677 F.Supp.3d 940
E.D. Mo.2023Background:
- Plaintiff Brendan Abbott bought a Golden Grain "Rice Pilaf Original Mix" box and alleges the package is mostly empty (about one-third full) but led him to expect more product.
- The box prominently discloses a net weight of 6.09 ounces, shows a side fill line, states the product is sold by weight not volume, and gives prepared volume (three cups).
- Abbott filed a putative class action asserting MMPA violations, breach of warranties, negligent misrepresentation, fraud, and unjust enrichment; Golden Grain moved to dismiss.
- In 2020 Missouri amended the MMPA to add three requirements for private plaintiffs: (a) act as a reasonable consumer; (b) the unlawful practice would cause a reasonable person to enter the transaction; and (c) individual damages provable with objective certainty; courts may dismiss claims that would not mislead a reasonable consumer.
- The court treated the entire product packaging as part of the complaint and found Abbott failed to plead that he received less than the disclosed 6.09 ounces or that the disclosures were false.
- The court dismissed all claims with prejudice: Abbott did not plausibly plead ascertainable loss under the MMPA or the post-amendment elements, failed the warranty pre-suit notice requirement, and alternative tort and restitution claims were barred or unsupported.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| MMPA ascertainable loss (pre-amendment element) | Abbott says oversized box implied more product and he paid a premium for what he believed was more rice | Golden Grain points to explicit disclosures (net weight, fill line, sold-by-weight) showing accurate representation | Dismissed — Abbott failed to plausibly allege a gap between representation and actual product (received 6.09 oz as disclosed) |
| MMPA post-amendment elements: reasonable-consumer and misleading-standard | Abbott contends average grocery shoppers often do not read net-weight labels and may be misled by package size; cites slack-fill/FDA concerns | Golden Grain: a reasonable consumer would read the net weight/fill disclosures and notice slack-fill; FDA rules do not define MMPA elements | Dismissed — plaintiff did not plead he acted as a reasonable consumer or that a reasonable consumer would be misled; statutory amendments require this showing |
| MMPA post-amendment element: damages certainty | Abbott alleges he paid a premium (approx. $2.33) for deceptively underfilled packages | Golden Grain: no ascertainable loss because product matched express weight disclosures; no objective evidence of individualized damages | Dismissed — Abbott failed to plead individual damages calculable with reasonable certainty |
| Warranty / tort / restitution claims (warranty notice; negligent misrep; fraud; unjust enrichment) | Abbott claims breach of warranty, negligent misrepresentation, fraud, and unjust enrichment based on alleged underfilling | Golden Grain: plaintiff failed pre-suit notice to immediate seller (warranty); economic-loss doctrine bars negligent-misrep; no false representation or injury for fraud; no unjust enrichment because plaintiff received the bargained-for product | Dismissed with prejudice — warranty claims dismissed for lack of immediate-seller notice; negligent-misrep barred by economic-loss doctrine; fraud inadequately pleaded and fails Rule 9(b); unjust enrichment fails because plaintiff received what he contracted for |
Key Cases Cited
- Enervations, Inc. v. Minnesota Mining and Mfg. Co., 380 F.3d 1066 (8th Cir. 2004) (documents necessarily embraced by the complaint may be considered on a Rule 12 motion)
- BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685 (8th Cir. 2003) (same principle on considering extrinsic documents)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard — plausibility required)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must raise claim above speculative level)
- Vitello v. Natrol, LLC, 50 F.4th 689 (8th Cir. 2022) (ascertainable-loss/benefit-of-the-bargain analysis; product judged by its express representations)
- Goldsmith v. Lee Enterprises, Inc., 57 F.4th 608 (8th Cir. 2023) (ascertainable-loss incorporates benefit-of-the-bargain rule)
- Kendrick v. Ryus, 123 S.W. 937 (Mo. 1909) (measure of fraud damages is difference between represented and actual value)
- Hess v. Chase Manhattan Bank, U.S.A., N.A., 220 S.W.3d 758 (Mo. 2007) (elements required to make a submissible fraudulent-misrepresentation case)
- Hawkins v. Nestle U.S.A. Inc., 309 F. Supp. 3d 696 (E.D. Mo. 2018) (prior district-court treatment of packaging/ascertainable-loss claims)