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Brown-High v. L'Oreal USA, Inc.

United States District Court, D. Maryland, Southern Division

November 29, 2017

L'OREAL USA, INC., et al., Defendants.



         This suit arises from injuries that Plaintiff Linda M. Brown-High allegedly' suffered from using a product manufactured by Defendants L'Oreal USA. Inc., Soft Sheen - Carson. LLC. and Soft Sheen Products. Inc. (the "Manufacturer Defendants"); an Optimum Salon Haircare Amla-Legend-No-Mix-No-Lye-Relaxer ("Amla Relaxer"). ECF No. 23 ¶ 6. Plaintiff purchased the Amla Relaxer from a Family Dollar Store in Mount Rainier. Maryland, and has also named as Defendants Family Dollar Stores. Inc. Family Dollar Stores of Maryland. Inc., and Dollar Tree. Inc. (the "Retail Defendants"). For her injuries. Plaintiff seeks $1 million in compensatory damages and $1 million in punitive damages against the Manufacturer Defendants, and $1 million in compensatory damages against the Retail Defendants. Presently pending before the Court is the Manufacturer Defendants' Motion to Dismiss. ECF No. 30, which has been joined by the Retail Defendants. ECF No. 35. The Court held a motions hearing on November 8, 2017. ECF No. 51. For the following reasons. Defendants" Motion to Dismiss is granted in part and denied in part.

         I. BACKGROUND[1]

         In 2013, the Manufacturer Defendants released a line of hair products called the "Amla Legend." which they claimed were "enriched with purified Amla extract." ECF No. 23 ¶ 15. "a powerful antioxidant rich in vitamins." id. ¶ 16. The Amla Relaxer was included in this new line of products. A relaxer is a chemical hair product used by individuals with curly hair to chemically "relax" or straighten their hair. Id. ¶ 61. The Amla Relaxer was packaged as a five-step product, and each box of Amla Relaxer included a Scalp Protector Pre-Treatment. a relaxing cream, a shampoo, a conditioner, and an oil moisturizer, Id. ¶ 18. The Manufacturer Defendants marketed and sold the Amla Legend products directly to consumers through its own website, and also through major retail locations, including the Retail Defendants. Id. ¶ 17. On the Amla Relaxer"s packaging, the Manufacturer Defendants made a number of representations, including that the product contained "NO-LYE." "Protects Scalp & Skin." and "Ensures a No-Mistake Application." Id. ¶ 19. The packaging also contained a number of warnings on the side of the box. including, but not limited to. instructing consumers that the product contained "alkali." that consumers should wear gloves while using the product, that the product could cause blindness, and that the consumer should keep the product off of skin areas. Id. ¶ 34.

         Typically, lye-based relaxers contain sodium hydroxides[2] carry a high risk of a chemical burn, and are generally applied by beauty professionals. Id. ¶ 23. '"No-lye" relaxers do not contain sodium hydroxide, and are marketed to consumers as less dangerous products that can be applied without the assistance of a beauty professional. Id. ¶ 26. While the Amla Relaxer was marketed as a "NO-LYE" relaxer. Plaintiff alleges that (1) the relaxing cream contained lithium hydroxide." a dangerous and harsh chemical that causes severe irritation, burns, blisters, and hair destruction." id. ¶ 25: and. (2) online retailers listed "sodium hydroxide" as one of the relaxing cream's ingredients, id. ¶ 27.[3] Plaintiff further alleges that despite the "No-Mistake Application" promised by the Manufacturer Defendants, numerous consumers have complained of suffering scalp and skin burns, skin irritation, hair loss/damage, rashes, and blisters after using the Amla Relaxer. ECF No. 23 ¶ 33.

         On August 2, 2013. Plaintiff, who "was seeking a safe no-lye hair relaxer." purchased the Amla Relaxer from a Family Dollar Store in Mount Rainier. Maryland. Id. ¶ 37. Plaintiff, who "had experience using other hair relaxers in the past." purchased the Amla Relaxer thinking that "it was safe, was a no-lye relaxer. and that it would not cause severe skin burns and hair destruction." Id. ¶¶ 37-38. On August 4. 2013, Plaintiffs daughter assisted Plaintiff in applying the Amla Relaxer to her hair. Id. ¶ 39. Plaintiffs daughter first tested the Amla Relaxer on part of Plaintiff s hair, and achieved an effective and safe result. Id. She then applied the "Scalp Protector Pre-Treatment" to Plaintiffs hair, followed by the "No-Mix Relaxer Creme." id. After applying the Relaxer Creme. Plaintiff experienced a severe burning sensation on her head and scalp. Id. Plaintiffs daughter rushed her to their sink and rinsed the Relaxer Creme from her hair with the Neutralizing Shampoo and water: this did not ease the "burning pain." id. As a result of using the Amla Relaxer. Plaintiff alleges that she sustained "serious and permanent injuries" including "chemical burns to her face and scalp and significant hair loss/damage." Id.

         Plaintiff initiated this suit against Defendants in the Circuit Court for Prince George's County. Maryland, on August 2. 2016. ECF No. 1. On January 31. 2017. Defendants removed the suit to this Court, alleging that this Court has original diversity jurisdiction under 28 U.S.C. § 1332. Id. On March 17. 2017. Plaintiff filed an Amended Complaint against Defendants. ECF No. 23. In her Amended Complaint. Plaintiff alleged a number of causes of actions against Defendants, which the Court divides into three categories: (1) breach of warranty (implied and express) claims (Counts I. II. VIII); (2) products liability (strict liability and negligence) claims (Counts III. IV. IX. X): and. (3) fraud-based claims (fraud and unfair/deceptive trade practices under the Maryland Consumer Protection Act) (Counts V, VI).[4] On April 14. 2017, the Manufacturer Defendants filed a Motion to Dismiss the Amended Complaint. ECF No. 30. which was joined by the Retail Defendants. ECF No. 35.


         To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcrofi v. Iqbol 556 U.S. 662, 678 (2009) (citing Bell Atlantic Carp. 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." Iqbal 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555 ("a plaintiffs obligation to provide the 'grounds" of his "entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.")).

         Furthermore, where a plaintiff alleges that the defendant committed fraud, this claim must satisfy the heightened pleading standard under Federal Rule of Civil Procedure 9(b). Rule 9(b) requires that a plaintiff asserting a claim of fraud must allege "with particularity the circumstances constituting fraud" Spaulding v. Wells Fargo Bank. N.A., 714 F.3d 769. 781 (4th Cir. 2013). Rule 9(b) requires a plaintiff to plead "the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." Spaulding, 714 F.3d at 781.

         The purpose of Rule 12(b)(6) "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6). a court "must accept as true all of the factual allegations contained in the complaint." and must "draw all reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont tie Nemours & Co. v. Kolon Indus.. Inc.. 637 F.3d 435. 440 (4th Cir. 2011) (citations and internal quotation marks omitted). The Court need not. however, accept unsupported legal allegations, see Reverie v. Charles County Comm'rs. 882 F.2d 870. 873 (4th Cir. 1989). legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265. 286 (1986). or conclusory factual allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v. Hirst. 604 F.2d 844. 847 (4th Cir. 1979).


         In their Motion to Dismiss. Defendants move to dismiss each of Plaintiffs causes of action as a matter of law. for reasons that the Court addresses in turn below.

         A. Breach of Warranty Claims (Counts I, II, VIII)

         In her Amended Complaint. Plaintiff alleges that the Manufacturer Defendants breached express warranties. ECF No. 23 at 12 (Count I), and implied warranties, id. at 14 (Count II). and that the Retail Defendants breached implied warranties, id. at 22 (Count VIII). Regarding the implied warranties. Plaintiff claims that all Defendants sold a product that was not "of merchantable quality and reasonably tit and safe for its intended and ordinary use." Id. ΒΆΒΆ 50. 94. Regarding the express warranties. Plaintiff claims that the Manufacturer Defendants made a number of express warranties ...

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