DETROIT (Legal Newsline) – A California-based fitness company sued for alleged fraud and negligent misrepresentation has filed a motion to dismiss against the plaintiff over allegations he failed to state a claim for relief.

Initially, Jeff Johnson, John Sandviks and Tanner Kirchoff sued PhD Fitness LLC in a class action filed in U.S. District Court for the Eastern District of Michigan, Southern Division, alleging negligence and misrepresentation regarding its supplements Pre-JYM and Post-JYM. They said PhD, a sports supplement company, claimed both supplements scientifically aided in pre- and post-workout benefits. The plaintiffs sought damages and restitution, among others.

On April 6, PhD filed a motion to dismiss all claims, stating, for starters, plaintiffs failed to provide a notice to sue prior to filing their original complaint.

When Sandviks (of South Carolina) and Kirchoff (of Washington) withdrew from the lawsuit, Johnson, a Michigan native, filed an amended claim for breach of express and implied warranty, unjust enrichment and violations of state consumer protection laws. However, PhD filed another motion to dismiss for several reasons.

PhD claimed Johnson didn’t give it an opportunity to investigate, rectify, attempt to negotiate or settle his claim before filing a class action. Specifically, the day before he filed the amended claim, he sent a letter of notice, which it said was too late to satisfy notice requirements.

Unlike Sandviks and Kirchoff, Johnson purchased the supplements from a GNC store and not from PhD’s website. He claimed he read the product labels before purchase and that constituted misrepresentation. 

However, his amended claim continued to focus on the website’s statements (alleged by Sandviks and Kirchoff) and omitted footnotes highlighting the store-bought label disclaimers, the company says. 

PhD alleged he failed to support his fraud claim and lacked specificity. It requested paragraphs discussing the website be removed because they no longer applied.

PhD then claimed there was no contract as the express warranty claim asserted. It said this and his unjust enrichment complaint were contradictory. 

Johnson claimed the labeling and marketing issues were part of a contract with class members, which spoke to misrepresentation and, “formed the basis of (his) unjust enrichment claim,” PhD alleged. But doing so unraveled the latter claim because an “alleged contract would supersede any implied contract in equity." Hence, Johnson failed to state a claim, it said.

The defendant is represented by Davis Wright Tremaine LLP in Washington, D.C., and Portland, Oregon, and by Honigman Miller Schwartz and Chon LLP in Detroit and Lansing, Michigan, respectively.

The plaintiff is represented by Barbat, Mansour & Suciu PLLC in Bloomfield Hills, Michigan, and by Kohn, Swift & Graf P.C. in Philadelphia.

U.S. District Court for the Eastern District of Michigan case number 2:16-cv-14152-LJM-SDD

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U.S. District Court for the Eastern District of Michigan
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