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Rochelle Ibarolla, On Behalf of Herself and All Others Similarly v. Nutrex Research

October 31, 2012


The opinion of the court was delivered by: Marvin E. Aspen, District Court Judge


Plaintiff Rochelle Ibarolla ("Plaintiff"), individually and on behalf of a proposed national class of similarly situated plaintiffs, filed a six-count complaint against Defendants Nutrex Research, Inc. ("Nutrex") and Vitamin Shoppe, Inc. ("Vitamin Shoppe") (collectively, "Defendants"), alleging (1) violation of state consumer protection statutes, (2) negligence, (3) common law fraud, (4) breach of express and implied warranties, (5) unjust enrichment, and (6) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq. ("ICFA"). Presently before us is Defendants' motion to dismiss for failure to state a claim. For the reasons stated below, we grant Defendants' motion and dismiss the complaint with leave to amend.


We draw the following facts directly from the complaint and accept them as true for the purposes of the present motion. Nutrex is a manufacturer and distributor of nutritional supplements for athletes and professional bodybuilders. (Compl. ¶ 17.) Vitamin Shoppe, a retailer of nutritional and sports supplements, sold Plaintiff "one or more" of six Nutrex products: Hemo Rage Black, Hemo Rage Black Ultra Concentrate, Lipo-6 Black, Lipo-6 Black Ultra Concentrate, Lipo-6 Black Hers, and Lipo-6 Black Hers Ultra Concentrate. (Id. ¶¶ 18, 40--42.) When purchasing the products, Plaintiff relied on Nutrex's promotional material, which touted the effectiveness of the products as dietary aids and omitted any reference to any potentially dangerous side effects of their ingredients. (Id. ¶¶ 40--42.) Vitamin Shoppe likewise failed to warn Plaintiff about any potential dangers of the products it sold her. (Id. ¶ 39.)

After buying the Nutrex products, Plaintiff learned that they contained DMAA (a synthetic compound originally developed as a nasal decongestant), caffeine, synephrine, yohime, thyronine, and other stimulants-ingredients that may produce severe side effects when taken in large doses or in combination with one another. (Id. ¶¶ 3, 43.) Had Defendants informed Plaintiff about these ingredients, she would not have purchased the Nutrex products. (Id. ¶ 44.) Therefore, Plaintiff alleges that she "lost substantial money purchasing products she would not have otherwise purchased." (Id.)


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Thompson v. Ill. Dep't. of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks enough facts "to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949--50 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618--19 (7th Cir. 2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.

Although a facially plausible complaint need not give "detailed factual allegations," it must allege facts sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964--65. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. These requirements ensure that the defendant receives "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555, 127 S.Ct. at 1964.

For claims that sound in fraud, Federal Rule of Civil Procedure 9(b) requires the plaintiff to "state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). To satisfy the particularity requirement, "an allegation of fraud must include the 'who, what, when, where, and how: the first paragraph of any newspaper story.'" DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990). In other words, "a complaint must specify the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990). Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. Fed. R. Civ. P. 9(b).


A. Claims For Common Law Fraud and Violations of State Consumer Protection Statutes (Counts I, III, and VI)

Plaintiff claims that Defendants fraudulently misrepresented the safety and effectiveness of the products containing DMAA and other allegedly dangerous ingredients. She alleges common law fraud (Count III) (Compl. ¶¶ 67--73), as well as violations of numerous state consumer protection statutes on behalf of a national class (Count I) (id. ¶¶ 54--61) and the ICFA on behalf of an Illinois subclass (Count VI) (id. ¶¶ 87--93). Claims for violation of the ICFA "are subject to the same heightened pleading standards as other fraud claims; as such, they must satisfy the particularity requirement of Rule 9(b) of the Federal Rules of Civil Procedure." Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399 (7th Cir. 2011).*fn1

The facts alleged in this complaint are insufficient to state a claim under Rule 9(b). The first problem is that Plaintiff claims to have purchased "one or more" of six named Nutrex products. (Compl. ¶ 42.) Without specifying which product she actually purchased, we cannot determine what particular misrepresentations Plaintiff relied on.

Plaintiff alleges generally that the products' labels gave no warning of the dangerous ingredients they contained. (Id. ¶ 41.) She further claims that "Nutrex lures customers to purchase these products by boasting that they are 'the strongest fat destroyer we have ever released,' and proclaiming that they 'attack body fat with a killer instinct formulated to destroy it whenever the two meet.'"*fn2 (Id. ΒΆ 22.) It is not plausible, however, that Defendants labeled and marketed all six products named by Plaintiff in an identical manner. Unless Plaintiff identifies which product(s) she actually inspected and purchased, she cannot possibly state with the requisite specificity the content of the alleged misrepresentation. See In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., MDL-1703, 2009 WL 937256, at *6 (N.D. ...

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