City of Perry v. Procter & Gamble Co.

188 F. Supp. 3d 276, 2016 U.S. Dist. LEXIS 66010, 2016 WL 2939511
CourtDistrict Court, S.D. New York
DecidedMay 19, 2016
Docket15-CV-8051 (JMF)
StatusPublished
Cited by21 cases

This text of 188 F. Supp. 3d 276 (City of Perry v. Procter & Gamble Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Perry v. Procter & Gamble Co., 188 F. Supp. 3d 276, 2016 U.S. Dist. LEXIS 66010, 2016 WL 2939511 (S.D.N.Y. 2016).

Opinion

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiff, the city of Perry, Iowa (“Perry” or the “City”), brings this putative class action against six leading manufacturers of so-called “flushable wipes”: Procter <& Gamble Company (“P&G”), Kimberly-Clark Corporation (“Kimberly-Clark”), Nice-Pak Products, Inc. (“Nice-Pak”), Professional Disposables International, Inc. (“PDI”), Tufco Technologies Inc. (“Tufco”), and Rockline Industries (“Rockline”). Perry alleges that, contrary to Defendants’ representations, the wipes are not actually “flushable” because they do not degrade after being flushed down a toilet. Instead, the wipes remain intact, creating clogs in and causing other damage to municipal sewer systems, wastewater treatment plants, and public buildings. Perry contends that it has suffered damages as a result of the harm to its water systems and public buildings, and asserts claims— on behalf of itself and a putative class of similarly situated municipalities—against Defendants for declaratory relief and various state-law causes of .action, including breach of warranty, misrepresentation, and nuisance. Defendants now move to dismiss the Complaint pursuant to Rules 8 and 12(b) of the Federal Rules of Civil Procedure. For the following reasons, Defendants’ motion is GRANTED in part and DENIED in part.

BACKGROUND

The following facts, taken from the Complaint, exhibits attached thereto, and [281]*281statements or documents incorporated into the complaint by reference, are assumed to be true for the purposes of this motion. See, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir.2013); LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir.2009); Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir.1999).

Defendants each market and sell “flush-able” personal hygiene products, primarily ‘Swipes.” (See First Am. Class Action Compl. (Docket No. 78) (“FAC”) ¶ 1). The Complaint defines “flushable wipes” as “all wipe products designed, distributed, marketed, and advertised by the Defendants as suitable or able to be flushed down a toilet without causing harm to plumbing, sewer, and septic systems.” (Id. ¶ 2).1 Defendants market the wipes, via product labeling and advertisements, as “flusha-ble,” able to “break up after flushing,” and “sewer and septic safe.” (See id. ¶¶ 49-85). “Flushable” wipes are pre-moistened and, in order to maintain that , moisture without breaking down prior to use, they have been engineered to have so-called “wet strength.” (Id. ¶¶ 24-25). Such “wet strength,” however, also means that the wipes do not degrade easily (as, for example, toilet paper does), even when subjected to significant force. (Id. ¶¶26, 28-31). As a result, the wipes remain intact as they pass through home plumbing and public sewer systems, causing clogs and other damage. (Id. ¶¶ 33-36). More specifically, Perry contends that wipes have jammed its water system’s lift stations (id. ¶40), clogged and backed up its sewer pipes (id. ¶ 41), and clogged pipes in municipal buildings (id. ¶ 42). Flushable wipes have been identified as contributing at least in part to the clogs in each case. (See id. ¶¶ 39-42). Perry has been unable to identify the manufacturer of any given wipe, but it notes that almost all of the “flushable” wipes available for sale in six large stores in Perry and the surrounding area are manufactured by one of the Defendants. (Id. ¶¶ 43-44).

On October 13, 2015, Perry filed its Complaint in this Court, asserting eight claims for relief under state and federal law. (Docket No. 1; see FAC ¶¶ 110-164). Perry seeks to represent several classes of similarly situated plaintiffs: nationwide classes comprised of wastewater operators, entities that own or operate sewage lines, and entities that own or operate buildings that have experienced plumbing issues attributable to flushable wipes; and Iowa classes representing the same. (See FAC ¶¶ 95-96). Notably, this case is far from the only pending legal proceeding relating to whether “flushable” wipes are, in fact, “flushable.” Consumers have filed at least fifteen putative class actions against one or more of the Defendants here (and, in some instances, other parties). See Belfiore v. Procter & Gamble Co., 311 F.R.D. 29, 42-45 (E.D.N.Y.2015) (listing cases). And there is at least one other putative class action, in the District of Minnesota, brought on behalf of municipal plaintiffs, with claims much like those in this case. See City of Wy., et al. v. Procter & Gamble Co., et al., No. 15-CV-2101 (JRT) (D. Minn.), Docket No. 61 (First Am. Class Action Compl.).2 In addition, the Federal [282]*282Trade Commission (“FTC”) is investigating the accuracy of the “flushable” label. See Belfiore, 311 F.R.D. at 45-47; see also id. at 79-80 (referring “[t]he issue of an appropriate definition of ‘flushable’ wipes and related issues” to the FTC and staying the case pending those proceedings). Among other things, the FTC filed a formal complaint against Defendant Nice-Pak, and later entered into a consent agreement prohibiting Nice-Pak from marketing products as “flushable” unless they meet certain requirements. Id. at 45-47. (See also Pl.’s Mem. Law Opp’n Defs.’ Mot. To Dismiss First Am. Compl. (Docket No. 105) (“PL’s Opp’n”) 2 n.2). The FTC has also apparently conducted an informal inquiry with respect P&G’s “flushable” products. See Belfiore, 311 F.R.D. at 47.

LEGAL STANDARDS

Defendants move to dismiss pursuant to Rules 8, 12(b)(1), and 12(b)(6) of the Federal Rules of Civil Procedure. Rule 8(a) requires that a pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (holding that a complaint “satisfies the requirements of Rule 8(a) [when] it gives [the defendant] fair notice of the basis for [the plaintiffs] claims”). A. Rule 12(b)(1) motion challenges the court’s subject-matter jurisdiction to hear the ease. See, e.g., Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (“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.”). In reviewing a motion to dismiss under Rule 12(b)(1), a 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 Austl. Bank Ltd., 547 F.3d 167

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188 F. Supp. 3d 276, 2016 U.S. Dist. LEXIS 66010, 2016 WL 2939511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-perry-v-procter-gamble-co-nysd-2016.