United States District Court, D. South Carolina, Aiken Division
John Sandviks, individually and on behalf of all others similarly situated, Plaintiff,
PhD Fitness, LLC, a California Limited Liability Company, Defendant.
ORDER AND OPINION
matter is before the court pursuant to Defendant PhD Fitness,
LLC's Motion to Dismiss Plaintiff John Sandviks'
Amended Class Action Complaint (“Amended
Complaint”) for failure to state a claim (ECF No. 22).
Plaintiff filed a response in opposition to Defendant's
Motion (ECF No. 28). For the reasons set forth below, the
court GRANTS IN PART and DENIES IN
PART Defendant's Motion to Dismiss (ECF No. 22).
court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1332 because (1) the aggregate amount in controversy
exceeds $5, 000, 000.00, exclusive of interests and costs;
(2) Defendant is a citizen of California and Plaintiff is a
citizen of South Carolina (complete diversity exists); and
(3) there are 100 or more members of the proposed Plaintiff
class. See 28 U.S.C. § 1332; (ECF No. 17 at
¶ 9). When a federal court sits in diversity
jurisdiction, it applies federal procedural law and state
substantive law. See Gasperini v. Ctr. For Humanities,
Inc., 518 U.S. 415, 427 (1996).
RELEVANT FACTUAL AND PROCEDURAL BACKRGOUND
is a sport supplement company. (ECF No. 17 at ¶ 8.)
Defendant formulates, manufactures, advertises and sells
workout supplements (collectively, the
“Products”). (Id.) Plaintiff brought his
claims individually and on behalf of unnamed class members
(collectively, the “Class”) in the State of South
Carolina pursuant to Federal Rule of Civil Procedure 23.
(Id. at ¶ 71.) During the relevant period,
members of the Class purchased the Products in South Carolina
through numerous brick and mortar retail locations and online
websites. (Id. at ¶ 6.) Plaintiff purchased
several of Defendant's Products, including Pre-JYM and
Post-JYM. (Id. at ¶ 7.) Plaintiff purchased
Defendant's Pre-JYM and Post-JYM Products at
Bodybuilding.com numerous times over the past two years.
March 17, 2017, Plaintiff filed his initial Complaint (ECF
No. 1) and on July 14, 2017, filed his Amended Complaint for
Breach of Express Warranties (Count I), Breach of Implied
Warranties (Count II), Negligent Misrepresentation (Count
III), Intentional Misrepresentation (Count IV), Fraudulent
Inducement (Count V), and Unjust Enrichment (in the
Alternative to Counts I and II) (ECF No. 17). Plaintiff
espouses that he read and relied on the Products' labels
before he bought the Products and believed on the basis of
the labels' representations that the Products contained
the proper doses of the ingredients listed on the labels.
(Id. at ¶ 7.) Specifically, Plaintiff read and
relied on the Pre-JYM label, which states, “Every
ingredient in this formula is in a dose use[d] in clinical
studies and my own gym to produce significant gains in size,
strength and endurance.” (Id. at ¶ 63.)
as demonstrated by the studies Plaintiff cites in the Amended
Complaint, Plaintiff posits that the majority of these
ingredients are not properly dosed, have no scientific
backing and/or have simply been found to be completely
ineffective, making Defendant's claims on the Pre-JYM
label “demonstrably false.” (ECF No. 28 at 9.) In
addition, Plaintiff claims he read and relied on the Post-JYM
product, which states, “Those ingredients, in full
research backed doses, are in this bottle.”
(Id. at ¶ 64.) However, as demonstrated by the
studies Plaintiff cites in the Amended Complaint, Plaintiff
asserts that the majority of these ingredients are not
properly dosed, have no scientific backing and/or have simply
been found to be completely ineffective, making
Defendant's claims on the Post-JYM label
“demonstrably false.” (ECF No. 28 at 10.)
Plaintiff and the Class assert that they would not have
purchased the Products had they known that the Products did
not contain proper doses of the ingredients listed on the
Products' labels and in Defendant's advertisements.
August 11, 2017, Defendant filed a Motion to Dismiss stating
that Plaintiff fails to state a claim for relief. (ECF No.
22.) On September 15, 2017, Plaintiff filed a response in
opposition (ECF No. 28), and Defendant filed a reply (ECF No.
31). Subsequently, Plaintiff filed a Supplemental
Response (ECF No. 36), and Defendant filed a
Supplemental Sur Reply (ECF No. 39).
12(b)(6) motion for failure to state a claim upon which
relief can be granted “challenges the legal sufficiency
of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see
also Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (“A motion to dismiss under Rule
12(b)(6) . . . does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.”). To be legally sufficient, a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
12(b)(6) motion “should not be granted unless it
appears certain that the plaintiff can prove no set of facts
which would support its claim and would entitle it to
relief.” Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6)
motion, the court should accept as true all well-pleaded
allegations and should view the complaint in a light most
favorable to the plaintiff. Ostrzenski v. Seigel,
177 F.3d 245, 251 (4th Cir. 1999). “To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Id. (citing
Twombly, 550 U.S. at 556).
Breach of Express Warranties (Count I) and Breach of Implied
Warranties (Count II)
asserts that Counts I and II must be dismissed because
Plaintiff did not give the requisite notice to Defendant
prior to filing the express warranty claim or the implied
warranty claim. (ECF No. 22 at 11.) South Carolina law
requires that, after the acceptance of goods, “the
buyer must within a reasonable time after he discovers or
should have discovered any breach notify the seller of breach
or be barred from any remedy.” S.C. Code Ann.
§36-2-607(3)(a)(2013); Hitachi Elec. Devises (USA),
Inc. v. Platinum Techs, Inc., 366 S.C. 163, 169 (2005)
(dismissing a buyer's claims when he failed to give
reasonable notice). Plaintiff's claims are barred if he
fails to properly allege that he gave such notice of his
warranty claims prior to filing a lawsuit. See In re
Bausch & Lomb Inc. Contacts Lens Solution Prod. Liab.
Litig., 2008 WL 2308759, at *6 (D.S.C. Apr. 9, 2008)
(“There is no allegation in the amended complaint that
[plaintiffs] gave notice of the alleged breach, either within
a reasonable time or otherwise. Accordingly, [plaintiffs'