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Pattison v. Omnitrition International, Inc.

United States District Court, W.D. Washington, Seattle

June 14, 2018





         Before the court is Defendants Omnitrition International, Inc. (“Omnitrition”), Roger M. Daley and Barbara Daley (“the Daleys”) (collectively, “the Omnitrition Defendants”), and Jennifer Van Vynck's (collectively, “Defendants”) motion to dismiss Plaintiff Deanna Pattison's second amended complaint. (MTD (Dkt. # 56).) Ms. Pattison opposes the motion. (Resp. (Dkt. # 57).) The court has considered the motion, the parties' submissions in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court grants the Defendants' motion for the reasons discussed below.


         Ms. Pattison's first amended complaint, filed on July 25, 2017, alleges that Defendants engaged in an “illegal and deceptive practice of manufacturing, promoting, marketing, selling, and distributing” over-the-counter weight-loss products, called Omni Drops, which contain a hormone known as human chorionic gonadotropin (“hCG”). (FAC (Dkt. # 1-2) ¶ 1.1.) Relying on Defendants' representations that hCG-containing Omni Drops would trigger “rapid and safe weight loss of up to two pounds per day” (id. ¶ 4.25), Ms. Pattison was allegedly “misled into purchasing and paying for a product that is not as represented” (id. ¶ 4.32). Ms. Pattison originally brought five claims against Defendants: (1) violation of Washington's Consumer Protection Act (“CPA”), RCW 19.86 et seq., by engaging in unfair and deceptive acts or practices (id. ¶¶ 6.1-6.5); (2) fraud in its sale 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 the Omnitrition Defendants (id. ¶¶ 6.23-6.28).

         Defendants moved to dismiss all claims within Ms. Pattison's first amended complaint as time-barred and failing to state a claim. (See Omnitrition MTD (Dkt. # 10); Van Vynck MTD (Dkt. # 33).)[2] The court granted the motions, concluding that the running of the statute of limitations was apparent on the face of Ms. Pattison's complaint. (1st MTD Order at 7.) Specifically, the court noted that the only dates Ms. Pattison included in her complaint involved “events that occurred no later than 2011, ” more than the three or four year limitations periods for her claims. (Id. at 9-10, 14-15.) The court further concluded that Ms. Pattison failed to plead the necessary allegations to toll the limitations period using the continuing violation doctrine, the equitable tolling doctrine, or the discovery rule. (See Id. at 10-13.) The court could not reasonably infer that her claims were timely and dismissed them accordingly.[3] (Id. at 13-15.)

         However, the court granted Ms. Pattison leave to amend her claims because it was “not clear that [she] could not provide additional allegations that may render her claims timely.” (Id. at 16.) The court cautioned Ms. Pattison that her second amended complaint “must clearly indicate by name which individuals or entities took which actions” and that the failure to remedy the deficiencies identified by the court's first order of dismissal would “be treated as evidence of the futility of further amendment” and could “result in dismissal with prejudice.” (Id. at 17.)

         Ms. Pattison filed her second amended complaint on April 11, 2018. (See SAC.) In her second amended complaint, she reiterates 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.) Ms. Pattison alleges that in 2011, the FDA announced there was no evidence that hCG products are effective for weight loss. (Id. ¶¶ 4.9-4.13.) The FDA, along with the Federal Trade Commission (“FTC”), allegedly issued several warning letters to companies marketing hCG products for weight loss. (Id. ¶ 4.10.) The FDA and FTC also allegedly announced to consumers through various news releases that over-the-counter products claiming to contain hCG are unlawful. (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. ¶ 4.29.)

         Ms. Pattison also made several changes in her second amended complaint. She clarifies in multiple paragraphs that “Defendants” referred to the Omnitrition Defendants and added some specific dates. (See, e.g., id. ¶¶ 4.19-4.20, 4.32.) She additionally adds a section describing Omnitrition's “multilevel marketing system of distributors, ” which Ms. Pattison alleges “lent weight to the . . . misrepresentations and false statements about the safe and effective use of [its] products.” (Id. ¶¶ 4.34-4.40.)

         Lastly, and most significantly, Ms. Pattison details her Omni Drops purchases. On October 16, 2012, Ms. Pattison first contacted Ms. Van Vynck and expressed interest in Omni Drops. (Id. ¶ 4.42.) Around October or November 2012, Ms. Van Vynck told Ms. Pattison that Omni Drops contained “the REAL HCG” and that it was “super addicting how fast the weight comes off.” (Id. ¶ 4.43.) Based on these representations, Ms. Pattison first purchased Omni Drops in November 2012 and continued purchasing the product on May 20, 2015; February 19, 2016; May 23, 2016; and in December 2016. (Id. ¶¶ 4.44-4.45.)

         Ms. Pattison asserts that “[e]ach time [she] purchased Omni Drops, [the Omnitrition Defendants] made baseless misrepresentations” through the product's label regarding the hCG content, the effects hCG had on weight loss, and Omni Drops as an approved homeopathic product. (Id. ¶¶ 4.47-4.48.) Additionally, she states that “throughout the time” of her purchases, the Omnitrition Defendants purportedly advertised that Omni Drops were “manufactured and ‘Created In An FDA Stamped Facility.'” (Id. ¶¶ 4.19, 4.49.) Moreover, the Omnitrition Defendants allegedly stated in their training materials that Omni Drops are “[m]ade in an FDA approved facility in the United States”; that “each ingredient that goes into the product is approved for use by the FDA”; and that their agents should inform consumers that “women can expect weight loss of ‘1/2 to 1 pound per day' and that men can expect weight loss of ‘1 to 2 pounds per day.'” (Id. ¶ 4.49.) The complaint implies that these statements were originally made in 2011. (See Id. ¶¶ 4.15-4.28.)

         After Ms. Pattison filed her second amended complaint, Defendants filed a second motion seeking to dismiss all claims. (See MTD.) Much like the first motion to dismiss, Defendants argue that all claims are time-barred or, in the alternative, that the complaint fails to state a claim. (See id.) The court now addresses the motion.

         III. ANALYSIS

         Ms. Pattison makes separate and distinct factual allegations regarding the Omnitrition Defendants and Ms. Van Vynck. (See generally SAC.) After reviewing the applicable legal standard, the court addresses Ms. Pattison's claims against the ...

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