Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JODY CRUZ, et al., Case No. 24-cv-1789-BJC-AHG 12 Plaintiffs, ORDER DENYING DEFENDANT’S 13 v. MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED 14 PROGENESIS, INC., COMPLAINT 15 Defendant. 16 17 Pending before the Court is Progenesis, Inc.’s (“Defendant”) Motion to Dismiss 18 Plaintiffs’ First Amended Class Action Complaint (“FAC”). ECF No. 65, Plaintiffs filed a 19 Response in Opposition, and Defendant filed a Reply. ECF Nos. 70, 71. For the reasons 20 stated below, the Court DENIES Defendant’s Motion to Dismiss. 21 I. BACKGROUND1 22 A. Factual Allegations 23 This putative class action concerns Defendant’s marketing and sale of 24 preimplantation genetic testing for aneuploidy (“PGT-A”), an add-on to the in vitro 25 fertilization (“IVF”) process. Plaintiffs allege that IVF clinics biopsy cells from embryos 26 and send those cells to Defendant, which performs PGT-A testing and then reports whether 27 28 1 the embryos are “euploid” (best suited for implantation) or “aneuploid” (abnormal and not 2 suited for implantation). FAC ¶¶ 10–16. Plaintiffs claim that Defendant marketed PGT- 3 A as 97–98% accurate, represented that it increases the chance of implantation and 4 successful pregnancy, decreases the risk of miscarriage, reduces the time and costs of 5 having a healthy baby, and benefits couples of all ages undergoing IVF. Id. ¶¶ 17, 211– 6 261. The FAC alleges that Defendant’s representations are false or misleading because the 7 scientific evidence does not support the claimed accuracy and benefits of PGT-A. Id. ¶¶ 8 19, 77–208, 215–253. Plaintiffs also allege that Defendant omitted material information 9 about the state of scientific knowledge concerning PGT-A, including information bearing 10 on the test’s efficacy, accuracy, and reliability. Id. ¶¶ 200, 207, 212–214, 262–282. 11 B. Procedural History 12 On October 7, 2024, Plaintiffs Jody Cruz, Michelle Robichaux, and Brett Plowfield 13 filed this class action. ECF No. 1. On September 11, 2025, this Court granted in part and 14 denied in part Defendant’s Motion for Judgment on the Pleadings and dismissed Plaintiffs’ 15 original Complaint with leave to amend. ECF No. 58. This Court held that Rule 9(b) 16 applied to Plaintiffs’ claims because they relied on the same alleged unified course of 17 fraudulent conduct. Id. at 10–14. This Court found the original Complaint deficient 18 because the named Plaintiffs did not allege “where and when” they saw the statements that 19 allegedly led them to purchase PGT-A or connect the alleged representations to their 20 purchases. Id. at 13–14. 21 On October 3, 2025, Plaintiffs filed the FAC, which added Alexis Vastardis and 22 Anna Rinaldi as named Plaintiffs. ECF No. 62. Plaintiffs allege that they purchased PGT- 23 A in reliance on Defendant’s representations and omissions and would not have purchased 24 the testing had they known the facts alleged in the FAC. Id. ¶¶ 283–328. The FAC also 25 added plaintiff-specific allegations identifying when each named Plaintiff encountered 26 Defendant’s website, video, or consent form, the representations each allegedly saw, and 27 the dates of the relevant purchases or testing. FAC ¶¶ 286–328. 28 1 Defendant filed the instant Motion on October 24, 2025. ECF No. 65. Defendant 2 moves to dismiss the FAC for failure to comply with Federal Rules of Civil Procedure 8 3 and 9(b), invokes Rule 41(b) as authority for dismissal with prejudice, and, alternatively, 4 asks the Court to strike portions of the FAC under Rule 12(f) or require a more definite 5 statement under Rule 12(e). 6 II. LEGAL STANDARD 7 A. Motion to Dismiss 8 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the 9 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal 10 is warranted where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter 11 Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 12 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a 13 dispositive issue of law.”). Alternatively, a complaint may be dismissed where it presents 14 a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 15 749 F.2d at 534. While a plaintiff need not give “detailed factual allegations,” a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic 16 Corp. v. Twombly, 550 U.S. 544, 545, 570 (2007). “[T]o nudge a claim ‘across the line 17 from conceivable to plausible,’ a plaintiff must plead facts that, if true, ‘allo[w] the court 18 to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” 19 Hikma Pharm. v. Amarin. Pharma, Inc., 608 U.S 580, 589-590 (2026)(citing Ashcroft v. 20 Iqbal, 556 U.S. 662 (2009)). 21 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 22 of all factual allegations and must construe them in the light most favorable to the 23 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 24 The court need not take legal conclusions as true merely because they are cast in the form 25 of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 26 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to 27 defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 28 1 III. DISCUSSION 2 A. Rule 8 3 Rule 8 requires “a short and plain statement of the claim showing that the pleader is 4 entitled to relief,” and directs that “[e]ach allegation must be simple, concise, and direct.” 5 Fed. R. Civ. P. 8(a)(2), (d)(1). A complaint may violate Rule 8 when it is so “verbose, 6 confused and redundant that its true substance, if any, is well disguised.” Gillibeau v. City 7 of Richmond, 417 F.2d 426, 431 (9th Cir. 1969) (quoting Corcoran v. Yorty, 347 F.2d 222, 8 223 (9th Cir. 1965)). But “normally, verbosity or length by itself is not a basis for 9 dismissing a complaint.” United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 10 F.3d 1047, 1058 (9th Cir. 2011); see Hearns v. San Bernardino Police Dept., 530 F.3d 11 1124, 1131 (9th Cir. 2008). Dismissal may be appropriate when a pleading is 12 argumentative, prolix, redundant, and largely irrelevant, such that its form imposes an 13 unfair burden on the court and the opposing party. Cafasso, 637 F.3d at 1058–59 (quoting 14 McHenry v. Renne, 84 F.3d 1172, 1177–80 (9th Cir. 1996)). However, where a complaint 15 contains factual allegations that are logically organized and relevant to the asserted claims, 16 a lengthy complaint may escape dismissal. Hearns, 530 F.3d at 1131–32. 17 Defendant argues that the FAC violates Rule 8 because it spans 72 pages and 478 18 paragraphs, includes scientific literature and regulatory material that Defendant contends 19 is irrelevant, and incorporates all preceding allegations into each cause of action. ECF No. 20 65-1 at 9–14. Defendant claims that the scientific research concerning PGT-A in 21 paragraphs 77 through 208 obscure the facts that concern what each named Plaintiff saw, 22 relied on, and purchased. Id. According to Defendant, the FAC fails to perform the 23 essential duties of a complaint, in part, because Plaintiff presents one-sided scientific 24 arguments, strikes an “advocacy tone” that “reads like a position paper arguing for 25 regulatory reform,” and the “kitchen-sink approach will inevitably lead to sprawling 26 discovery disputes.” ECF No. 65-1 at 12-13 27 Plaintiffs respond that the FAC should not be dismissed due to its length because the 28 scientific and other background information is necessary to support the claims that 1 Defendant made fraudulent misrepresentations about the effectiveness of PGT-A. ECF 2 No. 70 at 4. Plaintiffs claim that PGT-A does not work as Defendant advertises, and the 3 “scientific background is key to the Court’s understanding of why, precisely, Defendant’s 4 marketing and advertising is misleading and makes material omissions.” Id. at 4. Plaintiffs 5 maintain that the FAC is well organized, easy to follow, and identifies both the challenged 6 statements and the facts specific to each Plaintiff. Id. at 2–9. 7 Here, the FAC does not require dismissal due to its length or due to the inclusion of 8 scientific studies and research. The scientific information supports Plaintiffs’ contention 9 that Defendant made material misrepresentations and omissions in its marketing materials 10 regarding the accuracy and efficacy of PGT-A. See FAC ¶¶ 77–208, 215–282. Although 11 the scientific material adds length to the complaint, it does not obscure Plaintiffs’ claims. 12 Instead, the FAC is clearly organized, uses titled subsections, and identifies 13 Plaintiffs’ allegations. It first describes IVF and the PGT-A process, then it sets out the 14 scientific and historical allegations that provide the basis for Plaintiffs’ assertions that 15 Defendant misrepresented the efficacy of PGT-A. FAC ¶¶ 49–208. The FAC then zeroes 16 in on Defendant’s alleged statements and omissions, including the claims about PGT-A’s 17 alleged accuracy, successful pregnancy rates, implantation, miscarriage, time and cost, and 18 benefits across age groups. Id. ¶¶ 209–282. The FAC goes on to dedicate individual 19 subsections to each named Plaintiffs’ purchase and alleged reliance. Id. ¶¶ 286–328. After 20 establishing the basis for Plaintiffs’ claims, the FAC labels each cause of action separately, 21 i.e. Count I: Violations of California Unfair Competition Law, etc. Id. ¶¶ 347–478. These 22 headings identify the alleged conduct, the Plaintiff-specific allegations, and the separately 23 pleaded causes of action. 24 Defendant’s contention that the causes of action are “buried” in unnecessary 25 scientific studies is belied by their admission that the FAC includes “specific allegations 26 about what each Plaintiff actually saw and relied upon” in paragraphs 284 through 328 and 27 their acknowledgment that Plaintiffs’ claims do not lack specific allegations. ECF No. 65- 28 1 at 12. In addition, Defendant claims that Plaintiffs have dumped “hundreds of paragraphs 1 of irrelevant material” that Plaintiffs admit can be skipped, but in fact, Plaintiffs state that 2 the detailed subheadings allow a reader to “easily skip to the portions of Plaintiffs’ FAC in 3 which Plaintiffs identify the specific false statements and material omissions made by 4 Defendant.” ECF No. 70 at 3. Plaintiffs explain that a reader can maneuver with ease 5 around the well-organized FAC to locate the claims of each individual plaintiff. This is 6 akin to the holding of Hearns where an 81-page complaint did not violate Rule 8 because 7 it was clearly written and organized in a way that defendants would “have no difficulty in 8 responding to the claims” despite the complaint containing excessive factual detail. 9 Hearns, 530 F.3d at 1132. 10 Defendant also argues that incorporating all preceding allegations into each count 11 makes it impossible to determine which facts support which claims. ECF No. 65-1 at 11– 12 12. Although the incorporation broadens each count, the pleading identifies the conduct 13 attributed to Defendant and the legal theories asserted. Moreover, the claims share a 14 common factual basis, therefore incorporation by reference is “not a valid basis for 15 dismissal in this case, because the claims have a common factual basis.” TV Ears, Inc., v. 16 Joyshiya Development Ltd., No 20-cv-1708-WQH-BGS, 2021 WL 5396111, at *13 (S.D. 17 Cal., Nov. 18, 2021). The Court further finds no merit to Defendant’s contention that the 18 inclusion of the scientific and research information “will inevitably lead to sprawling 19 discovery disputes” because Defendant can object to discovery requests if they arise. 20 Here, the scientific and research material allows Plaintiffs to plead sufficient facts 21 to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 545. The Court 22 therefore declines to dismiss the FAC under Rule 8. 23 B. Rule 9(b) 24 Rule 9(b) requires a party alleging fraud or mistake to “state with particularity the 25 circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The particularity 26 requirements of Rule 9(b) “must be read in harmony with Rule 8, which requires a ‘short 27 and plain’ statement of the claim.” Berger v. Seyfarth Shaw, LLP, 2008 WL 4067436, at 28 *1 (N.D. Cal. Aug. 28, 2008). “[T]the particularity requirement is satisfied if the complaint 1 ‘identifies the circumstances constituting fraud so that a defendant can prepare an adequate 2 answer from the allegations.’” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 3 (9th Cir.1989. “Averments of fraud must be accompanied by the ‘who, what, when, where, 4 and how’ of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 5 (9th Cir. 2009). “Rule 9(b) serves three purposes: (1) to provide defendants with adequate 6 notice to allow them to defend the charge and deter plaintiffs from the filing of complaints 7 ‘as a pretext for the discovery of unknown wrongs’; (2) to protect those whose reputation 8 would be harmed as a result of being subject to fraud charges; and (3) to ‘prohibit [ ] 9 plaintiff[s] from unilaterally imposing upon the court, the parties and society enormous 10 social and economic costs absent some factual basis.’” Id. at 1125 (citing In re Stac Elecs. 11 Sec. Litig., 89 F.3d 1399, 1405 (9th Cir.1996). 12 Defendant argues that the FAC fails to satisfy Rule 9(b) because the particularized 13 allegations concerning what each named Plaintiff saw and relied upon are buried within 14 hundreds of paragraphs of scientific literature, regulatory commentary, and industry 15 criticism. ECF No. 65-1 at 12. Plaintiffs respond that the FAC remedies the “where and 16 when” deficiencies identified in the Court’s prior Order by identifying the representations 17 each named Plaintiff allegedly saw and when and where each encountered them. ECF No. 18 70 at 8–9. The Court agrees. 19 For example, the FAC alleges that Plaintiff Cruz viewed Defendant’s website in 20 April and May 2022, identifies the representations she allegedly encountered there, and 21 alleges that she viewed and signed Defendant’s consent form on May 17, 2022, before 22 purchasing PGT-A in May 2022. FAC ¶¶ 286–292. The FAC alleges comparable details 23 concerning the other named Plaintiffs, including when they allegedly encountered 24 Defendant’s website, video, or consent forms and when they purchased PGT-A. Id. ¶¶ 25 293–328. The FAC also identifies the challenged representations and alleges why Plaintiffs 26 contend they are false or misleading. Id. ¶¶ 209–282. 27 Accordingly, the FAC satisfies Rule 9(b) as to the particularity issue raised in the 28 instant Motion. 1 C. Rule 12(e) 2 Rule 12(e) permits a party to move for a more definite statement when a pleading is 3 “so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. 4 P. 12(e). 5 Defendant alternatively seeks a more definite statement under Rule 12(e) because it 6 contends that the FAC is too vague or ambiguous to permit a reasonable response. 7 Defendant asks the Court to require Plaintiffs to file a pleading that includes only 8 allegations concerning what the named Plaintiffs saw and relied upon, separately states 9 each cause of action with relevant supporting facts, and complies with Rules 8 and 9(b). 10 ECF No. 65-1 at 15. 11 Here, the FAC identifies the allegedly false or misleading statements and omissions, 12 the basis on which Plaintiffs allege falsity, and the named Plaintiffs’ alleged reliance and 13 purchases. FAC ¶¶ 209–328. The FAC also separately states each cause of action. Id. ¶¶ 14 347–478. Accordingly, the FAC is not so vague or ambiguous that Defendant cannot 15 reasonably prepare a response. The Court therefore denies Defendant’s request for a more 16 definite statement under Rule 12(e). 17 D. Rule 12(f) 18 Rule 12(f) permits a court to strike “any redundant, immaterial, impertinent, or 19 scandalous matter” from a pleading. Fed. R. Civ. P. 12(f). A court generally will not strike 20 matter unless it has no possible relationship to the controversy, may confuse the issues, or 21 otherwise prejudice a party. Ollier v. Sweetwater, 735 F. Supp. 2d 1222, 1223 (S.D. Cal. 22 Aug. 23, 2010). Background, historical, or evidentiary allegations generally will not be 23 stricken unless unduly prejudicial. LeDuc v. Kentucky Cent. Life. Ins. Co., 814 F. Supp. 24 820, 830 (N.D. Cal. Aug. 31, 1992). 25 Defendant asks the Court to strike paragraphs 77 through 208, references to studies 26 not seen by Plaintiffs, foreign regulatory positions, and footnotes containing substantive 27 allegations. ECF No. 65-1 at 15. Defendant argues that this material is irrelevant because 28 Plaintiffs did not see or rely on it in making their purchasing decisions. Id. at 9–11. 1 Plaintiffs respond that the scientific literature and regulatory material bear on why 2 Defendant’s representations were allegedly false or misleading. ECF No. 70 at 4–6. 3 Here, the challenged scientific and regulatory allegations bear a direct relationship 4 to Plaintiffs’ theories of falsity and omission, as noted above. For example, the FAC 5 alleges that Defendant represented that PGT-A increases the likelihood of a successful 6 pregnancy and no improvement in cumulative live-birth rates and then cites scientific 7 literature allegedly showing similar pregnancy outcomes between conventional IVF and 8 the use of PGT-A. FAC ¶¶ 225–230. Plaintiffs use the challenged material to allege why 9 Defendant’s representations were false or misleading, not to establish what Plaintiffs saw 10 or relied upon before purchasing PGT-A. Whether Plaintiffs saw the studies before their 11 purchases does not eliminate the studies’ relationship to Plaintiffs’ separate allegations 12 concerning falsity. The Court recognized the same relationship in its September 11, 2025, 13 Order, explaining that Plaintiffs cited scientific studies to challenge Defendant’s 14 representations concerning misdiagnosis and live-birth rates. ECF No. 58 at 8–10. Read 15 with the FAC as a whole, the scientific allegations provide context for Plaintiffs’ theories 16 and a fuller understanding of the pleading. 17 The regulatory allegations serve the same function. The FAC cites statements by 18 the United Kingdom’s Human Fertilisation & Embryology Authority concerning the 19 evidence supporting PGT-A and the risks of embryo damage and misdiagnosis. FAC ¶¶ 20 183–187. Plaintiffs cite those statements to support their allegations concerning the 21 accuracy and efficacy of PGT-A and the alleged falsity or omission of Defendant’s 22 representations. The regulatory material arguably bears a relationship to the controversy. 23 Similarly, the assertions in the FAC that insurance companies rarely cover PGT-A testing 24 due to “insufficient evidence of efficacy” are tied to the basis of Plaintiffs’ claims. FAC ¶¶ 25 21-24. 26 Defendant also asks the Court to strike “all footnotes containing substantive 27 allegations.” ECF No. 65-1 at 15. Defendant does not identify a particular footnote or 28 explain how the contents of any footnote are redundant, immaterial, impertinent, or 1 ||scandalous. For the reasons stated, the Court declines Defendant’s request to strike 2 || portions of the FAC under Rule 12(f). 3 IV. CONCLUSION AND ORDER 4 Accordingly, the Court DENIES Defendant’s Motion to Dismiss Plaintiffs’ First 5 || Amended Complaint.” The Court also DENIES Defendant’s alternative requests to strike 6 || portions of the FAC under Rule 12(f) and for a more definite statement under Rule 12(e). 7 IT IS SO ORDERED. 8 |! Dated: September 17, 2026 9 11 12 Honorable Benjamin J. Cheeks United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 In light of the denial of the Motion to Dismiss, the Court need not address whether 2g || dismissal with prejudice is warranted under Rule 41(b).