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Mihalich v. Johnson & Johnson

United States District Court, S.D. Illinois

September 20, 2016

BARBARA MIHALICH, individually and on behalf of all others similarly situated, Plaintiff,


          David R. Herndon, Judge

         Now before the Court is defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc.'s motion to dismiss plaintiff' Barbara Mihalich's first amended complaint (Doc. 62). Specifically, defendants move for dismissal of plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(9). Plaintiff opposes said motion, arguing that the first amended complaint sufficiently alleges a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS § 505/1 et seq (“ICFA”) and a financial injury resulting therefrom (Doc. 67). For the reasons stated below, defendants' motion to dismiss is granted in part and denied in part.

         I. Introduction and Background

         On May 23, 2014, plaintiff Barbara Mihalich filed a class action complaint against defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (hereinafter “J&J”) alleging that the defendants failed to warn consumers of the risks associated with the use of Johnson's® Baby Powder for feminine hygiene purposes (Doc. 2).

         Defendants then filed a motion to dismiss for failure to state a claim and alternative motion to strike (Doc. 17) seeking to dismiss the entire complaint. On December 28, 2015, the Court granted the motion to dismiss for failure to state a claim with leave to amend in order to allow an opportunity for plaintiff to correct the deficiencies in the complaint (Doc. 58).

         Thereafter, plaintiff filed her amended complaint on January 22, 2016 (Doc. 61). The amended complaint alleges that women face an increased risk of ovarian cancer due to prolonged use of talc based products, like Johnson's® Baby Powder, in the female perineum. Plaintiff asserts that defendants were aware of the risks associated with such use of Johnson's® Baby Powder, in addition to the increased risk of ovarian cancer resulting from continued use of the product. Plaintiff supports these allegations by citing to various national studies dating back to the 1960s, many of which she claims the defendants were aware of for many years prior to this litigation (Doc. 2, ¶ 26-75).

         Plaintiff's first amended complaint alleges a violation of ICFA based on certain misrepresentations regarding Johnson's® Baby Powder. Plaintiff seeks injunctive relief resulting from the alleged ICFA violation (Count I), in addition to alleging a claim for unjust enrichment (Count II), arguing that the proposed class of plaintiffs conferred a monetary benefit on defendants when purchasing Johnson's® Baby Powder, while defendants simultaneously failed to sufficiently disclose the product's risks to consumers.

         Subsequent to the filing of plaintiff's first amended complaint, defendants filed the pending motion to dismiss (Doc. 62) and motion for hearing (Doc. 63) seeking to dismiss the amended complaint with prejudice. Specifically, defendants argue that (1) plaintiff's fraud-based claim under the ICFA fails to meet the Rule 9(b) heightened pleading standard and plaintiff fails to allege any actual out-of-pocket pecuniary harm necessary to meet the ICFA statutory requirements; (2) plaintiff's prayer for injunctive relief lacks standing, and (3) plaintiff's unjust enrichment claim must be dismissed because plaintiff failed state any predicate claim permitting the unjust enrichment claim to stand.

         II. Motion to Dismiss

         Defendants' motion to dismiss is made pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). A Rule 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth “enough facts to state a claim to relief that is plausible on its face.” In making this assessment, the district court accepts as true all well-pled factual allegations and draws all reasonable inferences in the plaintiff's favor. See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007).

         Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) retooled federal pleading standards, notice pleading remains all that is required in a complaint. “A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (citations and quotations omitted).

         The Seventh Circuit Court of Appeals offers further guidance on what a complaint must do to withstand dismissal for failure to state a claim. The Court in Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008) reiterated the premise: “surviving a Rule 12(b)(6) motion requires more than labels and conclusions;” the complaint's allegations must “raise a right to relief above the speculative level.” A plaintiff's claim “must be plausible on its face, ” that is, “the complaint must establish a non-negligible probability that the claim is valid…” Smith v. Medical Benefit Administrators Group, Inc., 639 F.3d 277, 281 (7th Cir.2011); See also Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir.2012) (Rule 12(b)(1) motion to dismiss for lack of standing).

         Additionally, a civil conspiracy claim that is “premised upon a course of fraudulent conduct can implicate Rule 9(b)'s heightened pleading requirements.” Borsellino v. Goldman Sachs Group, Inc.,477 F.3d 502, 507 (7th Cir.2007). Fed.R.Civ.P. 9(b) requires that a plaintiff alleging fraud “state with particularity the circumstances constituting fraud.” Generally, pleading “with particularity” requires that a plaintiff describe the “who, what, when, where, and how” of the alleged fraud. Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co.,631 F.3d 436, 441-42 (7th Cir. 2011); See also Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir.2006) (“Rule 9(b) requires that facts such as 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 be alleged in detail.”) (internal quotations omitted). However, the pleading's structure for fraud claims may be modified, as facts may vary with a particular case. For example, where the misrepresentations are made on ...

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