United States District Court, D. Maryland, Southern Division
LINDA M. BROWN-HIGH, Plaintiff,
L'OREAL USA, INC., et al., Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE.
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.
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.
lye-based relaxers contain sodium hydroxides 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. ¶
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.
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.
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). 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
STANDARD OF REVIEW
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
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
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).
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.
Breach of Warranty Claims (Counts I, II, VIII)
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. ¶¶ 50. 94. Regarding the
express warranties. Plaintiff claims that the Manufacturer
Defendants made a number of express warranties ...