1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VALERIE RASKIN, Case No. 24-cv-06442-AMO

8 Plaintiff,

ORDER GRANTING

9 v. MOTION TO DISMISS

10 BAUSCH & LOMB INC., Re: Dkt. No. 26 Defendant. 11

12 13 This is a putative consumer class action regarding the failure to warn of excessive zinc 14 intake on the label of an eye health supplement. Defendant Bausch & Lomb, Inc.’s (“Bausch & 15 Lomb”) motion to dismiss was heard before this Court on March 6, 2025. Having read the papers 16 filed by the parties and carefully considered their arguments therein and those made at the hearing, 17 as well as the relevant legal authority, the Court hereby GRANTS Bausch & Lomb’s motion for 18 the following reasons. 19 I. BACKGROUND 20 Defendant Bausch + Lomb, Inc. (“Bausch & Lomb”) a New York corporation with its 21 principal place of business in Rochester, New York. FAC ¶ 3. Bausch & Lomb “manufactured, 22 distributed, and/or sold” PreserVision AREDS 2 (“PreserVision”), “a nutritional supplement [] 23 intended to prevent and/or slow the progression of age-related macular degeneration.” FAC ¶¶ 2, 24 12. By design, PreserVision’s daily dose of 80 mg of zinc is over 700% of the recommended 25 dietary allowance of eight (8) mg per day. FAC ¶¶ 13, 22. 26 Beginning July 2018, Plaintiff Valerie Raskin began purchasing and taking PreserVision 27 twice daily, seven days a week, as recommended by the label on its packaging. FAC ¶ 23. She 1 myelopathy. FAC ¶ 23. On May 23, 2022, Raskin’s treating neurologist informed her that the 2 cause of her copper deficiency myelopathy and all its associated symptoms was excess zinc 3 consumption from the PreserVision supplement she took to prevent macular degeneration. FAC 4 ¶ 25. 5 In this case, a putative class action, Raskin advances a single cause of action for violation 6 of California’s Unfair Competition Law (“UCL”). See Cal. Bus. & Prof. Code § 17200. Raskin 7 alleges that Bausch & Lomb’s marketing of PreserVision was both “unfair and unconscionable” 8 and “fraudulent and deceptive” under the UCL, in that it “failed to disclose or warn that it posed 9 significant risks of substantial physical injury resulting from the use of” PreserVision. FAC ¶¶ 29- 10 31. Raskin claims that, without Bausch & Lomb’s “unfair and fraudulent conduct, Plaintiff and 11 Class Members would not have purchased PreserVision or would have paid less for it.” FAC ¶ 32. 12 Prior to filing this action, Raskin filed another case against Bausch & Lomb, captioned 13 Raskin, et al. v. Bausch & Lomb, Inc., et al., No. 3:24-CV-04879 (N.D. Cal.) (“the individual 14 action”). In the individual action, Raskin makes the same claims as the claims at issue in this 15 case – she alleges that Bausch & Lomb knowingly failed to warn Raskin and other consumers of 16 “any risks associated with excess zinc consumption,” and that she was injured as a result of that 17 failure. Compare Individual Action FAC ¶¶ 9-26, 31-54 with FAC ¶¶ 12-26, 29-32. The Court 18 found this putative class action related to the individual action and ordered it reassigned for joint 19 consideration. ECF 17. 20 II. DISCUSSION 21 Bausch & Lomb moves to dismiss the operative pleading in this putative class action. ECF 22 26 (“Mot.”). Bausch & Lomb argues (1) Raskin’s claim for relief under California’s Unfair 23 Competition Law (“UCL”) is insufficiently pleaded, (2) Raskin’s claim for equitable relief cannot 24 stand, and (3) this putative class action, brought after and separately from the individual action, 25 fails under the doctrine of claim splitting. After setting forth the standard of review for a motion 26 to dismiss, the Court only reaches Bausch & Lomb’s third argument because it finds that claim 27 splitting precludes this later-filed action. 1 A. Legal Standard 2 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal 3 sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th 4 Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that a complaint include a 5 “short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. 6 P. 8(a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a 7 cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. 8 Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). 9 While the court is to accept as true all the factual allegations in the complaint, legally 10 conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft 11 v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer sufficient facts to state a claim 12 for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 558-59 13 (2007) (citations and quotations omitted). “A claim has facial plausibility when the plaintiff 14 pleads factual content that allows the court to draw the reasonable inference that the defendant is 15 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “[W]here the well- 16 pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the 17 complaint has alleged – but it has not ‘show[n]’ – that the pleader is entitled to relief.” Id. at 679. 18 Review is generally limited to the contents of the complaint, although the court can also 19 consider a document on which the complaint relies if the document is central to the claims asserted 20 in the complaint, and no party questions the authenticity of the document. See Sanders v. Brown, 21 504 F.3d 903, 910 (9th Cir. 2007). The court may consider matters that are properly the subject of 22 judicial notice, Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of Los Angeles, 23 250 F.3d 668, 688-89 (9th Cir. 2001), and may also consider documents referenced extensively in 24 the complaint and documents that form the basis of the plaintiffs’ claims. See No. 84 Emp’r- 25 Teamster Jt. Council Pension Tr. Fund v. Am. W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 26 2003). If dismissal is warranted, it is generally without prejudice, unless it is clear that the 27 complaint cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 1 B. Claim Splitting 2 Bausch & Lomb argues in part that Raskin cannot split her claims for relief across her 3 individual action and this later-filed putative class action, both of which are premised on Bausch 4 & Lomb’s allegedly tortious conduct and the harm she suffered as a result of purchasing and 5 taking PreserVision. Mot. at 12-16. “Plaintiffs generally have no right to maintain two separate 6 actions involving the same subject matter at the same time in the same court and against the same 7 defendant.” Mendoza v. Amalgamated Transit Union Int’l, 30 F.4th 879, 886 (9th Cir. 2022) 8 (internal quotation marks omitted). In Mendoza, the Ninth Circuit clarified, “[t]o determine when 9 such improper claim-splitting is present, we borrow from the test for claim preclusion. Under the 10 federal claim-preclusion principles that apply in these federal-question-based suits, the bar of 11 claim-splitting is applicable if the second suit involves (1) the same causes of action as the first; 12 and (2) the same parties or their privies.” Mendoza, 30 F.4th at 886 (citations and quotation marks 13 omitted). 14 “To ascertain whether successive causes of action are the same” in the context of claim- 15 splitting, courts “use the transaction test, developed in the context of claim preclusion.” Adams v. 16 California Dep’t of Health Servs., 487 F.3d 684, 689 (9th Cir. 2007), overruled on other grounds 17 by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). “Whether two events are part of the same 18 transaction or series depends on whether they are related to the same set of facts and whether they 19 could conveniently be tried together.” Id. at 689. Courts examine four criteria when applying the 20 transaction test: “(1) whether rights or interests established in the prior judgment would be 21 destroyed or impaired by prosecution of the second action; (2) whether substantially the same 22 evidence is presented in the two actions; (3) whether the two suits involve infringement of the 23 same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.” Id. 24 at 689. The Ninth Circuit has “often held the common nucleus criterion,” the last of these criteria, 25 “to be outcome determinative.” Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 988 (9th Cir. 26 2005). “In most cases, the inquiry into the same transactional nucleus of facts is essentially the 27 same as whether the claim could have been brought in the first action.” Turtle Island Restoration 1 Bausch & Lomb avers that Raskin has engaged in claim splitting because the instant 2 putative class action is essentially duplicative of the personal injury lawsuit she filed earlier with 3 her husband. Mot. at 12-16. Here, the two cases involve the same parties – the individual action 4 includes an additional plaintiff, Raskin’s husband, as well as additional defendants, PreserVision 5 retailers. See Individual Action FAC. This factor supports a finding of claim splitting. Mendoza, 6 30 F.4th at 886. The Court thus turns to the transaction test to “ascertain whether successive 7 causes of action are the same.” Adams, 487 F.3d at 689. 8 Raskin contends that her pursuit of different remedies under distinct theories of relief 9 establishes that the two cases involve separate causes of action such that claim splitting does not 10 apply. Opp. (ECF 30) at 16-17. Raskin argues that, in the individual action, her personal injury 11 claim seeks compensatory damages for injuries she suffered as a result of consuming 12 PreserVision. See Opp. at 16 (citing Individual Action, FAC at 9). Raskin contrasts that remedy 13 with the one sought in this putative class action, where her UCL claim seeks restitution for the 14 amount she and class members paid to purchase PreserVision on fraudulent and unfair grounds. 15 Opp. at 16-17 (citing FAC ¶ 32). But even if the Court viewed the remedies sought in the two 16 lawsuits as distinct, Raskin fails to address the remaining transaction test criteria. Cf. Adams, 487 17 F.3d at 689. 18 The case at bar and the individual action both concern the same transactional nucleus of 19 facts – the “most important” factor in deciding whether suits are duplicative for claim-splitting 20 purposes. Adams, 487 F.3d at 689. Indeed, even if two cases “involve[] somewhat different legal 21 theories and a somewhat broader range of related conduct and damages[,]” that “does not alter the 22 underlying fundamental identity of the suits under” the Adams transaction test. Mendoza, 30 F. 23 4th at 887 (citing Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481 n.22 (1982) (“Res 24 judicata has recently been taken to bar claims arising from the same transaction even if brought 25 under different statutes.”)). Although this putative class action is brought under the UCL and the 26 individual action is brought under theories of personal injury, the suits share nearly identical 27 factual allegations related to (1) the product at issue, (2) the risk it poses to consumers, and 1 Compare Individual Action FAC ¶¶ 9-26 with FAC ¶¶ 12-26. The two cases thus share a common 2 nucleus of operative facts despite the distinction between the claims and remedies pursued. 3 Moreover, these two cases raise indistinguishable medical and scientific questions, such as the 4 appropriate measure of the risks likely to result from the recommended dosage of the supplement, 5 meaning the evidence in both actions will be essentially the same. Based on these factors and the 6 fundamental similarity between the cases, the Court finds that Raskin has engaged in claim 7 splitting. 8 C. Dismissal With Prejudice 9 Having found Raskin’s UCL claim in this later-filed putative class action to result from 10 improper claim splitting, the Court must turn to assess the proper outcome. “After weighing the 11 equities of the case, the district court may exercise its discretion to dismiss a duplicative later-filed 12 action, to stay that action pending resolution of the previously filed action, to enjoin the parties 13 from proceeding with it, or to consolidate both actions.” Adams, 487 F.3d at 688. “Dismissal of 14 the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, 15 promotes judicial economy and the comprehensive disposition of litigation.” Id. at 692. 16 At the hearing, Raskin requested that, if the Court found she improperly split her claims 17 across two separate actions, the Court consolidate the cases rather than dismiss the putative class 18 action. However, the Court earlier considered the propriety of consolidating this putative class 19 action with the earlier-filed individual action and found consolidation impractical. See ECF 39. 20 The Court finds no reason to change course and consolidate at this stage. Raskin had the 21 opportunity to advance all her claims arising from the purchase and use of PreserVision in a single 22 lawsuit, but she instead attempted to litigate on parallel tracks, filing this putative class action 23 several weeks after initially filing the individual action. Compare Individual Action, Notice of 24 Removal (ECF 1), with Putative Class Action, Notice of Removal (ECF 1). Parallel litigation of 25 claims that could have been brought in the same lawsuit is exactly the conduct the doctrine of 26 claim splitting is meant to prevent. See Mendoza, 30 F.4th at 886. The Court thus exercises its 27 discretion and dismisses Raskin’s individual claims in the later-filed putative class action with 1 prejudice, and the Court dismisses the claims of the putative class without prejudice to litigation 2 || by another putative class representative. 3 || I. CONCLUSION 4 For the foregoing reasons, the Court GRANTS Bausch & Lomb’s motion to dismiss 5 Raskin’s claims with prejudice, and the class’s claims without prejudice to litigation by another 6 || putative class representative. The Court will hold a status conference at 10:00 a.m. on August 14, 7 || 2025, to discuss Plaintiffs counsel’s plan for the next steps in the case. 8 9 IT IS SO ORDERED. 10 || Dated: June 12, 2025 11 □ □ □□ 12 :

ARXCELI MARTINEZ-OLGUIN

13 United States District Judge © 15 16

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