Violet Myers-Armstrong v. Actavis Totowa, LLC , 382 F. App'x 545 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VIOLET R. MYERS-ARMSTRONG, No. 09-16055
Plaintiff - Appellant, D.C. No. 3:08-cv-04741-WHA
v.
MEMORANDUM *
ACTAVIS TOTOWA, LLC, a Delaware
limited liability corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted May 14, 2010
San Francisco, California
Before: W. FLETCHER and N.R. SMITH, Circuit Judges, and PRO, District
Judge.**
Myers-Armstrong appeals the district court’s dismissal of her case for failure
to state a claim. Myers-Armstrong sued Actavis Totowa, LLC, Actavis Group hf.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Philip M. Pro, United States District Judge for the
District of Nevada, sitting by designation.
Actavis, Inc. (collectively, “Actavis”) and McKesson Corporation regarding the
manufacture and distribution of 107 drugs that were later found not to meet Food
and Drug Administration (“FDA”) standards. In her suit, she sought only
economic loss, bringing the following causes of action: (1) breach of the implied
warranty of merchantability; (2) violation of California’s Unfair Competition Law
(“UCL”); (3) fraudulent concealment; and (4) unjust enrichment. We may affirm
the dismissal on any basis supported in the record. See Diaz v. Gates, 380 F.3d
480, 482 (9th Cir. 2004).
I.
1. Breach of the Implied Warranty of Merchantability
Myers-Armstrong concedes that the Sales Division of the California
Commercial Code governs her claim alleging a breach of the implied warranty of
merchantability. Myers-Armstrong admits that the drug she received has an
ordinary purpose of treating certain illnesses, and that the drug she received safely
and effectively treated that illness. Such admissions are fatal to her claim under
the implied warranty of merchantability. Birdsong v. Apple, Inc., 590 F.3d 955,
958 (9th Cir. 2009).
Further, Myers-Armstrong fails to sufficiently plead damages under the
California Commercial Code. Myers-Armstrong seeks a refund of her money.
2
Under the California Commercial Code, she is only entitled to “the difference at
the time and place of acceptance between the value of the goods accepted and the
value they would have had if they had been as warranted, unless special
circumstances show proximate damages of a different amount.” Cal. Com. Code
§ 2714(2). Myers-Armstrong alleges no such difference.
2. Violation of California’s Unfair Competition Law
Myers-Armstrong next alleges that Actavis and McKesson violated
California’s UCL. Myers-Armstrong alleges that Actavis violated the UCL under
all three criteria: “unlawful, unfair or fraudulent business act[s] or practice[s].” Cal.
Bus. & Prof. Code. § 17200; see also McKell v. Wash. Mut., Inc., 49 Cal. Rptr. 3d
227, 239 (Cal. Ct. App. 2006).
Myers-Armstrong claims Defendants “violate[d], without limitation, The
Food Drug and Cosmetics Act, Food and Drug Administration Regulations, and
other California and Federal laws which regulate the manufacture and sale of
generic pharmaceutical products.” However, Myers-Armstrong’s complaint gives
no notice of the alleged illegal act and, therefore, fails to satisfy Federal Rule of
Civil Procedure 8(a), because it does not set forth “a short plain statement of the
claim showing that the pleader is entitled to relief.”
3
As to her “unfairness” claim, Myers-Armstrong alleges Defendants violated
the UCL by the “selling of adulterated pharmaceutical products to consumers in
California.” “A business practice is unfair within the meaning of the UCL if it
violates established public policy or if it is immoral, unethical, oppressive or
unscrupulous and causes injury to consumers which outweighs its benefits.”
McKell, 49 Cal. Rptr. 3d at 240. Myers-Armstrong has failed to properly plead
damages; she has not pled that the injury to consumers outweighs the benefits of
the business practice. Furthermore, she has failed to plead that Defendants violated
public policy, or that her injury was substantial.
Finally, as to fraudulent business practices, Myers-Armstrong claims that the
Defendants distributed the adulterated drugs and that such conduct was “likely to
deceive a reasonable consumer into believing that Defendants’ pharmaceutical
products are standard or otherwise ‘pure’ when, in fact, they are not.” “A
fraudulent business practice is one which is likely to deceive the public.” McKell,
49 Cal. Rptr. 3d at 239. Myers-Armstrong has not sufficiently alleged that
Defendants made a misrepresentation, express or implied, “enough to raise a right
to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Thus, we cannot find that she relied upon a misrepresentation to
4
her own detriment. See In re Tobacco II Cases, 93 Cal. Rptr. 3d 559, 581 (Cal.
2009).1
3. Fraudulent Concealment
Myers-Armstrong fails to plead the fraud “‘specific[ally] enough to give
defendants notice of the particular misconduct so that they can defend against the
charge and not just deny that they have done anything wrong.’” Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Bly-Magee v. California,
236 F.3d 1014, 1019 (9th Cir. 2001)) (alterations omitted). Thus, she has failed to
plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b).
4. Unjust Enrichment
In California, “[t]here is no cause of action for unjust enrichment. Rather,
unjust enrichment is a basis for obtaining restitution based on quasi-contract or
imposition of a constructive trust.” McKell, 49 Cal. Rptr. 3d at 254. Again,
because Myers-Armstrong fails to plead that the drugs she received were of any
lesser value than those for which she paid, she fails to sufficiently plead an
entitlement to relief under quasi-contract law.
1
We note that even if we were to read an allegation of an implied
misrepresentation into the complaint, Myers-Armstrong’s claim would still be
insufficient for failure to plead the fraudulent conduct with particularity, as
required by Federal Rule of Civil Procedure 9(b).
5
AFFIRMED.
6