Devey v. Big Lots, Inc.

635 F.Supp.3d 205

Amy DEVEY, individually and on behalf of all others similarly situated, Plaintiff, v. BIG LOTS, INC., Defendant.

21-CV-6688L

United States District Court, W.D. New York

Signed October 12, 2022

Spencer I. Sheehan, Sheehan & Associates, P.C., Great Neck, NY, for Plaintiff.

Rodrigo Andres Tranamil, Davis Wright Tremaine LLP, New York, NY, Bradley J. Levien, Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Hicksville, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Plaintiff, on behalf of herself and a putative class of individuals who purchased the subject product in the state of New York, brings this action against Big Lots, Inc. ("defendant"). Plaintiff alleges that defendant manufactured, marketed and sold 24.2 oz. canisters of Fresh Finds-brand Columbian coffee (the "Product") which were incapable of producing the "up to 210 suggested strength 6 fl. oz. servings" advertised on the label, when prepared according to the label's instructions.

Plaintiff asserts causes of action for deceptive marketing under N.Y. General Business Law ("GBL") §§ 349 and 350, breach of express warranty, breach of the implied warranty of merchantability, violation of the Magnuson Moss Warranty Act, 15 U.S.C. § 2301 et seq., negligent misrepresentation, fraud, and unjust enrichment, and seeks compensatory, statutory, and punitive damages. (Dkt. #1).¹

Defendant now moves to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(1) and 12(b)(6), and failure to plead fraud with particularity. (Dkt. #17). For the reasons that follow, that motion is granted.

FACTUAL BACKGROUND

Plaintiff alleges that she purchased the Product multiple times between 2019 and 2021, "among other times," at defendant's stores. She also alleges that she read and relied upon the label's representation that the Product contained a sufficient amount of ground coffee to produce approximately "up to 210" 6-oz. servings of coffee when the label's instructions were followed, but that when she followed the instructions for single servings, she was unable to "brew anywhere close" to 210. (Dkt. #1 at ¶¶4, 7, 8, 10, 11, 57, 58). Plaintiff claims that "[i]ndependent laboratory analysis" determined that following the same instructions yielded only 152 "cups" of coffee. She contends that, had she known that she could only make 152 servings of coffee when following the package directions for single servings, she would not have purchased the Product. Moreover, plaintiff alleges that her discovery of the alleged discrepancy on the Product label has made her a fearful and embittered shopper, who "wants to purchase ground coffee," but finds herself "unable to rely on the labeling of not only this Product, but other brands and varieties of ground coffee, because she is unsure of whether their representations are truthful about how much coffee they actually contain." (Dkt. #1 at ¶¶65, 66).

DISCUSSION

I. Relevant Standards

In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the United States Supreme Court described the standard to be applied to a 12(b)(6) motion:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. 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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 555, 127 S.Ct. 1955 (citations and internal quotations omitted).

When applying this standard, the Court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the plaintiff, as the nonmoving party. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999), cert. den., 531 U.S. 1052, 121 S.Ct. 657, 148 L.Ed.2d 560 (2000).

II. Whether Plaintiff Has Plausibly Alleged A Material Misrepresentation

It is well settled that a court may determine, as a matter of law, that an allegedly deceptive label would not have misled a reasonable consumer. Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). Initially, defendant argues that all of plaintiff's claims must be dismissed, because plaintiff has failed to plausibly allege that a reasonable consumer would have been misled by the Product label. Defendant points out - correctly - that plaintiff's complaint repeatedly employs the phrase "cups of coffee" in describing the Product's yield, and even falsely ascribes a promise of "Up To 210 CUPS" to the Product, when neither the word "cup," nor the quoted phrase, appears anywhere on the Product label. (Dkt. #1 at ¶¶7, 9).²

Because a "cup," in American culinary parlance, consists of 8 fl. oz., defendant suggests that plaintiff's averment that the Product could only produce "152 cups of coffee" is actually a self-defeating admission that the Product made 1,216 oz. of coffee (152 cups, multiplied by 8 oz.) - representing over 202 6-oz. servings, a number which approximates the advertised "up to 210."

The Court declines to adopt defendant's interpretation of the plaintiff's terminology. While plaintiff's diction is woefully imprecise, she twice describes preparation of the Product as involving the use of "one tablespoon [of ground coffee] for each cup of six ounces of water," suggesting that in using the term "cup," she meant a "cup of six ounces," consistent with the Product label's definition of a single serving as 6 fl. oz. (Dkt. #1 at ¶¶6, 8)(emphasis added). As such, the complaint can be read to plausibly allege that the Product, when brewed in a manner consistent with the single-serving directions on the label, was not capable of producing approximately "210 suggested strength 6 fl. oz. servings of coffee." (Dkt. #1 at ¶2).

Nonetheless, given that plaintiff's computations of the extent of the shortfall appear to have been based on a selective reading of the brewing instructions, a brief departure to filter through the particulars of that calculus is warranted.

According to the complaint, the Product's label specified that the "best brewing" ratio for a single 6-oz. serving was 1 Tablespoon of ground coffee to 6 oz. of water, and that using that ratio, a laboratory found that the Product could prepare only 152 servings - 28% less than the maximum yield of 210 servings indicated on the label. (Dkt. #1 at ¶¶11, 12, 14).

However, by focusing solely on the instructions for brewing a single serving, plaintiff's calculation completely overlooks the brewing instructions on the label for larger batches, which offer a significantly higher potential yield. While 1 Tblsp. of ground coffee is recommended for a single serving, larger batches require 20% less ground coffee: ¼ cup (4 Tblsp.) for 5 servings, and ½ cup (8 Tblsp.) for 10. (Dkt. #1 at ¶2). See generally Fink, 714 F.3d 739 at 742 ("in determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial"); Gordon v. Target Corp., 2022 WL 836773 at *11, 2022 U.S. Dist. LEXIS 48769 at *32-*33 (S.D.N.Y. 2022)(courts view "each allegedly misleading statement in light of its context on the product label . . . as a whole")(citation omitted).

Preparing coffee in batches of 5 or 10 per the label instructions, the 152 Tblsp. of ground coffee that plaintiff alleges the Product contained would yield at least 190 6-oz. servings, a 9.5% shortfall from the maximum of "up to 210 suggested strength" servings indicated on the label - and roughly one third the size of the discrepancy calculated and alleged by plaintiff. (Dkt. #1 at ¶14).

While there is no fixed "bright line" as to the precise point where a yield representation for a product intended to be prepared in varying strengths becomes a misrepresentation so material as to mislead a reasonable consumer, I am not convinced that plaintiff's allegations are sufficient to nudge her claim over that theoretical boundary. Indeed, "up to" statements are generally not construed as concrete promises about a product's maximum yield, particularly in relation to products such as ground coffee, for which it is well-known (and as the Product label reflects) that the greater the batch being prepared, the smaller the proportion of product that is necessary to produce a given strength. See generally Brodsky v. Aldi, Inc., 2021 WL 4439304, 2021 U.S. Dist. LEXIS 185436 (N.D. Ill. 2021)(granting defendants' motions to dismiss putative consumer protection class action based on "makes up to 210 six-ounce cups" coffee labeling).

Again, the concrete numbers alleged in the complaint indicate that the Product yield discrepancy is significantly less than what plaintiff claims: presuming the truth of plaintiff's allegations, a consumer following a brewing method listed on the Product's label could brew more than 90% of the maximum "up to 120 suggested strength 6 fl. oz. servings" described on the Product. Moreover, plaintiff makes no allegation that the Product's representations as to the amount of coffee in each container (by weight) were inaccurate or misleading. As such, the Court finds, as a matter of law, that viewed as a whole, the Product's label would not have misled a reasonable consumer, who followed the instructions on the label, in a manner that the consumer would find to be material. See generally Alce v. Wise Foods, Inc., 2018 WL 1737750 at *9-*10, 2018 U.S. Dist. LEXIS 54009 at *25 (S.D.N.Y. 2018) (a reasonable consumer would not be misled by slack fill in product bag, where the label correctly represented the full weight...