Huston v. Conagra Brands, Inc.

1

APRIL HUSTON, Plaintiff, v. CONAGRA BRANDS, INC., Defendant.

No. 4:21-cv-04147-SLD-JEH

United States District Court, C.D. Illinois, Rock Island Division

September 30, 2022

ORDER

SARA DARROW CHIEF UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Conagra Brands, Inc.'s motion to dismiss, ECF No. 7; Defendant's motion for leave to file a reply brief, ECF No. 12; Defendant's first motion for leave to file a notice of supplemental authority, ECF No. 13; and Defendant's second motion for leave to file a notice of supplemental authority, ECF No. 14. For the following reasons, the motion to dismiss is GRANTED, the motion for leave to file a reply brief is GRANTED, and the motions for leave to file notices of supplemental authority are GRANTED.

BACKGROUND^[1]

Defendant manufactures, labels, markets, and sells a “Chewy Fudge Brownie Mix” (“Brownie Mix” or “Mix”) under the Duncan Hines brand. Compl. 1 ECF No. 1 (quotation marks omitted). The front of the box depicts several baked brownies and describes the product as “thick and fudgy.” Id. (capitalization altered) (quotation marks omitted). Plaintiff April Huston purchased the Brownie Mix on one or more occasions believing, based on the representations on the box, that “it would contain fudge and/or ingredients essential to fudge.” Id. at 11. However, “due to the relatively greater amount of vegetable oil” compared to dairy fat ingredients, she did not have the experience she desired of eating fudge. Id.

This is because, Plaintiff alleges, “milkfat is the central component” of fudge. Id. at 2. Fat is a necessary ingredient for fudge because it affects its flavor and texture, and while “fat ingredients are typically from dairy or vegetable oils,” dairy ingredients are preferred because they “impart a creamy, rich taste to fudge.” Id. at 5. On the other hand alternatives to milk fat, such as vegetable oils, are less desirable because they “do not melt at mouth temperature and leave a waxy mouthfeel.” Id. Plaintiff points to a variety of fudge recipes and dictionary definitions of fudge that include dairy, generally butter, milk, or cream. Id. at 2-4.

Plaintiff initiated this class action suit on September 4, 2021,^[2] bringing claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1-12, id. at 13; violations of Iowa and Arkansas consumer fraud acts, id. at 12 n.18, 14; breach of express warranty, breach of the implied warranty of merchantability, and violation of the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2301-12, id. at 14-15; negligent misrepresentation, id. at 15; common law fraud, id. at 15-16; and unjust enrichment, id. at 16.^[3] Plaintiff seeks to represent two classes: a class consisting of all persons in the state of Illinois who purchased the Brownie Mix during the relevant statute of limitations period, and a class consisting of all persons in the states of Iowa and Arkansas who purchased the Mix during the relevant statute of limitations period. Id. at 12. She asks for monetary damages, statutory and/or punitive damages, and interest; preliminary and permanent injunctive relief directing Defendant to correct the labeling on the Brownie Mix and to refrain from similar practices in the future; and costs and expenses. Id. at 16.

The instant motions followed.

DISCUSSION

I. Motion for Leave to File a Reply

Defendant moves for leave to file a reply brief in support of its motion to dismiss, arguing that a reply is needed so that Defendant can respond to Plaintiff's citations to inapposite case law and mischaracterizations of Defendant's arguments. Mot. Leave File Reply 1-3. Plaintiff has filed no response to the motion. See Civil L.R. 7.1(B)(2) (“If no response is timely filed, the [court] will presume there is no opposition to the motion . . . .”). For all motions not for summary judgment, “[n]o reply to the response is permitted without leave of Court.” Id. 7.1(B)(3). “Typically, reply briefs are permitted if the party opposing a motion has introduced new and unexpected issues in his response to the motion, and the Court finds that a reply from the moving party would be helpful to its disposition of the motion.” Shefts v. Petrakis, No. 10-cv-1104, 2011 WL 5930469, at *8 (C.D. Ill. Nov. 29, 2011). A court may also permit a reply “in the interest of completeness.” Zhan v. Hogan, Case No. 4:18-cv-04126-SLD-JEH, 2018 WL 9877970, at *2 (C.D. Ill.Dec. 18, 2018) (quotation marks omitted). Because the proposed reply would be helpful to the Court and in the interest of completeness, Defendant's motion for leave to file a reply is granted. The Clerk is directed to file the proposed reply, ECF No. 12-1, on the docket.

II. Motions for Leave to File Notice of Supplemental Authority

Defendant has also filed a motion for leave to file a notice advising the Court of a recent Central District of Illinois opinion, Reinitz v. Kellogg Sales Co., Case No. 21-cv-1239-JES-JEH, 2022 WL 1813891 (C.D. Ill. June 2, 2022), First Mot. Leave File Not. Suppl. Auth. 1, and a motion for leave to file a notice advising the Court of four recent decisions from other districts, namely, Burns v. Gen. Mills Sales, Inc., Case No. 3:21-cv-1099-DWD, 2022 WL 3908783 (S.D. Ill. Aug. 30, 2022); Rice v. Dreyer's Grand Ice Cream, Inc., 21 C 3814, 2022 WL 3908665 (N.D. Ill. Aug. 30, 2022); Lederman v. Hershey Co., Case No. 21-cv-4528, 2022 WL 3573034 (N.D. Ill. Aug. 19, 2022); and Spurck v. Demet's Candy Co., 21 CV 05506 (NSR), 2022 WL 2971957 (S.D.N.Y. July 27, 2022), Second Mot. Leave File Not. Suppl. Auth. 1. Plaintiff has filed nothing to suggest it opposes either motion. This Court routinely grants motions for leave to provide supplemental authority when considering motions to dismiss, even where the party has already filed a motion or response. See, e.g., Heidelberg v. Manias, 503 F.Supp.3d 758, 773 (C.D. Ill. 2020) (granting motions to file supplemental authority filed after briefing for motion to dismiss was complete); Simmons v. Parkinson, Case No. 1:19-cv-01231-SLD-JEH, 2021 WL 4494605, at *2 (C.D. Ill. Sept. 30, 2021) (same). Defendant's motions to file notices of supplementary authority are granted. The Clerk is directed to file the first notice of supplementary authority, ECF No. 13-1, along with its exhibit, ECF No. 13-2, and the second notice of supplementary authority, ECF No. 14-1, along with its exhibits, ECF Nos. 14-2, 14-3, 14-4, 14-5, on the docket.

III. Motion to Dismiss

Defendant moves to dismiss the complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). Def.'s Mot. Dismiss 1. First, Defendant asserts that Plaintiff has failed to allege a deceptive act on Defendant's part because no reasonable consumer would be misled by the “Chewy Fudge Brownie Mix” and “Thick and Fudgy” statements on the box containing the mix, defeating Plaintiff's Illinois, Iowa, and Arkansas consumer protection claims. Def.'s Mem. Supp. Mot. Dismiss 4-13, ECF No. 7-1 (quotation marks omitted). It also maintains that the lack of any actionable misrepresentation precludes her common law claims. Id. at 13-14. Defendant further contends that because Plaintiff has not alleged fraud on the part of Defendant with the particularity required by Rule 9(b), the Court must dismiss all claims sounding in fraud. Id. at 14-15. It additionally argues that the fraud and ICFA claims must be dismissed because Plaintiff has failed to allege scienter, id. at 15-16; the negligent misrepresentation claim fails because Plaintiff does not claim she suffered physical injury or harm to property, nor is Defendant in the business of supplying information, as would be required under Illinois law, id. at 16-17; her breach of warranty claims (and therefore her MMWA claim) fail because of a lack of privity, there is no actionable statement that could sustain such claims, and she did not provide the requisite pre-suit notice, id. at 17-18; her unjust enrichment claim must be dismissed because it does not constitute an independent cause of action under Illinois law, id. at 18; and her Iowa and Arkansas consumer protection claims fail because she did not abide by those states' particular requirements for class action lawsuits, id. at 18-19.^[4] Moreover, Defendant believes that Plaintiff lacks standing to pursue injunctive relief and to pursue claims on behalf of Iowa and Arkansas putative class members. Id. at 19-20. It requests that the Court dismiss Plaintiff's complaint with prejudice. Id. at 20-21.

The Court turns first to Defendant's arguments as to whether Plaintiff has stated claims under the various causes of action.^[5]

a. Failure to State a Claim

i. Legal Standard

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). At the motion to dismiss stage, the key inquiry is whether the complaint is “sufficient to provide the defendant with ‘fair notice' of the plaintiff's claim and its basis.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). While “detailed factual allegations are unnecessary, the complaint must have ‘enough facts to state a claim to relief that is plausible on its face.'” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016) (quoting 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 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

When deciding on a motion to dismiss, the court must take “[t]he complaint's well-pleaded factual...