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Mouzon v. Radiancy, Inc.

United States District Court, D. Columbia.

March 30, 2015

JAN MOUZON, et al., Plaintiffs
v.
RADIANCY, INC., et al., Defendants

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For JAN MOUZON, Plaintiff: Aaron M. Levine, LEAD ATTORNEY, Brandon J. Levine, AARON M. LEVINE & ASSOCIATES, Washington, DC; James Joseph Pizzirusso, HAUSFELD LLP, Washington, DC; Patrick A. Malone, PATRICK MALONE & ASSOCIATES, Washington, DC.

For SARAH COE, JAN STEICH, PATRICIA BENNETT, ROSALIE TECKTIEL, ALLICE LARGEN, LORIE HURST, RACHEL DONDERO, MICHELE URAM, KRIS STEINBAUER, AL OLIVERIA, NANCY MOORE, Plaintiffs: Aaron M. Levine, LEAD ATTORNEY, Brandon J. Levine, AARON M. LEVINE & ASSOCIATES, Washington, DC; Patrick A. Malone, LEAD ATTORNEY, PATRICK MALONE & ASSOCIATES, Washington, DC; James Joseph Pizzirusso, HAUSFELD LLP, Washington, DC.

For JUANITA HUMBERTSON, Plaintiff: Aaron M. Levine, LEAD ATTORNEY, Brandon J. Levine, AARON M. LEVINE & ASSOCIATES, Washington, DC; James Joseph Pizzirusso, HAUSFELD LLP, Washington, DC.

For RADIANCY, INC., DOLEV RAFAELI, Defendants: Mark J. Biros, Scott Michael Abeles, LEAD ATTORNEYS, PROSKAUER ROSE LLP, Washington, DC; Kevin J. Perra, Victoria L. Loughery, PRO HAC VICE, PROSKAUER ROSE, LLP, New York, NY; Michael H. Weiss, PRO HAC VICE, PROSKAUER ROSE LLP, Los Angeles, CA.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge.

This action arises from the advertising and sale of a product called the no!no! Hair removal device (the " product" ) by Defendant Radiancy, Inc. (" Radiancy" ). Thirteen plaintiffs from Washington, D.C., California, Florida, Illinois, Maryland, Virginia, Pennsylvania, Colorado, West Virginia, and Tennessee bring this putative class action against Radiancy, Inc., and its CEO Dolev Rafaeli. Together Plaintiffs bring the claims in this action on their own behalf and on behalf of a putative nationwide class, or alternatively, on behalf of ten subclasses, each limited to the residents of a single state. First, all Plaintiffs bring a claim pursuant to New York General Business Law § § 349-350, on their own behalf and on behalf of the putative nationwide class, alleging that Defendants engaged in " a scheme to deceive customers and the public" (Count 1). Second, Plaintiffs bring claims pursuant to state consumer protection laws on their behalf and on behalf of the respective putative state

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subclasses (Count 2 through 12).[1] Third, and finally, Plaintiffs bring warranty-based claims on their own behalf and on behalf of the putative nationwide class and the putative state subclasses. Specifically, Plaintiffs bring a claim for breach of express warranty (Count 13); a claim for breach of implied warranty of merchantability and fitness for a particular purpose (Count 14); and a claim for violation of the federal Magnuson-Moss Warranty Act (Count 15). Defendant Radiancy moves to dismiss for failure to state a claim. Defendant Rafaeli moves to dismiss for lack of personal jurisdiction over him and for failure to state a claim. Rafaeli joins Radiancy's arguments regarding the failure to state a claim and presents separate arguments as to why the Complaint fails to state a claim against him.

Before the Court is Defendant Radiancy's [14] Motion to Dismiss and Defendant Rafaeli's [13] Motion to Dismiss Putative Class Action Complaint. Upon consideration of the pleadings,[2] the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant Radiancy's [14] Motion to Dismiss and GRANTS Defendant Rafaeli's [13] Motion to Dismiss Putative Class Action Complaint. All claims against Rafaeli are DISMISSED for want of personal jurisdiction, and Plaintiffs' request for jurisdictional discovery with respect to Rafaeli is DENIED. All claims

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against Radiancy are DISMISSED because they fail to state a claim. Specially, the claim pursuant to New York General Business Law § § 349-50 (Count 1) and the implied warranty of fitness for a particular purpose claim (Count 14, part 2) are dismissed WITH PREJUDICE. The state-specific consumer protection claims (Counts 2 through 12), the express warranty claim (Count 13), the implied warranty of merchantability claim (Count 14, part 1), and the Magnuson-Moss Warranty Act claim (Count 15) are dismissed WITHOUT PREJUDICE. Finally, Plaintiffs' cursory request to amend the complaint is DENIED. This action is dismissed in its entirety.

I. BACKGROUND

For the purposes of the motion before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff's Complaint. The Court does " not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315, 411 U.S.App.D.C. 105 (D.C. Cir. 2014). The Court recites the principal facts pertaining to the issues raised in the pending motions, reserving further presentation of the facts for the discussion of the individual issues below.

The no!no! Hair removal device is manufactured and distributed by Defendant Radiancy. Compl. ¶ 1. Radiancy has marketed the device as capable of permanent or " long term" hair removal by suppressing hair growth. Id. ¶ 2. However, Plaintiffs allege that this claim is false and that the device cannot destroy hair follicles or suppress the ability of hair to regrow. Id. ¶ 4. Plaintiffs further allege that Radiancy engaged in a deceptive marketing campaign, using television and Internet advertisements that misrepresent the characteristics of the devices. Id. ¶ 6. With respect to Rafaeli, Plaintiffs allege that he " personally supervised, controlled, directed, and profited from" the marketing campaign. Id. ¶ 7.

Plaintiffs are thirteen individuals from nine different states and the District of Columbia who purchased the device between June 2010 and December 2013. See id. ¶ ¶ 13-25. Plaintiffs are one resident of the District of Columbia, one resident of California, two residents of Florida, one resident of Illinois, two residents of Maryland, two residents of Virginia, one resident of Pennsylvania, one resident of Colorado, one resident of West Virginia, and one resident of Tennessee. See id. The Plaintiffs allege the following regarding each individual plaintiff:

Defendants' infomercial that Plaintiff viewed prior to purchase prominently displayed the promise of long term or permanent hair removal by suppressing or slowing the regrowth of hair, among other misrepresentations. Plaintiff reasonably relied on Defendants' representations in purchasing the no!no! product. Had Plaintiff known that the Product was unable to prevent hair regrowth and could not live up to its other representations, Plaintiff would not have bought the Product. As a result of Radiancy's and Rafaeli's conduct as alleged herein, Plaintiff has been injured.

Id. ¶ ¶ 13-25. With respect to each individual, Plaintiffs allege the name, the state of residence, and the date or approximate date of the purchase of the product; those details are reproduced in full in the margin.[3] The Court notes that the Complaint

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does not include any other allegations regarding the individual plaintiffs, their experiences with the no!no! Hair removal device, or their exposure to Radiancy's representations of the device. See id. ¶ ¶ 1-12, 26-314. The Court reserves further presentation of facts pertinent to Plaintiffs' specific claims and Defendants' defenses for the discussion below.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it " fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). " [A] complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, " state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. " 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. In deciding a Rule 12(b)(6) motion, a court may consider " the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," or " documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss." Ward v. District of Columbia Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (citations omitted).

When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456, 282 U.S.App.D.C. 295 (D.C. Cir. 1990). At this stage, Plaintiffs " can satisfy that burden with a prima facie showing.'" Mwani v. bin Laden, 417 F.3d 1, 7, 368 U.S.App.D.C. 1 (D.C. Cir. 2005) (quoting Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424, 292 U.S.App.D.C. 240 (D.C. Cir. 1991)). To do so, the plaintiff cannot rest on bare allegations or conclusory statements but " must allege specific acts connecting [the] defendant with the forum." Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524, 348 U.S.App.D.C. 238 (D.C. Cir. 2001) (internal quotation marks omitted). " To make such a showing, the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for

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summary judgment and trial[; ]" but rather, the plaintiffs may " rest [their] arguments on the pleadings, 'bolstered by such affidavits and other written materials as [they] can otherwise obtain.'" Urban Inst. v. FINCON Servs., 681 F.Supp.2d 41, 44 (D.D.C. 2010) (quoting Mwani, 417 F.3d at 7).

In order to obtain jurisdictional discovery a " plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant." Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090, 331 U.S.App.D.C. 226 (D.C. Cir. 1998); see also Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1, 11 (D.D.C. 2009) (holding that [j]urisdictional discovery ... is justified only if the plaintiff reasonably 'demonstrates that it can supplement its jurisdictional allegations through discovery.'" ) (quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 89 (D.D.C. 2006)). " Mere conjecture or speculation" is not enough to justify jurisdictional discovery. FC Investment Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094, 381 U.S.App.D.C. 383 (D.C. Cir. 2008).

III. DISCUSSION

Defendant Radiancy moves to dismiss, arguing that the Complaint fails to state a claim. Defendant Rafaeli moves to dismiss, as well, arguing that this Court does not have personal jurisdiction over him. He also joins Radiancy's arguments with respect to the failure to state a claim and presents additional arguments about why the Complaint fails to state a claim against him. The Court first considers whether it has jurisdiction over Rafaeli. Because the Court concludes it does not have personal jurisdiction over Rafaeli in this action, it does not consider his arguments that the Complaint fails to state a claim against him. The Court also concludes that jurisdictional discovery with respect to Rafaeli is not warranted. The Court next considers Radiancy's arguments ...


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