*1 United States District Court Southern District of Texas ENTERED September 24, 2024 UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION §
SELVA KUMAR,
§ § Plaintiff.
§ CIVIL ACTION NO. 4:21-сv-03779 § V. § § PANERA BREAD COMPANY,
§ § Defendant. OPINION AND ORDER Defendant Panera Bread Company (“Panera”) has two motions pending before me. The first is Panera’s Motion to Dismiss the claims brought against it by Plaintiff Selva Kumar (“Kumar”). See Dkt. 57. The second is a Motion for Reconsideration of Panera’s Motion for Summary Judgment. See Dkt. 58. For the reasons explained below, I DENY IN PART and GRANT IN PART Panera’s Motion to Dismiss, and DENY Panera’s Motion for Reconsideration.
BACKGROUND On April 6, 2023, I issued an Opinion and Order dismissing Kumar’s negligence, gross negligence, intentional infliction of emotional distress, and Texas Deceptive Trade Practices Act (“DTPA”) claims against Panera for failure to state a claim. See Dkt. 39. Kumar, proceeding without an attorney, appealed that decision to the Fifth Circuit, which affirmed in part, vacated in part, and remanded. Specifically, the Fifth Circuit affirmed my dismissal of Kumar’s negligence and gross negligence claims, and found that Kumar had abandoned his intentional infliction of emotional distress claim against Panera. See Kumar v. Panera Bread Co. , No. 23-20178, 2024 WL 1216562, at *4 (5th Cir. Mar. 21, 2024). The Fifth Circuit vacated, however, my dismissal of Kumar’s DTPA claim, remanding the case with instructions that Kumar “should be permitted to have his new attorney come in and amend his DTPA claim.”
*2 For more than three months after the Fifth Circuit issued its decision— including a one-month extension—Kumar was unable to secure new counsel. See Dkt. 54 at 2–3 (affording Kumаr an additional month to secure new counsel after Kumar waited more than seven weeks to reach out to the two attorneys who previously agreed to represent him in this matter). Kumar remains pro se.
On June 24, 2024, Kumar timely filed his second amended complaint, in which he purports to bring five claims: (1) “negligence misrepresentation of services in violation of DTPA”; (2) “false, misleading, or deceptive acts or practices in violation of DTPA”; (3) “breach of warranty”; (4) “misrepresentation (on ingredients)”; and (5) “misrepresentation (on preparation methods).” Dkt. 55 at 9–19 (removed capitalization). Panera has moved to dismiss all of Kumar’s claims, arguing that 1) Kumar fails to state a DTPA claim and 2) the Fifth Circuit’s March 21, 2024 decision forecloses all other claims. See Dkt. 57.
PANERA’S MOTION TO DISMISS A. L EGAL S TANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant is entitled to
dismissal when the plaintiff fails to state a claim upon which relief may be granted.
To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly
, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to drаw the reasonable inference that the defendant
is liable for the misconduct alleged.”
Ashcroft v. Iqbal
,
In reviewing a Rule 12(b)(6) motion, I must accept all well-pleаded facts as
true, viewing them in the light most favorable to the plaintiff.
See Alexander v.
AmeriPro Funding, Inc.
, 848 F.3d 698, 701 (5th Cir. 2017). Legal conclusions,
however, are not entitled to the same presumption of truth.
Iqbal
,
B. K UMAR S TATES A DTPA C LAIM .
The DTPA provides, in relevant part:
A consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish:
(1) the use or employment by any person of a false, misleading, or deceptive act or practice that is . . . (A) specifically enumerated in [§ 17.46(b)] . . . and (B) relied on by a consumer to the consumer’s detriment;
(2) breach of an express or implied warranty; [or] (3) any unconscionable action or course of action by any person.
T OM ODE . § 17.50(a). Construing Kumar’s pleading liberally, Kumar purports to bring a claim under each of these three subsections. Panera, however, addresses only the first subsection covering false, misleading, or deceptive acts. I will address Kumar’s possible claims under each of these subsections in turn.
1. Kumar States a DTPA Claim for False, Misleading, or Deceptive Acts.
Kumar claims that Panera “falsely and fraudulently misled [him] by the statements of its employees regarding the meal ingredients and freshness of [Panera’s] products” in violation of the DTPA. Dkt. 55 at 13. Such a claim has three elements: “(1) the plaintiff is a consumer; (2) the defendant engaged in false, misleading, or deceptive acts; and (3) these acts constituted a producing cause of the consumer’s damages.” In re Frazin , 732 F.3d 313, 323 (5th Cir. 2013) (quotation omitted). Panera contends that Kumar’s DTPA claim for false, misleading, or deceptive acts fails as to the second and third elements. I disagree. *4 a. Kumar alleges a violation of § 17.46(b)(5).
As for the second element, Kumar alleges that “on January 23, 2021, at 4:00:57 PM with Order Number 206021 at Panera Bread Cafe #202501 . . . located at 13704 Northwest Fwy, Houston, TX 77040,” Panera, “through [its] associate Ashley, represented to [Kumar] that the broccoli cheddar soup did not contain chicken broth or meat and that it was made fresh daily.” Dkt. 55 at 6, 10. Kumar contends that representation was false. See id. Through these allegations, Kumar has alleged, in relevant part, that Panera is guilty of “representing that gоods . . . have . . . characteristics, ingredients, uses, benefits, or quantities which they do not have.” T . OM . C ODE . § 17.46(b)(5). Kumar has alleged who (Ashley) made the allegedly false representation, what the allegedly false representation was (that the soup is free of meat and made fresh), when the representation was made (January 23, 2021 at 4:00:57 PM), and where the representation was made (Cafe #202501). This is enough at the pleading stage to satisfy the second element of a DTPA claim.
It is also enough to satisfy Rule 9(b)’s requirement that fraud be pleaded
“with particularity.” F ED R. IV P. 9(b). “It is well-established that claims alleging
violations of the DTPA are subject to the requirements of Rule 9(b).”
Berry v.
Indianapolis Life Ins. Co.
, 608 F. Supp. 2d 785, 800 (N.D. Tex. 2009) (cleaned
up). “At a minimum, Rule 9(b) requires allegations of the particulars of time, place,
and contents of the false representations,
as well as the identity of the person
making the misrepresentation
and what he obtained thereby.”
Tel–Phonic Servs.,
Inc. v. TBS Int’l, Inc.
,
b. Kumar alleges detrimental reliance.
Panera next contends that “Kumar never explained his ‘detrimental reliance’
on any specific act or omission of Panera, and he failed to plead sufficient facts that
any DTPA violation by Panera was a ‘producing cause’ of his damages.” Dkt. 57 at
14. Yet, “liberally construing” Kumar’s complaint, as I must, “he does plead the
*5
third element of a DTPA claim: that Panera’s actions caused his alleged injury.”
Kumar
,
* * *
Panera’s Motion to Dismiss is denied as to Kumar’s DTPA claim because, at
a minimum, Kumar has stated a claim under § 17.50(a)(1) for Panera’s alleged
violation of § 17.46(b)(5). But Kumar has alsо stated a claim under § 17.50(a)(2).
2. Kumar States a Claim for Breach of Warranty Under the
DTPA and the Uniform Commercial Code (“UCC”).
In his second amended complaint, Kumar asserts a breach of warranty claim
against Panera.
See
Dkt. 55 at 16–17. To state a breach of warranty claim under the
DTPA, Kumar must allege: “(1) consumer status, (2) existence of the warranty, (3)
breach of the warranty, and (4) the breaсh was a producing cause of damages.”
Elliott v. Kraft Foods N. Am., Inc.
,
*6 Texas has adopted the UCC, which provides that “[a]ny affirmаtion of fact or promise made by the seller to the buyer which relates to the goods [1] and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” T EX . B US . & C OM . C ODE A NN . § 2.313(a)(1). The elements of a cause of action for breach of express warranty are (1) the defendant-seller made an express affirmation of fact or promise relating to the goods; (2) that affirmation or promise became part of the bargain; (3) the plaintiff relied upon that affirmation or promise; (4) the goods did not comply with the affirmation or promise; (5) the plaintiff was damaged by the noncompliance; and (6) the failure of the product to comply was the proximate cause of the plaintiff’s injury.
Omni USA, Inc. v. Parker-Hannifin Corp. , 964 F. Supp. 2d 805, 814 (S.D. Tex. 2013). These elements mirror the requirements to state a DTPA claim for breach of warranty.
Here, Ashley’s alleged assurance that the soup did not contain meat had “the
specificity of an affirmation of fact upon which a warranty could be predicated.”
Autohaus, Inc. v. Aguilar
, 794 S.W.2d 459, 463 (Tex. App.—Dallas 1990), writ
denied,
*7 3. Kumar Fails to State a DTPA Claim for Unconscionable Actions.
Because Kumar mentions “unconscionable conduct” several times in his complaint, I will examine whether he can state a DTPA claim for unconscionable conduct under § 17.50(a)(3). The DTPA defines an unconscionablе action as “an act or practice which, to a consumer’s detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree.” T OM ODE § 17.45(5). “The term ‘gross’ should be given its ordinary meaning, and therefore, the resulting unfairness must be glaringly noticeable, flagrant, complete and unmitigated.” Lon Smith & Assocs., Inc. v. Key , 527 S.W.3d 604, 623 (Tex. App.—Fоrt Worth 2017, pet. denied) (quotation omitted). “Case law uniformly holds . . . [that] the unconscionable-act-or-course- of-action element of a DTPA section 17.50 unconscionability claim requires proof of each consumer’s knowledge, ability, experience, or capacity.” Id. at 624. With this standard in mind, I turn to Kumar’s allegations.
Kumar alleges that he is an “Associate Consultant (IT/Finanсe Project
Manager) for fortune 500 corporate clients.” Dkt. 55 at 3. Kumar also alleges that
“[w]ithin [a] few hours, . . . [he] learned that the soup contains meat ingredients.”
Id.
at 6. Kumar attaches to his complaint screenshots of Panera’s website, which
show that a “Detailed Ingredients” list reflects that the soup contains chicken and
chicken byproducts. at 32. It is difficult to fathom hоw a cashier at Panera “took
advantage” of a working professional with the ability to access the internet and
view an ingredient list. Yet, Kumar alleges that Panera “engaged in an
unconscionable action or course of action that took advantage of the lack of
knowledge, ability, experience, or capacity to a grossly unfair dеgree.” Dkt. 55 at
11, 13. But this is all that Kumar says as far as unconscionability is concerned. Such
a conclusory statement is precisely the type of allegation that should be
disregarded when evaluating pleadings—even pleadings by a pro se litigant.
See
*8
Chhim
,
C. T HE L AW - OF - THE -C ASE D OCTRINE F ORECLOSES K UMAR ’ S T ORT C LAIMS , BUT N OT M ENTAL A NGUISH D AMAGES .
Panera next argues that “Kumar’s other claims fаil under the law-of-the-case
doctrine and the Fifth Circuit’s mandate.” Dkt. 57 at 15 (capitalization removed).
Panera is correct that Kumar’s negligence, gross negligence, and intentional
infliction of emotional distress claims are barred by the law-of-the-case doctrine.
The Fifth Circuit expressly affirmed my dismissal of Kumar’s negligence and gross
negligence claims.
See Kumar
,
On appeal, the Fifth Circuit observed that “Kumar may seek to pursue other
types of ‘emotional distress’ claims, such as negligent infliction of emotional
distress.”
Kumar
,
As discussed above, Kumar has alleged Panera’s breach of an express warranty under the UCC. Because Kumar would be granted the right to bring a cause of action for breach оf warranty under the UCC, Kumar may recover mental anguish damages on his DTPA claim without regard to whether Panera’s conduct was intentional. See T OMM ODE . § 17.50(h); see also Akin v. Bally Total Fitness Corp. , No. 10-05-00280-CV, 2007 WL 475406, at *4 (Tex. App.—Waco Feb. 14, 2007, pet. abated) (holding that the DTPA did not bar plaintiff’s claim for mental anguish damages where plaintiff pleaded damages resulting from the breach of an implied warranty). What remains to be seen, however, is whethеr Kumar can muster proof of his of DTPA claims and alleged damages. [3] The issue of proof brings me to Panera’s Motion for Reconsideration. P ANERA ’ S M OTION FOR R ECONSIDERATION I previously denied Panera’s Motion for Summary Judgment (Dkt. 25) as moot when I granted Panera’s Motion to Dismiss (Dkt. 20). See Dkt. 39. Panera asks me to reconsider its Motion for Summary Judgment because “Kumar cannot raise a genuine or material fact issue on еssential elements of his alleged DTPA violation.” Dkt. 58 at 2. Although Panera makes this argument in reference only to Kumar’s DTPA claim, it applies with equal force to any claim Kumar could bring. “Kumar responded [to Panera’s first motion for summary judgment] without attaching a single exhibit .” Because Kumar offered no evidence whatsoever, any claim would fail.
*10
I understand why Panera wants me to reconsider its Motion for Summary
Judgmеnt—the lack of any evidence from Kumar makes it an automatic grant. But
Kumar is proceeding pro se, and “federal courts, [the Fifth Circuit] included, have
a traditional disposition of leniency toward pro se litigants.”
Davis v. Fernandez
,
At the motion to dismiss stage, I am required to accept Kumar’s factual
allegations as true.
See Alexander
, 848 F.3d at 701. But while Kumar’s “well-
drafted pleadings appropriately allege” DTPA claims, “[u]nsworn pleadings are not
. . . competent summary judgment evidence.”
Dorsett v. Bd. of Trs. for State Colls.
& Univs.
,
Because Kumar relied entirely on his unsworn pleadings in his summary
judgment response, he failed to crеate a genuine dispute as to any fact. Curiously,
Kumar submitted a notarized affidavit with his summary judgment response.
See
*11
Dkt. 30-1. Yet, Kumar failed to attest to any
relevant
facts in that affidavit.
See id.
Rather, Kumar detailed trouble with his previous counsel, and his difficulty in
finding new counsel. Even so, “the circumstances of this case [reveal] no foul play,
inexcusable neglect, or other valid basis to exclude from consideration the
testimony [that Kumar might provide],” knowing now what is rеquired to create a
dispute of genuine fact.
Davis
,
CONCLUSION For the reasons discussed above, Panera’s Motion to Dismiss (Dkt. 57) is DENIED as to Kumar’s DTPA claims, but GRANTED in all other respects.
Panerа’s Motion for Reconsideration of its Motion for Summary Judgment (Dkt. 58) is DENIED . Panera may file a new motion for summary judgment by Friday, October 25, 2024. Kumar’s response to Panera’s motion for summary judgment is due Friday, November 22, 2024. Panera may file a reply, if any, by Friday, December 6, 2024.
SIGNED this ___ day of September 2024.
______________________________ ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE
Notes
[1] “The subject of the transaction, [Panera]’s food, falls under the UCC’s broad definition of goods.” McMahon v. Chipotle Mexican Grill, Inc. , No. 2:20-cv-1448, 2024 WL 1932319, at *3 (W.D. Pa. May 1, 2024) (citing the Pennsylvania UCC’s definitiоn of “goods,” 13 P A . S TAT . & C ONS . S TAT . A NN . § 2105(a), which is identical to the Texas UCC definition, T OM ODE . § 2.105(a)).
[2] “Texas law does not permit double recovery.” Parkway Co. , 901 S.W.2d at 441. The DTPA affords Kumar “greater recovery” than the UCC would. Thus, as discussed below, Kumar’s ability to state a claim for breach of warranty under the UCC is relevant only to Kumar’s claim for mental anguish damages under the DTPA.
[3] “[A]n award of mental anguish damages will survive a legal sufficiency challenge when
the plaintiffs have introduced direct evidence of the nature, duration, and severity of their
mental anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine.”
Parkway Co.
,