MEMORANDUM
Plaintiff Kenneth Whitaker initiated this putative class action in the Pennsylvania Court of Common Pleas of Philadelphia County against Defendant Herr Foods, Inc. (“Defendant”). Plaintiff alleges that Defendant “misbranded” approximately one dozen snack food products—namely, chips and pretzels. Defendant removed this action pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2). Defendant now moves to dismiss all of Plaintiffs claims, except for the breach of express warranty claim, and to strike the class allegations. For the reasons that follow, the Court will grant Defendant’s motion to dismiss and deny Defendant’s motion to strike. Therefore, only the breach of express warranty claim remains.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant is a Pennsylvania corporation that sells a variety of snack products. Compl. ¶¶ 6, 8, ECF No. 1. Plaintiff identifies at least twelve
Plaintiff alleges that he prefers “healthy, wholesome, and nutritious” foods. Id. ¶ 50. He tries to avoid foods containing artificial or highly processed ingredients, chemical preservatives, and artificial flavors or colors. Id. Given these preferences, Plaintiff states that he pm-chased Defendant’s products in reliance on their labels’ representations that the contents were natural and free of artificial or synthetic ingredients. Id. ¶¶ 51-52. He alleges that he also paid more money than he would have paid for other products containing artificial ingredients.
Plaintiff filed the present action on behalf of himself and others similarly situated, based on Defendant’s alleged (1) violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. Cons. Stat. §§ 201-1 to 201-9; (2) breach of express warranty; (3) fraudulent misrepresentation; (4) negligent misrepresentation; (5) breach of contract; and (6) unjust enrichment.
Plaintiff purports to represent the following putative class:
All persons in the United States or, alternatively, Pennsylvania who purchased one or more of the Misbranded Products from six (6) years prior to the filing of the Complaint and continuing to the present.
Compl. ¶ 56. Plaintiff asserts that “the proposed class includes thousands if not millions of members.” Id. ¶ 60.
II. JURISDICTION
In its Notice of Removal, ECF No. 1, Defendant asserts that this Court has subject matter jurisdiction pursuant to CAFA, 28 U.S.C. § 1332(d)(2). “CAFA confers on district courts original jurisdiction where: (1) the amount in controversy exceeds $5,000,000, as aggregated across all individual claims; (2) there are minimally diverse parties; and (3) the class consists of at least 100 or more members.” Neale v. Volvo Cars of N. Am., LLC,
Although the parties do not dispute jurisdiction under CAFA, the Court “must nevertheless satisfy [itself] that federal subject matter jurisdiction exists in the first instance.” Kaufman v. Allstate N.J. Ins. Co.,
First, the amount in controversy exceeds $5,000,000. Plaintiff seeks damages equal to the amount that the putative class members paid for the products during the class period. Compl. ¶¶82, 89, 96, 100. Defendant’s Senior Vice President of Sales and Marketing avers that Defendant’s ag
Second, CAFA’s diversity requirement is satisfied. Under CAFA, only minimal diversity is required for federal jurisdiction. 28 U.S.C. § 1332(d)(2)(A). CAFA’s minimal diversity requirement is an exception to the “complete diversity” otherwise required under 28 U.S.C. § 1332(a). See Strawbridge v. Curtiss,
Here, although the Complaint pleads that the named plaintiff is a “resident”
Third, the Complaint alleges that there are “thousands if not millions of members.” Compl. ¶ 60; see Judon,
Once CAFA’s jurisdictional requirements are established by the party asserting federal jurisdiction—Defendant, in this case, due to removal—the burden shifts to the opponent—Plaintiff, in this case—to prove an exception to jurisdiction. Kaufman,
III. MOTION TO DISMISS
The Court first addresses Defendant’s motion to dismiss Plaintiffs UTPCPL, fraudulent misrepresentation, negligent misrepresentation, breach of contract, unjust enrichment, and injunctive relief claims.
A. Legal Standard
A party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ.
The pleadings must contain sufficient factual allegations so as to state a facially plausible claim for relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co.,
B. Discussion
Defendant moves to dismiss various claims on the following grounds. It argues that (1) Plaintiffs UTPCPL, fraud, and negligent misrepresentation claims do not satisfy Rule 9(b)’s particular pleading requirements; (2) Plaintiffs breach of contract claim fails for lack of privity; (3) Plaintiffs UTPCPL, fraud, and negligent misrepresentation claims are barred by the economic loss docteine; (4) Plaintiffs fraud and negligent misrepresentation claims are barred by the gist of the action doctrine; (5) Plaintiff fails to state a claim for unjust enrichment; and (6) Plaintiff lacks standing to seek injunctive relief. Each is addressed in turn.
1. Rule 9(b)
Under Federal Rule of Civil Procedure 9(b), “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This pleadings standard applies to Plaintiffs fraudulent misrepresentation, UTPCPL, and negligent misrepresentation claims. See Travelers Indem. Co. v. Cephalon, Inc.,
To satisfy Rule 9(b)’s pleading requirements, a plaintiff must “plead or
Here, Plaintiff sufficiently identifies the products and alleged misrepresentations, thereby putting Defendant on notice of its alleged wrongdoing. Plaintiff identifies (1) the who: Herr Foods, Inc., Compl. SS 6, 8; (2) the what: labels representing that twelve products are “All-Natural,” and have “No Preservatives,” “No MSG,” and “No Trans Fat,” id. ¶¶ 1-2; (3) the when: consumers selecting the products for purchase between 2010 and the present, id. S 56; (4) the where: the “the front of the product labels” and Defendant’s website, id. S 2; (5) the how: stating that the products were “All Natural,” “No Preservatives,” “No MSG,” and “No Trans Fat,” which the consumer believed to mean no synthetic and highly-processed ingredients, chemical preservatives, artificial coloring or flavoring, genetically modified material, or high levels of fat, id. ¶ 52; and (6) the why: to induce consumers to purchase the products, id. ¶¶ 71, 78. These allegations are sufficient to meet Rule 9(b)’s particularity standard. See, e.g., Ham v. Hain Celestial Grp., Inc.,
Contrary to Defendant’s position, Plaintiff need not specify the stores from which he bought the products to satisfy Rule 9(b)’s pleading requirements. See, e.g„ Smajlaj v. Campbell Soup Co.,
2. Breach of contract claim
Defendant next moves to dismiss Plaintiffs breach of contract claim for lack of privity. According to Defendant, “Plaintiff nowhere alleges that he purchased any product directly from [Herr],” which “does not impact Plaintiffs breach of express warranty claim”
A breach of contract claim under Pennsylvania law requires a plaintiff to establish “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract^] and (3) resultant damages.” Omicron Sys., Inc. v. Weiner,
Here, Plaintiffs breach of contract claim rests on the following allegations:
98. Plaintiff and members of the class had a valid contract, supported by sufficient consideration, pursuant to which Defendant was obligated to provide all-natural products, without preservatives, trans-fat, or MSG, as applicable to the particular product, that did not contain any synthetic, artificial, highly processed ingredients, chemical preservatives, artificial flavors, or color additives.
99. Defendant materially breached its contract with Plaintiff and members of the putative class by providing products that did not adhere to these promises.
100. As a result of Defendant’s breach, Plaintiff and members of the putative class' were damaged in that they received a product of less value than one for which they paid. Plaintiff and members of the class have suffered and continue to suffer economic losses and other general and specific damages, including but not limited to amounts paid for the Misbranded Products, and any interest that would have accrued on those monies, all in an amount to be proven at trial.
Compl. ¶¶ 98-100.
Based on these allegations, the only dis-cernable source of a “contract ... pursuant to which Defendant was obligated to provide all-natural products,” id. ¶ 98, would be the label characterizing the product as “all natural.” It is unclear whether a food product’s label creates a contract between the purchaser and the seller or manufacturer that would permit a breach of contract claim to proceed separate from a breach of warranty claim.
Pennsylvania law requires privity for a breach of contract claim. Ill. Union Ins. Co. v. Hydro Int'l, PLC,
Here, Plaintiff has not identified any contractual connection or relationship between the parties. Plaintiff does not allege that he purchased the allegedly mislabeled products directly from Defendant. Plaintiff
Furthermore, no exception to the privity requirement applies. Plaintiff does not allege the existence of an agency, relationship or third-party beneficiary status. See Robbins Motor Transp., Inc. v. Translink, Inc., No. 07-150,
3, Economic loss doctrine
Defendant next argues that Plaintiffs UTPCPL, fraudulent misrepresentation, and negligent misrepresentation claims should be dismissed pursuant to the economic loss doctrine.
Pennsylvania’s economic loss doctrine “provides that no cause of action exists for negligence that results solely in economic damages unaccompanied by physical or property damage.” Sovereign Bank v. BJ’s Wholesale Club, Inc.,
Here, Plaintiff claims simple economic loss. See-Compl. ¶¶ 82, 89, 96,100. He does not allege that Defendant’s allegedly fraudulent labels caused any physical or property damage. ' Therefore, Plaintiffs breach of warranty claim is “specifically aimed at and perfectly suited” to address the economic relief Plaintiff seeks. REM Coal,
But despite the general rule, there is some dispute as to the economic loss doctrine’s applicability to Plaintiffs specific tort claims. As such, each must be individually analyzed.
a. The economic loss doctrine and the UTPCPL claim
Whether the economic loss doctrine applies to a UTPCPL claim is an issue that has recently received significant attention by the district courts in this Circuit.
Predicting how the Pennsylvania Supreme Court would rule, the Third Circuit previously held that the economic loss doctrine applies to common law intentional and statutory fraud claims, including those brought under the UTPCPL. Werwinski,
But after the Werwinski court’s decision in 2002, the Superior Court of Pennsylvania in Knight v. Springfield Hyundai,
Our research reveals ... that our Supreme Court has defined the economic loss doctrine as providing “no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage.” The claims at issue in this case are statutory claims brought pursuant to the UTPCPL, and do not sound in negligence. Therefore, the economic loss doctrine is inapplicable and does not operate as a bar to [the plaintiffs] UTPCPL claims.
Id.at 951-52 (emphasis in original) (internal citations omitted) (internal footnote omitted).
Following Knight, a split ensued between the district courts in this Circuit as to whether the economic loss doctrine applies to UTPCPL claims pursuant to Wer-winski or whether Knight now controls. Compare McGuckin v. Allstate Fire & Cas. Ins. Co.,
The Third Circuit has not directly addressed the issue and two primary approaches have emerged from the courts in this District.
Other courts have held that a district court is bound by the Third Circuit’s prediction unless the state intermediate court’s subsequent decision “contradicts” or is “inconsistent with” the Third Circuit’s prediction. See, e.g., Golden Gate Nat’l Senior Care, LLC v. Beavens,
But the answer is much simpler. Once a panel of the Third Circuit makes its prediction as to state law, a subsequent panel of the Third Circuit cannot overrule it. Debiec v. Cabot Corp.,
The Third Circuit’s explanation in Horsey v. Mack Trucks, Inc.,
Our Internal Operating Procedures, flatly prohibit a panel of this court from overruling a published opinion of a previous panel. Thus, unless the instant appeal may be distinguished from [the Court’s previous decision] or until [the previous decision] is overruled by an inbanc decision, [the previous decision] remains the law of this circuit; the district courts and this court are bound to its holding.
Id. at 846. Surely, a district court does not have the power to review a prior decision by a Third Circuit panel when a subsequent panel has no such power. Accordingly, “[i]t is axiomatic that if another panel of the Court of Appeals for the Third Circuit is bound by a previous panel’s construction of state law then district courts within the Third Circuit are also bound by that construction.”
Here, the Third Circuit has not questioned the propriety of its decision in Werwinski, and this Court will not usurp the Circuit’s authority and do so itself.
b. The economic loss doctrine and common law fraudulent misrepresentation claim
The next issue is whether the economic loss doctrine applies to Plaintiffs common law fraudulent misrepresentation claim. “[I]ntentional misrepresentation claims are generally preempted by the economic loss rule,” but there is an oft-noted exception where “a defendant committed fraud to induce another to enter a contract.” Reilly Foam Corp. v. Rubbermaid Corp.,
For example, a representation would be extraneous to a contract or warranty if a company falsely misrepresented its financial condition or its level of insurance coverage to induce another company to enter into an agreement with it. Werwinski,
On the other hand, the economic loss doctrine would bar a fraudulent misrepresentation claim intrinsic to the contract or warranty claim. A fraudulent misrepresentation claim is intrinsic to the contract or warranty claim if the representations concern the specific subject matter of the contract or warranty, such as “the quality or characteristics of the goods sold.” Air Prods. & Chems.,
Here, Plaintiffs fraudulent misrepresentation claim is intrinsic to the contract and warranty claim because it relates to the quality and characteristics of the products purchased from Defendant. When purchasing a snack, Plaintiff presumably had a number of products from which to choose. In deciding, Plaintiff relied on Defendant’s representation that its products were “All Natural.” Am. Compl. ¶ 51. Plaintiffs economic losses are therefore based on and flow from his loss of the benefit of his bargain and his disappointed expectations as to the products he purchased. This harm is precisely that which a warranty action seeks to redress.
Therefore, because Plaintiffs fraudulent misrepresentation claim concerns the quality and characteristics Defendant’s products, the claim is intrinsic to the breach of warranty claim, and the economic loss doctrine applies. As such, Plaintiffs fraudulent misrepresentation claim will be dismissed.
c. The economic loss doctrine and the negligent misrepresentation ■ claim
Application of the economic loss doctrine to the i negligent representation claim is straightforward: “Plaintiffs negligent misrepresentation claim is quickly dispatched; the economic loss doctrine bars claims for negligent misrepresentation.” Reilly,
The Bilt-Rite exception applies where a claim is based on the theory of negligent misrepresentation recognized in the Restatement (Second) of Torts § 552. Id. Section 552, titled “Information Negligently Supplied for the Guidance of Others,” “sets forth the parameters of a duty owed when one supplies information to others, for one’s own pecuniary gain, [and] where one intends or knows that the information will be used by others in the course of their own business activities.” Id. at 285-86. The Supreme Court of Pennsylvania reasoned in Bilt-Rite that the doctrine does not bar § 552 claims because “economic losses are routinely allowed in tort actions in other contexts such as legal malpractice, accountant malpractice, and architect liability.” Id. at 278-88.
Here, Defendant is not in the business of supplying professional information for pecuniary gain. Defendant manufactures and labels snack foods to be sold by third-party distributors to consumers like Plaintiff. The label, of course, supplies information to potential consumers; but the representations on a product’s label made by a manufacturer materially differ from the professional representations made by an accountant, lawyer, or architect for pecuniary gain discussed in Bilb-Rite. See Elliott-Lewis Corp. v. Skanska USA Bldg., Inc., No. 14-3865,
4. Gist of the action doctrine
Defendant also moves to dismiss Plaintiffs fraudulent and negligent misrepresentation claims pursuant to the gist of the action doctrine, which “maintains the conceptual distinction between contract law and tort law.” Gadley v. Ellis, No. 13-17,
Having decided that the economic loss doctrine bars Plaintiffs fraudulent and negligent misrepresentation claims, the Court need not address Defendant’s arguments pursuant to the gist of the action doctrine. However, the Court notes that because the gist of the action doctrine applies “where the duties essentially flow from an agreement between the parties,” “a party who was not in contractual privity with the plaintiff cannot invoke the gist of the action doctrine to foreclose tort claims against him or her.” The Knit With v. Knitting Fever, Inc., No. 08-4221,
5. Unjust enrichment claim
The Court next addresses Plaintiffs unjust enrichment claim. To state a claim for unjust enrichment under Pennsylvania law, the plaintiff must allege that (1) he conferred a benefit on the defendant, (2) the defendant knew of the benefit and accepted or retained it, and (3) it would be inequitable to allow the defendant to keep the benefit without paying for it. Mitchell v. Moore,
Defendant argues that Plaintiffs unjust enrichment claim should be dismissed because “[u]njust enrichment claims are typically considered inappropriate in consumer product cases.” Def.’s Mot. 23-24. But no such categorical bar exists.
Unjust enrichment claims under Pennsylvania law appear to fall into one of two categories: (1) a quasi-contract theory of liability, in which case the unjust enrichment claim is brought as an alternative to a breach of contract claim; or (2) a theory based on unlawful or improper conduct established by an underlying claim, such as fraud, in which case the unjust enrichment claim is a companion to the underlying claim. See, e.g., Zafarana v. Pfizer, Inc.,
As to the first theory, an unjust enrichment claim based on a theory of quasi-contract may be pled as an alternative to a breach of contract claim. Lugo v. Farmers Pride, Inc.,
With respect to the second theory, an unjust enrichment claim may be pled as a companion, not an alternative, to a claim of unlawful or improper conduct as defined by law—e.g., a tort claim. “In the tort setting, an unjust enrichment claim is essentially another way of stating a traditional tort claim (i.e., if defendant is permitted to keep the benefit of his tortious conduct, he will be unjustly enriched).” Steamfitters,
In this case, Plaintiffs unjust enrichment claim rests on the following allegations:
102. Defendant’s conduct in enticing Plaintiff and putative class members to purchase the Misbranded Products through false and misleading advertising and packaging as described throughout this Complaint is unlawful because the statements contained on Defendant’s product labels are untrue. Defendant took monies from Plaintiff and members of the putative class for products promised to be bearing the contested labeling representations even though the Mis-branded Products did not conform to those representations.
103. Defendant wrongfully secured a benefit from Plaintiff and the putative class—their money to purchase products that they believed had healthful qualities the products actually did not have—and itwould be unconscionable for Defendant to retain the funds paid by Plaintiff and the putative class when the products did not provide the advertised benefits.
104. Defendant has been unjustly enriched at the expense of Plaintiff and the putative class as result of Defendant’s unlawful conduct alleged herein, thereby creating a quasicontractual obligation on Defendant to restore these ill-gotten gains to Plaintiff and putative class members.
105. As a direct and proximate result of Defendant’s unjust enrichment, Plaintiff and putative class members are entitled to restitution, in an amount to be proven at trial.
Compl. ¶¶ 102-05.
From these allegations, the unjust enrichment theory that Plaintiff intends to pursue is unclear. Plaintiffs use of terms like “false and misleading,” “unlawful,” “wrongfully secured,” and “unconscionable” smack of tort. See id. ¶¶ 102, 103. If Plaintiff intends to assert an unjust enrichment claim based on the same unlawful or improper conduct that supports his tort claims, Plaintiffs claim would fail because the Court has dismissed Plaintiffs tort claims. See Steamfitters,
On the other hand, Plaintiff also identifies “ill-gotten gains” and “a quasicontrac-tüal obligation,” which toll the bell of quasi-contract. See Compl. ¶ 104. If Plaintiff intends to proceed under a quasi-contract theory of unjust enrichment, Plaintiffs claim could arguably serve as a stand-in for his breach of contract claim that has otherwise failed. If so, Plaintiffs quasi-contract theory of unjust enrichment would seek to remedy the “wrongfully retained” aspect of the transaction, and Plaintiffs other claims
6. Injunctive relief
Finally, the Court reviews Plaintiffs request for injunctive relief. For standing to seek injunctive relief, a plaintiff must show that (1) “he is under threat of suffering ‘injury in fact’ that is concrete and particularized”; (2) “the threat must be actual and imminent, not conjectural or hypothetical”; (3) “it must be fairly traceable to the challenged action of the defendant”; and (4) “it must be likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst.,
“An injury-in-fact ‘must be concrete in both a qualitative and temporal sense.’ ” Reilly v. Ceridian Corp.,
The Third Circuit’s decision in McNair v. Synapse Group Inc.,
Because [the plaintiffs] are familiar with [the defendant’s] practices as well as the various names under which it operates, it is a speculative stretch to say they will unwittingly accept a[n] ... offer [from the defendant] in the future. But even if they did, they would only be harmed if they were again misled by [the defendant’s] subscription renewal techniques, which would require them to ignore their past dealings with [the defendant]. In short, [the plaintiffs] ask us to presume they will be fooled again and again. While we cannot definitively say they won’t get fooled again, it can hardly be said that [the plaintiffs] face a likelihood of future injury when they might be fooled into inadvertently accepting a magazine subscription with [the defendant] and might be fooled by its renewal tactics once they accept that offer.
Id. at 225 n. 15 (emphasis in original). Therefore, the Third Circuit concluded that the plaintiffs lacked standing to pursue injunctive relief. Id. at 225-26; see also Stoneback v. ArtsQuest, No. 12-3287,
Plaintiff contends that “[t]here are still thousands of persons fitting the class description that may suffer future harm.” PL’s Resp. 27. But Plaintiffs vague and unsubstantiated assertion that “thousands of persons ... may suffer future harm,” id. (emphasis added), contradicts the requirement that the threat of future injury be “concrete in both a qualitative and temporal sense,” Reilly,
Some courts have recognized that strictly enforcing the future injury requirement could, in effect, restrict the availability of injunctive relief in consumer fraud cases. See, e.g., Robinson v. Hornell Brewing Co., No. 11-2183,
Moreover, injunctive relief is inappropriate because Plaintiff he has an adequate remedy at law, which “belies a claim of irreparable injury.” Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp.,
IV. MOTION TO STRIKE CLASS ALLEGATIONS
The Court next considers Defendant’s motion to strike Plaintiffs class allegations.
A. Legal Standard
“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” McInerney v. Moyer Lumber & Hardware, Inc.,
Under Federal Rule of Civil Procedure 23(d)(1)(D), a court adjudicating a class
“Dismissal of class claims prior to discovery and a motion to certify the class by plaintiff is the exception rather than the rule.” Luppino v. Mercedes-Benz USA, LLC, No. 09-5582,
As such, district courts in the Third Circuit typically hold that “motions to strike class allegations are premature and that the proper avenue is to oppose the plaintiffs motion for class certification.” Korman v. Walking Co.,
B. Discussion
Defendant does not contest Plaintiffs ability to satisfy the four prerequisites of a class action provided in Rule 23(a), nor does it contest Plaintiffs ability to satisfy the superiority requirement. Rather, Defendant challenges Plaintiffs ability to satisfy Rule 23(b)(3)’s predominance requirement. Def.’s Mem. 28.
The predominance requirement dictates that for “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). The underlying claim’s elements must be “capable of proof at trial through evidence that is common to the class rather than individual to its members.” In re Hydrogen Peroxide,
Here, justifiable reliance is an essential element of Plaintiffs UTPCPL, fraudulent misrepresentation, and negligent misrepresentation claims. Hunt v. U.S. Tobacco Co,
At least one district court in this Circuit has held that the justifiable reliance -element of a misrepresentation claim presents grounds for striking the class allegations before the class certification stage. Davis v. Bank of Am., N.A., No. 13-4396,
The defendants moved to strike the UTPCPL class allegations prior to discovery, and the district court granted the motion. The court reasoned that “an individual may or may not make a payment following his or her receipt of a foreclosure complaint for various reasons.” Id. at *6. The court reasoned that permitting the plaintiffs’ class action to proceed would require the court to “assume that [each] putative plaintiff read the foreclosure complaint and believed it to be true, and further assume that any partial payment made by the putative plaintiff was meant to be applied to the attorneys’ fees listed and not to any other amounts.” Id. at *6. The court stated that “[a]llowing certification to proceed on the mere proof of payment would, in sum, amount to an outright presumption of justifiable reliance.” Id. Therefore, the court concluded that the individual inquiries required for the justifiable reliance element rendered the misrepresentation claim “unsuitable for class adjudication.” Id.
Here, the Court declines to follow in Davis’s footsteps. “There is no good reason for this case not to proceed down the normal path, i.e., with the Court setting a deadline for Plaintiff to file a motion for class certification and the parties litigating the propriety of maintaining the action as a class under the traditional Rule 23(c) rubric.” Korman,
An individual may or may not buy a snack product based on its label’s representations. There may be a multitude of reasons for a consumer’s purchase, such as flavor, price, or an appealing commercial mascot. And courts have recognized that this type of validity renders a fraud claim generally inappropriate for class action resolution. See Dawson v. Dovenmuehle Mortg., Inc.,
But to rule on the motion to strike at this stage would risk eviscerating the class certification process as a whole. Indeed, the cases on which Davis relies arose in the context of either a motion for class certification or decertification. See Davis,
Ultimately, Plaintiff will bear the burden of demonstrating that questions of law or fact common to class members predominate over any questions affecting only individual members. Fed. R. Civ. P. 23(b)(3). But such questions are more appropriately addressed with a developed factual record after the class discovery stage. See Goode,
Y. CONCLUSION
For these reasons, the Court will grant Defendant’s motion to dismiss as to Plaintiffs UTPCPL, fraudulent misrepresentation, negligent misrepresentation, breach of contract, unjust enrichment, and injunc-tive relief claims. These claims will be dismissed without prejudice. The Court will deny without prejudice Defendant’s motion to strike the class allegations as premature. Only Plaintiffs breach of war
ORDER
AND NOW, this 29th day of July, 2016, after a hearing on July 11, 2016, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED as follows:
(1) Defendant’s Motion to Dismiss (EOF No, 3) is GRANTED;
(2) Plaintiff is GRANTED leave to amend the dismissed claims by August 18, 2016; and
(3) Defendant’s Motion to Strike Class Allegations (EOF No. 3) is DENIED without prejudice.
AND IT IS SO ORDERED.
Notes
. The identified products include three flavors of Herr’s Popped Chips; Herr’s All Natural Tortilla Chips; Herr’s All Natural Sourdough Pretzels; five flavors of Herr's All Natural Potato Chips; and two flavors of Herr’s Potato Chips. Compl. ¶ 1.
. It is unclear whether Plaintiff consumed any of the products after he purchased them. But this factual gap is ultimately irrelevant to the resolution of Defendant’s motion.
. Plaintiff alleges that he is a "resident” of Pennsylvania. Compl. ¶¶ 7, 50. But the diversity requirement is one of citizenship. 28 U.S.C. § 1332(d)(2)(B). Residence is not equivalent to citizenship. Forman v. BRI CORP.,
. The traditional requirement of contractual privily has been eliminated with respect to breach of warranty claims for consumer goods. See 13 Pa. Cons. Stat. § 2313 (explaining creation of express warranties by affirmation, promise, description or sample); Kassab v. Cent. Soya,
. See, e.g., Kumar v. Salov N. Am. Corp. No. 14-2411,
. Other circuits addressing the issue have held that the district court remains bound by the appellate court's prior prediction. See, e.g., Reiser v. Residential Funding Corp.,
. However, at least one Third Circuit panel has suggested a less deferential standard, stating that a showing of “persuasive evidence” that state law has changed could nullify predictive precedents. Robinson v. Jiffy Exec. Limousine Co.,
. It is worth noting that, after Knight was decided, the Third Circuit, albeit in a nonpre-cedential opinion, relied upon its prior analysis in Werwinski to affirm the dismissal of a UTPCPL claim based on the economic loss doctrine. See Sunshine v. Reassure Am. Life Ins. Co.,
. Practically speaking, even if the district court could evade the Third Circuit’s earlier prediction, the district court would likely be reversed on appeal, because the panel hearing the appeal would be itself bound by the earlier prediction. Thus, the district court decision would be procedurally superfluous.
. At this juncture, only Plaintiff’s breach of warranty claim remains. The Third Circuit has colorfully described a breach of warranty claim as "a freak hybrid born of the illicit intercourse of tort and contract.” Hahn v. Atl. Richfield Co.,
But it is not the nature of Plaintiffs breach of warranty claim that is decisive. Rather, the Court focuses on the nature of Plaintiff’s unjust enrichment claim to assess its sufficiency.
. Of course, no more than one satisfaction in damages would be permitted. Rossi v. State Farm Auto. Ins. Co.,