United States District Court, D. New Jersey
MONA ESTRADA, on behalf of herself and all others similarly situated, Plaintiff,
JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES INC., Defendants.
Freda L. Wolfson United States District Judge
putative consumer class action, which has been transferred to
this Court as part of the In re Johnson &
Johnson MultiDistrict Litigation (“MDL”),
Plaintiff Mona Estrada (“Plaintiff”) accuses
Defendants Johnson & Johnson (“J&J”) and
Johnson & Johnson Consumer Companies (“J&J
Consumer”) (collectively, “Defendants”) of
engaging in unfair and illegal business practices by
manufacturing, marketing, and distributing baby powder
products without informing consumers that use of baby powder
by women in the genital area leads to an increased risk of
developing ovarian cancer. Plaintiff asserts various
California state law consumer-fraud related claims against
before the Court is Defendants' Motion to Dismiss
Plaintiff's First Amended Class Action Complaint (the
“FAC” or “Complaint”) for lack of
standing and failure to state a claim on which relief can be
granted. For the reasons set forth below, the Court grants
Defendants' Motion on the basis that Plaintiff lacks
standing to bring suit, and therefore, all of Plaintiff's
claims are dismissed. However, Plaintiff is given leave to
amend her Complaint, consistent with this Opinion, within
thirty-days (30) from the date of the Order accompanying this
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
purposes of the instant Motion, the Court will recount only
relevant facts from the Complaint, taking them as true.
Plaintiff is a resident of Stockton, California. FAC ¶
11. Defendant J&J is a New Jersey corporation with its
principal place of business in New Brunswick, New Jersey.
Id. at ¶ 12. Defendant J&J Consumer is a
New Jersey corporation that operates as a subsidiary to
J&J. Id. at ¶ 13.
research, develop, market, and sell consumer products,
including Johnson's® Baby Powder (“Baby
Powder”), throughout the United States, including
California. Id. at ¶ 13. Baby Powder is
comprised almost entirely of talc,  with a small amount of
fragrance. Id. at ¶ 1. According to Plaintiff,
Defendants developed Baby Powder in 1893, and manufacture,
distribute, market, and sell Baby Powder “as a daily
use powder intended to eliminate friction on the skin and to
absorb unwanted excess moisture for both babies and
women.” Id. at ¶ 14.
allegations center on Defendants' marketing of Baby
Powder to women. In that regard, Plaintiff alleges that
Defendants market Baby Powder to women specifically -
encouraging women to dust themselves with Baby Powder to
maintain freshness and cleanliness, and to mask odors -
despite the fact that the use of Baby Powder by women in the
genital area results in an increased risk of developing
ovarian cancer. Id. at ¶¶ 1, 15. Plaintiff
avers that Defendants failed to disclose the risks associated
with the use of Baby Powder by women, and continued to market
the product as safe despite knowledge of those risks.
Id. at ¶ 1. In support of her allegations
regarding the increased cancer risk associated with Baby
Powder, Plaintiff cites numerous clinical studies that have
been conducted since 1961. See Id. at ¶¶
24-60. Plaintiff alleges that since at least 1982, Defendants
have been aware of the studies associating talcum powder with
an elevated risk of ovarian cancer. See Id. at
April 28, 2014, Plaintiff filed her original complaint in
this matter in the United States District Court for the
Eastern District of California. ECF No. 1. On March 27, 2015,
the Honorable Troy L. Nunley, U.S.D.J., dismissed
Plaintiff's original complaint for lack of Article III
standing, finding that Plaintiff failed to allege an
injury-in-fact. Estrada v. Johnson & Johnson,
No. 14-01051, 2015 WL 1440466, at *5 (E.D. Cal. Mar. 27,
2015). Specifically, Judge Nunley found that Plaintiff failed
to allege an “economic injury to meet Article III
standing because Plaintiff did not allege specific
misrepresentations by Defendants, received the
benefit-of-the-bargain, and did not allege any alternative
product that she would have purchased.” Id. at
April 24, 2015, Plaintiff filed the FAC, asserting four
causes of action against Defendants. ECF No. 27. Plaintiff
brings these claims individually and on behalf of putative
classes of consumers who have purchased Baby Powder
manufactured and sold by Defendants. FAC ¶ 7. Count I of
the FAC seeks injunctive and equitable relief, on the grounds
that Defendants violated the Consumers Legal Remedies Act
(“CLRA”), California Civil Code § 1750,
et seq., by failing to disclose the increased risk
of ovarian cancer associated with consumption of Baby Powder
on its product labels and packages, and by representing that
Baby Powder is clinically proven to be safe, gentle, and
mild. Id. at ¶ 90. Count II of the FAC asserts
claims pursuant to California's Unfair Competition Law
(“UCL”), California Business and Professions Code
§ 17200, et seq., alleging that Defendants
committed unlawful business practices by making
misrepresentations and omitting material facts regarding the
safety of Baby Powder. Id. at ¶¶ 96-97.
Count III of the FAC asserts a related claim for negligent
misrepresentation. Id. at ¶¶ 107-108.
Finally, Count IV of the FAC asserts a claim for breach of
the implied warranty of merchantability, alleging that
Defendants impliedly warranted Baby Powder to be safe,
despite the fact that it is unsafe and not merchantable.
Id. at ¶¶ 114-117.
alleges that as a result of Defendants'
misrepresentations and omissions, Plaintiff suffered economic
injury in the form of the purchase price of Baby Powder.
Alternatively, the FAC alleges that had Plaintiff known of
the increased cancer risk associated with Baby Powder, she
would have purchased an alternative cornstarch-based product
rather than Baby Powder. Plaintiff does not allege that she
suffered any physical harm as a result of consuming Baby
18, 2015, Defendants filed a motion to dismiss the FAC in the
Eastern District of California. ECF No. 29. That motion was
fully briefed before Judge Nunley. ECF No. 29-31. However, on
October 5, 2016, the case was transferred to this Court by
the Multi-District Litigation Panel as part of the In re
Johnson & Johnson MDL assigned to me. ECF No. 39.
Thereafter, Defendants filed the instant Motion to Dismiss on
December 22, 2016. ECF No. 47.
move to dismiss the FAC on several grounds, including that
Plaintiff lacks Article III standing to bring the present
action, and fails to state a claim on which relief can be
granted. Because the Court finds that Plaintiff lacks Article
III standing to bring the present action, it need not reach
Defendants' other theories.
under Article III of the United States Constitution is an
element of subject matter jurisdiction. See Hartig Drug
Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 269 (3d Cir.
2016). Under Rule 12(b)(1), “a court must grant a
motion to dismiss if it lacks subject-matter jurisdiction to
hear a claim.” In re Schering Plough Corp.
Intron/Temodar Consumer Class Action, 678 F.3d 235, 243
(3d Cir. 2012). “A motion to dismiss for want of
standing is . . . properly brought pursuant to Rule 12(b)(1),
because standing is a jurisdictional matter.”
Ballentine v. United States, 486 F.3d 806, 810 (3d
Cir. 2007). In evaluating whether a complaint adequately
pleads the elements of standing, courts apply the standard of
reviewing a complaint pursuant to a Rule 12(b)(6) motion to
dismiss for failure to state a claim. In re Schering
Plough Corp., 678 F.3d at 243.
reviewing a motion to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b)(6), the court “accept[s]
all factual allegations as true, construe[s] the complaint in
the light most favorable to the plaintiff, and determine[s]
whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief.” Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)
(citation and quotations omitted). As such, a motion to
dismiss for failure to state a claim upon which relief can be
granted does not attack the merits of the action, but merely
tests the legal sufficiency of the complaint. Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009);
see also Fed. R. Civ. P. 8(a)(2) (“A pleading
that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is
entitled to relief.”). In other words, to survive a
motion to dismiss for failure to state a claim, “a
complaint 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 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
“the tenet that a court must accept as true all the
allegations contained in the complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly,
550 U.S. at 555). A plaintiff must show that there is
“more than a sheer possibility that the defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556). This plausibility
determination is a “context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id. at 679. In other words, for
the plaintiff to prevail, the “complaint must do more
than allege the plaintiff's entitlement to relief”;
it must “‘show' such an entitlement with its
facts.” Fowler, 578 F.3d at 211 (quoting
Phillips, 515 F.3d at 234-35).
Third Circuit has cautioned, however, that Twombly
and Iqbal “do not provide a panacea for
defendants”; rather, “they merely require that
plaintiff raise a ‘plausible claim for
relief.'” Covington v. Int'l Ass'n of
Approved Basketball Officials, 710 F.3d 114, 118 (3d
Cir. 2013) (quoting Iqbal, 556 U.S. at 679). Thus,
factual allegations must be more than speculative, but the
pleading standard “is not akin to a ‘probability
requirement.'” Id. (quoting
Iqbal, 556 U.S. at 678).
Article III Standing
III of the United States Constitution confines the scope of
federal judicial power to the adjudication of
“cases” or “controversies.” U.S.
Const. art. III, § 2. This “bedrock requirement,
” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464,
471 (1982), protects the system of separation of powers and
respect for the coequal branches by restricting the province
of the judiciary to “decid[ing] on the rights of
individuals.” Marbury v. Madison, 1 Cranch
137, 5 U.S. 137, 2 L.Ed. 60 (1803). Indeed,
“‘[n]o principle is more fundamental to the
judiciary's proper role in our system of government than
the constitutional limitation of federal-court jurisdiction
to actual cases or controversies.'” Raines v.
Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. E.
Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976));
see Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547
(2016) (“In order to remain faithful to this tripartite
structure, the power of the Federal Judiciary may not be
permitted to intrude upon the powers given to the other
courts have developed several justiciability doctrines to
enforce the “case” or “controversy”
requirement. See Warth v. Seldin, 422 U.S. 490, 498
(1975). Among those doctrines, “[t]he Art[icle] III
doctrine that requires a litigant to have
‘standing' to invoke the power of a federal court
is perhaps the most important . . . .” Allen v.
Wright, 468 U.S. 737, 750 (1984). The seminal standing
question is “whether the plaintiff has ‘alleged
such a personal stake in the outcome of the controversy'
as to warrant his invocation of federal-court jurisdiction
and to justify exercise of the court's remedial powers on
his behalf.” Seldin, 422 U.S. at 498-99
(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
satisfy the “irreducible constitutional minimum”
of Article III standing, the plaintiff must establish three
First, the plaintiff must have suffered an injury in fact-an
invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.
Second, there must be a causal connection between the injury
and the conduct complained of-the injury has to be fairly
traceable to the challenged action of the defendant, and not
the result of the independent action of some third party not
before the court.
Third, it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992) (internal quotations, alterations, and citations
omitted); see Spokeo, 136 S.Ct. at 1547 (“The
plaintiff must have (1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.”). Although the plaintiff
bears the burden of establishing each of these three
elements, the Third Circuit has stressed that the
“injury-in-fact element is often determinative.”
Toll Bros. v. Twp. of Readington, 555 F.3d 131, 138
(3d Cir. 2009); see also Spokeo, 136 S.Ct. at 1547
(“This case primarily concerns injury in fact, the
‘[f]irst and foremost' of standing's three
elements.”) (quoting Steel Co. v. Citizens for
Better Environment, 523 U.S. 83, 103 (1998)). To satisfy
the injury-in-fact requirement, the injury must be
“particularized, ” such that it affects the
plaintiff in a “personal and individual way.”
Lujan, 504 U.S. at 560 n. 1. The Supreme Court has
emphasized that the injury must also be “concrete in
both a qualitative and temporal sense”; i.e.,
the “complainant must allege an injury to himself that
is ‘distinct and palpable, ' as opposed to merely
‘[a]bstract, ' and the alleged harm must be actual
or imminent, not ‘conjectural' or
‘hypothetical.'” Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990) (internal quotations
and citations omitted). To that end, allegations of a
potential future injury, or the mere possibility of a future
injury, will not establish standing. See Id. at 158;
Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir.
2011) (“Allegations of ‘possible future
injury' are not sufficient to satisfy Article
the injury-in-fact test “requires more than an injury
to a cognizable interest. It requires that the party seeking
review be himself among the injured.” Sierra Club
v. Morton, 405 U.S. 727, 734-35 (1972); see In re
Horizon Healthcare Servs. Inc. Data Breach Litig., 846
F.3d 625, 633 (3d Cir. 2017). Put differently, “[w]hile
it does not matter how many persons have been injured by the
challenged action, the party bringing suit must show that the
action injures him in a concrete and personal way.”
Lujan, 504 U.S. at 581. The requirement that that
the injury affect the plaintiff in a personal and individual
way “preserves the vitality of the adversarial process
by assuring both that the parties before the court have an
actual, as opposed to professed, stake in the outcome, and
that ‘the legal questions presented . . . will be
resolved, not in the rarified atmosphere of a debating
society, but in a concrete factual context conducive to a
realistic appreciation of the consequences of judicial
action.'” Id. (quoting Valley
Forge, 454 U.S. at 472).
standing inquiry “requires careful judicial examination
of a complaint's allegations to ascertain whether the
particular plaintiff is entitled to an adjudication of the
particular claims asserted.” Allen, 468 U.S.
at 752. To that end, at the pleading stage, “[a]lthough
general factual allegations of injury resulting from the
defendant's conduct may suffice, the complaint must still
‘clearly and specifically set forth facts sufficient to
satisfy' Article III.” Reilly, 664 F.3d at
41 (quoting Whitmore, 495 U.S. at 155); see
Finkelman v. Nat'l Football League, 810 F.3d 187,
193 (3d Cir. 2016) (“Plaintiffs do not allege an
injury-in-fact when they rely on a ‘chain of
contingencies' or ‘mere speculation.'”)
addition to satisfying the federal standing requirements
under Article III, Plaintiff must also demonstrate statutory
standing under the UCL and the CLRA. The UCL broadly
prohibits “any unlawful, unfair or fraudulent business
act or practice and unfair, deceptive, untrue or misleading
advertising . . . .” Cal. Bus. & Prof. Code §
17200. The CLRA prohibits unfair and deceptive business
practices, including various forms of misrepresentation.
See Cal. Civ. Code § 1770.
establish standing to bring a claim under either the UCL or
the CLRA, a plaintiff must “meet an economic
injury-in-fact requirement, which demands no more than the
corresponding requirement under Article III of the U.S.
Constitution.” Reid v. Johnson & Johnson,
780 F.3d 952, 958 (9th Cir. 2015). “To adequately plead
a CLRA claim, a plaintiff must allege that she relied on the
defendant's alleged misrepresentation and that she
suffered economic injury as a result.” Doe v.
SuccessfulMatch.com, 70 F.Supp.3d 1066, 1075 (N.D. Cal.
2014); see Cal. Civ. Code § 1780(a) (“Any
consumer who suffers any damage as a result of the use or
employment by any person of a method, act, or practice
declared to be unlawful by Section 1770 may bring an action
against that person . . . .”). Similarly, under the
UCL, a plaintiff must demonstrate that she “suffered
injury in fact and has lost money or property as a result of
the unfair competition.” Cal. Bus. & Prof. Code
UCL claim is premised on the basis of a misrepresentation, a
plaintiff “must have actually relied on the
misrepresentation, and suffered economic injury as a result
of that reliance . . . .” Doe, 70 F.Supp.3d at
1075 (citing In re Tobacco II Cases, 46 Cal.4th 298,
326 (2009)). To demonstrate actual reliance, a plaintiff must
allege that “the defendant's misrepresentation or
nondisclosure was ‘an immediate cause' of the
plaintiff's injury-producing conduct[, ] . . . by showing
that in its absence the plaintiff ‘in all reasonable
probability' would not have engaged in the
injury-producing conduct.” In re Tobacco II
Cases, 46 Cal.4th at 326 (citation omitted).
“While a plaintiff need not demonstrate that the
defendant's misrepresentations were ‘the sole or
even the predominant or decisive ...