United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY United States District Judge.
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. 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. 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.
the Court is Defendant Radiancy’s  Renewed Motion
to Dismiss for Failure to State a Claim and Defendant
Rafaeli’s  Renewed Motion to Dismiss for Failure to
State a Claim. Upon consideration of the pleadings,
relevant legal authorities, and the record as a whole, the
Court DENIES Defendant Radiancy’s  Renewed Motion
to Dismiss and GRANTS Defendant Rafaeli’s  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.
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.
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
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.
Complaint States a Claim against Radiancy
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.
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.
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.
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.
¶¶ 176, 177, 179, 180-81, 183-84, 186, 189, 191,
193, 195, 197-98, 200. With ...