Kommer v. Bayer Consumer Health , 710 F. App'x 43 ( 2018 )

17-1772
Kommer v. Bayer Consumer Health
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
31st of January, two thousand eighteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
JAMES KOMMER, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant,
-v.- 17-1772
BAYER CONSUMER HEALTH, a division
of Bayer AG, MSD CONSUMER CARE,
INC., BAYER CONSUMER CARE HOLDINGS
LLC, BAYER HEALTHCARE LLC, BAYER
CORPORATION,
Defendants-Appellees.
____________________________________
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FOR PLAINTIFF-APPELLANT: ROBERT J. BERG (with Jeffrey I.
Carton on the brief), Denlea &
Carton LLP, White Plains, NY.
FOR DEFENDANTS-APPELLEES: EUGENE A. SCHOON (with James D.
Arden on the brief), Sidley Austin
LLP, New York, NY and Chicago, IL.
Appeal from a judgment of the United States District Court
for the Southern District of New York (Batts, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
James Kommer brought this putative class action in the
United States District Court for the Southern District of New
York (Batts, J.), alleging that the defendants’ marketing of
their product, “Dr. Scholl’s Custom Fit Orthotic Inserts,”
constitutes a deceptive business practice and false advertising
under New York General Business Law (“GBL”) §§ 349 and 350. In
essence, the complaint alleges that Kommer and other consumers
were led to believe incorrectly that the orthotics--which they
purchased in prepackaged sizes, over-the-counter at retail
stores such as Walmart--were “custom fit” in the sense that they
were “individually designed for each [consumer’s specific]
feet.” App’x at 12. On motion of the defendants, the district
court dismissed the request for injunctive relief for lack of
Article III standing, and the balance of the complaint for
failure to state a claim. We assume the parties’ familiarity
with the underlying facts, the procedural history, and the
issues presented for review.
1. Kommer challenges the district court’s determination
that he lacks Article III standing to seek injunctive relief
on behalf of himself and the putative class. See U.S. Const.
art. III, § 2. We review that determination de novo. See
Nicosia v. Amazon.com, Inc., 834 F.3d 220, 238 (2d Cir. 2016).
“A plaintiff seeking to represent a class must personally
have standing” to pursue “each form of relief sought.” Id. at
239. A plaintiff “lack[s] standing to pursue injunctive relief
[if he is] unable to establish a ‘real or immediate threat’ of
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injury.” Id. (quoting City of Los Angeles v. Lyons, 461 U.S.
95, 111–12 (1983)). “[P]ast injuries . . . [therefore] do not
confer standing to seek injunctive relief unless the plaintiff
can demonstrate that []he is likely to be harmed again in the
future in a similar way.” Id.Kommer fails to “establish a likelihood of [such] future
. . . harm.” Id. “Even assuming his past purchases of [Dr.
Scholl’s Custom Fit Orthotic Inserts] resulted in [an] injury
. . . , he has not shown that he is likely to be subjected to
further [injurious] sales” of that sort because he “fail[s] to
allege that he intends to [purchase the offending product] in
the future.” Id. As he concedes, “now [that he] knows of
Defendants’ [alleged] deception and false advertising, . . .
he is no longer likely to purchase another pair of Dr. Scholl’s
Custom Fit Orthotics Inserts ever again.” Appellant’s Br. at
54. Accordingly, he has no standing under Article III to enjoin
the defendants’ sales practices, and the court properly deemed
him precluded from seeking that relief.
2. Kommer challenges the district court’s determination
that his complaint fails to state a claim under GBL §§ 349 and
350. See Fed. R. Civ. P. 12(b)(6). We review that
determination de novo. See Nicosia, 834 F.3d at 230.
An independent review of the allegations and relevant state
law confirms that the complaint fails to state a claim. This
is so for substantially the reasons articulated in the district
court’s May 18, 2017 Memorandum and Order. See Kommer v. Bayer
Consumer Health, 252 F. Supp. 3d 304, 310-13 (S.D.N.Y. 2017).
In particular, the complaint fails to plausibly allege that the
defendants engaged in conduct “likely to mislead a reasonable
consumer acting reasonably under the circumstances,” a required
element of both claimed violations of the GBL. Orlander v.
Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Cohen
v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007)).
The court therefore properly dismissed the case.
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We have considered Kommer’s arguments and find them to be
without merit. For the foregoing reasons, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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