United States District Court, N.D. Ohio, Eastern Division
Tim Marlowe, on his own behalf and for all others similarly situated, Plaintiff,
The Nature's Bounty Co., et al., Defendant.
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN United States District Judge.
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.
purpose of ruling on Defendants' motion, the facts in the
First Amended Class Action Complaint are presumed true.
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.
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
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.
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.
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
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 ...