United States District Court, E.D. New York
JUDITH RODRIGUEZ and MARYANN RIEDEL, on behalf of themselves and others similarly-situated, Plaintiffs,
HANESBRANDS INC., Defendant.
MEMORANDUM AND ORDER ADOPTING REPORT AND
L. IRIZARRY Chief Judge.
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.)
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.)
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.)
reasons set forth below, Defendant's objections are
overruled, and the R&R is adopted in its entirety.
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)).
Plaintiffs' Common Law Fraud Claims
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.
Plaintiffs' GBL §§ 349 and 350 Claims
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.)
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.
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.)
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, ...