UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TARA FARRELL, et al.,

Plaintiffs,

v.

NEW MILLENNIUM CONCEPTS, LTD.,

Defendant. 

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C.A. No. 3:22-cv-00728-M

DEFENDANT’S REPLY IN SUPPORT OF MOTION 

TO DISMISS PLAINTIFFS’ CLASS ACTION COMPLAINT

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TABLE OF CONTENTS

I. Plaintiffs cannot satisfy Rule 9(b) where their allegations rely on tests of the wrong 

product and they challenge inactionable statements that cannot be proved false..................... 1

II. Plaintiffs cannot overcome their failure to plead NMCL’s knowledge.................................... 4

III. Plaintiffs cannot identify particularized facts of reliance in the Complaint. ............................ 7

IV. Plaintiffs do not identify an underlying violation of law to sustain their UCL claim. ............. 8

V. Plaintiffs’ claims for punitive damages should be dismissed. .................................................. 9

VI. Plaintiffs’ request for leave to amend should be denied. ........................................................ 10

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TABLE OF AUTHORITIES

Page(s)

Cases

Burdt v. Whirlpool Corp.,

2015 WL 4647929 (N.D. Cal. Aug. 5, 2015)......................................................................................... 6

Californians for Disability Rights v. Mervyn’s, LLC,

138 P.3d 207 (Cal. 2006)........................................................................................................................ 6

Carter v. Target Corp.,

541 F. App’x 413 (5th Cir. 2013)........................................................................................................... 3

Chi. Faucet Shoppe, Inc. v. Nestle Waters N. Am. Inc.,

24 F. Supp. 3d 750 (N.D. Ill. 2014)........................................................................................................ 7

Comm. On Children’s Television, Inc. v. Gen. Foods Corp.,

673 P.2d 660 (Cal. 1983)........................................................................................................................ 6

Freeman v. Time, Inc.,

68 F.3d 285 (9th Cir. 1995).................................................................................................................... 4

Garlough v. FCA US LLC,

2021 WL 1534205 (E.D. Cal. Apr. 19, 2021).................................................................................... 5, 7

Goldstein v. MCI WorldCom, 

340 F.3d 238 (5th Cir. 2003) ............................................................................................................... 10

Hawkins v. Kroger Co.,

337 F.R.D. 518 (S.D. Cal. 2020)............................................................................................................ 9

In re Hydroxycut Mktg. & Sales Pracs. Litig.,

299 F.R.D. 648 (S.D. Cal. 2014)............................................................................................................ 5

Kelley v. Corr. Corp. of Am.,

750 F. Supp. 2d 1132 (E.D. Cal. 2010)................................................................................................ 10

Kerkorian v. Samsung Elecs. Am., Inc.,

2019 WL 6918293 (E.D. Cal. Dec. 19, 2019).................................................................................... 2, 7

Kowalsky v. Hewlett-Packard Co.,

771 F. Supp. 2d 1156 (N.D. Cal. 2011).................................................................................................. 5

Krieger v. Nick Alexander Imps., Inc.,

234 Cal. App. 3d 205 (Ct. App. 1991) ................................................................................................... 9

Kwan v. SanMedica Int’l, LLC,

2015 WL 848868 (N.D. Cal. Feb. 25, 2015).......................................................................................... 2

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Loomis v. Slendertone Distrib., Inc.,

420 F. Supp. 3d 1046 (S.D. Cal. 2019) .................................................................................................. 2

Morgan v. AT&T Wireless Servs., Inc.,

99 Cal. Rptr. 3d 768 (Cal. App. 2d Dist. 2009).................................................................................. 5, 6

Petkevicius v. NBTY, Inc.,

2017 WL 1113295 (S.D. Cal. Mar. 24, 2017)........................................................................................ 9

R2 Invs. LDC v. Phillips,

401 F.3d 638 (5th Cir. 2005).................................................................................................................. 2

Resnick v. Hyundai Motor Am., Inc.,

2017 WL 1531192 (C.D. Cal. Apr. 13, 2017)........................................................................................ 5

Roper v. Big Heart Pet Brands, Inc.,

510 F. Supp. 3d 903 (E.D. Cal. 2020).............................................................................................. 9, 10

Sheppard v. Tex. Dep’t of Transp.,

158 F.R.D. 592 (E.D. Tex. 1994)........................................................................................................... 3

Spector v. Mondelez Int’l, Inc.,

2017 WL 4283711 (N.D. Ill. Sept. 27, 2017)......................................................................................... 1

Taiwan Semiconductor Mfg. Co. v. Tela Innovations, Inc.,

2014 WL 3705350 (N.D. Cal. July 24, 2014) ...................................................................................... 10

Waggoner v. Denbury Onshore, L.L.C., 

612 F. App’x 734 (5th Cir. 2015) ........................................................................................................ 10

Weiss v. Trader Joe’s Co.,

2018 WL 6340758 (C.D. Cal. Nov. 20, 2018) ....................................................................................... 3

Wilson v. Hewlett-Packard Co.,

668 F.3d 1136 (9th Cir. 2012)................................................................................................................ 5

Young v. U.S. Postal Serv. ex rel. Donahoe, 

620 F. App’x 241 (5th Cir. 2015)......................................................................................................... 10

Yumul v. Smart Balance, Inc.,

733 F. Supp. 2d 1117 (C.D. Cal. 2010).................................................................................................. 8

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I. Plaintiffs cannot satisfy Rule 9(b) where their allegations rely on tests of the wrong 

product and they challenge inactionable statements that cannot be proved false.

Plaintiffs do not dispute that they tested the wrong product (the Crown Berkey)—(i) they 

did not purchase it, (ii) it has different characteristics and uses than the ones Plaintiffs purchased, 

and (iii) NMCL prohibits its sale in California where Plaintiffs reside. Instead, Plaintiffs attack a 

straw person by arguing they need not prove their claims with product testing at the pleading stage. 

Resp. at 6. NMCL never argued such, and this side-steps the actual pleading issue: Plaintiffs 

decided to base their allegations on this testing; because they did, that testing must relate to the 

products Plaintiffs purchased; and because it does not, their Complaint should be dismissed for 

failing to satisfy Rule 9(b). Mot. at 7-9. Plaintiffs completely ignore several of these on-point cases 

and do not explain why the others do not apply. Compare id., with Resp. at 8 n.6.1

Plaintiffs’ conclusory assertion that the tested and purchased products are similar does not 

cure this defect. Resp. at 7-8. Plaintiffs allege that (i) water passes through the filters by force of 

gravity, and the flow rates and time in contact with the filters impact results; (ii) they tested 

NMCL’s largest system despite purchasing its smallest one; and (iii) the systems have a different 

number of filters and are made with different materials and characteristics. Compl. ¶¶ 3, 32, 41(g).

Yet Plaintiffs simply say that these meaningful differences do not matter because the type of filter

is the same. Id. ¶ 41(g). They never allege why differences in volumes, materials, and the like do 

not matter. Id. In fact, if the filter was all that mattered, as Plaintiffs suggest, then the number of 

filters and filtration speeds would impact results, and it would not make sense that one system is

permitted for sale in California while the other is not. See Spector v. Mondelez Int’l, Inc., 2017 

WL 4283711, at *5, *7 (N.D. Ill. Sept. 27, 2017) (where plaintiff relied on tests of a different1 NMCL raised this threshold issue in this original lawsuit filed over 1.5 years ago yet Plaintiffs 

still have not tested—or at least disclosed test results for—the actual product they purchased. See 

Tara Farrell v. New Millennium Concepts, Ltd., No. 2:21-cv-00075 (E.D. Cal. Jan. 14, 2021).

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sized product not at issue in the case, her allegations required “a leap [ ] made through nothing but 

speculation” to reach her conclusion of falsity). Instead, Plaintiffs pretend it is NMCL’s burden to 

prove the systems are different, Resp. at 7, when it is really their burden under Rule 9(b) to plead 

that different systems are the same. They have not, and as a result the more plausible inference is 

that products with different characteristic perform differently.2

Similarly, Plaintiffs’ conclusory allegation that the system’s design prevents it from 

performing as represented does not salvage their claims. Resp. at 6-7. “[A]n advertising claim is 

false [only] if it has ‘actually been disproved,’ that is, if the plaintiff can point to evidence that 

directly conflicts with the claim.” Kwan v. SanMedica Int’l, LLC, 2015 WL 848868, at *2, *4 

(N.D. Cal. Feb. 25, 2015) (emphasis added). Here, Plaintiffs offer no articles, testing, or other 

evidence to back up their assertions about the design of the product. Id. (dismissing CLRA and 

UCL claims under Rule 12(b)(6) where plaintiff failed to cite evidence, such as a study 

demonstrating that the advertised benefits were categorically impossible to achieve); see R2 Invs. 

LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (courts “will not strain to find inferences 

favorable to the plaintiffs” or accept “unwarranted deductions”). In any event, Plaintiffs’ design 

theory that an activated carbon filter cannot perform consistent with NMCL’s representations is 

irrelevant (Resp. at 6-7)—NMCL’s filters are a proprietary formulation, not activated carbon.

3

2 To be clear, NMCL disputes the validity of Plaintiffs’ test results. But taking Plaintiffs’ 

allegations as true, their failure to test the actual product at issue is fatal to their claims. 

3

See What are the Black Berkey® Purification elements made of?, NMCL,

berkeywaterkb.com/what-are-the-black-berkey-purification-elements-made-of/ (last visited June 

23, 2022); Black Berkey Purification Elements, NMCL, berkeywater.com/black-berkey-elements/ 

(last visited June 23, 2022). Plaintiffs argue the Court should not consider NMCL’s website, citing 

a California case in which the court took judicial notice of relevant webpages. Resp. at 22 (citing 

Moore v. Glaxosmithkline Consumer Healthcare Holdings (US) LLC, 2021 WL 3524047, at *2 

(N.D. Cal. Aug. 6, 2021)); see Loomis v. Slendertone Distrib., Inc., 420 F. Supp. 3d 1046, 1063 

(S.D. Cal. 2019) (considering defendant’s website and Amazon.com listing under doctrine of 

incorporation-by-reference); Kerkorian v. Samsung Elecs. Am., Inc., 2019 WL 6918293, at *3 

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Because competent evidence contradicts Plaintiffs’ allegations, they must not be taken as true. 

Carter v. Target Corp., 541 F. App’x 413, 417 (5th Cir. 2013) (affirming dismissal where exhibits 

contradicted complaint’s allegations); Sheppard v. Tex. Dep’t of Transp., 158 F.R.D. 592, 597 

(E.D. Tex. 1994) (same).

Finally, Plaintiffs try to deflect from the fact that general descriptors like “filter,” “reduce,” 

“dramatically,” and “greatly” are nonactionable statements that are incapable of being proven 

false. Indeed, while the Motion argues that Plaintiffs have not defined these vague terms (because 

they can’t), Mot. at 10-12, Plaintiffs’ Response still does not even try. See Weiss v. Trader Joe’s 

Co., 2018 WL 6340758, at *4-6 (C.D. Cal. Nov. 20, 2018) (dismissing CLRA, UCL, and FAL 

claims as mere puffery where bottled water claimed it was “water and then some” and would 

“refresh” and “satisfy”), aff’d, 838 F. App’x 302 (9th Cir. 2021).

In fact, the Response devotes a single paragraph to defending the Contaminant-Reduction 

Representation. Resp. at 14-15. Even that misunderstands or overlooks that NMCL is challenging 

the representation that NMCL’s products “dramatically” or “greatly” reduce contaminants. Mot. 

at 10-12. The Response’s reliance on testing of a different product does not show that phrases like 

“dramatically” or “greatly” reduce contaminants are capable of empirical verification. Id.

Plaintiffs’ defense of the Purification Representation is more perplexing. Resp. at 9-13. It 

ignores the fundamental problem that this claim rests on the mischaracterization that NMCL 

promised “pure water” free of anything but H20 when NMCL never did. Mot. at 12 n.10; Weiss, 

2018 WL 6340758, at *4-6 (dismissing CLRA, UCL, and FAL claims where plaintiff alleged 

(E.D. Cal. Dec. 19, 2019) (taking judicial notice of information on defendant’s website). Plaintiffs 

ignore the case law from this District and the Fifth Circuit that governs this procedural question 

and permits consideration of NMCL’s website under the doctrine of either judicial notice or 

incorporation-by-reference. Mot. at 2 n.3. Indeed, Plaintiffs boast that the Complaint “provided

more than one hundred links to Defendant’s website.” Resp. at 16.

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bottled water promised certain benefits that it never did). Plaintiffs make another surprising choice 

in response to the fact that no one could have reasonably expected “pure water” entirely free of 

contaminants when the Contaminant-Reduction Representation stated that up to 20% of certain 

contaminants would not be removed. Mot. at 12 n.10; see, e.g., Compl. ¶¶ 4, 34.

4 Rather than 

challenge this logic, Plaintiffs miraculously argue that consumers did not notice the ContaminantReduction Representation. Resp. at 11-13. Plaintiffs want it both ways: consumers did not notice 

this where it would defeat the Purification claims, id., yet they certainly noticed and even relied 

on it enough to sustain the Contaminant-Reduction claims, id. at 15-16. See Freeman v. Time, Inc., 

68 F.3d 285, 289-90 (9th Cir. 1995) (affirming dismissal of CLRA and UCL claims because 

product packaging should be examined in its full context rather than cherry-picked).5

Lastly, Plaintiffs devote a single paragraph to defending the Longevity Representation. 

Resp. at 14. Yet Plaintiffs ignore that this alleged representation—systems “purify water or 

dramatically or greatly reduce contaminants” for a certain number of uses—relies exclusively on 

the two other challenged representations and fails for those reasons. Resp. at 3; see id. at 9, 14.

II. Plaintiffs cannot overcome their failure to plead NMCL’s knowledge.

Plaintiffs concede they must plead knowledge of falsity to support their FAL claim. Resp. 

4 Plaintiffs claim dismissal is never appropriate unless it is “impossible” that a “reasonable 

consumer” was deceived, and the Court must accept their characterization of what a reasonable 

consumer believed. Resp. at 10. Yet they cite cases addressing reliance, not puffery, and none dealt 

with contradictory statements right next to the challenged ones. Id.; see infra n.5.

5 Even ignoring this blatant contradiction, Plaintiffs’ cases relate to an inconspicuous disclaimer 

hidden in an “asterisk” or “back-label” ingredients list, Resp. at 12-13 & n.9, yet Plaintiffs do not 

(and cannot) allege the Contaminant-Reduction Representation was either of those. In fact, it was 

on the very label that Plaintiffs challenge. E.g., Compl. ¶¶ 21-23. Selective cropping and 

highlighting does not change this. Resp. at 11-12. Nor does it change that the 80 and 87.5

percentages are displayed the same as all of the others under the Heavy Materials header, and that 

the conspicuous statement that the filter “REDUCES” contaminants necessarily means it does not 

eliminate them. Compl. ¶ 23 (emphasis in original).

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at 19-20. And they never dispute that knowledge is required for their common law claims that are 

based on fraud. Id.; see Garlough v. FCA US LLC, 2021 WL 1534205, at *6-7 (E.D. Cal. Apr. 19, 

2021) (discussing knowledge element while analyzing unjust enrichment claim based on fraud). 

Instead, they wrongly argue that they need not plead knowledge to support their CLRA or 

UCL claims unless those claims are based on an alleged failure to disclose a material latent defect, 

as opposed to an affirmative misrepresentation. Resp. at 19-20. Yet courts have repeatedly 

dismissed plaintiffs’ CLRA and UCL claims alleging affirmative misrepresentations for failing to 

adequately plead knowledge. See, e.g., Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1139, 

1140-41 (9th Cir. 2012) (affirming dismissal); Kowalsky v. Hewlett-Packard Co., 771 F. Supp. 2d 

1156, 1163 (N.D. Cal. 2011) (dismissing); Resnick v. Hyundai Motor Am., Inc., 2017 WL 

1531192, at *13-14 (C.D. Cal. Apr. 13, 2017) (dismissing).

Further, Plaintiffs ignore that their claims all arise from the same set of alleged fraudulent 

conduct, and thus Plaintiffs must plead knowledge of the alleged falsity with respect to all of their 

claims. Mot. at 5-7. Plaintiffs rely on In re Hydroxycut Marketing & Sales Practices Litigation, 

299 F.R.D. 648, 657 (S.D. Cal. 2014), which actually supports NMCL’s position. The court 

initially observed (contrary to the wealth of authority cited above) that knowledge of a defect 

“arguably only applies to cases involving omission as opposed to active misrepresentation.” Id.

(emphasis added). But critically, the court ultimately concluded that “Plaintiffs must allege facts 

supporting an inference of knowledge . . . regardless of whether [the applicable law] require[s] 

knowledge to be established” because the plaintiffs “have chosen to plead a unified course of 

fraudulent conduct . . . .” Id. at 659 (concluding plaintiffs failed to adequately plead knowledge to 

support CLRA and UCL claims). Such is the case here.6

6 Plaintiffs also cite Morgan v. AT&T Wireless Services, Inc., 99 Cal. Rptr. 3d 768 (Cal. App. 2d 

Dist. 2009). Morgan held that a violation of the UCL constitutes a violation of the FAL, id. at 788, 

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Yet Plaintiffs do not adequately allege this “indispensable” element of their claims. Mot. 

at 12. Plaintiffs’ noticeable reliance on Rule 8’s purportedly “relaxed pleading requirement” does 

not save its “general allegations.” Resp. at 20, 22-23. Courts routinely dismiss these types of claims 

where plaintiffs fail to adequately plead knowledge because Rule 8 still requires “plausibility,” 

and “conclusory statements are insufficient.” Mot. at 13-14. It is not plausible that testing 

Plaintiffs’ counsel performed on a Crown Berkey in late 2020 demonstrates NMCL knew its 

statements about the Travel Berkey and purification elements were false when the Plaintiffs 

purchased those products in 2019 and early 2020. Id.; Resp. at 21. Nor is it plausible that testing 

Plaintiffs claim NMCL should have but did not perform demonstrates any knowledge from the 

results of those unperformed tests. Id.; cf. Burdt v. Whirlpool Corp., 2015 WL 4647929, at *4 

(N.D. Cal. Aug. 5, 2015) (“Plaintiff must allege more than an undetailed assertion that the testing 

must have revealed the alleged defect. Otherwise, any consumer could bring a CLRA claim merely 

by asserting that a manufacturer had knowledge of an alleged defect from its prerelease testing.”).7

Plaintiffs’ final response is that an activated carbon filter cannot perform consistent with 

NMCL’s representations, so NMCL must have known its statements were false. Resp. at 20-21. 

But NMCL’s filters are a proprietary formulation, not simply activated carbon, so these allegations 

which means knowledge must be required under the UCL because there is no dispute knowledge 

is required under the FAL. Regardless, the plaintiff in Morgan did allege knowledge of falsity, id. 

at 786, and the language Plaintiffs quote traces back to a case that does not support Plaintiffs’ 

position—Committee On Children’s Television, Inc. v. General Foods Corp., 673 P.2d 660, 671, 

668 (Cal. 1983). Committee (i) never held that knowledge of falsity is not required for a UCL 

claim; (ii) was specifically limited to claims for injunctive relief, unlike Plaintiffs’ claims here; 

(iii) was analyzing an old version of the statute that permitted a plaintiff with no injury to sue on 

behalf of the general public, unlike now; and (iv) was thus superseded by statute. Id.; see 

Californians for Disability Rights v. Mervyn’s, LLC, 138 P.3d 207, 209 (Cal. 2006).

7 Tellingly, Plaintiffs do not claim that the test results from an independent, accredited third-party 

lab that NMCL publishes on its website made NMCL aware of any alleged misrepresentation. 

Mot. at 3, 13. Instead, Plaintiffs attack another straw person and claim NMCL’s results cannot 

contradict Plaintiffs’ results at the pleading stage, when that is not the point. Resp. at 21-22.

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miss the mark. See supra n.3. Even if these design allegations mattered, Plaintiffs only plead that 

the products were incapable of performing as claimed, not that NMCL knew it. Compl. ¶¶ 32-33.8

III. Plaintiffs cannot identify particularized facts of reliance in the Complaint.

Plaintiffs cannot really refute that the Complaint lacks particularized facts of reliance. 

Their only option is citing vague allegations that each unknown class member “relied on the 

Challenged Representations in deciding to purchase the Products.” Resp. at 15 (citing, e.g., 

Compl. ¶¶ 8-10, 113). There are no supporting facts, let alone facts particular to any Plaintiff.

Mot. at 14-15 (collecting cases); Kerkorian v. Samsung Elecs. Am., Inc., 2019 WL 6918293, 

at *4-5 (E.D. Cal. Dec. 19, 2019) (holding reliance allegations in support of FAL, UCL, and 

warranty claims failed to satisfy Rule 9(b)). 

Plaintiffs do not even defend their sole allegation with anything more—that “[e]ach 

and every consumer” relied on the product “labeling and packaging.” Compl. ¶ 14(a)(3). There 

are likely two reasons. First, these allegations are not specific to Plaintiffs, and there are no 

allegations of when or where the Plaintiffs relied on this packaging or how they relied on the 

packaging of products they bought online and never claim to have seen before purchase. See 

Mot. at 15; Garlough, 2021 WL 1534205, at *6 (holding plaintiff failed to plead reliance 

because he “never specifies if he in fact saw this [allegedly false advertisement], and if so,” 

“when or where he saw them”); Chi. Faucet Shoppe, Inc. v. Nestle Waters N. Am. Inc., 24 F. 

Supp. 3d 750, 762-63 (N.D. Ill. 2014) (dismissing consumer claims challenging “100% 

Natural Spring Water” where plaintiff allegedly viewed defendant’s website without 

describing “who viewed the website, which website was viewed, and when”). Second, basing 

reliance on the packaging forecloses reliance on the Longevity Representation because 

8 Plaintiffs resort to arguing the Court should “infer” NMCL knew it would “mislead” consumers, 

but those cites do not relate to the element of defendant’s knowledge. See Resp. at 22 n.19.

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Plaintiffs claim that representation only appeared on NMCL’s website. Compl. ¶¶ 24, 26(b).9

Facing these challenges, Plaintiffs try to shift the focus away from what matters—the 

allegations of reliance in the Complaint. Plaintiffs spend an inordinate portion of their reliance

briefing identifying the alleged misrepresentations—not when, where, how, or why Plaintiffs 

relied on them. Resp. at 15-17. Then, Plaintiffs argue they do not need to allege particular facts of 

reliance so long as they identify the alleged misrepresentations. But that would make the reliance 

element meaningless, and the case they cite does not support it.10

Lastly, NMCL never argued that Plaintiffs’ “warranty claims fail because the Parties were 

not in privity of contract.” Resp. at. 18. NMCL explained that the warranty claims (like the other 

claims) must allege the element of reliance with particularity under Rule 9(b) because there is no 

privity of contract. Mot. at 14-15 & n.11. It is undisputed that Plaintiffs and NMCL were not in 

privity of contract and that Plaintiffs must allege reliance with Rule 9(b) particularity. Id.

IV. Plaintiffs do not identify an underlying violation of law to sustain their UCL claim.

Plaintiffs do not dispute that their UCL claim fails to allege a predicate violation under the 

“unfair” prong of the statute, nor that if their fraud claims fail there is no predicate violation under 

the “fraudulent” prong. Resp. at 23-24. That leaves the alleged violation of Cal. Health & Safety 

Code § 116825 under the “unlawful” prong of the UCL statute. 

9 Plaintiffs implausibly argue that because one Plaintiff allegedly purchased from amazon.com, 

they have adequately alleged that all Plaintiffs relied on berkeywater.com. Resp. at 17-18 n.13. 

Plaintiffs then argue that nothing “suggests a plaintiff cannot look at more than one website.” Id. 

But it is not NMCL’s burden to disprove reliance at the pleading stage, it is Plaintiffs’ burden to 

adequately plead it, and Plaintiffs have not alleged that they relied on “more than one website.”

10 Resp. at 17 (citing In re Oreck Corp. Halo Vacuum and Air Purifiers Mktg. and Sales Pracs.

Litig., 2012 WL 6062047, at *1, *15 (C.D. Cal. Dec. 3, 2012) (plaintiffs identified allegedly false 

statement and “which type of advertising” each saw, including “infomercial,” “online video,” “late 

night video advertisement,” and more)). In fact, in a case Plaintiffs cite, the court held that very 

similar allegations of reliance failed to satisfy Rule 9(b). See Yumul v. Smart Balance, Inc., 733 F. 

Supp. 2d 1117, 1123-24 (C.D. Cal. 2010).

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Plaintiffs do not dispute that § 116825 only applies to water treatment devices that are sold 

for residential use. Id. Plaintiffs’ sole response is that NMCL’s marketing and sale of its product 

as an outdoor-only system and not a residential one is “arbitrary” and should be disregarded. Id. at 

23. This is just one more example of where Plaintiffs want it both ways. Perhaps more importantly, 

the Complaint alleges no facts indicating that the Travel Berkey is actually sold for residential use, 

or at the very least why NMCL’s sale of its product as an outdoor-only system is irrelevant to 

whether that product is sold for indoor use. E.g., Compl. ¶ 94. Because each of the Response’s 

arguments on pages 23-24 applies to residential devices, the UCL claim should be dismissed.11

V. Plaintiffs’ claims for punitive damages should be dismissed.

Plaintiffs do not dispute that punitive damages are unavailable for UCL, FAL, or unjust 

enrichment claims. Resp. at 24-25. And while they argue punitive damages are recoverable for 

their breach of warranty claims by citing to a case from nearly 40 years ago, id. at 24, modern case 

law is well settled to the contrary. E.g., Roper v. Big Heart Pet Brands, Inc., 510 F. Supp. 3d 903, 

926 (E.D. Cal. 2020); Hawkins v. Kroger Co., 337 F.R.D. 518, 530 n.8 (S.D. Cal. 2020); 

Petkevicius v. NBTY, Inc., 2017 WL 1113295, at *10 (S.D. Cal. Mar. 24, 2017); Krieger v. Nick 

Alexander Imps., Inc., 234 Cal. App. 3d 205, 212 (Ct. App. 1991).

The only remaining question is whether Plaintiffs have adequately pled punitive damages 

under the CLRA by alleging facts indicating that an “officer, director, or managing agent” of 

NMCL acted with fraud or malice. Roper, 510 F. Supp. 3d at 925. They do not come close. 

Plaintiffs point to a single “general allegation” in the Complaint, which states in conclusory fashion 

11 Plaintiffs claim that NMCL’s website showing the Travel Berkey is not sold for residential use 

is not judicially noticeable—without citing any authority or rebutting cases in the Motion that hold 

it is. Compare Resp. at 23, with Mot. at 2 n.3; see supra n.3. Ironically, sentences later Plaintiffs 

rely on NMCL’s website to argue that the Travel Berkey is sold for residential use even though 

the cited passage never states such, and even though a customer’s use of the outdoor-only product 

indoors is irrelevant to how NMCL intends for customers to use that product. Resp. at 23 n.21.

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that the alleged conduct “was committed, authorized, adopted, approved, and/or ratified by 

officers, directors, and/or managing [agents] of Defendant[].” Resp. at 25. Yet this is insufficient

under Rule 8, let alone Rule 9(b). See Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1147-

48 (E.D. Cal. 2010) (finding conclusory assertions of fraud insufficient to allege punitive damages 

under Twombly and Iqbal). And Plaintiffs cannot cite to a single alleged fact about even one 

officer, director, or managing agent of NMCL. Resp. at 24-25; see Taiwan Semiconductor Mfg. 

Co. v. Tela Innovations, Inc., 2014 WL 3705350, at *6 (N.D. Cal. July 24, 2014) (“Plaintiff’s 

failure, then, to include the names or titles of any individual actor is a fatal defect in its pleading 

of ‘willful and malicious’ conduct.”). Instead, Plaintiffs argue that NMCL must have known about 

and agreed with Plaintiffs’ test results. Resp. at 24-25. While untrue and that testing did not even 

exist at the relevant time, it does not matter because it relates to NMCL, not an officer, director, 

or managing agent. See Taiwan, 2014 WL 3705350, at *6; Roper, 510 F. Supp. 3d at 926. All 

requests for punitive damages should be dismissed.

VI. Plaintiffs’ request for leave to amend should be denied.

The Court should reject Plaintiffs’ boilerplate request for leave to amend. Resp. at 25. 

Plaintiffs have had ample opportunity to address the deficiencies in their first and second 

complaints over the past 18 months, which NMCL has now raised in three motions to dismiss for 

failure to state a claim. Plaintiffs do not identify any new facts or allegations they would make to 

remedy the Complaint’s flaws, nor did they comply with Local Rule 15.1 by attaching a proposed 

amendment to a motion seeking leave. The Fifth Circuit routinely affirms denial of leave to amend 

in situations like this. E.g., Young v. U.S. Postal Serv. ex rel. Donahoe, 620 F. App’x 241, 245 & 

nn.7-8 (5th Cir. 2015); Waggoner v. Denbury Onshore, L.L.C., 612 F. App’x 734, 740-41 (5th Cir. 

2015); Goldstein v. MCI WorldCom, 340 F.3d 238, 254-55 (5th Cir. 2003).

Plaintiffs’ Complaint should be dismissed in its entirety with prejudice.

Case 3:22-cv-00728-M Document 54 Filed 06/23/22 Page 14 of 15 PageID 817
11

Dated: June 23, 2022 Respectfully Submitted,

/s/ Ronald W. Breaux

Ronald W. Breaux 

Texas Bar No. 02937200

Benjamin G. Goodman

Texas Bar No. 24091433

Benjamin B. Breckler

Texas Bar No. 24121922

HAYNES AND BOONE, LLP

2323 Victory Avenue, Suite 700

Dallas, Texas 75219

214.651.5000 (phone)

214.651.5940 (fax)

ron.breaux@haynesboone.com

benjamin.goodman@haynesboone.com

benjamin.breckler@haynesboone.com

Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on June 23, 2022, the foregoing document was served on all counsel 

of record via the Court’s electronic filing system.

/s/ Ronald W. Breaux

Ronald W. Breaux

Case 3:22-cv-00728-M Document 54 Filed 06/23/22 Page 15 of 15 PageID 818