Case 2:19-cv-06780-FMO-AS Document 38 Filed 02/03/20 Page 1 of 3 Page ID #:1070
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`UMBERG ZIPSER LLP
`A TTO RN EY S A T L A W
`IRV I N E
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`UMBERG ZIPSER LLP
`Dean J. Zipser (SBN 94680)
`dzipser@umbergzipser.com
`ADINA W. STOWELL (SBN 211719)
`astowell@umbergzipser.com
`1920 Main Street, Suite 750
`Irvine, CA 92614
`Telephone: (949) 679-0052
`Fax: (949) 679-0461
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`MORRIS, MANNING & MARTIN, LLP
`Robert P. Alpert (Pro Hac Vice)
`rpa@mmmlaw.com
`Jeffrey K. Douglass (Pro Hac Vice)
`jdouglass@mmmlaw.com
`1600 Atlanta Financial Center
`3343 Peachtree Road, NE
`Atlanta, GA 30326
`Telephone: (404) 233-7000
`Fax: (404) 365-9532
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`Attorneys for Defendant
`Home Depot U.S.A., Inc.
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`UNITED STATES DISTRICT COURT
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`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`JAMES WEEKS, individually and
`on behalf of all others situated,
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`Plaintiff,
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`vs.
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`HOME DEPOT U.S.A., INC., a
`Delaware corporation, and DOES 1
`through 100, inclusive,
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`Defendants.
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`{196153.1}
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`Case No.: 2:19-cv-06780-FMO-AS
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`ASSIGNED TO:
`Hon. Fernando M. Olguin
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`DEFENDANT HOME DEPOT U.S.A.,
`INC.’S NOTICE OF MOTION TO
`DISMISS
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`Date:
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`Time:
`Courtroom:
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`March 12, 2020
`10:00 a.m.
`6D
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`Complaint Filed: August 5, 2019
`Amended Complaint Filed: November 22,
`2019
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`2:19-CV-06780-FMO-AS
`HOME DEPOT’S NOTICE OF MOTION TO DISMISS
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`Case 2:19-cv-06780-FMO-AS Document 38 Filed 02/03/20 Page 2 of 3 Page ID #:1071
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`TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
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`PLEASE TAKE NOTICE that on March 12, 2020, at 10:00 a.m., or as soon
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`thereafter as the matter may be heard, in Courtroom 6D of the Central District
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`Court – Western Division, located at 350 W. 1st Street, 6th Floor, Los Angeles,
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`CA 90012, the Honorable Fernando M. Olguin presiding, defendant Home Depot
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`U.S.A., Inc. (“Home Depot”) will and hereby does move for an order dismissing
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`the claims of plaintiff James Weeks (“Plaintiff”) for failure to state a claim upon
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`which relief can be granted. This Motion is made pursuant to Federal Rules of
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`Civil Procedure Rule 12(b)(6) and based on the following grounds:
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`1.
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` Plaintiff’s claim is expressly preempted by the Federal Insecticide,
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`Fungicide, and Rodenticide Act (“FIFRA”), which bars any state-law
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`requirements for product labeling or packaging “in addition to or different from”
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`FIFRA’s requirements;
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`2.
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`Plaintiff’s claim is preempted under the doctrine of impossibility
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`preemption;
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`3.
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`Plaintiff’s claim fails because he admits that Home Depot has “no
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`control” over the product labels and did not participate in, control, or adopt the
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`alleged unlawful practices;
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`4.
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`Plaintiff’s claim, which in substance is a Proposition 65 claim, is
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`barred by his failure to comply with Proposition 65’s notice requirements and the
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`current statewide injunction preventing the enforcement of a cancer warning for
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`glyphosate;
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`5.
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`Plaintiff’s claim is based on Home Depot’s purported fraudulent
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`omissions, but Plaintiff fails to meet the heightened pleading requirements for
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`fraud-based claims under Rule 9(b) of the Federal Rules of Civil Procedure; and
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`UMBERG ZIPSER LLP
`A TTO RN EY S A T L A W
`IRV I N E
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`{196153.1}
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`2:19-CV-06780-FMO-AS
`HOME DEPOT’S NOTICE OF MOTION TO DISMISS
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`Case 2:19-cv-06780-FMO-AS Document 38 Filed 02/03/20 Page 3 of 3 Page ID #:1072
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`6.
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`Plaintiff lacks standing to pursue his claims for injunctive relief
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`because his own allegations confirm that he is not likely to suffer any future
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`injury.
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`This motion is made following the conferences of counsel pursuant to
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`Local Rule 7-3, which took place on December 6, 2019, and January 27, 2020.
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`This motion is based on this Notice, the attached Memorandum of Points and
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`Authorities, the accompanying Request for Judicial Notice, all pleadings and
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`records on file in this action, and any argument presented to the Court in
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`connection with the hearing on this motion.
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`Dated: February 3, 2020
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`UMBERG ZIPSER LLP
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` /s/ Adina W. Stowell
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`Adina W. Stowell
`Attorneys for Defendant Home Depot
`U.S.A., Inc.
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`UMBERG ZIPSER LLP
`A TTO RN EY S A T L A W
`IRV I N E
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`{196153.1}
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`2:19-CV-06780-FMO-AS
`HOME DEPOT’S NOTICE OF MOTION TO DISMISS
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