JOHNNIE BYNUM, individually and on behalf of all others similarly situated, Plaintiffs, -against- FAMILY DOLLAR STORES, INC., Defendant.
Case 1:20-cv-06878-MKV
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 21, 2022
MARY KAY VYSKOCIL, United States District Judge
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 3/21/2022
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff Johnnie Bynum brings this putative class action against Defendant Family Dollar Stores, Inc., for violations of the New York General Business Law (“GBL“) sections
Having carefully considered the parties’ arguments, the Court grants Defendant‘s motion and dismisses the FAC.
BACKGROUND
I. Factual Background
The facts are taken from the FAC, and are accepted as true for the purposes of this motion. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Defendant
Plaintiff alleges that the use of the word “smoked” on the front label of the product deceived him into believing that the product obtained its flavoring from a natural smoking process. (FAC ¶¶ 18-19, 28). As Plaintiff alleges, the ingredients list on the back of the product‘s packaging confirms that the product does not obtain any flavoring from a natural smoking process. (FAC ¶¶ 14, 18). Instead, according to the FAC, the product merely contains “natural smoke flavor,” or “smoke condensed into a liquid form.” (FAC ¶¶ 14, 18). Plaintiff alleges that almonds subjected to real smoking taste different from almonds that merely have “added smoke flavor.” (FAC ¶¶ 20-27). Plaintiff alleges that had he known that the product only was flavored with added “natural smoke flavor,” he would not have purchased the product or would have paid less for it. (FAC ¶¶ 30-33).
II. Procedural History
Plaintiff commenced this case with the filing of his original Complaint. (Compl. [ECF No. 1]). With leave of Court, Plaintiff thereafter filed the FAC. (FAC).
The FAC asserts five causes of action: (1) a claim under
LEGAL STANDARDS
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff‘s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alterations, internal quotation marks, and citations omitted).
When determining the sufficiency of plaintiffs’ claim for Rule 12(b)(6) purposes, the Court must limit our consideration to the factual allegations in the amended complaint, “which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.” Roth v. CitiMortgage Inc., 756 F.3d 178, 180 (2d Cir. 2014) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)).
This case is the latest in a long string of putative class actions brought under the same theories of recovery by the same lawyer alleging that the packaging on a popular food item is false and misleading.1 Almost all these putative class actions have been dismissed at the pleadings stage for a failure to state a claim. Here, Plaintiff brings five causes of action, all premised on the contention that the description “Smoked” on the product‘s label misleads consumers into believing that the flavoring of the product is derived from at least some smoking as opposed to added smoke flavoring. (FAC ¶ 65). Since all five causes of action are premised on this same contention, if there is no material misrepresentation, none of Plaintiff‘s causes of action can survive this Motion. See, e.g., Cosgrove, 2020 WL 7211218, at *3 (explaining that because the plaintiffs’ causes of action—identical to those here—were “all premised on the same contention” that the defendant‘s labeling of the product was materially misleading, if the defendant‘s product “does not mispresent the contents of the container as a matter of law, [then] all of [the] [p]laintiffs’ claims must be dismissed“); Dashnau, 529 F. Supp. 3d at 241 (same).
I. Plaintiff Fails To State A Claim Under New York General Business Law sections 349 and 350
Although the question of whether a business practice or advertisement is misleading to the reasonable consumer is generally a question of fact, see Hidalgo v. Johnson & Johnson Consumer Cos., Inc., 148 F. Supp. 3d 285, 295 (S.D.N.Y. 2015), it is “well settled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer,” Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). Plaintiff must do more than plausibly allege that a label might conceivably be misunderstood by some few consumers. “Instead, Plaintiff[] must plausibly allege that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Budhani v. Monster Energy Co., 527 F. Supp. 3d 667, 676 (S.D.N.Y. 2021) (quoting Campbell v. Whole Foods Mkt. Grp., Inc., 516 F. Supp. 3d 370, 381 (S.D.N.Y. 2021)).
Defendant argues that Plaintiff‘s FAC should be dismissed because the product‘s allegedly deceptive label would not mislead a reasonable customer. Defendant asserts that a reasonable consumer who saw the packaging would look to the language on the back of the package to clarify whether the product was smoked. (Def. Br. 12). Defendant argues that on the back of the package, the ingredient list clearly discloses that the product was not made by smoking, but was “roasted” and merely flavored with “Natural Smoked Flavor.” (See FAC
In Mantikas, the Second Circuit held that a plaintiff had sufficiently alleged that the label on a box of Cheez-It crackers was misleading when it said “made with whole grain,” despite the fact that the crackers contained more white flour than whole wheat flour. Id. at 634. The Second Circuit held that the mere fact that the crackers did contain some whole grain was insufficient to defeat the lawsuit, because the box‘s bold-faced “Made With Whole Grain” claim arguably “communicate[d] to the reasonable consumer that the grain in the product [was] predominantly, if not entirely, whole grain.” Id. at 637. Moreover, it was irrelevant to the analysis that the ingredient list on the back of the box clarified that enriched white flour was the predominant ingredient, since “a reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the box to correct misleading information set forth in large bold type on the front of the box.” Id.
Plaintiff argues that under Mantikas, Defendant cannot cite to the clarifying language on the back of the package to defeat it‘s claim that the front labelling of the product is misleading. However, in Mantikas, the Second Circuit specifically held that the language “Made With Whole Grain,” as used on the packaging of the product in that case, was misleading to reasonable consumers. Since Mantikas, courts in this Circuit have reasoned that “[i]f a plaintiff alleges that an element of a product‘s label is misleading, but another portion of the label would dispel the confusion,” the Court should inquire as to whether the allegedly misleading element is instead merely ambiguous. Sarr v. BEF Foods, Inc., No. 18CV6409ARRRLM, 2020 WL 729883, at *4 (E.D.N.Y. Feb. 13, 2020) (quoting Reyes v. Crystal Farms Refrigerated Distribution Co., No. 18CV2250NGGRML, 2019 WL 3409883, at *3 (E.D.N.Y. July 26, 2019)). If so, “the
The Court finds Judge Furman‘s opinion in Boswell v. Bimbo Bakeries USA, Inc., No. 20-CV-8923 (JMF), 2021 WL 5144552 (S.D.N.Y. Nov. 4, 2021) to be instructive. In Boswell, the plaintiff asserted that an Entenmann‘s “All Butter Loaf Cake” product was deceptively labeled because the cake contained soybean oil and artificial flavors, in addition to butter. Id. at *1. The plaintiff asserted that a reasonable consumer would understand the “All Butter” description to mean that the product contained no butter alternatives. Id. at *3. Judge Furman rejected this argument, finding that the description “All Butter” was ambiguous as opposed to misleading because the term “All Butter” could be read to have multiple meanings. Id. It could mean either that only butter was used as a shortening ingredient in the cake, that no butter alternatives or substitutes were used in the product, or that the product was merely butter flavored. Id. Since the label was ambiguous, Judge Furman concluded that “reasonable consumers would need additional information to understand the meaning of ‘All Butter’ and ‘would know exactly where to look to investigate—the ingredient list.‘” Id. Judge Furman distinguished Mantikas because the label there was unambiguously misleading, which could not be cured by the “small print” of the ingredients list. Id. at *2.
Plaintiff also cites to Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d 562 (S.D.N.Y. 2021), in support of his argument that the product is deceptively labelled. In Colpitts, the plaintiff alleged that a packaging of almonds was misleadingly labelled because it used the word “Smokehouse,” even though the almonds were not naturally smoked. Id. at 571. Judge Cronan denied the defendants Motion to Dismiss the plaintiff‘s
The remainder of Plaintiff‘s allegations do not persuade the Court that the product‘s labelling is materially misleading. The FAC‘s allegations that consumers expect a product labeled “Smoked Almonds” to be flavored through at least some smoking (FAC ¶¶ 11, 15, 28, 48) are conclusory statements that the Court is not required to accept as true. See Iqbal, 556 U.S. at 678; see also Dashnau, 529 F. Supp. 3d at 242 (finding that “Plaintiffs’ allegations that reasonable consumers would expect the Product ‘to be flavored exclusively with real vanilla are conclusory statements that the Court is not required to accept.‘” (quoting Wynn, 2021 WL 168541, at *3)). As in Dashnau and Wynn, Plaintiff provides no empirical basis to substantiate his assertion that reasonable consumers would interpret the product‘s label to imply smoking as a source of flavoring. Dashnau, 529 F. Supp. 3d at 242; Wynn, 2021 WL 168541, at *3 (“Plaintiffs do not attempt to marshal consumer survey data to support their allegation that reasonable customers interpret ‘vanilla’ to mean ‘flavored with exclusively natural vanilla.‘“); cf. Twohig, 519 F.Supp.3d at 163 (discussing, but disregarding, the results of a survey “designed at the behest of counsel who apparently has brought nearly 100 similar lawsuits challenging the labeling of vanilla flavored products,” and concluding that the survey was “sufficiently flawed that it does not contribute enough to render the claims plausible“). Moreover, any such
Plaintiff points to a range of federal labeling regulations as evidence of what consumers should expect different types of labels to imply about the contents of their products. (See FAC ¶¶ 9, 11, 12, 15, 17). However, even if Plaintiff is correct about federal regulatory requirements, the FAC does not allege that reasonable consumers are aware of these complex regulations, much less that they incorporate the regulations into their day-to-day marketplace expectations. See Dashnau, 529 F. Supp. 3d at 242; Steele, 472 F.Supp.3d at 50 (“The point here is not conformity with this or that standard (which is left to the authorities to regulate) but whether the marketing presentation was deceptive.“); N. Am. Olive Oil Ass‘n v. Kangadis Food Inc., 962 F. Supp. 2d 514, 519 (S.D.N.Y. 2013) (finding that a product‘s labeling was not likely misleading to consumers under the GBL even though its labeling violated FDA standards).2
At bottom, a Plaintiff must put forth facts that pushes his complaint across the line from possible to plausible. See Iqbal, 556 U.S. at 680. In the context of a claim under
II. Plaintiff‘s Remaining Claims Fail As A Matter Of Law
Plaintiff‘s remaining claims – negligent misrepresentation, breaches of express warranty, the implied warranty of merchantability, and the Magnuson Moss Warranty Act, fraud, and unjust enrichment – are all also premised on the contention that Defendant‘s product is materially misleading. Because the Court has already determined that Plaintiff has failed to allege that the product‘s labeling would be likely to deceive or mislead a reasonable consumer, these causes of action are also dismissed for the reasons already stated. See Barreto, 518 F.Supp.3d at 806; see also Cosgrove, 2020 WL 7211218, at *3 (dismissing claims for negligent misrepresentation, breach of express warranty, breach of the implied warranty of merchantability, violation of the Magnuson Moss Warranty Act, fraud, and unjust enrichment because, “if [the] [d]efendant‘s [p]roduct does not misrepresent the contents of the container as a matter of law, all of [the] [p]laintiffs’ claims must be dismissed“); Wynn, 2021 WL 168541, at *6 (“[The] [p]laintiffs also assert claims for negligent misrepresentation, breach of warranty, fraud, and unjust enrichment. These claims, which largely hinge on the same theory of misleading business practices rejected by the [c]ourt above, all fail as a matter of law.“). Nonetheless, these claims fail as a matter of law for the following additional reasons.
A. Negligent Misrepresentation
To sufficiently plead a claim for negligent misrepresentation, a plaintiff must allege that (1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the
Plaintiff asserts that his negligent misrepresentation claim is viable because Defendant had “special knowledge and experience” in the sale of consumer goods and “knew that Plaintiff[s] would rely on those claims.” (FAC ¶ 71). These allegations, however, fall short of establishing a special relationship between Plaintiff and Defendant. See, e.g., Colpitts, 527 F. Supp. 3d at 587 (dismissing a negligent misrepresentation claim where Plaintiff merely alleged that Defendant held “itself out as having special knowledge and experience” in the sale of the product); Twohig, 519 F. Supp. 3d at 167 (finding that a similar allegation that the defendant “held itself out as having special knowledge and experience in the production, service and/or sale of the product type” was insufficient to adequately plead the existence of a special relationship);
B. Breach Of Express Warranty
An express warranty is an “affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.”
Plaintiff has failed to sufficiently plead the notice requirement. His FAC merely alleges that he “provided or will provide notice to Defendant, its agents, representatives, and their employees,” and that “Defendant received notice and should have been aware of these misrepresentations due to numerous complaints by consumers to its main office over the past several years regarding the Product or those of the type described here.” (FAC ¶¶ 79, 80).
C. Breach Of Implied Warranty Of Merchantability
A breach of the implied warranty of merchantability occurs when the product at issue is “unfit for the ordinary purposes for which such goods are used.” Twohig, 519 F.Supp.3d at 167 (citing
Moreover, the U.C.C.‘s notice requirement also applies to claims for breach of implied warranty. See, e.g., Int‘l Bhd. of Teamsters Local 456 Health & Welfare Tr. Fund v. Quest Diagnostics Inc., No. 10-cv-1692 (RJD), 2012 WL 13202126, at *23 (E.D.N.Y. Apr. 19, 2012) (dismissing express and implied warranty claims for failure to plead that defendants were given timely notification of breach); Hubbard v. Gen. Motors Corp., No. 95-cv-4362, 1996 WL 274018, at *4 (S.D.N.Y. May 22, 1996) (dismissing express and implied warranty claims under Section 2-607(3) of the New York Uniform Commercial Code because the complaint “lacks any allegation that plaintiff notified [the defendant]“). As discussed with respect to Plaintiff‘s express warranty claim, see Part II.B. supra, Plaintiff has failed to plead the notice requirement.
For these additional reasons, Plaintiff fails to state a breach of implied warranty of merchantability claim.
D. Magnuson Moss Warranty Act Claim
The MMWA makes a warrantor directly liable to a consumer for breach of a written warranty. Wilbur v. Toyota Motor Sales, 86 F.3d 23, 26 (2d Cir. 1996);
Moreover, Plaintiff has not alleged the existence of a written warranty within the meaning of the MMWA. Under the MMWA, a “written warranty” is defined in relevant part as:
any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time.
Campbell, 516 F. Supp. 3d at 393 (quoting
E. Common Law Fraud
To state a claim for fraud under New York law, a plaintiff must allege “(1) a material misrepresentation or omission of fact; (2) which the defendant knew to be false; (3) which the defendant made with the intent to defraud; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 402-03 (2d Cir. 2015). “A claim for common law fraud is subject to the particularity requirements of Federal Rule of Civil Procedure 9(b).” Id. at 402-03.
Plaintiff‘s only allegation on this issue is that “Defendant‘s fraudulent intent is evinced by its failure to accurately identify the Product on the front label, when it knew its statements were not true nor accurate.” (FAC ¶ 86). Courts in this District regularly reject this exact language as insufficient to allege fraudulent intent. See, e.g., Twohig, 519 F. Supp. 3d at 166 (“Plaintiffs’ fraud claim is separately dismissed because . . . [t]he complaint only contains the conclusory allegation that ‘Defendant‘s fraudulent intent is evinced by its failure to accurately identify the Product on the front label and ingredient list, when it knew its statements were neither true nor accurate and misled consumers.‘“); Campbell, 516 F. Supp. 3d at 391 (dismissing fraud claim where “Plaintiff‘s only allegation about Defendant‘s intent is that Defendant‘s fraudulent intent is evinced by its failure to accurately identify the Product on the
F. Unjust Enrichment
To sufficiently plead unjust enrichment, a plaintiff must allege that “(1) the defendant was enriched, (2) at the expense of the plaintiff, and (3) it would be inequitable to permit the defendant to retain that which is claimed by the plaintiff.” Koenig v. Boulder Brands, Inc., 995 F. Supp. 2d 274, 290 (S.D.N.Y. 2014) (citation omitted). An unjust enrichment claim cannot survive “where it simply duplicates, or replaces, a conventional contract or tort claim.” Id. (quoting Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 (N.Y. 2012)). If “the unjust enrichment claim is duplicative,” and “if plaintiff[‘s] other claims are defective, an unjust enrichment claim cannot remedy the defects.” Corsello, 18 N.Y.3d at 791.
Plaintiff‘s unjust enrichment claim must be dismissed because it merely duplicates his other claims. The Complaint devotes two sentences to the unjust enrichment claim: “incorporat[ing] by reference all preceding paragraphs” and then stating that Defendant received profits to the “detriment and impoverishment of plaintiff and class members.” (FAC ¶¶ 89-90). These allegations are insufficient to state a claim for unjust enrichment. See, e.g., Colpitts, 527 F. Supp. 3d at 592 (dismissing plaintiffs unjust enrichment claims based on identical allegations because “Plaintiff‘s unjust enrichment claim . . . merely duplicates his other claims.“); Sitt v. Nature‘s Bounty, Inc., No. 15 Civ. 4199 (MKB), 2016 WL 5372794, at *18 (E.D.N.Y. Sept. 26, 2016) (same). Plaintiff fails to state an unjust enrichment claim under New York law.
For the foregoing reasons, Defendant‘s Motion to Dismiss [ECF No. 19] is GRANTED.
Defendant‘s request for oral argument [ECF No. 27] is DENIED.
The Clerk of Court is respectfully requested to terminate docket entries 19 and 27 and to close this case.
SO ORDERED.
Date: March 21, 2022
New York, NY
MARY KAY VYSKOČIL
United States District Judge