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McAteer v. Target Corporation

United States District Court, D. Minnesota

July 26, 2018

Megan McAteer, individually and on behalf of all others similarly situated, Plaintiff,
Target Corporation, Defendant.

          Genevieve M. Zimmerman, Esq., Meshbesher & Spence LTD; Francis J. Flynn, Jr., Esq., Law Office of Francis J. Flynn, Jr.; Jasper D. Ward IV, Esq. and Alex Davis, Esq., Jones Ward PLC, counsel for Plaintiff.

          John Q. Lewis, Esq., Karl A. Bekeny, Esq., and Jennifer L. Mesko, Esq., Tucker Ellis LLP, George W. Soule, Esq., Melissa R. Stull, Esq., and Anna L. Veit-Carter, Esq., Soule & Stull, counsel for Defendant.




         This class action lawsuit involves Up & Up Makeup Remover Cleansing Towelettes - Evening Calm ("Makeup Remover Wipes") manufactured and sold by Defendant Target Corporation ("Target") and purchased by Plaintiff Megan McAteer ("Plaintiff) and consumers ("Class") throughout the United States. (Doc. No. 1 ("Compl.") ¶ 1.) This matter is before the Court on a Motion to Dismiss brought by Defendant. (Doc. No. 20.) For the reasons set forth below, the Court grants in part and denies in part the motion as follows: Counts I through IV and Counts VIII through XIV are dismissed without prejudice and Counts V through VII are dismissed with prejudice.


         Plaintiff is a resident of Los Angeles, California. (Compl. ¶ 5.) In the Beverly Connection Target store in Los Angeles County, Plaintiff purchased a 25-count package of Makeup Remover Wipes for personal and/or household purposes from Target to wash her face. (Compl. ¶ 6; Doc. No. 28 at 23.). Target manufactures, designs, and sells the Makeup Remover Wipes in Target stores and on (Compl. ¶ 7.) After using the Makeup Remover Wipes, Plaintiff experienced a burning sensation and her face turned bright red. (Id. ¶ 6.) Plaintiff used the over-the-counter medicines, Cortisone 10 and Benadryl, to treat these injuries. (Id.)

         Plaintiff claims that Target markets the Makeup Remover Wipes with the following misleading statements: (1) "With up & up your satisfaction is 100% guaranteed or your money back"; (2) "[U]ltra soft cloths" that "gently removes makeup, even waterproof mascara"; (3) "No rinsing necessary. For all skin types"; (4) "Compare to Neutrogena® Night Calming Makeup Remover Cleansing Towelettes"; (5) "[H]ypoallergenic"; and (6) "[A]lcohol free." (Id. ¶¶ 11, 12, 16, 17, 19, 20.) Plaintiff asserts that contrary to these representations, Target uses multiple "harsh chemicals and known human allergens in the Makeup Remover Wipes," which render the Makeup Remover Wipes "dangerous and unsafe for sale as an over the counter product." (Id. ¶¶22, 33.)

         Plaintiff asserts fourteen causes of action relating to the allegedly misleading statements: (1) breach of contract (Count I); (2) breach of express warranty (Count II); (3) breach of implied warranty of merchantability (Count III); (4) violation of the Magnuson Moss Warranty Act (Count IV); (5) violation of the MN Consumer Fraud Act (Count V); (6) violation of the MN Uniform Deceptive Trade Practices Act (Count VI); (7) violation of the False Statement in Advertisement Act (Count VII); (8) negligence (Count VIII); (9) fraud (Count IX); (10) unjust enrichment (Count X); (11) declaratory judgment (Count XI); (12) violation of the CA Unfair Competition Law (Count XII); (13) violation of the CA Consumer Legal Remedies Act (Count XIII); and (14) false and misleading advertising (Count XIV).

         Plaintiff alleges that she and the class suffered "injury in fact" and "lost money" because of their use of the Makeup Remover Wipes. (Id. ¶¶ 35, 145.) Specifically, Plaintiff claims that she and the Class did not receive "the benefit of their bargain," sustained "economic loss equal to the total purchase price of these unfit Products, or the difference in value between the Products as warranted and the Products as actually sold," and incurred "consequential and incidental damages." (Id. ¶¶ 61, 71, 78, 87.) Plaintiff also seeks declaratory judgment, disgorgement, and injunctive relief. (Id. ¶¶ 117, 159, 162, 178, 207.)

         Target moves to dismiss Plaintiff's Complaint in its entirety. (Id.)


         I. Legal Standard

         In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so, however, a court does not need to accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens,183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of Omaha,901 F.2d 1486, 1488 (8th Cir. 1990). A court deciding a motion to dismiss may consider the complaint, matters of ...

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