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Having unwanted fat in different areas of your body can have a significant influence on your health and self-confidence. While conventional weight loss through workout and diet plan is a terrific way to slim down overall, even the best workouts can't target issue areas like the belly, inner thighs, arms, and butts. Liposuction is a time evaluated treatment that is utilized to remove excess fat from specific locations of the body, allowing an individual to shape and contour their body to their taste. Is liposuction right for you? Find out now.
Pros of Liposuction
There are many benefits to this cosmetic procedure, including:
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• Proven and safe. This cosmetic procedure has actually been performed by seasoned specialists all over the world for years and the technique has actually been refined over and again to be safe and reliable.
• Healing time is usually quickly. The downtime required after having this kind of treatment is usually much less than exactly what is needed for other types of cosmetic treatments, consisting of abdominoplasty, breast reduction, and more. Individuals who have had the treatment can frequently return to work much more quickly than they anticipated and can return to living a healthy, active lifestyle.• Weight-loss can be irreversible. With the best maintenance strategies, the fat that was gotten rid of throughout the liposuction treatment will not return.
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While there many benefits to liposuction, there are naturally a few caveats that must be thought about prior to making the final decision to progress with the treatment.
Cons of Liposuction
Prior to having liposuction done, it is very important to analyze the possible downsides of the treatment and identify if the advantages exceed the dangers in your specific case. Your cosmetic surgeon can assist you learn more about the risks associated with the procedure and can assist you choose if moving forward is the ideal thing for you.
• Complications with general anesthesia. Because liposuction is carried out under general anesthesia, the procedure carries the same threats as any other type of surgery where basic anesthesia is used. Underlying medical conditions might enhance these risks.
• Negative responses. Bruising, bleeding, and pain are all to be anticipated, nevertheless, in rare cases can trigger more substantial complications.
• The prospective to get the weight back. After having actually liposuction done, it is vital to preserve a healthy diet plan and exercise effectively as recommended by your doctor. Failure to do so might lead to getting back the weight that was lost or perhaps even more.
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Laser liposuction is a newer, minimally invasive procedure that includes heating the fat cells to melting point and eliminating the melted fat through a little cannula. The treatment is usually done right in your doctor's workplace and is an excellent alternative for people who have less than 500 ml of fat to get rid of from any one area. Laser liposuction can be a safe, complementary treatment to weight-loss in order to sculpt the body you have actually constantly desired.
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A Good Deal: No Evil 022
Round up4.33 / 5.00 1,277 Views
Park Bench
A short film about a park bench4.08 / 5.00 922 Views
frog thing
frogggsgsgs3.90 / 5.00 1,055 Views
I love the song just wish I understood more of it.
Baby, I'm a hypocrite
Well, this is the first time I came across Akira the Don and let me say that this is one of the catchiest songs I have ever heard! I really like this version as it shows the extended Mario song. Of course, I can not really understand what is being said at the end anyway. The animation in this is simply fantastic and I love all the random images that are flying around. I love the rhythum and depth Akira and all of the other characters have in this. I have never heard of "Chuck Chap", and I kept thinking you were saying, "Chuck Chuck".
Probably the only thing I did not like was the vomiting. Still, this was a fantastic rap song all around with the perfect animation synched with everything.
lol dedicated to britney spears soul. may it rest in pieces.
love this song
Clones is playing in the credits aswell!
an ADD attack in a song.... YAY!!!

subset: commoncrawl


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TRAILER | PC Thursday, December 17, 2015 | 9:29 PM
Dragon's Dogma: PC Trailer
PC Trailer
Download: MP4 HD
All comments
From my time with it seemed pretty good. I had my fill with Skyrim though, especially with the MODs. I might consider backlogging this down the road.
And I was like it's a new addon for the base game :D
Posted by martanDark Arisen was also released on PS3/360. This is the same game with performance benefits that the PC can take advantage of, for example, a higher frame rate.
Ah ok so for the PC they named it Dark Arisen.
Ah ok so for the PC they named it Dark Arisen.
Posted by HellStorm40kThat was the only reason it got me interested in the game. For everything else Skyrim + MODs kept me busy for nearly 3 years. If Dragon's Dogma gets really good mods down the road, i'd definitely switch over. Dogma does have really good action.
This games gameplay mechanics made Skyrim look like it had Down Syndrome.
This games gameplay mechanics made Skyrim look like it had Down Syndrome.
About the game
- Dragon's Dogma: Dark Arisen
- Published by Capcom
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India Synergy machine sales and customer satisfaction.
Development of Synergy Sales for the Indian market as per strategy approved by Management.
New customer acquisition in targeted categories and retention of customers.
Preparing Sales forecast.
- Excellent analytical, presentation and MS Office skills
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- Marketing selling skills
- Customer oriented motivation/co-ordination
-Ability to go into details of costing/estimation


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average rating: -- / 10
Qohen Sl?be?te rapid nohow gets close on solving it. He sadly comes en route to the realization That May be found uncommunicative availability..
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Ejiul was a Romulan individual in service of the Empire's Star Navy. In 2276, Ejiul was serving on the ChR Bloodwing. (TOS - Rihannsu novel: The Romulan Way)
|ChR Bloodwing personnel
|Nniol t'AAnikh • Dhiemn • Dhisuia • Dhiov • Ejiul • Eriufv • Gehen • Gioufv • Haehwe • Helev • T'Hrienteh • Ireqh • Giellun tr'Keirianh • K'haeth • Kiel • Hvaid t'Khaethaetreh • Khiy • Aidoann t'Khnialmnae • Khoal • Hilae • Himif • Lahae • Lhian • Lyie • N'alae • Raha • Rai • Rhioa • Ael t'Rllaillieu • Tafv tr'Rllaillieu • T'maekh • Triy • t'Viaen
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In a few short years, wine-searcher.com has gone from being the brainchild of self-confessed wine "glugger" Martin Brown to the world's most popular port for everyone from industry titans to wine lovers alike. "For better or worse, it has leveled the playing field on getting, buying, pricing and selling wine," writes Patrick Comiskey.
Full Story:Los Angeles Times (tiered subscription model)


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The seven spectra K ix through Mn xv have been analyzed and the series limits determined. We present the adopted wavelengths and the derived energy levels and term splittings. The highly ionized atoms were produced in a spark source and recorded mainly on a 3 m grazing incidence spectrograph. Many new lines have been identified and many previously given wavelengths have been revised. All wavelengths have been examined for consistency by least-squares-fitting procedures and other tests. These procedures indicated misidentified lines and incorrect wavelengths which we corrected when possible. A discussion of the errors is given.
© 1976 Optical Society of AmericaFull Article | PDF Article
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J. Opt. Soc. Am. B 8(5) 913-916 (1991)
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J. Opt. Soc. Am. B 10(1) 7-12 (1993)
U. Feldman, L. Katz, W. Behring, and L. Cohen
J. Opt. Soc. Am. 61(1) 91-95 (1971)


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Geeks And Gamers Rejoice – Lufkin Has A Mini Convention This Weekend
If you are a fan of all things in the realm of geekdom, you'll want to be in Lufkin this weekend.
If you are a fan of all things in the realm of geekdom, you'll want to be in Lufkin this weekend.
Sad news today for fans of the Star Wars films and Terry Gilliam's Time Bandits: Kenny Baker, the man who brought droid R2-D2 to life, has passed away at the age of 83. According to The Guardian, Baker's passing comes after a long battle with an unspecified illness.
James Corden just wants to get to work but the Chewbacca Mask Lady can't stop laughing in this clip from 'The Late Late Show.'
You've probably seen the first trailer for Rogue One: A Star Wars Story that debuted earlier this morning. If not (or if you just want to watch it again), you can see it here...
This kid might have the skills to protect us all from Darth Vader and his stormtroopers. But is he taking it a little to far? Watch this!
You may not immediately recognize the name Jason Wingreen, but the prolific actor had almost 200 credits to his name, including the original voice of fan-favorite bounty hunter Boba Fett in The Empire Strikes Back. The actor, whose voice was replaced in Lucas' notorious DVD re-release of the trilogy, has passed away at the age of 95, leaving behind a legacy of roles that extend far beyond that galaxy far, far away.
There's a new grinch in town, and you really don't want to be on his naughty list.
Two things that are all the rage this week: Star Wars and Christmas lights.


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Benzara Durable Tray Set Of 2 -Nature - Water HRT-33325
Versatile and durable this set of two wicker trays are something exceptional and worth owning. Made from good quality natural fiber these trays are replica of each other but differ in sizes. In a natural color these trays can be used for multiple purposes. Use it to serve appetizers or to decorate your dining table with fresh flowers. You can also use it as a fruit basket on the side table. These trays can also be displayed on the kitchen counter or can be kept inside the culinary shelf. You can also use these trays as a book stand and keep it on the side tbale or study.
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April 23, 2009
MARVELLOUS A. X. GREENE, PLAINTIFF,v.C. D. C., ET AL., DEFENDANTS.
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On March 31, 2009, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.*fn1
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed March 31, 2009, are adopted in full;
2. Plaintiff's October 24, 2008 motion for summary judgment is denied;
3. Defendants' November 6, 2008 cross-motion for summary judgment is granted; and
4. Summary judgment is entered for defendants in this action.
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This is Char a brown tabby with buff female cat. She is a Loving Care cat rescue kitty living at a foster home.
Char is a sweet friendly brown tabby with buff girl that enjoys being with people. She was found at a motel where she would beg for food from motel guest. There was a feral colony nearby, and the colony caretaker rescued Char.
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For info on this young man email email@example.com or call Trish at 717-307-8343.
Loving Care cat rescue is an organization that helps cats in need, there are foster homes throughout south central Pa helping unwanted cats and kittens find new forever homes.


text: Jailbroken boot help!! Last night my blackra1n jailbroken iPod Touch 3.1.2 battery died on me. So I plugged it into my computer, let it charge for a bit, then tried to run blackra1n to get it to boot again, which usually works, taking only around 5 minutes, but this time, I run blackra1n, and it just gets stuck on the screen of GeoHot's face. x_x After maybe 10 or 15 minutes, it will shut off then power back on with the Apple logo -> Connect to iTunes -> Blackra1n screen again, but that process just repeats. What happened?! Can I save my poor iPod? Please Register or Log in to view images I don't want to have to restore, because I have so many jailbroken apps and so much music and coverart that I put on there manually, so I can't resync ANYTHING. Please help??


text:
British Cycling's Breeze is the biggest programme ever to get more women riding bikes for fun and fitness. Our amazing Breeze Champions are helping thousands of women feel fitter and more confident on a bike.
News, inspiration and events
It comes as no surprise that cycling is good for you, but what exactly does to it do our bodies that has us feeling so great?
It's hard to avoid rain here in the UK but don't let the drizzle dampen your spirits – be prepared for downpours with our top tips for cycling in the rain.
Since the first ride in May 2015, almost 300 women have taken part in one of Newcastle's This Girl Can Breeze rides.
The latest from #Breeze social media communities


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Patagonia Women's Emmilen Hoody
For early-morning surf checks, this soft hoody has zippered handwarmer pockets, a 3-panel hood and is made with polyester microfleece (30% recycled). Fabric is bluesign® approved.
- Lightweight 100% polyester (30% recycled) heathered-fleece jacket. Fabric is bluesign® approved
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November 13, 2015 - Industry News
ABF Freight, Old Dominion Freight Line, and Roehl Transport took home honors from the American Trucking Associations' Safety, Security and Human Resources Conference in Little Rock, Ark.
Tags: Old Dominion Freight Line, Cargo Theft, ABF, Roehl Transport, Security, American Trucking Associations
October 28, 2013 - Industry News
The Wisconsin-based Roehl will operate the cold storage business as Roehl Cold Storage, and the trucking operation will become a part of Roehl Transport.
Tags: Mergers & Acquisitions, Roehl Transport
October 8, 2013 - Industry News
A $5 million lawsuit has been filed against Roehl Transport over allegations that it payed student truck drivers less than the federal minimum wage.
Tags: Driver Training, Roehl Transport
July 21, 2013 - Industry News
Roehl Transport will expand its investment in fuel saving TrailerTail aerodynamics technology by installing 500 TrailerTails on all new trailers purchased from Wabash National in 2013.
Tags: Trailers, ATDynamics, Aerodynamics, Roehl Transport, TrailerTails
We offer e-newsletters that deliver targeted news and information for the entire fleet industry.
The expert, Shawn Whitacre from Chevron Delo, will answer your questions
The expert, Steve Carlson from Xantrex, will answer your questions
The expert, Brian Fletcher from Eaton, will answer your questions
On the Spot: Drive the Future With Volvo's SuperTruck [Video]
Highlights From ATA Management Conference & Exhibition [Video]
Navistar's Las Vegas LT Series Launch Presentation [Video]
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App Helps Truckers Report Accidents
Charger Keeps Batteries Topped Off in Winter
Tool Designed to Remove Tie Rods and Ball Joints
Driver Wellness Courses Address 3 Key Concerns


text:
Zimmermann: More Pie Please
Re: Zimmermann: More Pie Please
Nice report-- almost feel like I wasn't there. Guess we didn't attend many of the same sessions. It was good to hear about the others.
T'so and Tweedie on the kernel: worth it! And everything on XFree86 and KDE, also excellent.
Kudos to USENIX and the volunteers, regular boy (and girl) scouts: cheerful, thrifty and kind.
Re: Zimmermann: More Pie Please
Drew Streib's new raw keyanalyze rankings for November are up.
Re: Zimmermann: More Pie Please
mmmm, pie.
Re: Zimmermann: More Pie Please
Looks like Brad Templeton wants more regular users to encrypt mail too. But will the proprietary mailers like M$ Outlook include it?
Re: Zimmermann: More Pie Please
The Herbivore initiative is a standard for automagically exchanging key signatures in mail headers.
Re: Zimmermann: More Pie Please
Thawte used to do PGP key signings based on email turnaround. They stopped about a year or two ago. They still (as far as I know) issue free S-MIME certs, including having a web-of-trust program for adding your name to the cert, rather than just your verfied email address.
Re: Zimmermann: More Pie Please
Nice report--almost feel like I was there. Something along
the lines of Becker's talk seems like the basis for a good
Re: Zimmermann: More Pie Please
If that report makes you feel like you were there,
read Seth's.
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text:
Discussion in 'iPod touch 1.1.3 Jailbreak' started by jjjpros, Apr 10, 2008.
Can you jailbreak an ipod that already has the apps installed?
yes but you'll lose those apps, and Wiggly iCons if you have them.
Yet you can install them again through various repos [ipodtouchmaster.com/repo.xml]
Yep true
Separate names with a comma.


text:
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QA Manager (Games)
Rockyou (Thailand) Co., Ltd.
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Please submit English Resume only
About the Role:
The Quality Assurance Manager plays a key part of the development process, operation and ensures the quality of our products across products on Facebook, iOS, Android, Amazon and the Web. The ideal candidate is a champion for our international company and will have an in-depth understanding of both functional and subjective testing. The QA Manager will be familiar with a variety of testing methodologies, including: compatibility testing, performance testing, result driven development, and player behavior driven development.
- Manage a team of QA testers and customer services employees to ensure delivery of high-quality games
- Identify relevant quality-related training needs and delivering measurable results
- Define, drive, implement and maintain test plans for each project to make sure high quality test policies and standards are met
- Strategize to provide solutions that enables the QA team to solve problems efficiently
- Raise the bar on traditional quality assurance solutions and execution strategies to minimize risk to games on all platforms
- Manage and coordinate test efforts with QA teams located across a global company
- Work with all team members to ensure accurate and timely testing of all projects
- Support the team to report bugs, resolve issues, and manage regression tasks with thorough testing diligence
- Guide the team to maintain JIRA, record bugs, communicate test results and assign responsibilities as necessary
- Work across all departments and locations to efficiently manage issue resolution and provide clarity into bug frequency and reproduction steps
- Provide day-to-day updates and transparency on outstanding bug status for multiple projects to the , team leads and executive management
- Manage communication with all team members, team leads and executive management
- Make impactful tactical direction and operational decisions
- Minimum of 3-5 yrs. experience as a QA manager in the gaming or similar industry
- Must have directly managed 10+ QA staff under organization in previous role
- Superior English skills are required; spoken, written and comprehension
- Excellent troubleshooting and issue management skills is a must
- Ability to work against tight deadlines with minimal supervision and deliver against company goals
- Respond effectively to multiple frequently changing priorities and requirements
- Knowledge of live operations, development and QA cycles in the gaming industry or similar
- Must be able to provide solutions in a quick change environment
- Highly collaborative with a willingness to assist others
- Must be Thai national
Good to Have:
- Experience with Facebook, iOS and Android hardware and software
- Proficiency in JIRA, Agile SCRUM methodology is preferred
- An understanding of working with Western style games is a huge plus
About RockYou:
RockYou® is committed to defining the future of social gaming, creating products intended to serve players, advertisers, and developers alike. The company has dedicated itself to the development of high-quality games, including the celebrated Zoo World™ franchise. With advertising products that offer brands more meaningful interactions with players, RockYou creates an unmatched value-per-engagement for both brands and users. RockYou's partnerships with world-class talent are part of their steadfast commitment to working with the next generation of social game developers.
For any interested candidate, please click here to apply directly through our website
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About Rockyou (Thailand) Co., Ltd.
Founded in 2005, RockYou runs the world's largest in-game video ad platform for premium brands, connecting them to 75 million users. RockYou applies its proprietary technology and expertise as a top social game developer to run the world's best monetized ad platform for games, so advertisers can reach highly engaged consumers, and game developers can monetize their entire player base.
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United States District Court, S.D. New York
August 7, 2013
ROSEMARY QUINN and ALAN DUCORSKY, on behalf of themselves and all others similarly situated, Plaintiffs,v.WALGREEN CO., Defendant
Decided August 6, 2013.
Page 534
[Copyrighted Material Omitted]
Page 535
Page 536
For Rosemary Quinn, on behalf of themselves and all others similarly situated, Alan Ducorsky, on behalf of themselves and all others similarly situated, Plaintiff: Jeremiah Lee Frei-Pearson, Todd Seth Garber, LEAD ATTORNEY, Douglas Gregory Blankinship, Meiselman, Packman, Nealon, Scialabba & Baker P.C.(WPl), White Plains, NY.
For Walgreen Co., Defendant: Elizabeth V. Lopez, Justin O. Kay, PRO HAC VICE, Bradley Joseph Andreozzi, LEAD ATTORNEY, Drinker Biddle & Reath, LLP (IL), Chicago, IL; Chance Lee Cooper, Emily Tancer Broach, PRO HAC VICE, Drinker Biddle & Reath LLP, Chicago, IL; Marsha Jessica Indych, Drinker Biddle & Reath, LLP (NYC), New York, NY.
Page 537
Vincent L. Briccetti, United States District Judge.
Plaintiffs Rosemary Quinn and Alan Ducorsky bring this putative class action on behalf of themselves and similarly-situated individuals who purchased from defendant Walgreen Co. (" Walgreens" ) certain dietary supplements that claim to " help rebuild cartilage." Plaintiffs allege these products do not perform as advertised because it is, in fact, impossible to " rebuild cartilage." Plaintiffs assert claims under New York and Connecticut consumer protection statutes, N.Y. Gen. Bus. Law § 349 and Conn. Gen. Stat. Ann. § 42-110a et seq., as well as claims for breach of express warranty and unjust enrichment.
Walgreens has moved to stay this action under the " first-filed" rule pending the determination of a motion pending before the United States District Court for the Northern District of Illinois (Doc. #10), and, alternatively, to dismiss the class action complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. #13).
For the following reasons, the motion to stay is DENIED, and the motion to dismiss is GRANTED in part and DENIED in part.
The Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d).
For purposes of deciding the pending motions, the Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in favor of plaintiffs.
Walgreens sells a line of dietary supplements containing glucosamine and chondroitin (the " Glucosamine Supplements" ) in its stores throughout the country, including in New York and Connecticut. The labels of the Glucosamine Supplements claim the products " help rebuild cartilage." Defendant's line of Glucosamine Supplements consists of six different products that vary in formulation, strength, and quantity. Each of the Glucosamine Supplements includes glucosamine hydrochloride and chondroitin sulfate among its ingredients; however, each product also contains various other ingredients.
Four of the Glucosamine Supplements, " Glucosamine Chondroitin Complex Double Strength," " Glucosamine Chondroitin Complex Triple Strength," " Glucosamine Chondroitin Complex Triple Strength with Vitamin D," and " Glucosamine Chondroitin MSM Complex MSM Hyaluronic Acid," have labels that state: " Formulated to Help: o With Joint Comfort o Rebuild Cartilage & Lubricate Joints." That statement is qualified by the disclaimer: " This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, care, or prevent any disease."
The labels of the other two Glucosamine Supplements, " Glucosamine Chondroitin Complex Advanced 2 Per Day" and " Glucosamine Chondroitin Advanced MSM," state: " Glucosamine & Chondroitin Help Rebuild Cartilage & Lubricate Joints." That representation is subject to the same disclaimer as the other products. The packaging of all six Glucosamine Supplements also contains a warranty promising " 100% Satisfaction Guaranteed with all Walgreens Products or Your Money Back."
Plaintiffs contend defendant's claims that the Glucosamine Supplements " help rebuild cartilage" are false and deceptive
Page 538
because it is " biologically impossible" to rebuild cartilage that has been lost or damaged. In support, plaintiffs cite to several scientific studies which plaintiffs contend confirm that neither glucosamine, chondroitin, nor any other supplement or ingredient can actually rebuild cartilage. Plaintiffs also cite to studies ostensibly finding that glucosamine and chondroitin are ineffective in treating osteoarthritis and other conditions. Plaintiffs acknowledge that at least two studies have found that ingestion of glucosamine may, in fact, affect the growth or deterioration of cartilage, but contend those studies are not credible because they are more than ten years old and were sponsored by a glucosamine supplement manufacturer.
In 2011, plaintiff Rosemary Quinn purchased Glucosamine Supplements at Walgreens stores in Scarsdale, New York, and Danbury, Connecticut. Quinn " read and reviewed" the representation on the label that the products would " help rebuild cartilage" before she purchased them. Quinn subsequently took the supplements, but her cartilage was not rebuilt, as it is " biologically impossible" to rebuild cartilage.
Also in 2011, plaintiff Alan Ducorsky purchased a Glucosamine Supplement at a Walgreens store in New York. Like Quinn, Ducorsky alleges he " read and reviewed" the representation that the product would " help rebuild cartilage" before he purchased it, and he subsequently consumed the supplement but his cartilage was not rebuilt. Plaintiffs contend they would not have purchased the Glucosamine Supplements had they known the products would not " help rebuild cartilage" as advertised.
Plaintiffs commenced this action on November 9, 2012. Walgreens now seeks a stay pending the disposition of a motion to dismiss pending in an earlier filed suit, Guilin v. Walgreen Co., No. 11-07763 (N.D.Ill.). In the alternative, Walgreens moves to dismiss the complaint for failure to state a claim and because plaintiffs lack standing to pursue certain of their claims, pursuant to Rules 12(b)(1) and 12(b)(6).
I. Motion to Stay
A. The Earlier Filed Action
On November 1, 2011, approximately one year before the commencement in this case, Ehrman v. Walgreen Co., No. 11-07763 (N.D.Ill.), was filed in the United States District Court for the Northern District of Illinois. On April 16, 2012, the court granted Ehrman's motion to withdraw as named plaintiff and substitute Luis Guilin as named plaintiff and alleged class representative. Guilin has subsequently filed several amended complaints, and his fourth amended complaint, filed October 10, 2012, is currently subject to a motion to dismiss filed by Walgreens on December 4, 2012. The motion is fully briefed, and a conference is scheduled for August 29, 2013.
The complaint in Guilin alleges Walgreens " markets, sells and distributes Glucosamine Chondroitin Complex, a line of . . . dietary supplements" with " promises that [the products] will help build cartilage, lubricate joints and improve joint comfort." Guilin alleges the packaging for this line of supplements is deceptive because the products do not rebuild cartilage, lubricate joints, or improve joint comfort.
Guilin, who purchased the glucosamine product in California, asserts claims under various California consumer protection statutes. Additionally, pursuant to Rule 23, plaintiff seeks certification of a multi-state class against Walgreens for violations of the California consumer protection statutes, and similar consumer protection statues in thirty-two other states, including New York and Connecticut.
Page 539
B. Applicable Law
" As part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit." Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). The first-filed rule is a well-settled principle in the Second Circuit, establishing that " [w]here there are two competing lawsuits, the first suit should have priority." First City Nat'l Bank and Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989) (internal quotation marks omitted). The rule " 'embodies considerations of judicial administration and conservation of resources' by avoiding duplicative litigation and honoring the plaintiff's choice of forum." Emp'rs Ins. of Wausau v. Fox Entm't Grp., Inc., 522 F.3d 271, 275 (2d Cir. 2008) (quoting First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d at 79). More specifically, the rule is intended to " avoid duplication of judicial effort, avoid vexatious litigation in multiple forums, achieve comprehensive disposition of litigation among parties over related issues, and eliminate the risk of inconsistent adjudication." Marshak v. Reed, 13 F. App'x 19, 19 (2d Cir. 2001) (summary order).
When applying the first-filed rule to assertedly duplicative actions, the court must carefully consider whether the suits are, in fact, duplicative, and must " not to be swayed by a rough resemblance between the two suits without assuring itself that beyond the resemblance already noted, the claims asserted in both suits are also the same." Curtis v. Citibank, N.A., 226 F.3d at 136.
Moreover, although the rule creates a general presumption that a first-filed suit has priority, that presumption is not " applied in a 'rigid' or 'mechanical' way." Dornoch Ltd. v. PBM Holdings, Inc., 666 F.Supp.2d 366, 369 (S.D.N.Y. 2009) (quoting Columbia Pictures Indus., Inc. v. Schneider, 435 F.Supp. 742, 747 (S.D.N.Y. 1977)). Rather, because " [t]he complex problems that can arise from multiple federal filings do not lend themselves to a rigid test," the district court is instead required to " consider the equities of the situation when exercising its discretion." Naula v. Rite Aid of N.Y., 2010 WL 2399364, at *3 (S.D.N.Y. Mar. 23, 2010).
" Although it is typically invoked in non-class contexts, the first-filed rule has been applied to class action suits filed by different plaintiff classes against the same defendant. In that setting, for the rule to apply, 'identical or substantially similar parties and claims [must be]' present in both courts." Bukhari v. Deloitte & Touche LLP, 2012 WL 5904815, at *3 (S.D.N.Y. Nov. 26, 2012) (quoting Pippins v. KPMG LLP, 2012 WL 1143010, at *2 (S.D.N.Y. Mar. 21, 2011) (internal quotation marks omitted)). " The decision whether or not to stay or dismiss a proceeding rests within a district court's discretion." Hollinee Corp. v. Weyher, 1992 WL 110989, at *5 (S.D.N.Y. May 4, 1992).
C. Analysis
Here, because this case presents neither identical issues nor identical parties as the action, the Court finds the first-filed rule does not apply. In this action, plaintiffs raise claims under New York and Connecticut law and seek certification of New York and Connecticut classes. Conversely, the plaintiff in Guilin purchased defendant's product in California and asserts claims under California law. Although the Guilin action also seeks certification of a multi-state class that could potentially encompass New York and Connecticut consumers, no nationwide class has, in fact, been certified in Guilin. Therefore, neither the parties nor the issues in this case are identical to those in Guilin. See Bukhari v. Deloitte & Touche LLP, 2012 WL 5904815, at *3
Page 540
( For the first-filed rule to apply, there must be " 'essentially the same lawsuit involving the same parties and the same issues' [] filed in two different forums." ) (quoting Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978)).
Importantly, Walgreens does not seek dismissal of this action or transfer of the action to the Northern District of Illinois, it merely seeks a stay pending the Guilin court's disposition of the pending motion to dismiss. However, the disposition of that motion cannot be dispositive of the case at bar. Whether the motion is granted or denied, this Court must still decide the motion to dismiss pending in this case; the decision of a district court in another district in a case involving different plaintiffs and different law certainly is not binding on this Court. Therefore, the Court finds " considerations of judicial administration and conservation of resources" do not counsel in favor of staying this case pending the disposition of the motion to dismiss pending in Guilin. Emp'rs Ins. of Wausau v. Fox Entm't Grp., Inc., 522 F.3d 271, 275 (2d Cir. 2008) (internal quotation marks omitted).
Accordingly, the motion for a stay is denied.
II. Motion to Dismiss
A. Standard of Review
1. Rule 12(b)(1)
" [F]ederal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress."
Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal quotation marks omitted). " A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation marks omitted). Once the question of jurisdiction has been raised, plaintiff bears the burden of establishing that subject matter jurisdiction exists by a preponderance of the evidence.
See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2010). " [T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff . . . but jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal citations and quotations omitted). The court may also refer to evidence outside the pleadings. Makarova v. United States, 201 F.3d at 113.
2. Rule 12(b)(6)
" The function of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted). In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court evaluates the sufficiency of the complaint under the " two-pronged approach" suggested by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). First, plaintiff's legal conclusions and " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement
Page 541
to relief." Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of " plausibility." Ashcroft v. Iqbal, 556 U.S. at 678; Bell A. Corp. v. Twombly, 550 U.S. 544, 564, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. at 678. " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
B. Plaintiffs' Standing to Bring Claims Relating to Products They Did Not Purchase
Walgreens moves to dismiss plaintiffs' claims relating to products they did not purchase for lack of standing pursuant to Rule 12(b)(1). Defendant argues that because the named plaintiffs purchased only one Glucosamine Supplement -- Glucosamine Chondroitin Complex Triple Strength -- they lack standing to assert claims relating to the five other Glucosamine Supplements manufactured and sold by defendant. The Court disagrees.
Standing is a prerequisite to bringing suit in federal court. The Supreme Court has held that constitutional standing requires a plaintiff to establish at minimum three elements: (1) she suffered an " injury in fact" ; (2) a causal connection between the injury and defendant's conduct; and (3) a federal court decision is likely to redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Courts are split as to whether plaintiffs have standing to assert claims relating to products they themselves did not purchase, but which are substantially similar to products they did purchase. See, e.g., Donohue v. Apple, Inc., 871 F.Supp.2d 913, 921-22 (N.D. Cal. 2012) (collecting cases). " Some federal courts have held, as a matter of law, that a plaintiff lacks standing to assert such claims." Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d 881, 889 (N.D. Cal. 2012); see Granfield v. NVIDIA Corp., 2012 WL 2847575, at *6 (N.D. Cal. July 11, 2012) (" [W]hen a plaintiff asserts claims based both on products that she purchased and products that she did not purchase, claims relating to products not purchased must be dismissed for lack of standing." ). Other courts have held that " the standing inquiry is more appropriately resolved on a motion for class certification." Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890. Accordingly, such courts routinely deny Rule 12(b)(1) motions to dismiss and, instead, reserve the standing analysis until a motion for class certification. See Forcellati v. Hyland's, Inc., 876 F.Supp.2d 1155, 1161 (C.D. Cal. 2012) (denying defendant's motion to dismiss because the " argument is better taken under the lens of typicality or adequacy of representation, rather than standing" ).
" The majority of the courts that have carefully analyzed the question hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar." Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890. Courts have found products with only minor differences in ingredients or flavors to be substantially similar for standing purposes. See Astiana v. Dreyer's Grand Ice Cream, Inc., 2012 WL 2990766, at *13 (N.D. Cal. July 20, 2012) (the fact different ice creams have different ingredients is " not dispositive as Plaintiffs are challenging the same basic mislabeling practice across different
Page 542
product flavors" ); Anderson v. Jamba Juice Co., 888 F.Supp.2d 1000, 1006 (N.D. Cal. 2012) (plaintiff, who purchased several flavors of at-home " smoothie" kits, had standing to bring claims on behalf of purchasers of other flavors because products were sufficiently similar and " same alleged misrepresentation was on all of the smoothie kit[s] regardless of flavor" );
see also Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890 (" Where product composition is less important, the cases turn on whether the alleged misrepresentations are sufficiently similar across product lines." ).
Recently, district courts have disagreed on this issue in the specific context of glucosamine supplements. In Pearson v. Target Corp., plaintiff alleged defendant violated an Illinois consumer protection statute by selling and distributing a line of glucosamine supplements it knew to be ineffective. 2012 WL 7761986, at *1 (N.D.Ill. Nov. 9, 2012). The court held the plaintiff did not have standing to assert claims relating to products he did not purchase, rhetorically asking, " how could he possibly have been injured by representations made on a product he did not buy?" Id.; accord Padilla v. Costco Wholesale Co., 2013 WL 195769, at *3 (N.D.Ill. Jan. 16, 2013).
Other courts have taken a different -- and, in this Court's view, better -- approach. For example, in Cardenas v. NBTY, Inc., 870 F.Supp.2d 984 (E.D. Cal. 2012), a consumer brought a putative class action against the seller of a line of glucosamine supplements. There, plaintiff purchased only one of eight " Osteo Bi-Flex" glucosamine products, and sought to certify a class consisting of consumers who purchased any product in the supplement line. The court, in denying defendant's motion to dismiss, found plaintiff had standing to assert claims relating to the product he had purchased, and noted the court would analyze solely under Rule 23 " whether Plaintiff may be allowed to present claims on behalf of purchasers of the remaining Osteo Bi-Flex products." Id. at 992; accord Aguilar v. Boulder Brands, Inc., 2013 WL 2481549, at *3 (S.D. Cal. June 10, 2013).
The Court finds the reasoning in Cardenas v. NBTY, Inc. persuasive. There is no question plaintiffs have standing to assert claims relating to the product they did purchase. Further, there are substantial similarities between all of defendants' Glucosamine Supplements, and the alleged misrepresentations on the labels of the Glucosamine Supplements are nearly identical. Therefore, the Court finds the appropriate time to consider whether plaintiffs can bring claims on behalf of purchasers of all of the various Glucosamine Supplements is at the class certification stage, not on a motion to dismiss. See Cardenas v. NBTY, Inc., 870 F.Supp.2d at 992; Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890-92; Koh v. S.C. Johnson & Son, Inc., 2010 WL 94265, at *3 (N.D. Cal. Jan. 6, 2010) (denying defendants motion to dismiss plaintiff's claims relating to products he did not purchase, noting " this is not a case in which plaintiff is asserting claims against defendants that never harmed him," and " defer[ing] ruling on the issue until the class certification stage" ); see also Elias v. Ungar's Food Products, Inc., 252 F.R.D. 233, 243 (D.N.J. 2008) (granting in part motion for class certification and noting, " the fact that the named plaintiffs did not purchase some of the products at issue does not render plaintiffs' claims atypical from the potential class members nor does it defeat commonality" ).
Accordingly, the motion to dismiss plaintiffs' claims relating to products they did not purchase is denied.
Page 543
C. Failure to State a Claim
1. New York and Connecticut Consumer Protection Statutes
New York General Business Law § 349 provides: " [d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful." To establish a prima facie case under Section 349, plaintiffs must demonstrate that " (1) the defendant's deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result." Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000) (citing Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 647 N.E.2d 741, 623 N.Y.S.2d 529 (1995)). " [D]eceptive acts" are defined as acts that are " likely to mislead a reasonable consumer acting reasonably under the circumstances." Maurizio v. Goldsmith, 230 F.3d at 522.
The scope of Section 349 is notably broad in three important respects. First, claims brought under Section 349 are not subject to the heightened pleading requirements set forth in Rule 9(b). See Pelman ex rel. Pelman v. McDonald's Corp., 396 F.3d 508, 511 (2d Cir. 2005). Second, to state a claim under Section 349, plaintiffs need not allege they relied on defendants' misrepresentations. See Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941, 967 N.E.2d 675, 944 N.Y.S.2d 452 (2012). Third, plaintiffs need not plead defendants knew or should have known the alleged statements were false or misleading. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d at 26.
The Connecticut Unfair Trade Practices Act (" CUTPA" ) provides, in relevant part, that " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Conn. Gen. Stat. § 42-110b(a). CUTPA is intended to be liberally construed " in an effort to effectuate its public policy goals." Sportsmen's Boating Corp. v. Hensley, 192 Conn. 747, 756, 474 A.2d 780 (1984) (citing Conn. Gen. Stat. § 42-110b(d)). CUTPA requires neither reliance nor " proof of intent to deceive, to defraud or to mislead." Associated Inv. Co. Ltd. P'ship v. Williams Assoc. IV, 230 Conn. 148, 158, 645 A.2d 505 (1994) (citations and internal alterations omitted). Additionally, CUTPA claims need not meet the heightened pleading requirements of Rule 9(b). See Tatum v. Oberg, 650 F.Supp.2d 185, 195 (D. Conn. 2009) (quoting Associated Inv. Co. Ltd. P'ship v. Williams Assocs. IV, 230 Conn. 148, 158, 645 A.2d 505 (Conn. 1994).
Under either statute, whether a particular act or practice is deceptive is usually a question of fact. See, e.g., Sims v. First Consumers Nat. Bank, 303 A.D.2d 288, 289, 758 N.Y.S.2d 284 (1st Dep't 2003) (Section 349); Naples v. Keystone Bldg. & Dev. Corp., 295 Conn. 214, 228, 990 A.2d 326 (2010) (CUTPA).
Here, plaintiffs have plausibly alleged that defendant's representation that the Glucosamine Supplements " help rebuild cartilage" is false or deceptive. Plaintiffs sufficiently " point to the specific statements that form the basis" of their claims, Pelman v. McDonald's Corp., 237 F.Supp.2d 512, 527 (S.D.N.Y. 2003), and also state why defendant's statement is allegedly false and deceptive; i.e., because " it is medically impossible to rebuild cartilage that has been damaged or destroyed simply by taking glucosamine and/or chondroitin supplements, however formulated." To support their claims, plaintiffs cite to numerous scientific studies that arguably support their conclusion that glucosamine and chondroitin products cannot reverse
Page 544
the deterioration of cartilage or cause it to be rebuilt. Therefore, plaintiffs have plausibly alleged that defendant's claim that the Glucosamine Supplements " help rebuild cartilage" is false or deceptive -- particularly given that plaintiffs need not meet Rule 9(b)'s heightened pleading standards.
The Court finds unavailing defendant's contention that plaintiffs' claims should be dismissed because the studies plaintiffs cite do not, in fact, support the precise propositions for which they are cited. Whether or not the studies support plaintiff's proposition that it is " biologically impossible" to rebuild cartilage is an issue of fact the Court cannot resolve on a motion to dismiss. See Pearson v. Target Corp., 2012 WL 7761986, at *2 (" [W]hether or not the proffered studies are applicable to [the glucosamine supplement at issue] is a question of fact that I do not decide at this stage. The fact that these studies looked at products that shared the same active ingredients -- Glucosamine, Chondroitin, and MSM -- makes Plaintiff's claim facially plausible.); Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *17 (E.D.N.Y. July 21, 2010) ( " whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires consideration and weighing of evidence from both sides and therefore usually cannot be resolved through a motion to dismiss" ) (internal quotation marks omitted)).
Finally, to the extent Walgreens argues plaintiffs' claims merely amount to a non-actionable " lack of substantiation" claim, that argument is also unavailing. Contrary to defendant's contentions, the thrust of plaintiffs' complaint is not merely " that Walgreens' marketing of the [Glucosamine Supplements] is deceptive because . . . the statements on the labels are not substantiated by scientific studies." Rather, plaintiffs allege the " helps rebuild cartilage" statement is affirmatively false because, as a matter of scientific fact, it is impossible to rebuild cartilage. Further, plaintiffs cite to clinical studies that allegedly support their allegation that the Glucosamine Supplements cannot " help rebuild cartilage" under any circumstances. Therefore, the Court does not construe plaintiffs' claims as based on a non-actionable, " lack of substantiation" theory. See Hughes v. Ester C Co., 930 F.Supp.2d 439, 2013 WL 1080533, at 13 (E.D.N.Y. Mar. 15, 2013).
In sum, the Court finds plaintiffs have stated plausible claims under Section 349 and CUTPA, and the motion to dismiss those claims is denied.
2. Breach of Warranty
To assert a breach of warranty claim under both New York and Connecticut law, a buyer must provide the seller with timely notice of the alleged breach of warranty. N.Y. U.C.C. § 2-607(3)(a) ( " Where a tender has been accepted the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy." ); Conn. Gen. Stat. § 42a-2-607(3)(a) (same); see Hubbard v. Gen. Motors Corp., 1996 WL 274018, at *5 (S.D.N.Y. May 22, 1996) (" Plaintiff's Complaint lacks any allegation that plaintiff notified [the seller] of the claimed defect. Accordingly, the Court grants defendant's motion to dismiss plaintiff's claims for breach of . . . warranty for failure to allege notice." ); Benchmark Bldg. Corp. v. United Builders Supply Co., Inc., 1992 WL 124139, at *2 (Conn. S.Ct. May 28, 1992) ( " a failure to plead compliance with the notice provision of . . . § 42a-2-607(3) bars recovery in a breach of warranty action" ).
Here, plaintiffs have failed to allege they provided Walgreens with timely notice of the alleged breach of warranty. Accordingly, plaintiffs' breach of warranty claims are dismissed.
Page 545
3. Unjust Enrichment
" To prevail on a claim for unjust enrichment in New York, a plaintiff must establish: (1) defendant was enriched; (2) the enrichment was at plaintiff's expense; and (3) the circumstances were such that equity and good conscience require defendant[] to make restitution." Hughes v. Ester C Co., 930 F.Supp.2d 439, 2013 WL 1080533, at *24. Similarly, Connecticut law requires that " [p]laintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).
Plaintiffs have alleged Walgreens benefited from plaintiffs' purchases of Glucosamine Supplements, and permitting Walgreens to retain that benefit in the event the Glucosamine Supplements do not work as advertised would be unjust. Consequently, plaintiffs have stated claims for unjust enrichment under both New York and Connecticut law.[1]
Defendant's motion for a stay is DENIED.
Defendant's motion to dismiss the complaint is GRANTED in part and DENIED in part.
The Clerk is instructed to terminate the motions. (Docs. #10, 13).
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October 29, 2010
ERIC CHRISTOPHER HALL, PLAINTIFF,v.GEORGE WAGNER, DEFENDANT.
Presently before the Court is Defendant George Wagner's ("Wagner" or "Defendant") Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendant's Motion is granted.
Plaintiff Eric Christopher Hall ("Hall" or "Plaintiff") initiated this pro se 42 U.S.C. § 1983 civil rights action against Wagner based on an incident that occurred while he was incarcerated at Berks County Prison (the "Prison"). Notably, Wagner is the Warden at the Prison. Specifically, Hall alleges that he was injured when a weld on the frame of a bunk bed broke as he was climbing onto the top bunk.
On June 17, 2010, Hall filed his original Complaint in this Court. Hall's Complaint consists of the following allegations:
I was climbing onto the top bunk when the frame broke from the weld that held it together.
1. [Wagner] is allowing conditions to exist in his prison that are unsafe. There is no step ladder to safely ascend to the top bunk, therefore causing my injuries.
2. [Wagner] allowed conditions in his prison so extreme that the weld that held this repaired bunk together was faulty, therefore causing my injury.
3. [Wagner] failed to protect me from injury while in his prison. (Compl. at 4.)
On June 28, 2010, Hall filed an Amended Complaint which describes his alleged injuries in more detail. The Amended Complaint states:
"I, Eric C. Hall, sustained lower back injuries when the bed broke upon me trying to get on the top bunk. The medical treatment that I've been receiving has been only pain medication. I have been scheduled for a M.R.I. and possible surgery by Dr. Gessner because the pain has not subsided. The symptons [sic] of my injuries are consistent with a pinched nerve (sciatic), also stated by Dr. Gessner. I have all of the sick calls and request slip responses concerning the time spand [sic] and continuing complaints of my discomfort. If any further information is necessary please inform me of the spcifics [sic]. (Am. Compl. at 1.) The Court will consider the allegations in both the original Complaint and Amended Complaint for purposes of the instant Motion.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atlantic Corporation v. Twombly, the Supreme Court stated that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. 544, 555 (2007).
Following Twombly, the Third Circuit has explained that the factual allegations in the complaint may not be "so undeveloped that it does not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Moreover, "it is no longer sufficient to allege mere elements of a cause of action; instead 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 563 n.8). Furthermore, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234 (quoting Twombly, 550 U.S. at 555). "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Id. (quoting Twombly, 550 U.S. at 556).
In Ashcroft v. Iqbal, the Supreme Court applied the Twombly standard, stating that "[t]o survive a 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.'" 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 570). The Supreme Court explained that deciding whether a "complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
Notwithstanding Twombly and Iqbal, the general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515 F.3d at 231. Moreover, when evaluating a motion to dismiss, the court must accept as true all well-pleaded allegations of fact in the plaintiff's complaint, and must view any reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. Id.; Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). The court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).
Importantly, it is well-settled that pro se complaints should be liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Pro se complaints, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Id. "If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements." Sloan v. Brooks, No. 08-163, 2010 WL 3420675, at *2 (W.D. Pa. Aug. 10, 2010) (citations omitted). Pursuant to these liberal pleading rules, "during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant." Id. (citing Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997)).
A. The Instant Motion is Uncontested
As an initial matter, Defendant's Motion is uncontested. Local Civil Rule 7.1(c) states, in relevant part:
Unless the parties have agreed upon a different schedule and such agreement is approved under Local Civil Rule 7.4 and is set forth in the motion, or unless the Court directs otherwise, any party opposing the motion shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion and supporting brief . . . . In the absence of timely response, the motion may be granted as uncontested except that a summary judgment motion, to which there has been no timely response, will be governed by Fed. R. Civ. P. 56(c).
Loc. R. Civ. P. 7.1(c) (emphasis added); Fleming v. U.S. Veterans Admin. Med. Ctrs., 348 F. App'x. 737, 738 (3d Cir. 2009) ("We agree that the District Court acted within its authority to dismiss the complaint as unopposed pursuant to the Local Civil Rules.").
In this case, Wagner filed the current Motion on August 26, 2010. To date, Hall has not filed a response or requested an extension of time to file a response. Thus, under the plain language of the Local Rule, it would be appropriate to grant the Motion as uncontested. Nevertheless, because the Third Circuit "has recommended that trial courts not grant motions to dismiss pursuant to Rule 12(b)(6) inpro se civil rights actions without analyzing the merits of the underlying complaint," we will examine the allegations in both Complaints and dispose of the Motion on the merits rather than grant it as uncontested. Credico v. Penn. State Police, No. 09-691, 2010 WL 331700, at *1 n.1 (E.D. Pa. Jan. 27, 2010) (citing Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)).
B. Hall's Claim Under The Eighth Amendment
In the instant Motion, Wagner argues that Hall has failed to adequately plead a constitutional violation. Although it is not explicitly set forth in the pleadings, we will infer from the pro se Complaints that Hall is proceeding under the Eighth Amendment -- alleging that Wagner subjected him to cruel and unusual punishment while he was incarcerated.*fn1 We agree that Plaintiff has failed to sufficiently plead an Eighth Amendment violation.
Pursuant to the Eighth Amendment, prisoners are protected from cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Significantly, however, "not all deficiencies and inadequacies in prison conditions amount to a violation of an inmate's constitutional rights." Booth v. King, 228 F. App'x 167, 171 (3d Cir. 2007). "Cruel and unusual punishment will only be found 'where viewing the totality of the conditions in the prison, the inmate's conditions of confinement, alone or in combination, deprive him of the minimal civilized measure of life's necessities.'" Sloan v. Brooks, No. 08-163, 2010 WL 3420675, at *5 (E.D. Pa. Aug. 10, 2010) (quoting Booth, 228 F. App'x at 171). The United States Supreme Court has made clear that liability under § 1983 requires "more than ordinary lack of due care for the prisoner's interests or safety." Whitley v. Albers, 475 U.S. 312, 319 (1986).
An Eighth Amendment claim against a prison official meet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer, 511 U.S. at 834; see also Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). "In prison conditions cases, 'that state of mind is one of deliberate indifference to inmate health or safety.'" Kimble v. Tennis, No. 05-1871, 2006 WL 1548950, at *2 (M.D. Pa. June 5, 2006) (quoting Farmer, 511 U.S. at 834).
The second prong of the Farmer test is a subjective one, requiring the Plaintiff to establish that Defendants acted with deliberate indifference. Davila-Bajana v. Holohan, No. 04-253, 2010 WL 2757104, at *9 (W.D. Pa. June 17, 2010). "To establish deliberate indifference: 1) a prison official must know of and disregard an excessive risk to inmate health or safety; 2) the official must be aware of facts from which an inference could be drawn that a substantial risk of serious harm exists, and 3) the official must also draw the inference." Id. (citing Farmer, 511 U.S. at 837).
Here, Hall has failed to plead a cognizable claim of an Eighth Amendment violation against Wagner. Specifically, he has not alleged that Wagner was aware of any unsafe conditions related to the bunk bed or deliberately disregarded any potential issues. Hall has simply not provided this Court with any direct or circumstantial facts that would support a conclusion that Wagner was subjectively aware of a risk of harm associated with the structure of the relevant bed.
As the Third Circuit has stated, "[m]ere negligence claims do not constitute 'deliberate indifference.'" Innis v. Wilson, 334 F. App'x. 454, 457 (3d Cir. 2009). Moreover, "[a]n accidental injury does not amount to an Eighth Amendment violation when prison officials act negligently or are unaware of a substantial risk of serious harm, which results in injury." Bennett v. City of Philadelphia, No. 07-2794, 2008 WL 4211701, at *6 (E.D. Pa. Sept. 9, 2008). At most, Plaintiff alleges mere negligence or an accidental injury. The facts alleged certainly do not set forth that Wagner was deliberately indifferent to any risk to Hall's safety or that Hall was subjected to any cruel and unusual punishment.*fn2
For the reasons set forth above, the Court finds that Hall's Complaint and Amended Complaint must be dismissed.
An appropriate Order follows.
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text: Ate here and ordered the tom yum soup, crying tiger with pineapple rice and noodles. Lo and behold there was a fly in the soup. No one apologized nor offered any explanation. It was like it did not happen. When I brought it to the attention of our server, she did not say anything to us. We changed our order... More