Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 1 of 9 PageID #: 397
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-----------------------------------------------x
`KALMAN ROSENFELD, individually
`and on behalf of all others similarly
`situated,
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`Plaintiff,
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`AC2T, INC., BONNER ANALYTICAL
`TESTING CO., and JEREMY HIRSCH,
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`Defendants.
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`------------------------------------------------x
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`-against-
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`MEMORANDUM AND ORDER
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`Case No. 1:20-cv-04662-FB-PK
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`For the Defendants:
`DANIEL R. BENSON
`Kasowitz Benson Torres LLP
`1633 Broadway
`New York, New York 10019
`
`EDWARD P. BOYLE
`ANNA G. DIMON
`Venable LLP
`1270 Avenue of the Americas
`New York, New York 10020
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`
`
`Appearances:
`For the Plaintiffs:
`YITZCHAK KOPEL
`ALEC M. LESLIE
`Bursor & Fisher, P.A.
`888 Seventh Avenue
`New York, New York 10019
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`
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`BLOCK, Senior District Judge:
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`Plaintiff Kalman Rosenfeld (“Rosenfeld”) claims that Defendants AC2T, Inc.
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`(“AC2T”), Bonner Analytical Testing Co. (“Bonner”), and Jeremy Hirsch
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`(“Hirsch”) fraudulently marketed a mosquito control product called “Spartan
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`1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-----------------------------------------------x
`KALMAN ROSENFELD, individually
`and on behalf of all others similarly
`situated,
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`AC2T, INC., BONNER ANALYTICAL
`TESTING CO., and JEREMY HIRSCH,
`
`Defendants.
`
`
`
`------------------------------------------------x
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`MEMORANDUM AND ORDER
`
`Case No. 1:20-cv-04662-FB-PK
`
`
`
`
`
`
`
`
`
`For the Defendants:
`DANIEL R. BENSON
`Kasowitz Benson Torres LLP
`1633 Broadway
`New York, New York 10019
`
`EDWARD P. BOYLE
`ANNA G. DIMON
`Venable LLP
`1270 Avenue of the Americas
`New York, New York 10020
`
`
`
`Appearances:
`For the Plaintiffs:
`YITZCHAK KOPEL
`ALEC M. LESLIE
`Bursor & Fisher, P.A.
`888 Seventh Avenue
`New York, New York 10019
`
`
`
`
`BLOCK, Senior District Judge:
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`
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`Plaintiff Kalman Rosenfeld (“Rosenfeld”) claims that Defendants AC2T, Inc.
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`(“AC2T”), Bonner Analytical Testing Co. (“Bonner”), and Jeremy Hirsch
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`(“Hirsch”) fraudulently marketed a mosquito control product called “Spartan
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`1
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`Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 2 of 9 PageID #: 398
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`Mosquito Eradicator.” Bonner and Hirsch have moved to dismiss the complaint as
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`against them for lack of personal jurisdiction pursuant to Federal Rule of Civil
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`Procedure 12(b)(2), and each defendant has moved to dismiss the complaint in its
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`entirety for failure to state a claim pursuant to Rule 12(b)(6). For the following
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`reasons, this Court GRANTS Bonner and Hirsch’s motions to dismiss for lack of
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`personal jurisdiction and DENIES AC2T’s remaining motion to dismiss for failure
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`to state a claim.
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`The following facts are taken from the complaint. For the purposes of the
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`I.
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`pending motions to dismiss, the Court accepts them as true and draws all reasonable
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`inferences in favor of the plaintiff. See, e.g., Gamm v. Sanderson Farms, Inc., 944
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`F.3d 455, 458 (2d Cir. 2019).
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`In the summer of 2019, Rosenfeld purchased a mosquito control product
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`known as “Spartan Mosquito Eradicator” (“Spartan”), believing it would
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`“effectively eliminate mosquitos.” Complaint at ¶ 33. Rosenfeld used Spartan as
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`directed but was disappointed when it did not provide “effective mosquito control.”
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`Id.
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`Each defendant is connected to Spartan, which is manufactured and sold by
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`AC2T. Id. at ¶ 34. Hirsch served as president and spokesperson of AC2T. Id. at ¶
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`35. And Bonner conducted allegedly fraudulent testing of Spartan. Id. at ¶ 36.
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`2
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`Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 3 of 9 PageID #: 399
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`Spartan’s advertising represents that the product will “significantly decrease[]
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`[mosquito] population within 15 days,” and “[p]rovid[e] up to 95% mosquito control
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`for up to 90 days.” Id. at ¶ 3. The product purports to work through three crucial
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`ingredients: sugar, salt, and yeast. Id. at ¶ 7. Spartan advertising represents that
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`when the product is mixed with water and ingested by a mosquito, the “crystalline
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`structure” of salt cuts the mosquito’s stomach, “causing it to rupture.” Id. at ¶ 8.
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`Meanwhile, the fermentation process of the yeast produces carbon dioxide inside the
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`mosquito, also causing its stomach to rupture. Id.
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`The only problem, according to Rosenfeld, is that none of this is true. Id. at
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`¶ 9. Rosenfeld alleges that, as a matter of biology, sugar, salt, yeast and water simply
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`cannot kill a mosquito in the way that the Spartan advertising represents. Id. at ¶ 10.
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`Rosenfeld cites a number of studies to this effect. Moreover, he alleges that the
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`defendants knew Spartan was an ineffective product, and nonetheless produced a
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`phony study allegedly demonstrating Spartan’s efficacy, which they used to
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`fraudulently market and sell it. Id. at ¶¶ 21, 25.
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`On September 30, 2020, Rosenfeld filed this lawsuit, alleging counts of
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`deceptive acts or practices (Count I); false advertising (Count II); unjust enrichment
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`(Count III); breach of express warranty (Count IV); violations of the Magnuson-
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`Moss Warranty Act, 15 U.S.C. § 2301 et seq. (Count V); and fraud (Count VI).
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`Complaint at ¶¶ 47-87.
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`3
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`Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 4 of 9 PageID #: 400
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`II.
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`A.
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`There are two means by which a court can acquire personal jurisdiction over
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`a defendant: generally and specifically. Ford Motor Co. v. Montana Eighth Jud.
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`Dist. Ct., 141 S. Ct. 1017, 1024 (2021). A court has general jurisdiction when a
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`defendant is “essentially at home” in the forum state. Id. By contrast, specific
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`jurisdiction arises only where a defendant makes deliberate contacts with the forum
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`state and the plaintiff’s claim arises from those contacts. Id. at 1025.
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`To fend off a Rule 12(b)(2) jurisdictional challenge, a plaintiff must
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`demonstrate a prima facie case for jurisdiction. Charles Schwab Corp. v. Bank of
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`Am. Corp., 883 F.3d 68, 81 (2d Cir. 2018). “Such a showing entails making legally
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`sufficient allegations of jurisdiction, including an averment of facts that, if
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`credited[,] would suffice to establish jurisdiction over the defendant.” Id. (quoting
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`Penguin Grp. (USA) v. Am. Buddha, 609 F.3d 30, 34-35 (2d Cir. 2010)).
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`B.
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`This Court lacks general jurisdiction over Bonner and Hirsh, because no facts
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`have been pleaded indicating that either has affiliations with New York “so
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`continuous and systematic as to render them essentially at home” here. Daimler AG
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`v. Bauman, 571 U.S. 117, 119 (2014). Per the complaint, which must be construed
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`in the light most favorable to Rosenfeld at this stage of the litigation, Dorchester
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`4
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`Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 5 of 9 PageID #: 401
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`Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013), Bonner is a
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`Mississippi corporation with its primary place of business in Mississippi, and Hirsch
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`is a Mississippi resident. Complaint at ¶¶ 35-36.
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`Nor has Rosenfeld adequately alleged specific jurisdiction. As the defendants
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`note, the complaint does not allege any actions undertaken by either Bonner or
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`Hirsch in New York. Nonetheless, Rosenfeld argues that each is subject to this
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`Court’s jurisdiction based upon a theory of conspiracy jurisdiction. Plaintiff’s
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`Memorandum in Opposition at 18.
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`“To establish personal jurisdiction on a conspiracy theory, Plaintiff[] must
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`make a prima facie showing of conspiracy, allege specific facts warranting the
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`inference that the defendant was a member of the conspiracy, and show that the
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`defendant’s co-conspirator committed a tort in New York.” In re Terrorist Attacks
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`on Sept. 11, 2001, 349 F. Supp. 2d 765, 805 (S.D.N.Y.), on reconsideration in part,
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`392 F. Supp. 2d 539 (S.D.N.Y. 2005), and aff’d, 538 F.3d 71 (2d Cir. 2008), and
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`aff’d, 538 F.3d 71 (2d Cir. 2008), and aff’d, 714 F.3d 118 (2d Cir. 2013) (internal
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`citation and quotation omitted). Vague and general allegations of conspiracy are not
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`enough: “[T]he bland assertion of conspiracy . . . is insufficient to establish
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`jurisdiction[.]” Id. (internal citation and quotation omitted).
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`Yet vague and general allegations of conspiracy are all that Rosenfeld has
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`offered. The complaint does not include a count of conspiracy. Nor does it factually
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`5
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`Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 6 of 9 PageID #: 402
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`allege an agreement between Bonner, Hirsch, and AC2T. Rosenfeld’s opposition
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`brief attempts to retrofit the complaint with allegations of conspiracy; however, it is
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`the complaint, not the briefs, being tested at this stage. Put simply, the complaint
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`fails to factually allege a conspiracy; therefore, no conspiracy jurisdiction lies here.
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`This Court is similarly unpersuaded by Rosenfeld’s novel invocation of
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`“endorser” jurisdiction with respect to Hirsch. While endorsement may be a source
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`of liability in proceedings before the Federal Trade Commission, no authority
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`suggests that it may be a basis of personal jurisdiction before this Court. Nor has
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`Rosenfeld alleged that Hirsch made statements in or directed towards New York.
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`Accordingly, the defendants’ motion to dismiss the complaint with respect to
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`Bonner and Hirsch is GRANTED.
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`III.
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`A.
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`What remains is AC2T’s Rule 12(b)(6) motion to dismiss the complaint in its
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`entirety for failure to state a claim. “To survive a motion to dismiss [under Rule
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`12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to
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`‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
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`is facially plausible when “the plaintiff pleads factual content that allows the court
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`to draw the reasonable inference that the defendant is liable for the misconduct
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`6
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`Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 7 of 9 PageID #: 403
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`alleged.” Id. (citing Twombly, 550 U.S. at 556). The pleading must offer more than
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`“bare assertions,” “conclusory” allegations, and a “formulaic recitation of the
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`elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`A complaint is “deemed to include any written instrument attached to it as an
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`exhibit, materials incorporated in it by reference, and documents that, although not
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`incorporated by reference, are ‘integral’ to the complaint.” Sierra Club v. Con-Strux,
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`LLC, 911 F.3d 85, 88 (2d Cir. 2018) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d
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`Cir. 2004)).
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`B.
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`Here, AC2T argues that the complaint should be dismissed in its entirety
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`because Rosenfeld has failed to adequately allege the falsity of AC2T’s statements
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`about Spartan’s effectiveness.
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`The complaint alleges that “[S]partan is ineffective for mosquito control
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`because it does not kill mosquitoes or decrease mosquito populations.” Complaint
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`at ¶ 4. Noting that this conclusory statement alone does not suffice to clear the
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`plausibility hurdle, AC2T argues that the scientific studies Rosenfeld cites are
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`insufficiently tailored to the facts of this case. AC2T Memorandum in Support at
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`23. It argues that because those studies did not test Spartan’s particular chemical
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`formulation, but rather tested only its constituent ingredients, they cannot support
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`Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 8 of 9 PageID #: 404
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`conclusions regarding Spartan’s effectiveness or establish the plausibility of the
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`complaint. Id. at 23.
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`This Court does not agree. At this stage, all Rosenfeld must do is meet the
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`standard of plausibility. The claim that a product physically cannot work is a valid
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`legal theory. See Tomasino v. Estee Lauder Cos. Inc., 44 F. Supp. 3d 251, 258
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`(E.D.N.Y. 2014) (citing Hughes v. Ester C Co., 930 F. Supp.2d 439, 450 (E.D.N.Y.
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`2013)). Here, Rosenfeld has made such an allegation, and factually substantiates it
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`with studies indicating that Spartan’s individual active ingredients cannot work in
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`the manner that Spartan’s detailed advertising represents. Complaint at ¶¶ 4-20.
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`This is sufficient, and Rosenfeld’s complaint satisfies the plausibility standard.
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`AC2T’s arguments about the applicability of those studies are unavailing.
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`While the studies are sufficient to nudge the complaint into the realm of plausibility,
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`their weight or interpretation is a question of fact not appropriate for resolution on a
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`motion to dismiss. See, e.g., Quinn v. Walgreen Co., 958 F. Supp. 2d 533, 544
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`(S.D.N.Y. 2013).
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`Brooklyn, New York
`September 15, 2021
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`Case 1:20-cv-04662-FB-PK Document 41 Filed 09/15/21 Page 9 of 9 PageID #: 405
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`Accordingly, AC2T’s motion to dismiss all counts pursuant to Rule 12(b)(6)
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`is DENIED.
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`SO ORDERED.
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`_/S/ Frederic Block__________
`FREDERIC BLOCK
`Senior United States District Judge
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`9
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