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Standing For Injunctive Relief:
Plaintiffs seeking injunctive relief must show they are “in danger of being injured by the opposing party’s conduct and that the danger is both ‘real’ and ‘imminent.'”Gardner v. Montgomery Cnty. Teachers Fed. , 864 F. Supp. 2d 410, 421 ). Therefore, ” plaintiff has standing to sue for injunctive relief when there is a ‘real or immediate threat’ that the party will suffer an injury in the future.” Griffin v. Dep’t of Labor Fed. , 912 F.3d 649, 655 . Relevant here, the Ninth Circuit has held that “a previously deceived consumer may have standing to seek an injunction against false advertising or labeling” if she plausibly alleges “that she will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product although she would like to” or that “she might purchase the product in the future, despite the fact that it was once marred by false advertising or labeling, as she may reasonably, but incorrectly, assume the product was improved.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969-70 .
“That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.'” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 n.6 .
Unreported decisions are cited for the soundness of their reasoning, not for any precedential value.
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Motion For Judgment On The Pleadings:
Motions for judgment on the pleadings under Fed. R. Civ. P. 12 are decided under the same standard as motions to dismiss under Rule 12. Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 154 . 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 .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 . “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 . “Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line from conceivable to plausible.'” Id. . 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 ).
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Negligent Misrepresentation Claim Against Nice
To establish a claim for negligent misrepresentation under Maryland law, a plaintiff must prove:
the defendant, owing a duty of care to the plaintiff, negligently asserted a false
statement the defendant intended that the statement will be acted upon by the plaintiff the defendant has knowledge that the plaintiff will probably rely on the statement which, if erroneous, will cause loss or injury the plaintiff, justifiably, took action in reliance on the statement, and the plaintiff suffered damage proximately caused by the defendant’s negligence.
The parties do not dispute that Maryland law applies.
Further, neither side proffered case law directly relevant to these specific factual circumstances.
Breach of express warranty claim against Nice-Pak:
An express warranty is established by “ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain,” or “ny description of the goods which is made part of the basis of the bargain.” Md. Code. Ann., Com. Law. § 2-313. To prevail on a claim for breach of express warranty under Maryland law, “a plaintiff is required to establish that 1) a warranty existed 2) the product did not conform to the warranty and 3) the breach proximately caused the injury or damage.” SpinCycle, Inc. v. Kalender, 186 F. Supp. 2d 585, 589 .
Breach of express warranty claim against CVS: