United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS TO DISMISS AND MOTION FOR RELIEF
L.ROBART UNITED STATES DISTRICT JUDGE
the court are: (1) Defendants Omnitrition International, Inc.
("Omnitrition"), Roger M. Daley, and Barbara
Daley's ("the Daleys") (collectively, "the
Omnitrition Defendants") motion to dismiss Plaintiff
Deanna Pattison's complaint (Omnitrition MTD (Dkt. #10));
(2) Ms. Pattison's motion for relief from a deadline
relating to the Omnitrition Defendants' motion to dismiss
(Mot. for Relief (Dkt. #15)); and (3) Defendant Jennifer Van
Vynck's motion to dismiss Ms. Pattison's complaint
(Van Vynck MTD (Dkt. # 33)). The court has considered the
motions, the parties' submissions in support of and in
opposition to the motions, the relevant portions of the
record, and the applicable law. Being fully advised,
court GRANTS the Omnitrition Defendants' motion to
dismiss with leave to amend, GRANTS Ms. Van Vynck's
motion to dismiss with leave to amend, and DENIES Ms.
Pattison's motion for relief.
Pattison brought this putative class action on July 25, 2017,
against the Omnitrition Defendants, Ms. Van Vynck, and Does
1-100 unnamed Omnitrition Independent Marketing Associates
("IMA") (collectively, "Defendants").
(See FAC (Dkt. # 1-2).) She challenges
Defendants' "illegal and deceptive practice of
manufacturing, promoting, marketing, selling, and
distributing" over-the-counter weight-loss products,
called Omni Drops, which contains human chorionic
gonadotropin ("hCG"), a hormone that has been
prescribed to assist weight loss. (Id. ¶ 1.1.)
Allegedly relying on Defendants' representations and
advertisements that users will experience "significant
and rapid weight loss, " Ms. Pattison purchased Omni
Drops and was "misled into purchasing and paying for a
product that is not as represented." (Id.
Pattison lays out a brief history regarding the
ineffectiveness of hCG as a treatment for obesity, asserting
that as far back as 1962, scientific studies suggested that
hCG intake may potentially be "more hazardous to the
patient's health than continued //'
obesity." (Id. ¶ 4.2; see also
Id. ¶¶ 4.1-4.14.) In 2011, Ms. Pattison
alleges that the FDA announced there was no evidence that hCG
products are effective for weight loss. (Id.
¶¶ 4.9-4.13.) The FDA allegedly issued several
warning letters to companies marketing hCG products for
weight loss, although Omnitrition was not one of the
companies receiving a warning letter. (Id.
¶¶ 4.10, 4.30.) The FDA also allegedly announced to
consumers that over-the-counter products claiming to contain
hCG are illegal. (Id. ¶¶ 4.9-4.13;
id., Exs. A-C.) Ms. Pattison purports that by the
end of 2011, the FDA and FTC advised consumers to "steer
clear of over-the-counter and homeopathic hCG products as
unproven and illegal." (Id. ¶ 4.28.)
Pattison alleges that Defendants introduced their hCG product
Omni Drops to the market in January 2011. (Id.
¶ 4.15.) The complaint describes purported
misrepresentations in three areas: (1) on the product label,
(2) in training materials for Omitrition IMAs, who sell
Omnitrition products, and (3) in Omnitrition marketing
materials. First, the "original label" on Omni
Drops bottles allegedly stated that "Omnitrition
Official Homeopathic Weight Loss Drops" were "[a]
fast and effective way to lose unwanted pounds and
inches!" (Id. ¶ 4.16.) This label also
allegedly contained a disclaimer that "this product is
not intended to diagnose, treat, cure, or prevent any
disease." (Id. ¶ 4.17.) Second,
Defendants' training materials allegedly instructed
agents to tell customers about the expected weight loss and
to share testimonials of individuals experiencing weight
loss. (Id. ¶¶ 4.24, 4.26.) Third, the
complaint asserts that Defendants' advertisements portray
Omni Drops as "safe and effective products that will
result in rapid and safe weight loss of up to two pounds per
day." (Id. ¶ 4.25.) By August 2011, the
complaint alleges that Defendants reported a sales growth of
294%, largely attributable to the sales of Omni Drops.
(Id. ¶ 4.27.)
response to the FDA and FTC advisements, Ms. Pattison asserts
that Defendants altered their marketing at the end of 2011.
(Id. ¶ 4.28.) Defendants allegedly
"revamped their Omni Drops label" by removing the
"Weight Loss Drops" designation and the hCG
lettering. (Id. ¶ 4.29.) They also purportedly
"required [their] agents to remove any photos or images
of the Omni Drops product from marketing materials, websites,
and social media platforms." (Id. ¶ 4.30.)
As a result of these alleged misrepresentations and
omissions, Ms. Pattison claims that she and other putative
class members were misled into "paying for a product
that is not as represented." (Id. ¶ 4.32.)
on these allegations, Ms. Pattison brings five claims against
Defendants: (1) violation of Washington's Consumer
Protection Act ("CPA"), RCW ch. 19.86, by engaging
in unfair and deceptive acts or practices (id.
¶¶ 6.1-6.5); (2) fraud in its marketing of Omni
Drops (id. ¶¶ 6.7-6.15); (3)
misrepresentation regarding Omni Drops (id.
¶¶ 6.16-6.19); (4) unjust enrichment through
Defendants' wrongful conduct (id.
¶¶6.20-6.22); and (5) piercing the corporate veil
as to Omnitrition and the Daleys (id. ¶¶
6.23-6.28). In their two motions to dismiss, brought by the
Omnitrition Defendants and Ms. Van Vynck respectively,
Defendants seek to dismiss all claims. (See
Omnitrition MTD; Van Vynck MTD.) After the Omnitrition
Defendants' motion to dismiss was filed, Ms. Pattison
submitted a motion for relief from the filing deadline
associated with that motion, in which she argues that a
dispositive motion should not be considered prior to class
certification. (See Mot. for Relief at 4-5.) The
court now addresses these motions.
outset, the court addresses the issue raised by Ms. Pattison
in her motion for relief: whether the court should consider
Defendants' motions to dismiss before determining the
class certification issue. The court then turns to the merits
of Defendants' motions to dismiss.
Ms. Pattison's Motion for Relief
noted above, the sole issue remaining in Ms. Pattison's
motion for relief is whether the court may consider
Defendants' dispositive motions at this time.
(See Mot. for Relief at 4-5.) Ms. Pattison argues
that "it makes little sense to consider a dispositive
motion prior to class certification" and that the
"normal practice in the Western District is that class
certification motions are resolved followed by any
dispositive motions." (See id.) The court
fact, the opposite is true: District courts in the Ninth
Circuit commonly resolve dispositive motions before turning
to class certification. See, e.g., Boyle v. Madigan,
492 F.2d 1180, 1182 (9th Cir. 1974). In Boyle, the
district court "proceeded directly to dismissal of the
action" before making any determinations under Federal
Rule of Civil Procedure 23(c)(1). Id. The Ninth
Circuit held that "this is the proper course to follow
where the named plaintiffs have failed to state a claim in
themselves for the relief they seek." Id. That
is, "[u]ntil [plaintiffs] can show themselves aggrieved
in the sense that they are entitled to the relief sought,
there is no occasion for the court to wrestle with the
problems presented in considering whether the action may be
maintained on behalf of the class." Id. Since
Boyle, the Ninth Circuit has reiterated several
times that "the district court need not inquire as to
whether [a] meritless claim should form the basis of a class
action." Corbin v. Time
WarnerEntm't-Advance/NewhouseP'ship, 821 F.3d
1069, 1085 (9th Cir. 2016) (listing cases).
the court rejects Ms. Pattison's contention that the
court should not consider Defendants' motions to dismiss
simply because the court has not yet decided the class
certification question. Accordingly, the court now turns to
Defendants' two motions to dismiss.