UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

ROCHELLE IBAROLLA, on behalf of )

herself and all others similarly situated, )

) 

Plaintiff, ) Case No. 12 C 4848

)

v. ) Judge Marvin E. Aspen

)

NUTREX RESEARCH, INC., and )

VITAMIN SHOPPE, INC., )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Court Judge:

Plaintiff Rochelle Ibarolla (“Plaintiff”), individually and on behalf of a proposed national

class of similarly situated plaintiffs, filed a six-count complaint against Defendants Nutrex

Research, Inc. (“Nutrex”) and Vitamin Shoppe, Inc. (“Vitamin Shoppe”) (collectively,

“Defendants”), alleging (1) violation of state consumer protection statutes, (2) negligence,

(3) common law fraud, (4) breach of express and implied warranties, (5) unjust enrichment, and

(6) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS

505/1 et seq. (“ICFA”). Presently before us is Defendants’ motion to dismiss for failure to state

a claim. For the reasons stated below, we grant Defendants’ motion and dismiss the complaint

with leave to amend.

BACKGROUND
We draw the following facts directly from the complaint and accept them as true for the

purposes of the present motion. Nutrex is a manufacturer and distributor of nutritional

supplements for athletes and professional bodybuilders. (Compl. ¶ 17.) Vitamin Shoppe, a

retailer of nutritional and sports supplements, sold Plaintiff “one or more” of six Nutrex

products: Hemo Rage Black, Hemo Rage Black Ultra Concentrate, Lipo-6 Black, Lipo-6 Black

Ultra Concentrate, Lipo-6 Black Hers, and Lipo-6 Black Hers Ultra Concentrate. (Id. ¶¶ 18,

40–42.) When purchasing the products, Plaintiff relied on Nutrex’s promotional material, which

touted the effectiveness of the products as dietary aids and omitted any reference to any

potentially dangerous side effects of their ingredients. (Id. ¶¶ 40–42.) Vitamin Shoppe likewise

failed to warn Plaintiff about any potential dangers of the products it sold her. (Id. ¶ 39.)

After buying the Nutrex products, Plaintiff learned that they contained DMAA (a

synthetic compound originally developed as a nasal decongestant), caffeine, synephrine, yohime,

thyronine, and other stimulants—ingredients that may produce severe side effects when taken in

large doses or in combination with one another. (Id. ¶¶ 3, 43.) Had Defendants informed

Plaintiff about these ingredients, she would not have purchased the Nutrex products. (Id. ¶ 44.)

Therefore, Plaintiff alleges that she “lost substantial money purchasing products she would not

have otherwise purchased.” (Id.)

STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to test the

sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910

F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, we must accept all wellpleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s

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favor. Thompson v. Ill. Dep’t. of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A court

may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks enough facts “to

state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

S. Ct. 1937, 1949–50 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.

1955, 1974 (2007)); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618–19 (7th Cir.

2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.

Although a facially plausible complaint need not give “detailed factual allegations,” it

must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555, 127 S. Ct. at 1964–65. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. at

1949. These requirements ensure that the defendant receives “fair notice of what the . . . claim is

and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964. 

For claims that sound in fraud, Federal Rule of Civil Procedure 9(b) requires the plaintiff

to “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). To satisfy

the particularity requirement, “an allegation of fraud must include the ‘who, what, when, where,

and how: the first paragraph of any newspaper story.’” DiLeo v. Ernst & Young, 901 F.2d 624,

627 (7th Cir.1990). In other words, “a complaint must specify the identity of the person making

the misrepresentation, the time, place, and content of the misrepresentation, and the method by

which the misrepresentation was communicated to the plaintiff.” Sears v. Likens, 912 F.2d 889,

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893 (7th Cir. 1990). Malice, intent, knowledge, and other conditions of a person’s mind may be

alleged generally. Fed. R. Civ. P. 9(b). 

ANALYSIS

A. Claims For Common Law Fraud and Violations of State Consumer Protection

Statutes (Counts I, III, and VI)

Plaintiff claims that Defendants fraudulently misrepresented the safety and effectiveness

of the products containing DMAA and other allegedly dangerous ingredients. She alleges

common law fraud (Count III) (Compl. ¶¶ 67–73), as well as violations of numerous state

consumer protection statutes on behalf of a national class (Count I) (id. ¶¶ 54–61) and the ICFA

on behalf of an Illinois subclass (Count VI) (id. ¶¶ 87–93). Claims for violation of the ICFA

“are subject to the same heightened pleading standards as other fraud claims; as such, they must

satisfy the particularity requirement of Rule 9(b) of the Federal Rules of Civil Procedure.” 

Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399 (7th Cir. 2011).

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The facts alleged in this complaint are insufficient to state a claim under Rule 9(b). The

first problem is that Plaintiff claims to have purchased “one or more” of six named Nutrex

products. (Compl. ¶ 42.) Without specifying which product she actually purchased, we cannot

determine what particular misrepresentations Plaintiff relied on. 

1

 The parties agree that the court should apply Illinois substantive law for the purposes of ruling

on the motion to dismiss. (Compl. ¶¶ 11–15; Mem. at 2 (“Because no nationwide class has been

certified, this motion addresses only the Illinois law applicable to Ms. Ibarolla’s claims.”).) 

Moreover, Plaintiff is an Illinois resident alleging injury in Illinois. (Compl. ¶¶ 14, 16.) 

Accordingly, we apply the standards governing ICFA to test the sufficieny of Plaintiff’s statutory

claims under both Count I and VI. See Pirelli Armstrong Tire Corp., Retiree Med. Benefits Trust

v. Walgreen Co., No. 09 C 2046, 2010 WL 624709, at *5 (N.D. Ill. Feb. 18, 2010).

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Plaintiff alleges generally that the products’ labels gave no warning of the dangerous

ingredients they contained. (Id. ¶ 41.) She further claims that “Nutrex lures customers to

purchase these products by boasting that they are ‘the strongest fat destroyer we have ever

released,’ and proclaiming that they ‘attack body fat with a killer instinct formulated to destroy it

whenever the two meet.’”2 (Id. ¶ 22.) It is not plausible, however, that Defendants labeled and

marketed all six products named by Plaintiff in an identical manner. Unless Plaintiff identifies

which product(s) she actually inspected and purchased, she cannot possibly state with the

requisite specificity the content of the alleged misrepresentation. See In re Sears, Roebuck &

Co. Tools Mktg. & Sales Practices Litig., MDL-1703, 2009 WL 937256, at *6 (N.D. Ill. Apr. 6,

2009) (dismissing certain fraud claims under Rule 9(b) where “plaintiffs fail to allege that they

saw any particular misrepresentation or the specific content of the misrepresentation.”)

(emphasis added). 

In Sears, Roebuck & Co., the plaintiffs described specific advertisements that contained

alleged misrepresentations, but failed to allege that they actually saw those particular

advertisements. Id. The court held that the plaintiffs’ “failure to identify the misrepresentation

they saw and relied upon is fatal to their claim,” because “plaintiffs have the burden of alleging

specifically which commercials they saw and the content of those commercials.” Id. Similarly,

Plaintiff alleges here that “she saw a number of Nutrex products that claimed to be supremely

effective . . .” and that “she carefully inspected the label to learn more about the ingredients in

2

 Defendants urge that these statements are not factual misrepresentations, but rather “nonactionable puffery.” (Mem. at 7.) Because we hold that Plaintiff’s allegations are insufficiently

specific to determine what misrepresentations she actually claims to have relied on, we will not

address Defendants’ argument at this time.

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these products.” (Compl. ¶ 41.) But her failure to identify which of the six named products she

actually inspected or purchased, and therefore the specific representations she relied on, makes

her claim insufficiently particular under Rule 9(b). 

Plaintiff further fails to adequately specify when the alleged fraud happened. She merely

states that she “entered a Vitamin Shoppe store in order to purchase a dietary supplement for

weight loss.” (Id. ¶ 40.) Nowhere does Plaintiff identify even a broad time frame in which the

purchase took place. That deficiency is also fatal to Plaintiff’s claim. See In re McDonald’s

French Fries Litig., 503 F. Supp. 2d 953, 956 (N.D. Ill. 2007) (dismissing a fraud claim where

the plaintiff alleged that the defendant “represented to the public that its potato products

contained no allergens,” but failed to specify “what the relevant time period is as to the

representations made through the website.”). 

The relevant time frame is also significant to the issue of Defendants’ knowledge. Under

Illinois law, “where a plaintiff claims consumer fraud on the premise that the defendant

concealed or omitted material facts from potential buyers with the intent that the buyers rely on

such a concealment or omission, a plaintiff must allege that the fact omitted or concealed was

known to the defendant at the time of the concealment.” Addison v. Distinctive Homes, Ltd., 359

Ill. App. 3d 997, 1001, 836 N.E.2d 88, 92 (1st Dist. 2005). Rule 9(b) allows that knowledge

“may be alleged generally.” Fed. R. Civ. P. 9(b). The Supreme Court has cautioned, however,

that “‘generally’ is a relative term . . . It does not give [a party] license to evade the less

rigid—though still operative—strictures of Rule 8. And Rule 8 does not empower [a plaintiff] to

plead the bare elements of his cause of action, affix the label ‘general allegation,’ and expect his

complaint to survive a motion to dismiss.” Iqbal, 556 U.S. at 686, 129 S. Ct. at 1954; see also

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Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir. 2009) (“Although

‘knowledge’ and ‘intent’ may be averred generally, our precedent, like that of several regional

circuits, requires that the pleadings allege sufficient underlying facts from which a court may

reasonably infer that a party acted with the requisite state of mind.”); DiLeo, 901 F.2d at 629

(“Although Rule 9(b) does not require ‘particularity’ with respect to the defendant’s mental

state, the complaint still must afford a basis for believing that plaintiffs could prove scienter.”). 

Plaintiff alleges that “Defendants knew that the representations that they made on the

labeling, promotional materials, and to customers at the point of sale concerning the safety of

their products were inaccurate and untrue.” (Compl. ¶ 69.) We accept Plaintiff’s general

allegation of Defendants’ knowledge as true, but only insofar as it is consistent with reasonable

inferences we can draw from the facts in the complaint. 

Plaintiff states that the FDA sent a warning letter to Nutrex on April 24, 2012, cautioning

Nutrex that DMAA had potentially harmful side effects. (Id. ¶ 24.) According to Plaintiff, the

FDA sent the letter because “there has been little research on the safety of DMAA.” (Id. ¶ 25.) 

The letter concluded that “[i]n the absence of a history, use, or other evidence of [DMAA’s]

safety . . . your products are deemed to be adulterated under 21 U.S.C. 342(f).” (Id. ¶ 27, Ex. A

at 2.) The most reasonable inference we can draw from these facts, as stated by Plaintiff, is that

Defendants had little or no information about the safety of DMAA before receiving the warning

from the FDA, but became aware of DMAA’s potential dangers upon receiving the letter. 

Reading the complaint in the light most favorable to Plaintiff for the purpose of this

motion, we can also infer that Vitamin Shoppe knew about the dangers of DMAA after the FDA

sent Nutrex the warning, because Plaintiff alleges that Vitamin Shoppe requires vendors to

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submit information regarding their products for review by its regulatory department. Therefore

we can presume for the sake of this motion to dismiss that Vitamin Shoppe learned about the

danger of DMAA from Nutrex after Nutrex received the letter from the FDA. 

There are no additional facts in the complaint from which we could infer that either of the

Defendants had knowledge of the potential dangers of DMAA (or any other ingredient in the

Nutrex products) before the FDA sent its warning. Plaintiff alleges that “the FDA has received

42 adverse event reports on products containing DMAA” (Compl. ¶ 28), but in the absence of

any context, that number is meaningless. There is no way for us to know if 42 reports is an

unusually large number for the FDA to receive, or even if the “adverse event” was causally

related to DMAA or some other ingredient in those products. Further, we cannot impute

knowledge to Defendants based on reports received by the FDA, absent an allegation that the

FDA made the reports known to Defendants. 

Plaintiff also points to a report that the U.S. Army began conducting an “ongoing safety

review” after finding DMAA in the blood of two soldiers who died during physical training. (Id.

¶ 29.) This fact is equally devoid of any context that would give it significance—we have no

idea whether the Army concluded that DMAA contributed to the deaths of the soldiers or

restricted its use, for instance. Neither does Plaintiff allege that Defendants were aware of the

Army’s report. These facts do not support an inference that Defendants knew about the potential

dangers of DMAA prior to receiving the FDA’s letter.

It is therefore crucial that Plaintiff identify some time frame for the alleged fraud. 

Without it, the court can not determine what the Defendants knew at the time of the alleged

misrepresentation. A specific time and date is not necessarily required, but there must be

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sufficient information in the complaint that would allow us to infer that Defendants knew that

Nutrex’s ingredients were dangerous when Plaintiff purchased the products. See, e.g., Munch v.

Sears, Roebuck & Co., No. 06 C 7023, 2008 WL 4450307, at *6 (N.D. Ill. Sept. 30, 2008)

(dismissing a consumer fraud claim because the “Amended Complaint fails to identify a specific

point at which the defendant clearly knew of the defect in its product, yet conveyed an opposite

message to the plaintiffs.”). 

Because Plaintiff failed to state the content and timing of the alleged misrepresentations

with the particularity required by Rule 9(b), neither the common law nor the statutory fraud

claims can survive the motion to dismiss. We therefore grant Defendants’ motion as to Counts I,

III, and VI.

B. Negligence (Count II) 

Plaintiff alleges the Defendants were negligent for breaching their “duty to refrain from

false, fraudulent, misleading, unfair and deceptive advertising, marketing, and labeling of the

products they sell.” (Compl. ¶¶ 61–62.) Defendants argue that the negligence claim is barred by

the economic loss doctrine, because the “only injury Ms. Ibarolla alleges is that she lost

substantial money purchasing products she would not have otherwise purchased.” (Mem. at 13.) 

Under the economic loss doctrine (also known as the Moorman doctrine), a party may not

“recover for solely economic loss under the tort theories of strict liability, negligence and

innocent misrepresentation.” Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 693 (7th Cir. 2011)

(citing Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69, 79–80, 435 N.E.2d 443, 448–49

(Ill. 1982)).

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The Illinois Supreme Court recognizes three exceptions to the Moorman doctrine:

(1) where the plaintiff sustained damage, such as personal injury or property damage, resulting

from a sudden or dangerous occurrence; (2) where the plaintiff’s damages are proximately

caused by a defendant’s intentional, false representation, i.e., fraud; and (3) where the plaintiff’s

damages are proximately caused by a negligent misrepresentation by a defendant in the business

of supplying information for the guidance of others in their business transactions. Id. (citing

First Midwest Bank, N.A. v. Stewart Title Guaranty Co., 218 Ill. 2d 326, 337–338, 843 N.E.2d

327, 333–34 (Ill. 2006)). Plaintiff contends that the second exception applies to her negligence

claim. (Resp. at 12.) According to Plaintiff, “Defendant’s Motion with respect to Plaintiff’s

negligence claim should be denied, as Plaintiff’s allegations quite are clearly [sic.] to support

Plaintiff’s allegations of fraud, and therefore support the application of the fraud-based exception

to the economic loss rule . . .” (Id.)

Plaintiff’s argument here appears to confuse basic tenets of tort law. She apparently

contends that her negligence claim should survive because it is based on allegations of fraudulent

conduct. That, of course, is impossible, because by definition fraud is intentional and negligence

is not. Dornhecker v. Ameritech Corp., 99 F. Supp. 2d 918, 931 (N.D. Ill. 2000) (explaining that

under Illinois law, intentional misconduct is “inconsistent with an allegation of ordinary

negligence.”); Chicago, B. & Q.R. Co. v. Dougherty, 12 Ill. App. 181, 188, 12 Bradw. 181

(2d Dist. 1883) (“Negligence can not exist where . . . the act of omission or commission is the

result of willfulness, fraud, or intention, for where they commence, negligence ceases.”). 

Therefore the second exception to the Moorman doctrine cannot apply to a negligence claim. 

See Olson v. Hunter’s Point Homes, LLC, 964 N.E.2d 60, 64 (5th Dist. 2012) (“[I]t is clear that

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under Illinois law, economic loss is recoverable where one intentionally makes false

representations,” but “a plaintiff cannot recover for economic losses under a theory of

negligence.”). It is possible to construe Count II as a claim for negligent misrepresentation, but

then no exception of the Moorman doctrine would apply. Accordingly, the Moorman doctrine

bars Plaintiff’s negligence claim, and we therefore grant Defendant’s motion to dismiss as to

Count II. 

C. Claims For Breach of Express and Implied Warranties (Count IV)

Plaintiff alleges that each Defendant breached express warranties, implied warranties of

merchantability, and implied warranties of fitness for a particular purpose. (Compl. ¶¶ 74–80.) 

For the following reasons, all of the breach of warranty claims against Defendants must be

dismissed. 

A. Pre-Suit Notice

Under the UCC and Illinois law, a buyer “must directly notify the seller of the

troublesome nature of the transaction or be barred from recovering for breach of warranty.” 

MacNeil Auto. Prods., Ltd. v. Cannon Auto. Ltd., 715 F. Supp. 2d 786, 794 (N.D. Ill. 2010)

(citing Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 491, 675 N.E.2d 584, 589 (Ill. 1996));

U.C.C. § 2-607; 810 ILCS 5/2-607(3)(a). Direct notice is not required when “(1) the seller has

actual knowledge of the defect of the particular product; or (2) a consumer plaintiff suffers a

personal injury.” In re McDonald’s French Fries Litig., 503 F. Supp. 2d at 956. As we

explained above, Plaintiff alleges that Defendants had actual knowledge of the potential dangers

of the ingredients in the Nutrex products, but from the facts stated in the complaint, we can only

infer that Defendants had such knowledge after receiving a warning letter from the FDA. Prior

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to that time, according to Plaintiff, there had been “little research on the safety of DMAA.” 

(Compl. ¶ 25.) Thus, the complaint adequately alleges a basis and a time frame for Defendants’

knowledge, but it gives no indication at all of when Plaintiff bought the products. Accordingly,

Plaintiff has failed to state that Defendants knew of the products’ defects at the time of the

alleged breach. Neither does Plaintiff state that she suffered personal injury. Therefore, she fails

to properly allege that either exception to the pre-suit notice requirement applies, and we must

dismiss all breach of warranty claims against both defendants. 

B. Express Warranties

In addition to Plaintiff’s failure to properly allege an exception to pre-suit notice, the

claims for breach of express warranties also lack sufficient allegations of any affirmative

statements of fact that could qualify as an express warranty. “[T]o be actionable under the

theory of express warranty the claim must be based on an affirmation of fact or promise which is

not a statement representing the seller’s opinion or commendation of the goods and which is

false.” MacNeil Auto. Prods., Ltd., 715 F. Supp. 2d at 794 (citing Weiss v. Rockwell Mfg. Co., 9

Ill. App. 3d 906, 914, 293 N.E.2d 375, 381 (Ill. 1973)). A representation “must be (1) regarding

a fact (that is, something that can be proven false); (2) of which the buyer is ignorant; and (3)

that becomes part of the parties’ bargain.” Id. at 794–95.

First, Plaintiff alleges that “Nutrex lures consumers to purchase these products by

boasting that they are the ‘strongest fat destroyer we have ever released,’ and proclaiming that

they ‘attack body fat with a killer instinct formulated to destroy it whenever the two meet.’” 

(Compl. ¶ 22.) The parties agree that the latter statement is non-actionable puffery. (Resp. at

5–6.) Plaintiff maintains that the former is a “misleading and false statement.” (Id.)

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As an initial matter, we observe that we cannot impute any statement contained in

Nutrex’s promotional materials to Vitamin Shoppe for the purposes of creating an express

warranty. Semitekol v. Monaco Coach Corp., 582 F. Supp. 2d 1009, 1029 (N.D. Ill. 2008) (“In

Illinois, the mere delivery, presentation or explanation of a manufacturer’s warranty, without

more, does not render a dealer a cowarrantor by adoption.”). Even as to Nutrex, however, we do

not find that the statement amounts to an express warranty. Stating that a certain product is the

“strongest fat destroyer we have ever released” only conveys information about that product’s

effectiveness in relation to other Nutrex products. It could be very ineffective, or indeed

dangerously unhealthy, and still be stronger than anything else Nutrex has released.3

 It is not a

factual statement about an objective characteristic or capacity of the product. Accordingly, it

cannot be the basis of an express warranty. See MacNeil Auto. Prods., Ltd., 715 F. Supp. 2d at

794 (distinguishing between general averments of a product’s high quality, which are not

warranties, and specific statements about a product’s characteristics, which are warranties). 

Plaintiff further alleges that “Defendants represented to Plaintiff and the other members

of the Class that the products were safe for consumption and free of any synthetics or substances

that would cause dangerous side effects in the user.” (Compl. ¶ 76.) She also refers to

“Defendants’ promises and affirmations on the labeling or contained on the websites maintained

by Nutrex and Vitamin Shoppe.” (Id. ¶ 77.) These general allegations are insufficient to state a

claim for breach of express warranty, because they treat the Defendants as identical. The

Defendants play different roles in this case, and there is no basis for presuming that they made

3

 Perhaps aware of relative nature of this statement, Plaintiff misquotes the statement in her

response, altering it to “the strongest fat destroyer . . . ever released.” (Resp. at 6.) Her elision,

of course, significantly changes the statement’s frame of reference, so here we only refer to the

full statement as quoted in the complaint.

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identical representations to Plaintiff. At a bare minimum, Plaintiff must identify what

representations were made by each Defendant, so we can determine whether they amount to

express warranties. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (Rule 8 “demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.”). Further, the allegation

regarding representations on Defendants’ websites is problematic for an additional reason: it is

normal for businesses to routinely change or update the content of their websites. Given the

absence of any time frame in the complaint for when Plaintiff made her purchase, Defendants

cannot necessarily identify what online representations are at issue in this case. 

In order to state a claim, the complaint must at least give enough facts to provide “fair

notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127

S. Ct. at 1955. By failing to identify or distinguish the representations made by the two different

Defendants, Plaintiff has failed to state enough facts to put Defendants on notice of the grounds

for the breach of express warranty claims. 

C. Implied Warranties

Plaintiff has further failed to state a valid claim for breach of implied warranties against

Nutrex, because there is no privity of contract between Plaintiff and Nutrex. Under Illinois law,

contractual privity is a “prerequisite for breach of implied warranty claims for recovery of

economic losses.” Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F. Supp. 2d 833, 838

(N.D. Ill. 2008) (citing Voelker v. Porsche Cars North Am., Inc., 353 F.3d 516, 527 (7th Cir.

2003); Jensen v. Bayer AG, 371 Ill. App. 3d 682, 691, 862 N.E.2d 1091, 1099 (1st Dist. 2007). 

Thus implied warranties give “a buyer of goods a potential cause of action only against his

immediate seller.” Jensen, 371 Ill. App. 3d at 691 (explaining that the plaintiff could pursue a

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breach of implied warranty claim against the pharmacy where he bought a defective drug, but

not against the drug manufacturer). In this case, Plaintiff does not allege that she purchased the

products directly from Nutrex. Therefore, besides the lack of pre-suit notice, which is grounds

for dismissal of all the warranty claims against both Defendants, the breach of implied warranties

claims against Nutrex are dismissed on the additional grounds of lack of contractual privity.

D. Unjust Enrichment

Plaintiff included a separate count for unjust enrichment, but that claim is based on the

same conduct that underlies the fraud claims. (Compl. ¶¶ 82–86 (“Through their numerous

misleading, unfair, and deceptive claims relating to the safety of their products and the absence

of any harmful compounds in those products, Defendants made millions of dollars. . .”).) There

is conflicting Illinois state court precedent on the question of whether unjust enrichment stands

as an independent claim or requires an underlying tort claim to support it. See Cleary v. Philip

Morris Inc., 656 F.3d 511, 516–17 (7th Cir. 2011) (discussing contradictory Illinois case law on

this issue). The Seventh Circuit has proposed a resolution to the doctrinal conflict, which we

follow here: “Where the plaintiff’s claim of unjust enrichment is predicated on the same

allegations of fraudulent conduct that support an independent claim of fraud, resolution of the

fraud claim against the plaintiff is dispositive of the unjust enrichment claim as well.” Id. at 517

(quoting Ass’n Benefit Serv. v. Caremark Rx, Inc., 493 F.3d 841, 855 (7th Cir. 2007)). For the

reasons explained above, each of Plaintiff’s claims for fraud fail, so the claim for unjust

enrichment must fail as well. 

E. Request For Leave to Amend

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Plaintiff requested leave to amend her complaint in the event that we granted Defendants’

motion to dismiss. (Resp. at 12–13.) Generally, leave to amend is liberally granted. See Fed. R.

Civ. P. 15; Jones v. Navia, No. 09-CV-6968, 2010 WL 4878869, at *7 (N.D. Ill. Nov. 23, 2010). 

The decision to grant or deny leave to amend is “a matter purely within the sound discretion of

the district court.” J.D. Marshall Int’l, Inc. v. Redstart, Inc., 935 F.2d 815, 819 (7th Cir. 1991). 

Proper reasons for denying leave to amend include “undue delay, . . . undue prejudice to the

opposing party by virtue of allowance of the amendment, [and] futility of the argument.” Foman

v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962); see Guise v. BMW Mortgage, LLC, 377

F.3d 795, 801 (7th Cir. 2004). None of the factors that would preclude amendment is present in

this case at this time. Accordingly, we grant Plaintiff leave to amend her complaint. 

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is granted without prejudice. 

We grant Plaintiff leave to file an amended complaint by December 6, 2012. It is so ordered.

________________________________

Honorable Marvin E. Aspen

U.S. District Court Judge

Date: October 31, 2012

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