United States District Court, D. Minnesota
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.
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.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
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
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 Target.com. (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
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.)
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
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.)
moves to dismiss Plaintiff's Complaint in its entirety.
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 ...