which Plaintiff bases her claim are puffery and (4) Plaintiff suffered no ascertainable loss. In addition, Defendant argues that Plaintiff's implied warranty claim must fail because the Products are fit for their ordinary purpose of cleansing and moisturizing babies' skin. Lastly, Defendant argues that Plaintiff lacks standing to pursue her claims as to certain of the Products.

II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure provide that a complaint "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends. . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). The purpose of a complaint is "to inform the opposing party and the court of the nature of the claims and defenses being asserted by the pleader and, in the case of an affirmative pleading, the relief being demanded." Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004).

When reviewing a motion to dismiss, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 561 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 555. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest 'the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of 'the necessary element'." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).

In affirming that Twombly standards apply to all motions to dismiss, the Supreme Court recently explained the following principles. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. The plausibility standard requires that "the plaintiff plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" and demands "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. At 1949 (quoting Twombly, 550 U.S. at 556). Ultimately, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Fowler, 578 F.3d at 211. In evaluating a motion to dismiss, a court may ...


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