UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

CHAMBERS OF 

MICHAEL A. SHIPP 

UNITED STATES DISTRICT JUDGE 

Not for Publication 

VIACM/ECF 

All counsel of record 

LETTER OPINION 

September 30, 2013 

Re: Charles Hammer v. Vital Pharmaceuticals, et al. 

Civil Action No. 11-4124 (MAS) (DEA) 

Dear Counsel: 

CLARKSON S. FISHER COURTHOUSE 

402 EAST STATE ST., ROOM 7000 

TRENTON, NJ 08608 

609·989-2009 

This matter comes before the Court upon the Motion to Dismiss filed by Defendant Vital 

Pharmaceuticals, Inc. ("Defendant"). (Def.'s Mot., ECF No. 43; Def's Moving Br., ECF No. 43-1.) 

Plaintiff Charles Hammer ("Plaintiff') filed Opposition to the motion. (Pl.'s Opp'n, ECF No. 44.) 

Defendant filed a Reply. (Def's Reply, ECF No. 45.) The Court has carefully considered the 

pleadings and has decided the motion without oral argument pursuant to Local Civil Rule 78.1. 

After careful consideration, and for the reasons set forth below, Defendant's motion is granted in 

part, denied in part, and denied without prejudice in part. 

I. Background 

On March 26, 2012, the Honorable Freda L. Wolfson, U.S.D.J., issued an Opinion on 

Defendant's first motion to dismiss the case. (March 26 Op., ECF No. 19.) The Opinion granted 

Defendant's motion and provided Plaintiff leave to amend. Plaintiff subsequently filed an Amended 

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Complaint. (ECF No. 22.) On January 30, 2013, the Court denied without prejudice Defendant's 

motion to dismiss the amended complaint and granted Plaintiff leave to file a second amended 

complaint. (ECF No. 38.) Plaintiff filed his Second Amended Complaint ("SAC") on February 5, 

2013. (ECF No. 42.) 

The issues reflected in the present motion directly relate to the Court's March 26 Opinion. In 

light of the comprehensive background and extensive analysis contained in the March 26 Opinion, 

this Letter Opinion and Order will simply list the claims in dispute and provide an abbreviated 

1 . I 

ana ys1s. 

II. Discussion 

A. NJCFA and Fraud Claims (Counts I & II) 

In its March 26 Opinion, the Court found that Plaintiffs allegations that Defendant 

affirmatively misrepresented Clenbutrx as a "dietary supplement," because the product does not 

contain "only dietary ingredients," fell short of stating a viable claim. Plaintiffs Second Amended 

Complaint does not satisfy this deficiency. As outlined in the March 26 Opinion, the definition of 

"dietary supplement" includes products that contain "one or more" dietary ingredients. (March 26 

Op. 9.) Because Plaintiff fails to allege that none of the ingredients in Clenbutrx are dietary, the 

Court dismisses with prejudice the fraud claims with respect to the allegations that Defendant 

misrepresented Clenbutrx as a dietary supplement. The Court, however, denies Defendant's motion 

'The law of the case doctrine recognizes that "as a matter of comity a successor judge should not 

lightly overturn decisions of his predecessors in a given case." Fagan v. City of Vineland, 22 F.3d 

1283, 1290 (3d Cir. 1994). "The law of the case operates only to limit reconsideration of the same 

issue." Id. However, "there may be exceptional circumstances under which the rule is not to be 

applied." TCF Film Corp.v. Gourley, 240 F.2d 711, 714 (3d Cir. 1957). "Under the law of the case 

doctrine, once an issue is decided, it will not be relitigated in the same case, except in unusual 

circumstances." Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1982). "The 

purpose of this rule is to preserve the orderly functioning of the judicial process." Jd. at 168 

(internal quotation and citation omitted). 

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with respect to Plaintiffs separate, alternative allegation that Defendant misrepresented and 

continues to misrepresent that the Geranamine (or "DMAA") contained in Clenbutrx is a natural 

constituent of Geranium Oil. 

In order to survive a motion to dismiss, a valid NJCFA claim must adequately allege: (1) an 

unlawful practice by the defendants; (2) an ascertainable loss by plaintiff; and (3) a causal nexus 

between the first two elements. Here, Plaintiff alleges that Geranamine is not a constituent of 

Geranium Oil despite a contrary indication on the Clenbutrx packaging. The specific alleged 

misrepresentation, ascertainable loss measured by the value paid for the product, and causation 

allegations are sufficient to survive Defendant's Motion to Dismiss. Thus, Defendant's Motion to 

Dismiss is denied as it relates to the allegation that Defendant misrepresented DMAA as a 

constituent of Geranium Oil. 2 

B. Unjust Enrichment Claim (Count Ill) 

In the March 26 Opinion, the Court noted that unjust enrichment reqmres a direct 

relationship between the parties. (Mar. 26 Op. 17-18.) The Court then dismissed the unjust 

enrichment claim because Plaintiff did not allege where he purchased the Clenbutrx. (!d. at 18.) 

Plaintiffs Second Amended Complaint alleges that Plaintiff purchased the Clenbutrx from a third 

party retailer. (SAC ~ 28.) However, Plaintiff withdrew his unjust enrichment claim in his 

opposition brief. (Pl.'s Opp'n Br. 1.) As such, Plaintiffs unjust enrichment claim is dismissed with 

prejudice. 

2 The Court previously denied Defendant's motion with respect to Plaintiffs allegations that 

Defendant inappropriately advertised that its product was "certified by science." As set forth in the 

March 26 Opinion, "Defendant's use of the term 'certified by science' transforms a subjective 

statement that might otherwise be considered puffery ... into something that appears both scientific 

and measurable" and constitutes an actionable misrepresentation. (Mar. 26 Op. 13.) As such, these 

allegations also survive Defendant's motion. 

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C. Breach of Express and Implied Warranties (Counts IV and V) 

For the reasons set forth previously, Counts IV and V are dismissed with prejudice as to 

Plaintiffs allegations that Clenbutrx is not a "dietary supplement" because it does not consist solely 

of dietary ingredients. The Court, however, denies Defendant's motion with regard to Plaintiffs 

separate, alternative allegations. Plaintiffs Second Amended Complaint asserts viable claims under 

Counts IV & V that mislabeling DMAA as a constituent of Geranium Oil constitutes a breach of 

express and implied warranties. 

While the Parties dispute the issue of pre-litigation notice, the Court finds that the 

allegations in the complaint are sufficient to survive Defendant's motion to dismiss. In Strzakowlski 

v. General Motors Corp., the Court held that pre-litigation notice was not required as to a 

"manufacturer who was not the immediate seller of a defective product." No. 04-4740 (JHR), 2005 

WL 2001912, at *3 (D.N.J. Nov. 18, 2011). Additionally, the Court established that even if notice 

were required, filing of a complaint constitutes sufficient notice when the Defendant is a remote 

manufacturer. !d. The court found similarly in Coyle v. Hornell Brewing Co., No. 08-02797 (JBS), 

2010 WL 2539386, at *6 (D.N.J. Sept. 22, 2011). As such, the Court finds that the alternative 

allegations are sufficient to survive Defendant's motion. 

D. Class Allegations 

Defendant argues that the particular circumstances that led to Plaintiffs purchase of 

Clenbutrx make class treatment inappropriate. The Court finds Defendant's motion premature and 

denies Defendant's motion without prejudice as it relates to the class allegations. 

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E. Money Back Guarantee 

The Court grants Defendants' motion with respect to the money back guarantee. The Court 

previously dismissed with prejudice Plaintiffs claims regarding an alleged "money back" 

guarantee. The Court does not find good cause to revisit or address the renewed arguments. 

III. Conclusion 

For the reasons set forth above, and as reflected by the accompanying Order, Defendant's 

motion is granted with prejudice in part, denied in part, and denied without prejudice in part. 

s/ Michael A. Shipp 

MICHAEL A. SHIPP 

UNITED STATES DISTRICT JUDGE 

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