Dedloff v. Whole Foods Mkt. Grp.

688 F.Supp.3d 893

Kattie DEDLOFF, Plaintiff, v. WHOLE FOODS MARKET GROUP, INC., Defendant.

Case No. 4:22-cv-01340-AGF

United States District Court, E.D. Missouri, Eastern Division

Signed August 23, 2023

Daniel F. Harvath, Harvath Law Group LLC, St. Louis, MO, for Plaintiff.

Brian Richard Blackman, Pro Hac Vice, Wells Blaxter, Pro Hac Vice, Blaxter Blackman LLP, San Francisco, CA, James P. Martin, Polsinelli PC, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Whole Foods Market Group, Inc.'s ("Whole Foods") motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 8. This matter is fully briefed and ready for disposition. For the reasons discussed below, the Court will grant Whole Foods' motion.

Background

A. Procedural History

Plaintiff first filed this purported class action on behalf of herself and others similarly situated in the Circuit Court of St. Charles County, Missouri on November 4, 2022. ECF No. 6. Whole Foods timely removed the action to this court based on diversity jurisdiction under 28 U.S.C. § 1441(b). ECF No. 1. After removal, Whole Foods filed its motion to dismiss and memorandum of law in support. ECF Nos. 8, 9. Plaintiff filed a response in opposition. ECF No. 20. Whole Foods filed a reply (ECF No. 21) and has also filed a notice of supplemental authority, which provides recent orders from the Eastern District of Missouri dismissing similar cases for failure to state a claim (ECF No. 22). On Whole Foods' unopposed motion, the Court previously took judicial notice of the organic Long Grain & Wild Rice - Rice Pilaf ("365 Pilaf") packaging and will consider it in deciding the motion to dismiss. ECF No. 15; see also Enervations, Inc. v. Minn. Mining and Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004) ("Though matters outside the pleading may not be considered in deciding a Rule 12 motion to dismiss, documents necessarily embraced by the complaint are not matters outside the pleading.") (citation and internal quotation marks omitted).

B. Plaintiff's Petition

Whole Foods manufactures, labels, markets, and sells 365 Pilaf under its 365 private label brand. ECF No. 6. Whole Foods sells the 365 Pilaf in a box measuring, in inches, 6.75 by 4.25 by 1.5. Each box of 365 Pilaf includes a packet of rice and a packet of seasoning. The 365 Pilaf box includes several statements regarding the amount of its contents: (1) the front of the box lists the net weight at 6 ounces (or 170 grams); (2) the back of the box says that it contains about 3 servings per container, which is equivalent to 2 ounces (or 56 grams) of dry rice; and (3) the side panel's preparation instructions twice state that the box "makes about 2 ¾ cups" of pilaf when prepared according to the box's preparation instructions. ECF No. 10-1. Plaintiff alleges that she purchased the product on at least one occasion in Missouri for her personal use. She also alleges that she relied on the information on the 365 Pilaf's packaging and various Whole Foods marketing materials unrelated to this particular product to make her purchase.

Plaintiff alleges that when she opened the 365 Pilaf box to prepare its contents, she was disappointed to find it was only 48% filled with rice. Plaintiff alleges additional disappointment because she believed Whole Foods was an environmentally conscious organization committed to reducing excess packaging materials across its stores and products, and she feels like the 365 Pilaf has more packaging than is necessary. She alleges that the 365 Pilaf is sold at a premium price compared to other similar products and that Whole Foods is only able to charge this premium because of its allegedly misleading packaging. ECF No. 6.

Plaintiff further alleges that she and other disappointed purchasers of 365 Pilaf were harmed by 365 Pilaf's allegedly deceptive packaging. She seeks certification for two classes: (1) "[a]ll persons in the State of Missouri who purchased the [365 Pilaf] during the statutes of limitations for each cause of action alleged," called the Missouri Class; and (2) "[a]ll persons in the States of Missouri, Illinois,¹ Maryland, Hawaii, New York, Washington D.C., Rhode Island, Vermont, Washington, and Connecticut," called the Consumer Fraud Multi-State Class. Plaintiff does not cite to any specific consumer fraud statutes of the states included in the proposed Multi-State Class, but instead alleges that "[t]he Consumer Fraud Acts of the States in the . . . Multi-State Class are similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or deceptive business practices in the conduct of commerce." Id. at ¶ 123.

Plaintiff's Petition raises six Counts: (1) violation of the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. §§ 407.005-315; (2) violation of state consumer fraud acts in all states covered by the Multi-State Class; (3) breaches of express warranty, implied warranty of merchantability/fitness for a particular purpose, and violations of the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301-12; (4) negligent misrepresentation; (5) fraud; and (6) unjust enrichment.

Legal Standard

A party may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff to give "a short and plain statement of the claim showing that the pleader is entitled to relief." To survive a motion to dismiss under Rule 12(b)(6), "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). To meet this facial plausibility requirement, the plaintiff's allegations must "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When assessing the motion to dismiss, the Court must make all reasonable inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th Cir. 2010) (citing Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009)). The Court must also "liberally construe a complaint in favor of the plaintiff." Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir. 2010).

However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A pleading that merely pleads 'labels and conclusions' or a 'formulaic recitation' of the elements of a cause of action, or naked assertions devoid of factual enhancement will not suffice." Hamilton v. Palm, 621 F.3d 816, 817-18 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). While the Court must accept all factual allegations in the complaint as true, it is not bound to accept as true a legal conclusion couched as a factual allegation. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted); Iqbal, 556 U.S. at 677-78, 129 S.Ct. 1937.

"[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. The Court must therefore determine if the well-pleaded factual allegations "plausibly give rise to an entitlement to relief." Id. This "context-specific" task requires the Court to "draw on its judicial experience and common sense." Id. at 679, 682, 129 S.Ct. 1937.

Discussion

A. MMPA Claim

Plaintiff's chief claim is premised on Whole Foods' alleged violations of the MMPA. The MMPA gives consumers a private right of action to recover damages from product sellers:

Any person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by another person or a method, act or practice declared unlawful by section 407.020, may bring a private civil action in either the circuit court of the county in which the seller or lessor resides or in which the transaction complained of took place, to recover actual damages.

Mo. Rev. Stat. § 407.025.1(1). Section 407.020 prohibits "[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material facts in connection with the sale or advertisement of any merchandise in trade . . . ." For Plaintiff to state a claim under the MMPA, she must show that she "(1) purchased merchandise from [Whole Foods]; (2) for personal, family or household purposes; and (3) suffered an ascertainable loss of money or property (4) as a result of an act declared unlawful under [§ 407.020]." Tucker v. General Motors LLC, 58 F.4th 392, 397 (8th Cir. 2023) (quoting Vitello v. Natrol, LLC, 50 F.4th 689, 693 (8th Cir. 2022)).

Whole Foods argues that Plaintiff's MMPA claim should be dismissed because Plaintiff fails to allege deception or ascertainable loss. ECF No. 9 at 7-13. While the issue of the MMPA's 2020 amendments was not raised in the parties' briefing, Whole Foods supplemented its motion to dismiss with two recent decisions in the Eastern District that applied the MMPA's 2020 amendments to cases with allegations similar to those here. ECF No. 22; Bell v. Annie's, Inc., No. 4:22-cv-1367-MTS, 673 F.Supp.3d 993, 997-1002 (E.D. Mo. May 18, 2023); Abbott v. Golden Grain Co., No. 4:22-cv-1240-SRC, 677 F.Supp.3d 940, 947-52 (E.D. Mo. June 13, 2023). The Court held in Bell that the 2020 MMPA amendments add elements that a plaintiff must plead and prove. 673 F.Supp.3d at 997-98. The Court in Abbott, considering a motion to dismiss on nearly identical MMPA allegations...