Dockets.Justia.com 1 and Powerbeats 3, released in October 2016 (together, “Powerbeats”), both wireless Bluetooth 2 headphones co-created by athlete LeBron James. Two products in the Apple/Beats line include Powerbeats 2, released in June 2014, 27 1 28 The facts as averred in the FAC are assumed true for purposes of this motion to dismiss. BACKGROUND1 24 Apple acquired Beats Music and Beats Electronics, manufacturers of high-end headphones, 25 26 in May 2014. For the reasons stated below, Apple s Motion to Dismiss the First Amended 23 Complaint (“FAC”) is therefore granted in part and denied in part.8 Likewise, both websites make several references to using Powerbeats while working out, 9 including that “these water resistant earphones push you further and handle tough training,” id. Apple also makes a “sweat and water 7 resistance claim” on the packaging of both Powerbeats, as well as on both websites. Both on the Apple and Beats website, as well as on product packaging, Apple 5 represents Powerbeats 2 as having a “6 hour rechargeable battery” and Powerbeats 3 sporting “UP 6 TO 12 HR BATTERY LIFE.” FAC ¶¶ 43, 45–46.The product packaging stated that the Powerbeats 2 headphones were ORDER REGARDING MOTION TO DISMISS CASE NO. 25 Morgan, for example, alleges that she saw commercials for Powerbeats featuring LeBron 26 James using the headphones while engaging in rigorous exercise, and went to a Best Buy store in 27 California in May 2016. Named plaintiffs Jennifer Zielinski 21 (Pennsylvania), Kelly Okorocha (Louisiana), Sophia Ivy (Florida), Lydia Zepeda (California), 22 Deonn Morgan (California), Christopher Bizzelle (Texas), and Dana Rodenbeck (Illinois) have 23 each purchased Powerbeats and had similar experiences in which the headphones began 24 malfunctioning after ordinary use.In making his purchase, he relied on representations on the product s 9 packaging, including that Powerbeats 2 are sweat-resistant and have a 6 hour battery life, and saw an image of Lebron James “glistening with sweat on either side of the Powerbeats 2 box, which 11 United States District Court Northern District of California 10 furthered his belief that they would be sweat and water resistant.” FAC ¶ 128. 7 Bizzelle alleges that he purchased Powerbeats 2 for $139.99 at a Best Buy store in Texas 8 on January 21, 2016. Had she 5 known of Powerbeats failure to hold a charge and battery defects, or that they were not sweat or 6 water resistant, she would not have purchased them or would have paid significantly less for them. While Apple sent her a 4 replacement pair, those too “began to malfunction soon after receipt and normal use.” Id. She purchased the headphones for $139.99 for her teenage son in reliance on those 3 representations, but they became unusable in or around November 2016.
2:11-Cv-03579-Dmg-Man Bluetooth 2 HeadphonesBizzelle received a replacement from Costco 21 which failed, and another replacement from Apple. By June 2017, the Powerbeats 3 headphones also “would not 20 take a charge and would not turn on.” Id. When Apple released Powerbeats 3, Bizzelle saw them on sale at Costco, saw that the 18 battery life lasted up to 12 hours and that they were sweat and water resistant, and purchased them 19 for $129.99 on December 1, 2017. An Apple customer 16 service representative explained that he believed the issue was “sweat damaging the Powerbeats.” 17 Id. He received more than five replacement headphones, but each broke in 15 the same way: “failing to charge and eventually failing to turn on.” Id. He contacted Apple and received a pair of replacement headphones that 14 broke again within weeks. 17-cv-05277-RS 28 3 1 face.” Bell Atl. To survive a Rule 12(b)(6) motion to 27 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its ORDER REGARDING MOTION TO DISMISS CASE NO. 24 25 LEGAL STANDARD Under Federal Rule of Procedure 12(b)(6), a district court must dismiss a complaint if it 26 fails to state a claim upon which relief can be granted. 5 While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts 6 sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. 662, 678 (2009) (citation 4 omitted). 9(b), including “the who, what, 15 when, where, and how of the misconduct charged.” Vess v. 12 Claims sounding in fraud or mistake are subject to the heightened pleading standard of 13 Federal Rule of Civil Procedure 9(b), which requires that such claims “state with particularity the 14 circumstances constituting fraud or mistake,” Fed. Litig., 536 F.3d 1049, 1055 (9th Cir. However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 11 United States District Court Northern District of California 10 inferences.” In re Gilead Scis. City 9 of Los Angeles, 828 F.2d 556, 561 (9th Cir. 21 If the court dismisses a complaint, it “should grant leave to amend even if no request to 22 amend the pleading was made, unless it determines that the pleading could not possibly be cured 23 by the allegation of other facts.” Lopez v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. The allegations of 18 fraud “must be specific enough to give defendants notice of the particular misconduct which is 19 alleged to constitute the fraud charged so that they can defend against the charge and not just deny 20 that they have done anything wrong.” Swartz v. “The plaintiff must set 17 forth what is false or misleading about a statement, and why it is false.” Id. 2003) (internal quotation marks and citation omitted). Krs one sound of da police acapella17-cv-05277-RS 28 4 DISCUSSION 1 2 I. ORDER REGARDING MOTION TO DISMISS CASE NO. 27 Kayport Package Express, 885 F.2d 531, 538 (9th Cir. In making 24 this determination, the court should consider factors such as “the presence or absence of undue 25 delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, 26 undue prejudice to the opposing party and futility of the proposed amendment.” See Moore v.
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