Opinion
22-CV-1341 (KMK)
03-10-2023
NANCY CALCHI, individually and on behalf of all others similarly situated, Plaintiff, v. GLAXOSMITHKLINE CONSUMER HEALTHCARE HOLDINGS U.S. LLC, GSK CONSUMER HEALTH, INC., AND PFIZER, INC. Defendants.
Simon C. Franzini, Esq. Jonas B. Jacobson, Esq. Dovel & Luner, LLP Santa Monica, CA Counsel for Plaintiff Craig M. Cepler, Esq., James R. Denlea, Esq., Jeffrey I. Carton, Esq. Philip M. Smith, Esq. Steven R. Schoenfeld, Esq. Denlea & Carton LLP White Plains, NY Counsel for Plaintiff Franco A. Corrado, Esq. J. Gordon Cooney, Jr., Esq. Grant R. MacQueen, Esq. Morgan Lewis & Bockius, LLP New York, NY Counsel for Defendants
Simon C. Franzini, Esq. Jonas B. Jacobson, Esq. Dovel & Luner, LLP Santa Monica, CA Counsel for Plaintiff
Craig M. Cepler, Esq., James R. Denlea, Esq., Jeffrey I. Carton, Esq. Philip M. Smith, Esq. Steven R. Schoenfeld, Esq. Denlea & Carton LLP White Plains, NY Counsel for Plaintiff
Franco A. Corrado, Esq. J. Gordon Cooney, Jr., Esq. Grant R. MacQueen, Esq. Morgan Lewis & Bockius, LLP New York, NY Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Nancy Calchi (“Plaintiff”) brings this Action, individually and on behalf of all others similarly situated, against GlaxoSmithKline Consumer Healthcare Holdings (US) LLC and GSK Consumer Health, Inc. (collectively, “Defendants”). (See generally Consol. Class Compl. (“Compl.”) (Dkt. No. 31).)Plaintiff claims that Defendants' labelling of its cough medicine products containing dextromethorphan hydrobromide (“DXM”) as “Non-Drowsy” is false and materially misleading to reasonable consumers who purchased the products, including Plaintiff. (See Id. ¶¶ 70-99.) Plaintiff alleges, on behalf of herself and a consumer protection subclass, violations of the consumer protection acts of California, Connecticut, Illinois, Washington, Maryland, and Washington, D.C. (Id. at ¶¶ 70-75.) Plaintiff also alleges, on behalf of herself and a New York subclass, claims under New York Gen. Bus. Law §§ 349 and 350 (“GBL”), (id. at ¶¶ 76-92), and, on behalf of herself and a nationwide class, breach of express warranty, (id. at ¶¶ 93-99). Before the Court is Defendant's Motion To Dismiss. (See Not. of Mot. (Dkt. No. 34).)
Pfizer Inc. was initially a Defendant in this Action and remains in the case caption. However, on August 4, 2022, Pfizer was dismissed without prejudice by stipulation of the Parties. (See Joint Stipulation (Dkt. No. 38).)
Defendant has provided the Court with a notice of supplemental authority, specifically, a recent decision from this District dismissing claims almost identical to those raised by Plaintiff because they were preempted by the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq. (Not. of Supp'l. Authority (Dkt. No. 43).) See Goldstein v. Walmart, Inc.,- F.Supp.3d -, No. 22-CV-88, 2022 WL 16540837, at *14 (S.D.N.Y. Oct. 28, 2022), appeal withdrawn, No. 22-3052.
The Court notes that the same counsel represents the plaintiffs in Goldstein and the instant Action. Compare Compl. at 29 with Goldstein, 2022 WL 16540837, at *1. While the core allegations concerning the alleged deceptive use of the “Non-Drowsy” label are the same, the plaintiff in Goldstein alleged a violation of the Magnuson-Moss Warranty Act and also requested injunctive relief. See Goldstein 2022 WL 16540837, at *1. The Goldstein plaintiff also alleged violations of a different set of state consumer protection laws. Compare Compl. at 22 with Goldstein, 2022 WL 16540837, at *3. Defendant has also submitted a notice of supplemental authority for a case from the Middle District of Florida that dismissed claims similar to those Plaintiff has raised here. (Not. of Supp'l. Authority (Dkt. No. 39).) See also Amara v. Publix Supermarkets, Inc., No. 22-CV-367, 2022 WL 3357575, at *5 (M.D. Fla. Aug. 15, 2022).
Plaintiff in her briefing has relied heavily on a recent opinion from the Central District of California, Lemus v. Rite Aid Corp., No. 22-CV-253, 2022 WL 2721385 (C.D. Cal. July 7, 2022), that held that claims materially identical to those raised by Plaintiff here were not preempted by the FDCA. Id. at *9.
Having reviewed the opinions in Goldstein and Lemus, the Court agrees with the Goldstein court's thorough preemption analysis, adopts its reasoning in whole, and, on that basis, dismisses Plaintiff's claims under the various state consumer protection statutes and also her breach of express warranty claim. See Goldstein, 2022 WL 16540837, at *4-12.
Because this is the first adjudication of his claims on the merits, Plaintiff's claims are dismissed without prejudice. If Plaintiff wishes to file an Amended Complaint alleging additional facts and otherwise addressing the deficiencies the Court has identified, Plaintiff must do so within 30 days of the date of this Order. The amended complaint will replace, not supplement, the previous complaints. The failure to timely file an amended complaint may result in the dismissal of this Action with prejudice. The Clerk of Court is respectfully directed to terminate the pending Motion. (See Dkt. No. 34.)
SO ORDERED.