Full title: IN RE METFORMIN MARKETING AND SALES PRACTICE LITIGATION
Court: United States District Court, D. New Jersey
Date published: Mar 30, 2022
Facts
On March 3, 2020, Plaintiffs filed their initial Complaint, ECF No. 1, which they subsequently amended on July 6, 2020, ECF No. 58. On May 20, 2021, the Court dismissed the Amended Complaint for lack of standing, and Plaintiffs filed the operative FAC on June 21, 2021. The FAC asserts eleven causes of action against Defendants: (1) breach of express warranty (Counts One and Two); (2) breach of implied warranty of merchantability (Counts Three and Four); (3) breach of warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. (the “MMWA”) (Counts Five and Six); (4) fraud (Counts Seven and Eight); (5) negligent misrepresentation and omission (Counts Nine and Ten); (6) violation of state consumer protection laws (Counts Eleven and Twelve); (7) unjust enrichment (Counts Thirteen and Fourteen); (8) negligence (Counts Fifteen and Sixteen); (9) negligence per se (Counts Seventeen and Eighteen); (10) violation of California’s Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq. (Counts Nineteen and Twenty); and (11) violation of New York General Business Law 2 § 349. FAC ¶¶ 342-570 (Counts Twenty One and Twenty Two). The instant Motions to dismiss the FAC pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6) followed.
Issue
Whether the motion presents a “facial” or “factual” attack.
Decision
For the reasons stated above, Defendants’ Motions to Dismiss, ECF Nos. 132, 133, are each GRANTED IN PART and DENIED IN PART. All claims asserted by the Consumer Plaintiffs-Counts One, Three, Five, Seven, Nine, Eleven, Thirteen, Fifteen, Seventeen, Nineteen, and Twenty-One-are DISMISSED WITHOUT PREJUDICE for lack of standing. Of the remaining claims asserted by MSPRC, Counts Four under New York law, Six, Eight, Ten, Twelve under California and Indiana law, Fourteen under New York and California law, Sixteen under New York, Indiana, California, and New Jersey law, Eighteen under New York, Indiana, California, and New Jersey law, and Twenty are DISMISSED WITHOUT PREJUDICE for failure to state a claim. The FAC is DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction over the Foreign Defendants. To the extent Plaintiffs can cure the deficiencies identified in this Opinion, they may file an amended pleading within thirty (30) days. An appropriate order follows.