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Palmer v. CVS Health and Nice-Pak Products, Inc.

United States District Court, D. Maryland

December 4, 2019

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

         Steven 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.[1] 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.


         The 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).

         The Federal Trade Commission ("FTC") began investigating Nice-Pak's flushable wipes, and entered into a consent agreement with Nice-Pak in 2015.[2] (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).

         The 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, [3] 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)[4], 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.[5] (Id. at 2). The stay in this case was lifted on June 25, 2019. (ECF 173).


         Motion for leave to amend:

         Leave 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").

         Motion for judgment on the pleadings:

         Motions 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)).


         Leave to amend:

         CVS and 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.

         The 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.[6] 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.[7]

         Standing for ...

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