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Azimpour v. Sears, Roebuck & Co.

United States District Court for the Southern District of California

April 26, 2017, Decided; April 26, 2017, Filed

Case No.: 15-CV-2798 JLS (WVG)

Opinion

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SEARS, ROEBUCK & COMPANY'S MOTION TO DISMISS

(ECF No. 26)

Presently before the Court is a Motion to Dismiss or, in the Alternative, Strike Plaintiff's Second Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(f) filed by Defendant Sears, Roebuck & Company ("Sears"). ("MTD," ECF No. 26.) Also before [*2]  the Court is Plaintiff's Response in Opposition to, ("Opp'n," ECF No. 27), and Defendant's Reply in Support of, ("Reply," ECF No. 28), Defendant's MTD. The Court vacated the hearing on the MTD and took it under submission pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 29.) Having considered the parties' arguments and the law, the Court GRANTS IN PART and DENIES IN PART Defendant's MTD.

BACKGROUND

This action arose after Plaintiff purchased a pillow at Defendant's store in San Diego, California on July 19, 2015. (Second Amended Compl. ("SAC") ¶¶ 9, 29, ECF No. 25.) At the store, Plaintiff saw pricing information indicating that the pillow's "regular" price was $19.99, but was being offered at a "sale" price of $9.99. (Id.) Specifically, Mr. Azimpour examined the price sign bearing the original price and also examined the red sign, with black letters announcing, "Sale" and stating "Save $10." (Id.; see also id. Ex. B (a pricing sign that Azimpour describes as nearly identical to the price sign he observed when making his purchase).) The Sale Sign announced the discounted price of $9.99 and the regular price was described immediately next to it as, "reg. $19.99." (Id.) Plaintiff relied on this purported [*3]  discounted price in making his purchase, (id.), and claims he would not have purchased the pillow but-for the misrepresented price, (id. ¶¶ 9, 29, 33). Additionally, upon check-out on July 19, 2015, Sears provided Plaintiff with a receipt containing the allegedly misrepresented price, specifically stating "SALE" in large, bold, all-caps lettering directly above the item he purchased. (Id. ¶ 31.) Plaintiff alleges that Defendant has employed a scheme to defraud consumers by advertising merchandise at fabricated "sale" prices. (See, e.g., id. ¶¶ 1, 2, 3, 4, 32.) Plaintiff now also alleges that his "counsel's investigation has revealed" that the pillow Plaintiff purchased remained continuously on "sale" at every Sears store in San Diego County for the same price from the filing of this suit through November 8, 2016. (Id. ¶ 11; see also id. ¶¶ 19-28 (detailing Plaintiff's counsel's "investigation").)

On January 15, 2016, Plaintiff filed his Amended Complaint ("FAC") seeking a class action against Defendant for false and misleading advertisements in connection with merchandise sold in its retail stores. (FAC ¶ 1, ECF No. 10.) The Court dismissed Plaintiff's FAC for failure to plead with [*4]  particularity under Rule 9(b). (See First MTD Order, ECF No. 22.)

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2017 U.S. Dist. LEXIS 63516 *; 2017 WL 1496255

SAEID AZIMPOUR, on behalf of himself and all others similarly situated, Plaintiff, v. SEARS, ROEBUCK & COMPANY, Defendant.

Prior History: Azimpour v. Sears, Roebuck & Co., 2016 U.S. Dist. LEXIS 188844 (S.D. Cal., Oct. 17, 2016)

CORE TERMS

advertising, allegations, argues, restitution, cause of action, consumer, pillow, misleading, prices, unjust enrichment, notice, unfair, motion to dismiss, discounted, violations, in-store, purchasers, deceptive, quasi-contract, particularity, products, fails, consumer protection, injunctive relief, merchandise, regular, courts, Cases, tag, advertising campaign