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Mollicone v. Universal Handicraft

United States District Court, S.D. Florida

November 28, 2017

Lisa Mollicone, individually and on behalf of all others similarly situated, Plaintiffs,
Universal Handicraft d/b/a Deep Sea Cosmetics d/b/a Adore Organic Innovations, and others, Defendants.



         This matter is before the Court upon the Defendants Universal Handicraft and Shay Sabag Segev's motions to dismiss (ECF Nos. 97, 98). The Court has carefully considered all supporting and opposing submissions, the record in this case, and the applicable law. For the reasons set forth below, the Court denies the motions to dismiss.

         1. Background

         This consolidated action began as two cases - one filed by Plaintiff Lisa Mollicone in the United States District Court for the Central District of California (No. 16-cv-07322), and the other filed by Plaintiff Millie Land in this district before Judge Cecilia M. Altonaga (No. 17-cv-21947), in which the Plaintiffs assert claims against the Defendants based upon allegedly false and misleading representations with respect to the anti-aging properties of cosmetics manufactured, marketed and sold by the Defendants. Before Mollicone's case was transferred to this Court from California, the District Judge ruled upon the Defendants' previous motions to dismiss, in which Universal challenged the court's subject matter jurisdiction and the sufficiency of the allegations in the first amended complaint (ECF No. 25), pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

         Specifically, Universal argued that Mollicone lacked standing (1) to seek injunctive relief because she failed to demonstrate that she is threatened with a concrete and particularized injury; (2) to assert claims regarding products she did not buy; and (3) to assert claims based on laws of states outside California and New Jersey. (ECF No. 28.) In addition, and relevant to the Court's consideration of the present motion, Universal argued that Mollicone failed to plead her fraud-based claims with particularity and that her allegations supported only a claim for lack of substantiation under California law. In her order, Judge Christina Snyder denied Universal's motion on these grounds. Mollicone v. Universal Handicraft, No. 2:16-cv-0732-CAS(MRWx), 2017 WL 440257, at *14 (C.D. Cal. Jan. 30, 2017).[1] Thereafter, Mollicone filed a second amended complaint, which Universal answered. (ECF No. 46.) Subsequently, pursuant to Universal's motion, Judge Snyder transferred Mollicone's case to this district (ECF No. 57). Upon the parties' stipulation (ECF No. 91), this Court consolidated Mollicone's case with Plaintiff Land's case, and required the Plaintiffs to file a third amended complaint (ECF No. 94). In response to the third amended complaint, the Defendants have filed the instant motions to dismiss.

         2. Legal Standards

         a. Standing and dismissal for lack of subject matter jurisdiction

         Because the question of Article III standing implicates subject matter jurisdiction, it must be addressed as a threshold matter prior to the merits of any underlying claims. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1250 (11th Cir. 2015). Article III of the Constitution grants federal courts judicial power to decide only actual “Cases” and “Controversies.” U.S. Const. Art. III § 2. The doctrine of standing is a “core component” of this fundamental limitation that “determin[es] the power of the court to entertain the suit.” Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264-65 (11th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) and Warth v. Seldin, 422 U.S. 490, 498 (1975)). “In the absence of standing, a court is not free to opine in an advisory capacity about the merits of a plaintiff's claims, and the court is powerless to continue.” Id. (citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006)). The “irreducible constitutional minimum” of standing under Article III consists of three elements: (1) the plaintiff must have suffered an actual or imminent injury, or a concrete “invasion of a legally protected interest”; (2) that injury must have been caused by the defendant's complained-of actions; and (3) the plaintiff's injury or threat of injury must likely be redressable by a favorable court decision. Lujan, 504 U.S. at 560-61; see also Hollywood Mobile Estates Ltd., 641 F.3d at 1265 (stating same).

         b. Dismissal for failure to state a claim

         When considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all of the complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-has-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679.

         Yet, where the allegations “possess enough heft” to suggest a plausible entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (citation omitted). “And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.'” Twombly, 550 U.S. at 556 (citation omitted).

         3. Universal's motion (ECF No. 97)

         Universal's motion once again challenges the Court's subject matter jurisdiction and the sufficiency of the allegations in the third amended complaint, which is based upon the same factual allegations as the first and second amended complaints. In its motion, Universal argues for dismissal on the basis that (1) in Florida, fraud and deceit claims cannot be maintained as a class action; (2) the claims for unpurchased products must be dismissed for lack of standing; (3) all the claims must be dismissed for failure to allege facts plausibly showing actual falsity; (4) the intentional fraud claim fails to allege facts plausibly showing the Defendants' knowledge; (5) Mollicone's negligent misrepresentation claim must be dismissed pursuant to the economic loss rule; (6) Land did not observe and rely upon any advertising prior ...

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