United States District Court, W.D. Washington, Seattle
ORDER OF DISMISSAL
L. ROBART, UNITED STATES DISTRICT JUDGE.
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,  the court grants the
Defendants' motion for the reasons discussed below.
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.
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).) 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. (Id. at 13-15.)
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.)
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. ¶
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.
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.
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.)
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.
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 ...