Klausner v. Annie's, Inc.

581 F.Supp.3d 538

Jessica KLAUSNER, individually and on behalf of all others similarly situated, Plaintiff,

v.ANNIE'S, INC., Defendant.

20-CV-08467 (PMH)

United States District Court, S.D. New York.

Signed January 24, 2022

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

Adam Ross Mandelsberg, Perkins Coie LLP, New York, NY, Carrie Akinaka, Perkins Coie LLP, Los, CA, Regina LaMonica, Perkins Coie LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, United States District Judge:

Jessica Klausner ("Plaintiff") brings this putative class action against Annie's, Inc. ("Defendant") for: (1) violations of §§ 349 and 350 of the New York General Business Law ("NYGBL"); (2) negligent misrepresentation; (3) breaches of express warranty, the implied warranty of merchantability, and the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. ; (4) fraud; and (5) unjust enrichment. Plaintiff alleges that Defendant's boxes of Bunny Fruit Snacks – Tropical Treat (the "Fruit Snacks")¹ contain "non-functional slack-fill" (i.e., unnecessary empty space),² and therefore mislead consumers as to the amount of Fruit Snacks contained therein. Plaintiff seeks monetary and statutory damages, injunctive relief, costs and expenses (including attorney's fees), and certification of a putative New York class.

BACKGROUND

I. Factual Background

Defendant "manufactures, packages, distributes, markets, labels and sells" the Fruit Snacks. (Doc. 14, "AC" ¶ 1). The Fruit Snacks are sold in "opaque cardboard" boxes that allegedly prevent consumers from confirming by sight or sound the number of Fruit Snacks contained therein. (Id. ¶ 12). Each box of Fruit Snacks measures four-and-a-half inches wide, one-and-a-half inches deep, and seven inches tall. (Id. ¶ 13). Each box's front label discloses that it contains five pouches of Fruit Snacks, with each individual pouch containing 0.8 ounces (twenty-three grams) of Fruit Snacks, for a total net weight of four ounces (115 grams) of Fruit Snacks per box. (Id. ¶¶ 15, 19). Plaintiff provided pictures of the front label of the box, which are reproduced below:

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(Id. ¶¶ 13, 15).

Plaintiff purchased the Fruit Snacks "multiple times a year for the past three years" from several stores, including a ShopRite located in Monroe, New York. (Id. ¶ 69). Plaintiff alleges that the Fruit Snacks are sold at a "premium price" of "no less than $4.89" per thirty-two ounces. (Id. ¶ 57).

Plaintiff calculates that over sixty percent of each box of Fruit Snacks is comprised of empty space or "slack-fill," which serves no functional purpose. (Id. ¶¶ 11, 19, 38, 48). Despite information on the front label, Plaintiff insists that the amount of slack-fill in each box of Fruit Snacks renders the packaging misleading, because the size of each box makes it appear to consumers that they are buying more Fruit Snacks than they really are. (Id. ¶¶ 4, 50-51, 53, 55). Plaintiff alleges that had she "known the truth" about the amount of Fruit Snacks contained in each box, she "would not have bought the [Fruit Snacks] or would have paid less for them." (Id. ¶ 56).

II. Procedural Background

Plaintiff filed her initial Complaint on October 11, 2020 (Doc. 1), and her Amended Complaint on March 11, 2021 (AC). Defendant filed a pre-motion letter regarding its anticipated motion to dismiss on April 1, 2021 (Doc. 15), Plaintiff filed her letter in opposition on April 8, 2021 (Doc. 16), and the Court held a pre-motion conference on March 19, 2021 (see Mar. 19, 2021 Min. Entry). The motion papers were filed on June 22, 2021. (Doc. 21; Doc. 22, "Def. Br."; Doc. 24, "Pl. Opp."; Doc. 25, "Def. Reply").³ On November 18, 2021, the Court granted Defendant's request for oral argument on its motion to dismiss, and scheduled oral argument for February 28, 2022 at 3:00 p.m. (Doc. 27).

For the reasons set forth below, the Court GRANTS Defendant's motion to dismiss Plaintiff's Amended Complaint. In light of this decision, the oral argument scheduled for February 28, 2022 is canceled.

STANDARD OF REVIEW

"Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of an action ‘when the district court lacks the statutory or constitutional power to adjudicate it.’ " Schwartz v. Hitrons Sols., Inc. , 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ). "The party invoking the Court's jurisdiction bears the burden of establishing jurisdiction exists." Hettler v. Entergy Enters., Inc. , 15 F. Supp. 3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides , 558 F.3d 137, 143 (2d Cir. 2009) ). When deciding a motion to dismiss under Rule 12(b)(1) at the pleadings stage, "the Court ‘must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor.’ " Id. (quoting Conyers , 558 F.3d at 143 ); see also Doe v. Trump Corp. , 385 F. Supp. 3d 265, 274 (S.D.N.Y. 2019).

When "the defendant moves for dismissal under Rule 12(b)(1) ... as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." Saint-Amour v. Richmond Org., Inc. , 388 F. Supp. 3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. New York City Dep't of Hous., Pres. & Dev. , No. 09-CV-06547, 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012) ).

A Rule 12(b)(6) motion, however, enables a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, 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) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). The factual allegations pled "must be enough to raise a right to relief above the speculative level ...." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

"When there are well-ple[d] factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. Thus, the Court must "take all well-ple[d] factual allegations as true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[ ]." Leeds v. Meltz , 85 F.3d 51, 53 (2d Cir. 1996). The presumption of truth, however, " ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ " Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (alteration in original)). Therefore, a plaintiff must provide "more than labels and conclusions" to show entitlement to relief. Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

ANALYSIS

The Court does not write on a blank slate when it comes to so-called "slack-fill" cases. Over the past few years, several other courts in this District have dismissed nearly identical claims in cases where plaintiffs have alleged that non-functional slack-fill rendered a product's packaging misleading to consumers. See, e.g. , Green v. SweetWorks Confections, LLC , No. 18-CV-00902, 2019 WL 3958442 (S.D.N.Y. Aug. 21, 2019) (Sixlets candy); Miao Xin Hu v. Iovate Health Scis. U.S.A. Inc. , No. 17-CV-09427, 2018 WL 4954105 (S.D.N.Y. Oct. 12, 2018) (protein powder); Daniel v. Tootsie Roll Indus., LLC , No. 17-CV-07541, 2018 WL 3650015 (S.D.N.Y. Aug. 1, 2018) (Junior Mints candy); Alce v. Wise Foods, Inc. , No. 17-CV-02402, 2018 WL 1737750 (S.D.N.Y. Mar. 27, 2018) (potato chips); Wurtzburger v. Kentucky Fried Chicken , No. 16-CV-08186, 2017 WL 6416296 (S.D.N.Y. Dec. 13, 2017) (fried chicken); Stewart v. Riviana Foods Inc. , No. 16-CV-06157, 2017 WL 4045952 (S.D.N.Y. Sept. 11, 2017) (pasta); Bautista v. CytoSport, Inc. , 223 F. Supp. 3d 182 (S.D.N.Y. 2016) (protein powder); Izquierdo v. Mondelez Int'l, Inc. , No. 16-CV-04697, 2016 WL 6459832 (S.D.N.Y. Oct. 26, 2016) (Sour Patch Watermelon candy). The Court finds those cases instructive here.

I. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)

As a threshold matter, Plaintiff seeks to enjoin Defendant from engaging in ongoing illegal practices. (AC at 16 ¶¶ 2-3). Defendant, to the contrary, argues that Plaintiff lacks Article III standing to seek such injunctive relief because Plaintiff has failed to plausibly allege a threat of future injury. (Def. Br. at 20-22). The Court agrees with Defendant.

First, Plaintiff alleges that she purchased the Fruit Snacks "multiple times a year for the past three years." (AC ¶ 69). Given her purchasing history, Plaintiff must be aware by now of the amount of slack-fill contained in a box of Fruit Snacks. Thus, "[h]aving learned that" a box of Fruit Snacks "contain[s] slack-fill, there is no likelihood that [Plaintiff] will subject [herself] to future injury by repurchasing" another box in the future. Daniel , 2018 WL 3650015, at *6 ; see also Davis v. Hain Celestial Grp., Inc. , 297 F. Supp. 3d 327, 339 (E.D.N.Y. 2018) ("To the extent that plaintiff was deceived by defendants' products, he is now aware of the truth and will not be harmed again in the same way. He therefore lacks standing to seek an injunction."); Alce ...