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Mouzon v. Radiancy, Inc.

United States District Court, District of Columbia

August 2, 2016

JAN MOUZON, et al., Plaintiffs
v.
RADIANCY, INC., Defendant YESENIA OLIVO, et al., Plaintiffs
v.
RADIANCY, INC., et al., Defendants

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY United States District Judge.

         This consolidated action represents the second coming of a putative class action regarding the no!no! Hair removal device to this Court. The Court previously dismissed all of the claims asserted in the original action, captioned Mouzon v. Radiancy and numbered 14-cv-722. Mouzon v. Radiancy, Inc., 85 F.Supp.3d 361, 367-68 (D.D.C. 2015) (“Mouzon I”). Specifically, the Court dismissed certain claims with prejudice and others without prejudice. Id. The Court then denied the request of the Mouzon I plaintiffs to amend that complaint to remedy the defects that the Court had identified regarding the claims dismissed without prejudice. See Id. at 387; Mouzon v. Radiancy, Inc., 309 F.R.D. 60, 66 (D.D.C. 2015) (“Mouzon II”). Now, twelve out of the thirteen original Mouzon I plaintiffs, together with additional plaintiffs, bring this putative class action against Radiancy, Inc, and its CEO Dolev Rafaeli.[1] In the Consolidated Amended Complaint (“Compl.”), Plaintiffs assert all of the claims that were dismissed without prejudice in Mouzon I-both express and implied warranty claims and a series of state-specific consumer protection act claims. For the first time, Plaintiffs also assert a consumer protection claim under the New York General Business Law that is limited to New York State plaintiffs.[2] Once again, Defendants move to dismiss. Radiancy primarily argues that the Consolidated Amended Complaint fails to state a claim because it does not remedy the defects the Court identified in Mouzon I. Radiancy also presents a series of arguments why specific claims asserted in the Consolidated Amended Complaint fails to state a claim. Rafaeli joins all of Radiancy’s arguments and also presents separate arguments as to why the Consolidated Amended Complaint fails to state a claim against him in particular.

         Before the Court is Defendant Radiancy’s [20] Renewed Motion to Dismiss for Failure to State a Claim and Defendant Rafaeli’s [13] Renewed Motion to Dismiss for Failure to State a Claim. Upon consideration of the pleadings, [3] the relevant legal authorities, and the record as a whole, the Court DENIES Defendant Radiancy’s [20] Renewed Motion to Dismiss and GRANTS Defendant Rafaeli’s [21] Renewed Motion to Dismiss. In contrast to the original Complaint filed in Mouzon I, the Court concludes that Plaintiffs’ have adequately pleaded all of their claims against Radiancy. But the Court also concludes that the Consolidated Amended Complaint fails to state a claim against Rafaeli. Accordingly, all claims against Rafaeli are DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         The Court presented the background of this case at length in its Memorandum Opinion accompanying the Order dismissing Mouzon I. See generally 85 F.Supp.3d at 361-87. Given the issues presented in the pending motions, there is no need to do so again here. Instead, the Court reserves a presentation of the relevant background for the issues discussed 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (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).

         III. DISCUSSION

         Defendant Radiancy moves to dismiss under Rule 12(b)(6), arguing that the Consolidated Amended Complaint fails to state a claim. Defendant Rafaeli moves to dismiss, as well, under Rule 12(b)(6) for failure to state a claim. He joins all of Radiancy’s arguments and presents additional arguments as to why the Consolidated Amended Complaint fails to state a claim against him. The Court turns first to Radiancy’s arguments, followed by Rafaeli’s arguments.

         A. Complaint States a Claim against Radiancy

         Defendant Radiancy moves to dismiss the Consolidated Amended Complaint on the basis that it fails to state a claim. The Court first addresses Radiancy’s arguments regarding the implied and express warranty claims, followed its arguments regarding the state-specific consumer protection act claims.

         1. Warranty Claims

         Plaintiffs asserts claims for breach of express warranty; for breach of implied warranty of merchantability; and for violations of the Magnuson-Moss Warranty Act, which provides a federal cause of action for certain state warranty claims. As in Mouzon I, the parties disagree about what source of law governs these claims, with Plaintiffs asserting that New York law governs each of the warranty claims and Defendants asserting that the warranty claims are governed, respectively, by the state law of each plaintiff’s state of residence. See 85 F.Supp.3d at 383. The Court need not decide the choice-of-law question at the present time because the Court concludes that the warranty claims survive Radiancy’s motion to dismiss regardless of the source of law.[4]

         With respect to the breach of express warranty claims, the Court dismissed those claims without prejudice in Mouzon I based on the following analysis:

Plaintiffs identify a series of allegations in the complaint that contain representations about the product, which they allege are false. However, none of those allegations even so much as suggest that Plaintiffs were exposed to those particular representations or to the advertising containing those representations. Because Plaintiffs never allege that they actually were exposed to the specific representations that they identify as the basis for this claim, these representations cannot serve as a basis for the bargain in which Plaintiffs entered when they purchased the product. Furthermore, Plaintiffs argue that they have adequately alleged reliance, relying on the allegation that the individual plaintiffs “would not have bought the product” if they knew that the product “was unable to prevent hair regrowth and could not live up to its other representations.” However, because Plaintiffs did not allege the circumstances under which they were exposed to the specific representations they identified-or indeed whether they were exposed to them at all-those representations cannot be the basis for a claim of a breach of express warranty.

Mouzon I, 85 F.Supp.3d at 384 (citations omitted). The parties disagree about whether the addition to the Consolidated Amended Complaint, in comparison to the Mouzon I complaint, are sufficient to cure the deficiencies that the Court identified in Mouzon I. The Court agrees with Plaintiffs that the additional details regarding each individual plaintiff’s exposure to advertising regarding the no!no! device are sufficient to remedy the previously identified defects. See Compl. ¶¶ 175-206. Specifically, the Court concludes that, with the new details provided in the Consolidated Amended Complaint, Plaintiffs sufficiently allege exposure to the supposedly misleading representations regarding the product and sufficiently allege reliance on those representations. As a result, the Consolidated Amended Complaint states breach of express warranty claims against Radiancy.

         With respect to the breach of implied warranty of merchantability claims, the Court previously dismissed the claims against Radiancy without prejudice based on the following analysis:

Plaintiffs have not adequately alleged that they have used the device and that it was not fit for the ordinary purpose for which it was intended. Even if Plaintiffs are right that the “ordinary purpose” of the product is the sort of long term hair removal that they allege was advertised, they have provided insufficient allegations to support that claim. Each individual plaintiff alleges purchasing the product but never alleges using it; as a result, they also do not allege that they were injured by its unfitness through their personal use.

Mouzon I, 85 F.Supp.3d at 385. Once again, the parties disagree about whether the language that was added to the Consolidated Amended Complaint and that was not present in the Mouzon I complaint is sufficient to remedy the defects the Court previously identified. And, once again, the Court agrees with Plaintiffs that the additions are sufficient to remedy those defects. Specifically, the Consolidated Amended Complaint includes allegations regarding each plaintiff’s use of the product and the results of attempting to use the product. See Compl. ΒΆΒΆ 176, 177, 179, 180-81, 183-84, 186, 189, 191, 193, 195, 197-98, 200. With ...


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