United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
Ronald Povich claims he and others similarly situated were
“denied the benefit of their bargain” when they
purchased defendants' “Just for Men” hair
coloring product. Specifically, Povich claims that defendants
failed to properly disclose the product's risk of
injury, and as a result, he purchased the product
at an unfair price. Povich admits that he himself
successfully used Just for Men without injury. In his
complaint, Povich claims defendants' conduct was a
violation of the Missouri Merchandising Practices Act, Mo.
Rev. Stat. § 407.010, et seq., and that
defendant was unjustly enriched. Before me now is
defendants' motion to dismiss Povich's claim. After
careful consideration, I conclude that Povich has failed to
plead facts sufficient to demonstrate Article III standing.
Therefore this case does not present a justiciable case or
controversy under Article III of the Constitution, and the
complaint will be dismissed for lack of subject matter
their motion to dismiss, defendants argue that Povich either
lacks standing under Rule 12(b)(1) or cannot state a claim
under Rule 12(b)(6) because he has not alleged any injury
based upon his purchase of Just for Men. Federal courts that
have looked at claims similar to plaintiff's have
alternatingly dismissed them under 12(b)(6) and 12(b)(1), but
the analysis-which, at its core, asks whether plaintiff has
sufficiently pled an injury-is essentially the same. See,
e.g., Mikhlin v. Johnson, No. 4:14 cv 881 RLW, 2014WL
6084004, at *1 n.2 (E.D. Mo. 2014) (“In cases such as
this, characterizing the motion as one brought pursuant to
Rule 12(b)(1) rather than Rule 12(b)(6) would not affect the
ultimate determination of the motion.”). Because the
Court must determine whether it has Article III jurisdiction
before all else, I am addressing defendant's claim of
jurisdictional deficiency first and find it to be dispositive
as to both Povich's MMPA and unjust enrichment claims.
See Miller v. Redwood Toxicology Lab., Inc., 688
F.3d 928, 934 (8th Cir. 2012) (“Article III standing is
always an antecedent question.”) (quoting Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83, 94-96
under Rule 12(b)(1) of the Federal Rules of Civil Procedure
is appropriate if the party asserting jurisdiction has failed
to satisfy a threshold jurisdictional requirement. See
Herden v. United States, 726 F.3d 1042, 1046 (8th Cir.
2013). The court has no subject matter jurisdiction over a
case in which the litigant lacks Article III standing.
Iowa League of Cities v. E.P.A., 711 F.3d 844, 869
(8th Cir. 2013). The plaintiff bears the burden of
establishing standing. Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2342 (2014) (party invoking
federal jurisdiction has burden of proving standing).
“To establish Article III standing, a plaintiff must
show (1) an injury in fact, (2) a sufficient causal
connection between the injury and the conduct complained of,
and (3) a likelihood that the injury will be redressed by a
favorable decision.” Id. at 2341 (quotation
marks and citation omitted). When determining whether to
dismiss “a complaint for lack of standing, ” a
court is to “constru[e] the allegations of the
complaint, and the reasonable inferences drawn therefrom,
most favorably to the plaintiff.” Glickert v. Loop
Trolley Trasnp. Developmen Dist., 792 F.3d 876, 880 (8th
Cir. 2015)(quotation marks and citations omitted).
dispute here concerns the injury in fact requirement of
Article III standing. “An injury sufficient to satisfy
Article III must be concrete and particularized and actual or
imminent, not conjectural or hypothetical.”
Driehaus, 134 S.Ct. at 2341 (quotation marks and
citation omitted). The test for injury in fact
“requires more than an injury to a cognizable interest.
It requires that the party seeking review be himself among
the injured.” Sierra Club v. Morton, 405 U.S.
727, 734-35 (1972). Defendants argue that Povich has suffered
no economic or physical injury: Povich bought the product,
successfully used the product for its stated purpose, and
experienced no adverse physical reaction. In response, Povich
asserts he was injured when defendants “deceptively
labeled their products to hide important safety information,
” causing him to be denied the benefit of his bargain.
[Plf's Opposition to MTD, ECF #21, p. 2]. Povich further
argues that for purposes of standing to assert an MMPA claim,
the MMPA only requires a plaintiff to allege that a product
was worth less than the value represented by the seller (and
paid by the plaintiff) at the time of the transaction.
courts, including this Court, that have addressed claims
similar to Povich's have held that where a plaintiff has
suffered no adverse effects from a product, and has used the
product successfully, he has no quantifiable damage. See,
e.g., Mikhlin, 2014 WL 6084004, at *3 (citing In re
Bisphenol-A (BPA) Polycarbonate Plastic Prod. Liab.
Litig., 687 F.Supp.2d 897, 912 (W.D. Mo. 2009)); In
re Avandia Mktg. Sales Practices & Prod. Liab.
Litig., 639 F.App'x 866, 869 (3d Cir. 2016)
(plaintiff experienced no ascertainable loss for purposes of
her MMPA claim where she received all the benefits of a
diabetes drug and was unaffected by defendants'
concealment of the drug's risks); Medley v. Johnson
& Johnson Cos., Civil No. 10-cv-02291 (DMC)(JAD),
2011 WL 159674 (D.N.J. Jan. 18, 2011) (plaintiffs had no
Article III injury in fact where they successfully used the
product but claimed they would not have purchased it if they
had known of the undisclosed risks); Rivera v.
Wyeth-Ayerst Laboratories, 283 F.3d 315 (5th Cir. 2002)
(plaintiff had no Article III standing for claim of
“economic injury” against drug manufacturer where
plaintiff found manufacturer's product to be effective
and did not suffer harmful side effects). Like the plaintiffs
in these cases, here Povich purchased a product, used it as
intended, and received the desired result. To claim he was
injured simply because he did not know at the time of
purchase that the product may cause health problems for other
users is not sufficient to create an injury in fact.
has cited several Missouri state cases that he argues hold
that a plaintiff need only show a product as purchased was
worth less than the product as represented in order to
maintain an MMPA claim. See Schoenlein v. Routt Homes,
Inc. 260 S.W.3d 852 (Mo.Ct.App. 2008); Craft v.
Philip Morris Companies, Inc., 190 S.W.3d 368
(Mo.Ct.App. 2005); Plubell v. Merck & Co., 289
S.W.3d 707, 710 (Mo.Ct.App. 2009); Hope v. Nissan N. Am.,
Inc., 353 S.W.3d 68, 80 (Mo.Ct.App. 2011). These cases
are readily distinguishable from the instant case. In
Schoenlein, the court held plaintiffs' MMPA
claims could go forward where plaintiffs alleged they paid
for home warranties that they did not timely receive. Unlike
the Schoenlein plaintiffs, here, Povich does not
dispute that he received everything he intended to pay for
when he purchased Just for Men. Furthermore, the Craft,
Plubell, and Hope opinions were on review of
the lower court's class certification rulings, and class
certification uses a different standard than a motion to
dismiss. See Mikhlin, 2014 WL 6084004, at *3 n.8.
Finally, in any event, whether a litigant has standing in
state court has no bearing on that party's Article III
standing in federal court. Miller v. Redwood Toxicology
Lab., Inc., 688 F.3d 928, 933-34 (8th Cir. 2012)
(“Standing to sue in any Article III court is, of
course, a federal question which does not depend on the
party's ... standing in state court.”).
absence of an adequate injury in fact, plaintiff has no
Article III standing to assert either his MMPA or his unjust
IT IS HEREBY ORDERED that plaintiffs
complaint is dismissed for lack of subject matter
 Defendants are Combe Incorporated;
Combe Products, Inc.; Combe Laboratories, Inc.; and Combe
 The injuries that plaintiff alleges
Just for Men can cause are asserted somewhat scattershot
throughout the complaint, but they include burns, scarring,
allergic reactions, anaphylactic shock, skin depigmentation,
severe dermatitis, renal failure, vitiligo, convulsions,
comas, Eczematoid contact dermatitis, ...