United States District Court, D. New Jersey
KAREN BATCHELOR, Individually and as owner of Eminence Hair Design, VICTORIA JOLLEY BACCHUS, DENISA WILSON-AVERY, MILLICENT BAILEY, and DONNA WEEKS, and EMINENCE HAIR DESIGN, Plaintiffs,
PROCTER & GAMBLE CO., PROCTER & GAMBLE DISTRIBUTING LLC, CLAIROL, and CLAIROL PROFESSIONAL, Defendants
For KAREN BATCHELOR, VICTORIA JOLLEY BACCHUS, DENISA WILSON-AVERY, MILLICENT BAILEY, DONNA WEEKS, Plaintiffs: LARRY PLUMBER, LEAD ATTORNEY, LAW OFFICES OF LARRY PLUMBER, EDISON, NJ.
For PROCTOR & GAMBLE CO., PROCTER & GAMBLE DISTRIBUTING LLC, CLAIROL AND CLAIROL PROFESSIONAL, Defendants: H. LOCKWOOD MILLER, III, LEAD ATTORNEY, GOLDBERG SEGALLA LLP, PRINCETON, NJ.
Jose L. Linares, United States District Judge.
This matter comes before the Court by way of Defendants P& G-Clairol, Inc., The Procter & Gamble Distributing, LLC, and the Procter & Gamble Company (collectively, " Defendants")' motion to dismiss, (CM/ECF No. 25), a substantial majority of Plaintiffs Karen Batchelor, Victoria Jolley Bacchus, Denisa Wilson-Avery, Millicent Bailey, Donna Weeks, and Eminence Hair Design (collectively, " Plaintiffs")' Amended Complaint (" AC")(CM/ECF No. 25) pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has considered the submissions made in support of and in opposition to Defendant's motion, and decides this matter without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, Defendant's motion to dismiss is granted.
Karen Batchelor (" Batchelor") owns Eminence Hair Design (" Eminence"), a hair salon located in Englewood, New Jersey. (AC ¶ 30.) Victoria Jolley Bacchus, Denisa Wilson-Avery, Millicent Bailey, and Donna Weeks (collectively, " customer Plaintiffs") were customers of Eminence Hair Design from 2010 to 2012. (Id. at 31.)
Defendants manufacture, sell, distribute, and advertise the product " Clairol Professional premium creme demi permanente Deep Conditioning for healthy shine Soy Complex Ammonia Free hair color" (" Product"). Defendants' Product was advertised as being " ammonia free" and able to " nourish, moisturize, hydrate, condition and/or otherwise keep hair healthy and in good condition." (Id. at ¶ 34.) Allegedly because of these attributes, Batchelor applied the Product to the customer Plaintiffs' hair. (Id.) Prior to their use of Defendants' product, the customer Plaintiffs all had hair that was " in good and healthy condition, texture and elasticity[.]" (Id. at ¶ 32.) They were also regular customers of Eminence Hair Design. (Id.)
As a consequence of using Defendants' product, the customer Plaintiffs suffered " severe hair loss, hair breakage, hair burn, burns to head and/or scalp, balding, and other such physical injury, emotional/psychological distress [sic] and economic loss" arising out of " corrective treatment, procedures, hair restoration/replacement." (Id. at ¶ 35.) Further, they stopped frequenting Eminence Hair Design once they were injured by Defendants' product. (Id. at ¶ 36.) Plaintiffs allege that their injuries were caused by the fact that, contrary to the label's representations, Defendants' Product actually contained ammonia. (Id. at ¶ 37.) Plaintiffs filed their Amended Complaint on August 22, 2014. [CM/ECF No. 23.] On September 25, 2014, Defendant moved to dismiss a substantial majority of the claims in the Amended Complaint. [CM/ECF No. 25.]
II. LEGAL STANDARD
For a complaint to survive dismissal, it " 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) (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " Federal Rule of Civil Procedure 8(a) (2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 545 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3rd Cir. 2008). " Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Further, " [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555, 557). " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Thus, legal conclusions draped in the guise of factual allegations may not benefit from the presumption of truthfulness. Id. Additionally, in evaluating a plaintiffs claims, generally " a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3rd Cir. 1994).
Rule 9(b) of the Federal Rules of Civil Procedure imposes a heightened pleading requirement of factual particularity with respect to allegations of fraud, independent of the standard applicable to a Rule 12(b)(6) motion. Rule 9(b) states: " In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). This heightened pleading requirement is designed " to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior." Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). Thus, Rule 9(b) requires plaintiffs to plead " the who, what, when, where, and how: the first paragraph of any newspaper story" whenever alleging a claim of fraud. In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999). The Third Circuit has also noted that " [a]lthough Rule 9(b) falls short of requiring every material detail of the fraud such as date, location, and time, plaintiffs must use 'alternative means of injecting precision and some measure of substantiation into their allegations of fraud." In re Rockefeller Ctr. Props. Secs. Litig., 311 F.3d 198, 216 (3d Cir. 2002) (quoting In re Nice Sys., Ltd. Sec. Litig., 135 F.Supp.2d 551, 576 (D.N.J. 2001)). Where there are multiple defendants, plaintiffs must plead predicate acts of fraud with particularity as to each defendant. See, e.g., Seville, 742 F.2d at 791 .
A. Motions Before the Court