750 F.Supp.3d 785
S.D. Tex.2024Background
- Plaintiff Selva Kumar sued Panera Bread Company, alleging misrepresentation regarding the ingredients and preparation of Panera’s broccoli cheddar soup (specifically, its meat-free status and freshness).
- Previous District Court order dismissed Kumar's negligence, gross negligence, intentional infliction of emotional distress, and DTPA claims; an appeal to the Fifth Circuit followed.
- The Fifth Circuit affirmed dismissal of tort claims but remanded the DTPA claim for further proceedings, allowing Kumar an opportunity to amend and proceed pro se after failing to obtain new counsel.
- After amending, Kumar asserted multiple claims including DTPA violations (false, misleading, or deceptive acts, and breach of warranty), breach of warranty under the UCC, and misrepresentation.
- Panera moved to dismiss all claims and for reconsideration of a prior motion for summary judgment, arguing Kumar failed to state a claim and that appellate procedure foreclosed most claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DTPA false/misleading acts | Panera said soup was meat-free and fresh; it was not, causing damages. | No sufficient facts for DTPA claim; no detrimental reliance shown. | Kumar stated a plausible DTPA claim for false/misleading acts under §17.46(b)(5). |
| DTPA breach of warranty / UCC | Employee's meat-free assurance was a warranty; breach caused harm. | No valid express warranty created or breached. | Kumar sufficiently alleged breach of warranty under DTPA and UCC at pleading stage. |
| DTPA unconscionable conduct | Panera took advantage of Kumar’s lack of knowledge to unfairly deceive. | Kumar is sophisticated, had access to ingredient info; no gross unfairness. | Kumar failed to state a claim for unconscionable conduct under the DTPA. |
| Barred tort claims after Fifth Circuit opinion | Reasserts negligence and emotional distress claims. | Law-of-the-case doctrine precludes negligence and emotional distress claims. | Tort claims dismissed; only DTPA and warranty-based mental anguish damages may proceed. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard for plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (standards for pleading factual content)
- Smith v. FTS USA/Unitek Glob. Serv., [citation="676 F. App'x 264"] (unsworn pleadings insufficient for summary judgment opposition)
- Omni USA, Inc. v. Parker-Hannifin Corp., 964 F. Supp. 2d 805 (elements for breach of express warranty claim)