Dysthe v. Basic Research LLC

The Honorable ANDREW J. GUILFORD

CIVIL MINUTES - GENERAL

Present: The Honorable ANDREW J. GUILFORD Lisa Bredahl
Deputy Clerk Not Present
Court Reporter / Recorder __________
Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Proceedings: AMENDED ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

This purported class action involves alleged false advertising of the weight-loss products Relacore and Relacore Extra. Defendants Basic Research LLC and Carter-Reed Company LLC ("Defendants") filed a Motion for Summary Judgment ("Motion"). Defendants argue that although Plaintiff's claims concern the purchase of one product, she only purchased a separate product and therefore does not have standing to pursue her claims. No genuine issues of material fact exist, and summary judgment is appropriate. Defendants' Motion is GRANTED. BACKGROUND The following facts are taken from admissible evidence. As it must for this Motion, the Court views the evidence in the light most favorable to the Plaintiff. The facts here are straightforward. Defendants manufacture, advertise, and market Relacore and Relacore Extra Maximum Strength (the "Products"). (Defendants' Statement of Uncontroverted Facts ("DSUF") ¶ 1.) Each of the Products is a dietary weight-loss supplement. (See id. ¶ 2.) Plaintiff considers herself overweight. (Deposition of Shalena Dysthe, Declaration of Karen Liao ("Liao Decl."), Ex. A at 27:6-7.) In 2009, Plaintiff saw a television commercial for Relacore. (Deposition of Shalena Dysthe, Liao Decl., Ex. A at 41:21-42:16.) After seeing this commercial, Plaintiff didn't end up purchasing Relacore, but she did purchase Relacore Extra. (DSUF ¶¶ 12-13.) Plaintiff used Relacore Extra for about a month, but the product didn't work as expected, and Plaintiff didn't lose any weight. (Deposition of Shalena Dysthe, Liao Decl., Ex. A, at 53:18-54:8.) Based on these facts and others, Plaintiff brings three claims against Defendants in her Second Amended Complaint ("SAC"): (1) violation of the California Consumers Legal Remedies Act ("CLRA"), (2) violation of California's unfair competition law ("UCL"), and (3) breach of warranty. PRELIMINARY MATTERS Defendants raise three objections to the Declaration of Lynn R. Willis Supporting Plaintiff's Opposition ("Willis Decl."), numbered as follows: (1) Plaintiff did not timely disclose Dr. Willis as an expert, nor did they timely disclose her declaration; (2) Plaintiff has not properly shown that the Willis Declaration "is based upon sufficient facts or data; and (3) the Willis Declaration cannot serve as a supplement to previously-submitted reports by Dr. Willis. (See generally Defendants' Objections to the Willis Decl.) Defendants also filed a Motion to Strike the Willis Declaration that raises arguments similar to Defendants' objections, and therefore the Court addresses these filings together. Concerning Defendants' objection that Plaintiff's disclosures are untimely, Federal Rule of Civil Procedure 37(c) states:

"If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless."

Here, the Court's May 10, 2010, Scheduling Order set an expert-disclosure deadline of March 11, 2011. (Doc. # 74.) Plaintiff failed to disclose any experts by this date. And although Plaintiff stated at the April 14, 2011, status conference that she intended to move for relief from the expert-disclosure deadline, Plaintiff never did so. Despite missing the expert-disclosure deadline, and despite failing to move for relief from this deadline, Plaintiff argues that her failure to timely disclose was "substantially justified." Plaintiff argues that "[s]ince Plaintiff's motion for class certification has yet to be heard, it was Plaintiff's belief that the disclosure deadline was a soft deadline because the merits of the case are not yet at issue." (Opp'n to the Motion to Strike at 2:6-8 (citation omitted.) Not so. The Court is unaware of any "soft" deadlines in this case. The Scheduling Order made no indication that any deadlines were "soft." If Plaintiff had issues with deadlines that were set in the Scheduling Order more than a year ago, she should have filed a motion to modify the Scheduling Order. As noted, she failed to do so. Plaintiff's failure to meet the Scheduling Order deadlines is not substantially justified. Plaintiff also argues that "[i]t is difficult to fathom how a late designation of Plaintiff's expert could have any effect on Defendants' motion for summary judgment." (Plaintiff's Opp'n to Motion to Strike Willis Decl. at 1:11-12.) Nonsense. When drafting their summary judgment motion, and also when preparing for trial, Defendants need not consider evidence improperly submitted after their motion for summary judgment, after the discovery cutoff, and only two months before trial. And although Plaintiff argues that regardless of deadlines, the Court should allow the Willis Declaration here because it will not affect the outcome of Motion, accepting this argument as true raises a simple question: Why submit the Willis Declaration if it is irrelevant to the outcome of the Motion? As Winston Churchill said, this "is a riddle wrapped in a mystery, inside an enigma." Defendants will clearly suffer prejudice if Plaintiff is permitted to ignore the deadlines set by this Court. the product at issue in her claims, and she lacks standing to pursue her claims. The Court agrees. To satisfy Article III's standing requirement, a plaintiff must demonstrate: (1) an injury that is concrete, particularized, and actual or imminent; (2) a causal connection between the injury and the challenged conduct, such that the injury may be fairly traceable to that conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). "The Article III doctrine that requires a litigant to have 'standing' to invoke the power of a federal court" is an essential limitation on federal judicial power in our system of government. Allen v. Wright, 468 U.S. 737, 750-51 (1984). At the core of the standing doctrine is the requirement that plaintiff "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751. This "injury in fact" test is not satisfied by an injury to some cognizable interest, but requires that the plaintiff be among the injured. Lujan, 504 U.S. at 562-63 (citing Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972)). Here, Plaintiff repeatedly alleges that she purchased Relacore. For example, the SAC states "Plaintiff Dysthe purchased Relacore at a CVS retail store located in Riverside, California. . . . Plaintiff saw Relacore displayed for sale on the shelf. . . . Plaintiff Dysthe purchased Relacore from CVS in late summer or early fall of 2009." (SAC ¶ 25; see also id. ¶¶ 26-27.) By contrast, Plaintiff never alleges that she purchased a separate product, Relacore Extra. (See generally id.) But Plaintiff never purchased Relacore. She only purchased Relacore Extra. Plaintiff acknowledges this fact in her deposition:

Q: So when you're in the CVS, and you're purchasing Relacore, do you remember anything about the packaging of Relacore?

A: Said "Relacore" on it.
Q: Do you remember anything else about what the package said?
A: I believe it was the Relacore Extra, a purple, fuchsia kind of color.
Q: Anything else about the package that you remember, and words on the package other than "Relacore Extra"?
A: "De-stress" and "fat burner."
Q: Anything else?
A: No.
Q: So did you purchase Relacore or Relacore Extra from CVS?
A: Relacore Extra.

(Deposition of Shalena Dysthe, Declaration of Michael L. Resch ("Resch Decl."), Ex. D at 46:8-20.) In fact, Plaintiff now clearly admits in her opposition papers that she only purchased Relacore Extra, and not Relacore. (E.g., DSUF ¶¶ 12-13.)

Plaintiff does not have standing to bring her CLRA, UCL, or warranty claim based on a product that she never purchased. See, e.g., Johns v. Bayer Corp., Case No. 09-CV-1935 DMS (JMA), 2010 WL 2573493, at *3 (S.D. Cal. June 24, 2010). In Johns, a case similar to this one, the plaintiffs brought CLRA and UCL claims based on purchases of "One A Day Men's 50+ Advantage" and "One A Day Men's Health Formula" vitamin products. The Johns Court held that one of the plaintiffs did not have standing under the presented a genuine issue of material fact to the contrary. Finally, Plaintiff makes a fleeting argument that she should now be allowed to amend her complaint because "Plaintiff has a right to have the complaint conform with the aforementioned proof under Rule 15(b) . . . ." This argument fails. First, Plaintiff has not filed a motion to amend her complaint. Instead, Plaintiff merely appears to suggest that her Opposition should be treated as a motion for leave to amend her pleadings. (See Opp'n at 7:8-10.) But such treatment is not proper here. If Plaintiff did seek relief to amend her complaint, Plaintiff's resort was to file a properly noticed motion, not to request her desired relief as an afterthought in her Opposition. Even if the Court considered Defendants' current request to amend, such amendment is not appropriate here. The parties have engaged in extensive litigation and discovery, and Defendants are entitled to rely on Plaintiff's stated claims when litigating their case. Defendants will suffer prejudice if Plaintiff is allowed to amend her complaint after the discovery cutoff and mere months from trial. Further, Plaintiff has already amended her complaint twice, and "a district court's discretion over amendments is especially broad where the court has already given a plaintiff one or more opportunities to amend his complaint." Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) (citations and quotations omitted). Regardless of these specific factors, Plaintiff makes her request to amend under 15(b), and this request is misplaced. Rule 15(b) concerns "Amendments During and After Trial." Fed. R. Civ. P. 15(b). Specifically, Rule 15(b)(2) states:

When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.

Fed. R. Civ. P. 15(b)(2). We haven't reached trial in this matter. We're only at summary judgment. Rule 15(b) doesn't apply, and Plaintiff's request fails. DISPOSITION Plaintiff's counsel undertook the high calling of representing not only Plaintiff, but also an entire group of potential class members. Counsel has failed to meet this high calling. Counsel had not one, not two, but three opportunities to submit a complaint that properly identified the product she purchased, but counsel failed to do so each time. (See generally Plaintiff's Complaint, FAC, and SAC.) Plaintiff has not shown that she purchased Relacore or suffered any harm due to this product. Plaintiff lacks standing for her claims. The Motion is GRANTED. Defendants shall submit a proposed judgment within seven days of this order.

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