MEMORANDUM OPINION & ORDER The plaintiffs — Mary Tullie Critcher, Twoana Clark-Sheppard, Victoria Marynovsky, Patrica Belbot, Jessica Petrie, Linda Feiges, Sarah McQueary, and Georgette C. Fournier — are consumers of liquid cosmetics that are marketed and sold by defendant L’Oreal USA, Inc. (“L’ Oreal”).1 The plaintiffs bring this putative class action under the Declaratory Judgment Act (“DJA”), 28 U.S.C. §2201 et seq., and various state consumer protection statutes. The plaintiffs also bring claims of unjust enrichment and breach of the implied warranty of merchantability. The plaintiffs allege that four of the defendant’s products are deceptively labeled because they fail to make clear that the cosmetics dispensers will leave a significant amount of the product in the containers.L’Oreal moves to dismiss the entire second amended complaint (“SAC”) on grounds of federal preemption, lack of standing, and failure to meet the operative pleading standards. For the reasons explained below, the L’Oreal’s motion to dismiss the SAC is granted.I.In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff’s favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id.When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff’s possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir. 2002); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).II.The following facts are taken from the SAC and are accepted as true for purposes of this motion.The plaintiffs are consumers of defendant L’Oreal’s cosmetic products. There are four products at issue in this case — L’Oreal Visible Lift Serum Absolute, L’Oreal Age Perfect Eye Renewal Eye Cream, L’Oreal Revitalift Bright Reveal Brightening Day Moisturizer, and Maybelline Superstay Better Skin Skin-Transforming Foundation (collectively, the “products”). Of these four products, the plaintiffs only purchased the Visible Lift Serum and Age Perfect Eye Cream. SAC
47, 50, 52, 54-56, 59, 62, 70, 72.The products are sold in sealed bottles, which are often made of glass. Id. 8. Consumers access the products through a pump. Id. 7. The plaintiffs agree that the containers for each of the products accurately state the total amount of the product packaged inside the container, but nonetheless contend that the labels are misleading because the pumps fail to dispense a significant amount of the viscous cosmetics. Id. Because the product containers are sealed shut, consumers are unable to remove the pumps safely to access the remaining product. Id. 8.Plaintiff Critcher purchased Visible Lift Serum Absolute in June 2016 and paid approximately $13. Id. 47. Critcher was unable to use all of the liquid foundation that she purchased because it could not be dispensed completely from the container. Id. 48. However, because Critcher assumed that the first container that she purchased was uniquely defective, she bought the same product again in 2017. Id. 50. Again, Critcher was unable to access all of the liquid foundation that she purchased because it could not be completely dispensed. Id. 51. The remaining plaintiffs all had similar experiences with their L’Oreal purchases. Id.
