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Rodriguez v. Hanesbrands Inc.

United States District Court, E.D. New York

March 30, 2018

JUDITH RODRIGUEZ and MARYANN RIEDEL, on behalf of themselves and others similarly-situated, Plaintiffs,
v.
HANESBRANDS INC., Defendant.

          MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION

          DORA L. IRIZARRY Chief Judge.

         Plaintiffs Judith Rodriguez and Maryann Riedel (“Plaintiffs”) brought this action, on behalf of themselves and others similarly situated, against Hanesbrands Inc. (“Defendant”). (See generally Amended Complaint (“Am. Compl.”), Dkt. Entry No. 14.) Plaintiffs assert claims for violations of New York General Business Law (“GBL”) §§ 349 and 350, the consumer protection laws of the other forty-nine states and the District of Columbia, and common law fraud, seeking damages and injunctive relief, in connection with their purchase of Defendant's hosiery, which was marketed and labeled as “run resistant.” (Id.)

         Defendant moved to dismiss the Amended Complaint on August 7, 2017. (See Def.'s Mot. to Dismiss, Dkt. Entry No. 15; Def.'s Memorandum in Supp. of Mot. to Dismiss (“Mot.”), Dkt. Entry No. 16.) The motion requests that the Court dismiss the common law fraud and GBL claims, but does not address the consumer protection law claims of the other forty-nine states and the District of Columbia. Plaintiffs opposed the motion. (See Pl.'s Memorandum in Opp'n to Mot. to Dismiss (“Opp'n”), Dkt. Entry No. 17.) Defendant replied. (See Reply in Supp. of Mot. to Dismiss (“Reply”), Dkt. Entry No. 19.)

         On October 16, 2017, the Court referred Defendant's motion to dismiss to the Honorable Roanne L. Mann, Chief U.S. Magistrate Judge, for a Report and Recommendation (“R&R”). Chief Magistrate Judge Mann issued her thorough and well reasoned R&R on February 20, 2018. (See generally R&R, Dkt. Entry No. 20.) The magistrate judge recommended that Defendant's motion to dismiss be granted as to the common law fraud claim and the request for injunctive relief, and denied as to the GBL §§ 349 and 350 claims. (R&R at 21-22.) Defendant timely objected to the portion of the R&R recommending that Defendant's motion to dismiss the GBL §§ 349 and 350 claims be denied. (See Objection to R&R (“Objs.”), Dkt. Entry No. 22.) Plaintiffs opposed Defendant's objections. (See Letter Responding to Defendant's Objections to Magistrate's Recommendations (“Opp'n to Objs”), Dkt. Entry No. 23.)

         For the reasons set forth below, Defendant's objections are overruled, and the R&R is adopted in its entirety.

         DISCUSSION[1]

         When a party objects to an R&R, a district judge must make a de novo determination as to those portions of the R&R to which the party objects. See Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the district courts of this Circuit, “[i]f a party . . . simply relitigates his original arguments, the Court reviews the Report and Recommendation only for clear error.” Antrobus v. N.Y.C. Dep't of Sanitation, 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016) (internal citations and quotation marks omitted); see also Rolle v. Educ. Bus Transp., Inc., 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17, 2014) (“[A] rehashing of the same arguments set forth in the original papers . . . would reduce the magistrate's work to something akin to a meaningless dress rehearsal.”) (internal citations and quotation marks omitted). On the other hand, the Second Circuit Court of Appeals has suggested that a clear error review may not be appropriate “where arguably ‘the only way for [a party] to raise . . . arguments [is] to reiterate them.'” Moss v. Colvin, 845 F.3d 516, 519 n.2 (2d Cir. 2017) (quoting Watson v. Geithner, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)). Nonetheless, a court will not “ordinarily . . . consider arguments, case law and/or evidentiary material which could have been, but [were] not, presented to the magistrate judge in the first instance.” Santiago v. City of New York, 2016 WL 5395837, at *1 (E.D.N.Y. Sept. 27, 2016) (internal citation and quotation marks omitted). After its review, the district court may then “accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Where a party does not object to a portion of the R&R, the court “‘need only satisfy itself that there is no clear error on the face of the record.'” Galvez v. Aspen Corp., 967 F.Supp.2d 615, 617 (E.D.N.Y. 2013) (quoting Reyes v. Mantello, 2003 WL 76997, at *1 (S.D.N.Y. Jan. 9, 2003)).

         A. Plaintiffs' Common Law Fraud Claims

         As noted above, neither Plaintiffs nor Defendant objected to the magistrate judge's recommendation that the motion to dismiss the common law fraud claim and request for injunctive relief be granted. (See Objs. at 1.) Upon due consideration and review, and finding no clear error, that portion of the R&R is adopted in its entirety.

         B. Plaintiffs' GBL §§ 349 and 350 Claims

         In its objections, Defendant largely rehashes its motion to dismiss arguments, taking issue with those portions of the R&R that do not adopt its reasoning. Defendant objects that the magistrate judge: (1) did not “focus[] on whether Plaintiffs adequately alleged facts to suggest that ‘run resistant' was deceptive or misleading”; (2) should have ignored Amazon users' complaints at this stage in the litigation; (3) “was wrong to reject dismissal on the basis that ‘courts have generally held that such a reasonableness inquiry is an issue of fact for the jury and should not be resolved on a motion to dismiss”; and (4) “assumes that Hanesbrands represented that its run-resistant products are more run resistant that comparable products in all situations.” (Objs. at 4, 6.)

         As an initial matter, the Court disagrees with Defendant's contention that it must conduct a de novo review of Defendant's motion to dismiss with respect to the portions of the R&R to which it objects, as those objections largely restate its arguments from its original motion papers. Defendant is not entitled to two bites at the apple. See Antrobus v. N.Y. City Dep't of Sanitation, 2016 WL 5390120, at *2 (E.D.N.Y. Sept. 26, 2016) (quoting Pinkey v. Progressive Home Health Servs., 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (“[O]bjections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party can be allowed a second bite at the apple by simply relitigating a prior argument.”)). However, even under the stricter de novo review, Defendant's arguments fail.

         The magistrate judge did not fail to “focus[] on whether Plaintiffs adequately alleged facts to suggest that ‘run resistant' was deceptive or misleading.” (Objs. at 4.) Rather, she explained that “the gravamen of [Plaintiffs'] case is the deceptiveness of defendant's representation that its Products are ‘run resistant.'” (R&R at 5.)

         This Court agrees that Plaintiffs adequately alleged facts to support their position. Plaintiffs allege that Rodriguez experienced holes and runs in her hosiery after three “normal, everyday” wearings. (Am. Compl. ¶ 13.) Plaintiffs allege that the “run resistant” labeling misled Rodriguez to believe that Defendant's hosiery would “last longer and not rip or run as easily as her regular tights and socks that were not advertised as ‘run resistant.'” (Id.) Similarly, Plaintiffs allege that Riedel suffered holes and runs in her hosiery after one week of wear “in normal, ...


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