MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiff Duane Womack brings this proposed class action against Defendant EVOL Nutrition Associates, Inc. seeking damages, restitution, injunctive relief, costs, and attorney’s fees for Defendant’s allegedly unfair and deceptive trade practices in the marketing, distribution, and retail of its “Sleep Walker” and “Red Dawn” Products (the “Products”). (Dkt. No. 1). Plaintiff asserts his claim on behalf of himself and others similarly situated who purchased the Products, alleging violation of the Unfair and Deceptive Trade Practices Act, New York General Business Law (“NYGBL”) §349 et. seq. (Id.). Defendant moves to dismiss the complaint under Rules 4(m), 12(b)(5), (6), and 60(b) of the Federal Rules of Civil Procedure for failure to timely serve the summons and complaint without good cause, and failure to state a claim on which relief can be granted. (Dkt. No. 17). Plaintiff opposes Defendant’s motion. (Dkt. No. 18). For the following reasons, Defendant’s motion to dismiss is granted. II. COMPLAINT1 A. “Sleep Walker” and “Red Dawn” Products Defendant manufactures, markets, and retails the Products as “dietary supplements that provide extra energy and enhance[] the consumer’s mood.” (Dkt. No. 1, 1). The Products are sold “in capsule form, as two ounce (60ml) liquid single-serving ‘shots,’ or in larger four to sixteen ounce multi-serving bottles,” and are offered in several flavors. (Id. 9). Defendant markets the Products as energy drinks, such that they compete with coffee and other caffeinated drinks. (Id. 1). Defendant “markets these Products as safe and effective.” (Id. 10). However, the Products contain “Beta-phenyl-gamma-aminobutyric acid,” otherwise known as “Phenibut” or “GABA.” (Id. 2). Phenibut is a “drug” that works by “mimicking the brain chemical called gamma-aminobutyric acid, which is a calming neurotransmitter,” and is “used to treat insomnia, depression, stuttering, vestibular disorder, irregular heartbeat, and post-traumatic stress disorder in Russia, Ukraine, Belarus and Latvia.” (Id.
10, 11). “There is no good scientific evidence…to support Phenibut’s treatment of these conditions.” (Id. 10). Phenibut instead “seems to be used primarily as a recreational drug.” (Id.). Phenibut has many side effects. It can cause “dizziness, nausea, poor balance, and fatigue” when taken orally, and, when taken in large doses, it can cause “trouble breathing, feelings of electric shocks in the arms and legs, and unconsciousness.” (Id. 11). Consumers of Phenibut report feeling “unwell” after a single serving, and feeling “uneas[iness], nausea, and other hangover like symptoms for up to twenty-four hours” after consumption. (Id. 22). Long-term, Phenibut can cause “depression and fatigue.” (Id. 12). It can also cause dependence, even after one use. (Id. 11). “People who use Phenibut regularly, and then stop taking it, may experience withdrawal symptoms,” including “decreased appetite, nausea, muscle aches, anxiety, agitation, trouble sleeping, and seizures.” (Id. 12). There is “little scientific research” about what constitutes a safe dosage of Phenibut for adults, and “Phenibut has been banned in Hungary, Lithuania, Italy, and Australia” due to concerns about withdrawal and overdose. (Id.
