United States District Court, D. Maryland
Steven and Ellen Palmer, Individually and on Behalf of All Others Similarly Situated
CVS Health and Nice-Pak Products, Inc.
Catherine C. Blake United States District Judge
and Ellen Palmer (the "Palmers") filed this
putative class action against CVS Health and Nice-Pak
Products, Inc. (the "defendants") alleging that
they misleadingly labeled their wipes as
"flushable" when they were not. Now pending are the
defendants' motion for leave to file amended answers and
the defendants' motion for judgment on the pleadings as
to the Palmers' claims for injunctive relief, negligent
misrepresentation (as to Nice-Pak), and breach of express
warranty. The motions have been fully briefed and no
oral argument is necessary. For the reasons stated below, the
court will grant the motion for leave to file amended
answers, and will grant in part and deny without prejudice in
part the motion for judgment on the pleadings.
Palmers began purchasing CVS Flushable Medicated Wipes in
2012. (Corrected Compl. ¶ 68, ECF 21). CVS Flushable
Medicated Wipes, as well as CVS Flushable Cleansing Wipes and
CVS Flushable Ultra Soft Cleansing Wipes, are manufactured by
Nice-Pak. (Id. ¶¶ 2, 8). The wipes were
advertised as safe to flush down toilets, but when the
Palmers began flushing the wipes down their home toilets,
they experienced plumbing issues. (Id. ¶¶
69, 72). Around October 2014, their sewer system backed up,
and they employed professional plumbers to snake their home
plumbing. (Id. at ¶ 69). Upon snaking the
plumbing, the plumbers found still-intact flushable wipes
products and warned the Palmers that flushing these wipes
"will destroy your system." (Id.). After
being advised to search online, the Palmers saw several
articles detailing the damage the flushable wipes could
cause. (Id.). A plumber had to return at least one
more time to clear the Palmers' pipes. (Id.
¶ 70). The Palmers allege that many others faced similar
"horror stories" wherein the purportedly flushable
wipes damaged their plumbing, (id. ¶¶ 21-
27), and also allege that flushable wipes have caused
problems in municipal sewer systems across the country,
(id. ¶¶ 38-61).
Federal Trade Commission ("FTC") began
investigating Nice-Pak's flushable wipes, and entered
into a consent agreement with Nice-Pak in 2015. (Id.
¶ 62). Under that agreement, the FTC ordered Nice-Pak
not to market its wipes as flushable "unless the
representation is non-misleading, and, at the time the
representation is made, Respondent possesses and relies upon
competent and reliable evidence[.]" (FTC Decision and
Order at 2, In the Matter of Nice-Pak Products, ECF
177-4). The order is in effect until October 30, 2035, or
twenty years from the most recent date the United States or
the FTC files a complaint alleging a violation of the order.
(Id. at 5).
Palmers initially filed in the Eastern District of New York.
On April 10, 2017, the case was transferred to this court.
Steven v. CVS Health & Nice-Pak Products, Inc.,
No. 15-CV-2928, 2017 WL 656767, at *2 (E.D.N.Y.Feb. 17,
2017); Order, ECF 121 (case to be transferred April 10,
2017). On May 9, 2018, the court granted the parties'
motion to stay,  pending decisions in the related cases
Kurtz v. Kimberly-Clark Corp. et ah, No. 14-cv-1142,
and Belfiore v. Proctor & Gamble
Co., No. 14-cv-4090 (on appeal in the Second
Circuit), and The Preserve at Cormetquot
Homeowners Assoc, Inc. v. Costco Wholesale Corp., et
al., No. 17-cv-7050 (E.D.N. Y.). (ECF 164). On January
28, 2019, the court in Preserve dismissed the case
without prejudice for lack of standing. (Status Report, ECF
165). Preserve is currently on appeal. (Status
Report, ECF 170). On May 14, 2019, the Second Circuit issued
a summary order in Kurtz and Belfiore,
remanding the cases to the U.S. District Court for the
Eastern District of New York for further proceedings on the
Rule 23(b)(3) predominance requirement. (Id. at
2). The stay in this case was lifted on June 25, 2019. (ECF
for leave to amend:
to amend should be freely granted under Rule 15(a), and
amendments are generally accepted absent futility, undue
prejudice, or bad faith. See Foman v. Davis, 371
U.S. 178, 182 (1962); Matrix Capital Mgmt. Fund, LP v.
BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009)
(explaining that leave to amend "should be denied only
when the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving
party, or amendment would be futile").
for judgment on the pleadings:
for judgment on the pleadings under Fed.R.Civ.P. 12(c) are
decided under the same standard as motions to dismiss under
Rule 12(b)(6). Independence News, Inc. v. City of
Charlotte, 568 F.3d 148, 154 (4th Cir. 2009). To survive
a motion to dismiss, the factual allegations of a complaint
"must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in fact)."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations omitted). "To satisfy this standard, a
plaintiff need not 'forecast' evidence sufficient to
prove the elements of the claim, However, the complaint must
allege sufficient facts to establish those elements."
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012) (citation omitted). "Thus, while a plaintiff does
not need to demonstrate in a complaint that the right to
relief is 'probable,' the complaint must advance the
plaintiffs claim 'across the line from conceivable to
plausible.'" Id. (quoting Twombly,
550 U.S. at 570). Additionally, although courts "must
view the facts alleged in the light most favorable to the
plaintiff," they "will not accept 'legal
conclusions couched as facts or unwarranted inferences,
unreasonable conclusions, or arguments'" in deciding
whether a case should survive a motion to dismiss. U.S.
ex rel. Nathan v. Takeda Pharm. North Am., Inc., 707
F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC
v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)).
Nice-Pak seek to amend their answers to add the additional
defenses of: lack of class action standing, primary
jurisdiction, statute of limitations, speculative damages,
failure to plead punitive damages, injunctive relief is moot,
spoliation of evidence, compliance with federal and industry
standards and, for Nice-Pak only, lack of privity.
court will grant the defendants' motion to amend.
Although this case was filed in 2015 and transferred to this
court in 2017, there has been no formal discovery because of
the requested stays and the motion for judgment on the
pleadings. The Palmers have not shown that they
relied on the affirmative defenses asserted in the answers in
taking any action in this case, and have not shown that
allowing the amendments would prejudice them. Although the
Palmers cite to Rangarajan v. Johns Hopkins Health System
Corp., in that case, the court denied the plaintiffs
motion to amend her complaint because the amendment
"would inescapably lead to a second motion to dismiss
and round of briefing which would further delay the start of
any discovery" and "[t]he proposed amendment would
fundamentally change the nature of Plaintiff s claims."
No. WMN-12-1953, 2015 WL 1712270, at *3 (D. Md. April 14,
2015). Here, there is no showing that allowing the defendants
to amend their answers would result in any additional
briefing, delay discovery, or fundamentally change the nature
of the case.