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Curran v. Bayer Healthcare LLC

United States District Court, N.D. Illinois, Eastern Division

May 30, 2018

KEVIN CURRAN, Plaintiff,



         Plaintiff Kevin Curran (“Curran”) alleges that he purchased sunscreen labeled with an SPF (sun protection factor) of 30 when, in fact, the SPF was much lower. He filed against defendant Bayer Healthcare LLC a purported class-action complaint in which he asserts a number of state-law claims. Defendants have filed a motion to transfer this case or, in the alternative, to dismiss. For the reasons set forth below, the Court denies the motion [28] to transfer and grants the motion [28] to dismiss.

         I. BACKGROUND

         Plaintiff alleges that he purchased Coppertone Sport High Performance SPF 30 sunscreen. Although the bottle says “SPF 30, ” plaintiff alleges that the sunscreen, in fact, had a lower SPF. Specifically, plaintiff alleges that Consumer Reports magazine reported in July 2017 that “its own testing” of Coppertone High Performance SPF reflected an SPF lower than 30. (Complt. ¶ 36). In addition, plaintiff alleges that he “conducted his own independent testing of Coppertone Sport High Performance SPF 30 sunscreen spray, utilizing the methodology for SPF testing mandated by the FDA.” (Complt. ¶ 37-38). Plaintiff alleges that his testing was “conducted in compliance with all FDA testing methods” and concluded that the sunscreen had an average SPF of 13.9. (Complt. ¶ 39, 41).

         Based on these allegations, plaintiff sets out five counts, including breach of warranty (Count I), breach of implied contract (Count II), declaratory and injunctive relief (Count III), unjust enrichment (Count IV) and violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act (Count V). Plaintiff seeks to bring these claims on behalf of a class of persons who purchased Coppertone Sport High Performance SPF 30 in the United States, except for New Jersey citizens who purchased sunscreen in New Jersey. The Court takes judicial notice of the fact that plaintiff's counsel filed in state court in New Jersey, on behalf of a different plaintiff and against this defendant, a similar case which purports to be a class action on behalf of citizens of New Jersey. Although defendant removed that case to the United States District Court for the District of New Jersey, that court remanded the case for lack of jurisdiction.[1]


         The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide detailed factual allegations, but mere conclusions and a “formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. To survive a motion to dismiss, a claim must be plausible. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

         A party “must state with particularity the circumstances constituting fraud[.]” Fed.R.Civ.P. 9(b). The requirement that fraud be plead with particularity “ensures that plaintiffs do their homework before filing suit and protects defendants from baseless suits that tarnish reputations.” Pirelli Armstrong Tire Corp. Retiree Med. Ben. Trust v. Walgreen Co., 631 F.3d 436, 439 (7th Cir. 2011). The requirement is not rigid, and what must be alleged will vary, depending on the facts of the case. Pirelli, 631 F.3d at 442. The heightened pleading standard applies to all allegations of fraud (such as a misrepresentations), not merely claims labeled fraud. Pirelli, 631 F.3d at 447.

         In considering a motion to dismiss, the Court accepts as true the factual allegations in the complaint and draws permissible inferences in favor of the plaintiff. Boucher v. Finance Syst. of Green Bay, Inc., 880 F.3d 362, 365 (7th Cir. 2018). Conclusory allegations “are not entitled to be assumed true, ” nor are legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 680 & 681 (2009) (noting that a “legal conclusion” was “not entitled to the assumption of truth[;]” and rejecting, as conclusory, allegations that “‘petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject [him]' to harsh conditions of confinement”). The notice-pleading rule “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-679.


         A. Motion to transfer

         “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought . . .” 28 U.S.C. § 1404(a). The parties agree that this case could have been brought in the United States District Court for the District of New Jersey, where defendant would like this case transferred.

         This Court has substantial discretion in deciding whether to transfer the case. Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 977-978 (7th Cir. 2010). The movant has the burden of establishing that the transferee forum is more convenient. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-220 (7th Cir. 1986).

         First, the Court considers the convenience of the parties. The Court gives significant weight to the plaintiff's choice of forum. Plaintiff is an Illinois citizen who purchased the product here in Illinois, where it will be more convenient for him to litigate. Defendant, on the other hand, is headquartered in New Jersey, where most of its witnesses are located and where, according to defendant, the relevant decisions were made. The documents defendant anticipates producing are also located in New Jersey, although, as plaintiff points out, most documents these days are produced electronically, such that the physical location of the documents matters less. Plaintiff ...

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