                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



Ave Maria M. Ladson,

        Plaintiff,
                v.                                          Civil Action No. 12-1373 (JDB)
Unilever United States, Inc.,

        Defendant.




                                  MEMORANDUM OPINION

       Defendant Unilever United States, Inc., removed this action from the Superior Court of

the District of Columbia under this Court’s diversity jurisdiction. See Notice of Removal Action

[Dkt. # 1]. Plaintiff alleges that in June 2012, she suffered “complications” after bathing with

defendant’s product, Dove Exfoliating Body Wash, which required her to go to the hospital.

Compl. [Dkt. # 1-3]. Plaintiff alleges that “later that night” after her bath, she “got a vaginal

itch,” and suffered “uncontrollable” urination and “excessive diarrhea from 2 different

medications.” Id. Plaintiff is seeking a “cash settlement” of $850,000. Id.

       Pending before the Court is defendant’s motion to dismiss this action under Rule 12(b)(6)

of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be

granted. Def. Unilever United States, Inc.’s Mot. to Dismiss for Failure to State a Claim, or in

the Alternative, Motion for More Definite Statement [Dkt. # 3]; see Order of Aug. 29, 2012

(hereafter “Fox Order”) at 1 (rejecting defendant’s basis for compelling a more definite

statement). In her opposition to defendant’s motion to dismiss, plaintiff states that she should be

allowed 30 days to amend her complaint “as no responsive pleading has been filed to her



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Complaint.” Opp’n to Def. Unilever United States, Inc.’s Mot. to Dismiss or for More Definite

Statement (“Pl.’s Opp’n”) [Dkt. # 7] at 2. But Rule 15(a) authorizes a complaint to be amended

“once as a matter of course . . . 21 days after service of a responsive pleading or . . . after service

of a motion under Rule 12(b) . . . whichever is earlier.” Fed. R. Civ. P. 12(a)(B) (emphasis

supplied). Plaintiff did not proffer an amended complaint within 21 days of defendant’s motion

filed on August 27, 2012, and she has not proffered an amended complaint with her opposition

despite the Court’s invitation in the Fox Order for her to do so. Hence, the Court will deny

plaintiff’s request to file an amended complaint and, finding no claim stated, will grant

defendant’s motion to dismiss.

                                           LEGAL STANDARD

       To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “ ‘a short and

plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’ ” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed factual

allegations” are not necessary, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff

must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a

cause of action.” Twombly, 550 U.S. at 555–56 (internal quotation marks omitted). In other

words, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 570); accord Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681

(D.C. Cir. 2009).




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       “[I]n passing on a motion to dismiss . . . the allegations of the complaint should be

construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993). Therefore, the factual allegations are presumed true, and plaintiff is given every

favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S. at

236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the

Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences

that are unsupported by the facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193

(D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

                                                ANALYSIS

       “The District of Columbia has recognized a strict liability tort cause of action for

defective products based on Restatement (Second) of Torts § 402(A).” Rollins v. Wackenhut

Services, 802 F. Supp. 2d 111, 121 (D.D.C. 2011) (citing Warner Fruehauf Trailer Co. v.

Boston, 654 A.2d 1272, 1274 (D.C. 1995)). To state a claim, plaintiff must allege that

          (1) [defendant] was engaged in the business of selling the product that
          caused the harm; (2) the product was sold in a defective condition
          unreasonably dangerous to the consumer or user; (3) the product was one
          which the seller expected to and did reach the plaintiff consumer or user
          without any substantial change from the condition in which it was sold; and
          (4) the defect was a direct and proximate cause of the plaintiff's injuries.

Warner Fruehauf Trailer Co., 654 A.2d at 1274 (citation omitted).

       Plaintiff has not alleged any of the foregoing factors but, as defendant points out,

plaintiff’s claim fails particularly on the causation element. See Def.’s Mem. in Support at 5-6.

Plaintiff states in opposition to the instant motion that she alleged that “she used one of

Defendant’s products, suffered side effects, and experienced monetary damage resulting from

her hospitalization in connection with the described events.” Pl.’s Opp’n ¶ 3. But her own


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exhibits attached to the complaint show that she was treated at The George Washington

University Hospital in June 2012 for “sprains and strains of shoulder and upper arm,” Ex. 2, and

“hip pain,” Ex. 3, not for the alleged “complications” that arose after her bath. Since the

complaint establishes no plausible connection between the injuries for which plaintiff was treated

and defendant’s body wash, defendant correctly argues that plaintiff has stated no claim for

which it can be held liable. Hence, the Court will grant defendant’s motion to dismiss under Rule

12(b)(6). A separate Order accompanies this Memorandum Opinion.


                                                              /s                  _
                                                     JOHN D. BATES
                                                 United States District Judge
Dated: December 10, 2012




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