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Marlowe v. Nature's Bounty Co.

United States District Court, N.D. Ohio, Eastern Division

May 25, 2017

Tim Marlowe, on his own behalf and for all others similarly situated, Plaintiff,
The Nature's Bounty Co., et al., Defendant.


          PATRICIA A. GAUGHAN United States District Judge.


         This matter is before the Court upon Defendants' Motion to Dismiss the First Amended Complaint (Doc. 11). This is a putative class action involving the consumer sale of vitamins and supplements. Plaintiff, Timothy Marlowe, on behalf of himself and other similarly situated individuals, brings this class action lawsuit against Defendants, The Nature's Bounty Co. and Alphabet Holding Company, Inc., alleging that the labels on bottles of Defendants' vitamins and supplements misleadingly stated that the bottles contained “free” tablets when they did not. For the reasons that follow, Defendants' motion is GRANTED.


         For the purpose of ruling on Defendants' motion, the facts in the First Amended Class Action Complaint are presumed true.

         Between April and June of 2016, Plaintiff purchased a bottle of Nature's Bounty Biotin Ultra Strength, 10000mg softgels, at a CVS store located in Painesville, Ohio. The bottle that he purchased stated that it contained “100% more free” tablets. The label also stated that the bottle contained “60 120 softgels.” Plaintiff alleges that Defendants' bottles of Nature's Bounty Biotin Ultra Strength, 10000 mg softgels have contained the same quantity of tablets since at least 2013. He alleges that at least two of Defendants' other products, Melatonin 1mg and Glucosamine Chondroitin Complex, contained similar “more free” labels where the quantity of tablets in the bottles had remained constant since 2013. According to Plaintiff, Defendants never changed the quantity of the products during the class period in a manner that would cause the “more free” labels to accurately reflect the pricing of the more-free products. Instead, the quantity of tablets packaged and sold by the Defendants remained constant throughout the period, so no consumer, during the class period, received “more free” product as advertised on the bottle.

         Plaintiff seeks to bring this case as a class action on behalf of “[a]ny Ohio resident who, during the six-year period immediately prior to the filing of this lawsuit and thereafter, purchased any of the Defendants' products in Ohio marked on the bottle as a ‘more free' product (e.g. ‘50 more free tables'; ‘100% more free') where the product had not been sold at a similar price without that additional ‘more free' product for at least 28 of the 90 days preceding the class member's purchase.”

         On January 12, 2017, Plaintiff filed a complaint in the Court of Common Pleas for Lake County, Ohio. Defendants timely removed the case to this Court. Thereafter, Plaintiff filed an amended complaint containing three claims for relief: violation of the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Rev. Code § 1345, et seq.; unjust enrichment; and fraud. Defendants move to dismiss the First Amended Complaint and Plaintiff opposes the motion.


         When considering a motion to dismiss under Rule 12(b)(6), the allegations of the complaint must be taken as true and construed liberally in favor of the plaintiff. Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999). Notice pleading requires only that the defendant be given “fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley, 355 U.S. at 47. However, the complaint must set forth “more than the bare assertion of legal conclusions.” Allard v. Weitzman (In Re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). Legal conclusions and unwarranted factual inferences are not accepted as true, nor are mere conclusions afforded liberal Rule 12(b)(6) review. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009). Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief. Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-490 (6th Cir. 1990).

         In addition, a claimant must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 (2007). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1955 (2009). Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.

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. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it stops short of the line between possibility and plausibility of “entitlement to relief.”

Id. at 1949 (citations and quotations ...

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