United States District Court, S.D. Illinois
BARBARA MIHALICH, individually and on behalf of all others similarly situated, Plaintiff,
JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendants.
MEMORANDUM AND ORDER
R. Herndon, Judge
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.
Introduction and Background
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
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).
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).
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.
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.
Motion to Dismiss
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).
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).
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).
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 ...