Simeone v. T. Marzetti Co.

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CYNTHIA SIMEONE, TAKISHA JONES, and PHYLLIS CHARNEY, individually and on behalf of all others similarly situated, Plaintiffs, v. T. MARZETTI COMPANY, Defendant.

No. 21-CV-9111 (KMK)

United States District Court, S.D. New York

March 28, 2023

Appearances:

Bahar Sodaify, Esq.

Christina Mirzaie, Esq.

Ryan Clarkson, Esq.

Alan Gudino, Esq.

Clarkson Law Firm, P.C.

Los Angeles, CA

Counsel for Plaintiffs

Ronald Y. Rothstein, Esq.

Sean H. Suber, Esq.

Winston & Strawn LLP

Chicago, IL

Counsel for Defendant

OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

Plaintiffs Cynthia Simeone (“Simeone”), Takisha Jones (“Jones”), and Phyllis Charney (“Charney,” and collectively “Plaintiffs”) bring this putative class action against T. Marzetti Company (“Defendant”), alleging that the labeling on Defendant's Ultimate Garlic, Real Garlic, Five Cheese, and Real Parmesan Texas Toast products (the “Products”) is deceptive and misleading. (See generally First Am. Compl. (“FAC”) (Dkt. No. 18).) Plaintiffs bring claims for damages against Defendant for violation of §§ 349 and 350 of the New York General Business Law (“GBL”), N.Y. Gen. Bus. L. §§ 349, 350. (See id. ¶¶ 75-102.) Before the Court is Defendant's Motion To Dismiss the FAC (the “Motion”). (See Not. of Mot. (Dkt. No. 25).) For the following reasons, the Motion is denied.

I. Background

A. Materials Considered

As a threshold matter, the Court must determine the proper treatment of documents that both parties have requested the Court consider in deciding this Motion, either on the grounds that the documents are integral to the FAC or that the documents are public records which are proper subjects of judicial notice. (See Def's Request for Judicial Notice (“Def's RJN”) (Dkt. No. 27); Pl's Request for Judicial Notice (“Pl's RJN”) (Dkt. No. 34).)

Generally, “[w]hen considering a motion to dismiss, the Court's review is confined to the pleadings themselves,” because “[t]o go beyond the allegations in the Complaint would convert the Rule 12(b)(6) motion into one for summary judgment pursuant to [Rule] 56.” Thomas v. Westchester Cnty. Health Care Corp., 232 F.Supp.2d 273, 275 (S.D.N.Y. 2002). “Nevertheless, the Court's consideration of documents attached to, or incorporated by reference in the Complaint, and matters of which judicial notice may be taken, would not convert the motion to dismiss into one for summary judgment.” Id.; see also Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (explaining that “when ruling on Rule 12(b)(6) motions to dismiss,” courts may “consider the complaint in its entirety . . ., documents incorporated into the complaint by reference, and matters of which a court may take judicial notice” (quotation marks omitted)); Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019) (“In deciding a Rule 12(b)(6) motion, the court may consider ‘only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matters of which judicial notice may be taken.'” (alteration omitted) (quoting Samuels v. Air Transp. Loc. 504, 992 F.2d 12, 15 (2d Cir. 1993))).

A court may consider a document incorporated by reference “where (1) [the] plaintiff relies on the materials in framing the complaint, (2) the complaint clearly and substantially references the documents, and (3) the document's authenticity or accuracy is undisputed.” Stewart v. Riviana Foods Inc., No. 16-CV-6157, 2017 WL 4045952, at *6 (S.D.N.Y. Sept. 11, 2017) (emphasis omitted) (collecting cases).

“Courts may take judicial notice of public documents or documents of public record” in addition to “records of administrative bodies,” such as government agencies like the FDA. Casey v. Odwalla, Inc., 338 F.Supp.3d 284, 294 (S.D.N.Y. 2018) (collecting cases). As such, courts routinely take judicial notice of FDA guidance documents and documents which are publicly available on the FDA's website. See, e.g., Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 59-60 (2d Cir. 2016) (taking judicial notice of FDA guidance document); Simon v. Smith & Nephew, Inc., 990 F.Supp.2d 395, 401 n.2 (S.D.N.Y. 2013) (taking judicial notice of “public records contained on the FDA website”).

Plaintiffs request that the Court take judicial notice of several rulings and orders from Daniel Prescod v. Celsius Holdings, Inc., No. 19-STCV-9231 (Los Angeles Sup. Ct.). (See Pl's RJN at 2-3.) The Court will take judicial notice of these documents as courts in the Second Circuit regularly take judicial notice of decisions and orders issued by other courts. See, e.g., Dixon v. von Blanckensee, 994 F.3d 95, 103 n.6 (2d Cir. 2021) (taking judicial notice of a state court order); Coggins v. County of Nassau, No. 07-CV-3624, 2008 WL 2522501, at *6-7 (E.D.N.Y. June 20, 2008) (taking judicial notice of state court grand jury transcripts).

Defendant requests that the Court take judicial notice of two documents posted on the FDA's public website-(1) an FDA food additive status list and (2) an FDA warning letter-as public records. (See Def's RJN Exs. A and B (Dkt. Nos. 28-1, 28-2).) The Court will take judicial notice of these documents, as courts in the Second Circuit routinely take judicial notice of FDA documents posted on public websites. See, e.g., Apotex, 823 F.3d at 59-60 (taking judicial notice of FDA guidance document); Gordon v. Target Corp., No. 20-CV-9589, 2022 WL 836773, at *2 (S.D.N.Y. Mar. 18, 2022) (“[C]ourts routinely take judicial notice of FDA guidance documents and documents which are publicly available on the FDA's website.”); Simon, 990 F.Supp.2d at 401 n.2 (taking judicial notice of “public records contained on the FDA website”).^[1]

Defendant also requests that the Court take notice of fourteen other exhibits, (see Def's RJN Exs. C-P (Dkt. Nos. 28-3-28-16)), that are integral to the FAC because Plaintiffs cite directly to them and either quote from or rely upon their terms and conclusions in framing their allegations, (Def's RJN at 2-3). The Court agrees, as it is evident that Plaintiffs have directly relied on these documents to frame their allegations as to the functions of citric acid and as to consumer sentiment about preservatives in food. See, e.g., MacNaughten v. Young Living Essential Oils, LC, 575 F.Supp.3d 315, 324-25 (N.D.N.Y. 2021) (deeming three scientific studies integral where plaintiff had referenced the studies in allegations in the amended complaint).

B. Factual Background

The following facts are drawn from the FAC and are assumed true for the purposes of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).

Defendant is a corporation headquartered in Westerville, OH. (See FAC ¶ 16.) Among other foods, Defendant sells the Products, which are a brand of frozen “bread slices . . . [covered] with flavored spread.” (See id. ¶ 51.) The Products are all packaged in rectangular cardboard boxes that are “labeled and advertised as containing ‘No Preservatives.'” (Id. at ¶¶ 52-53.) All of the Products include citric acid in the flavored spread covering the bread. (Id. ¶¶ 2, 23, 54.) Citric acid is included in the ingredients list displayed on the packaging of the Products. (Id. at Figures 1-5.) Plaintiffs allege that FDA regulations classify citric acid as a preservative, (id. ¶¶ 21-23), and that the FDA has stated in a published warning letter that where citric acid functions as a preservative it should be labelled as such, (id. ¶ 24). Plaintiffs also allege that citric acid may serve as a preservative in frozen foods like the Products, relying on the fact that some competitors to the Products that also include citric acid as an ingredient do not have a “No Preservatives” label. (Id. ¶¶ 61-62.) Plaintiffs allege that citric acid is a preservative in the Products because it serves to “stabilize the active ingredients.” (Id. ¶ 25.)^[2]

Plaintiffs allege that the “No Preservatives” label used on the Products is deceptive because

Defendant knows that consumers are willing to pay more for foods that are labeled as containing “No Preservatives” because they perceive it to be a healthier alternative to similar products without the “No Preservatives” label and advertises the Products with the intention that consumers rely on the representation [in making their purchases] . . .

(Id. ¶ 9.) Simeone alleges that she purchased the Five Cheese Texas Toast and Ultimate Garlic Texas Toast at a Stop & Shop location in Hyde Park, New York in November 2020 and “relied upon the claims made on the front label of the Product, including the ‘No Preservatives' claim” in making her purchase. (Id. ¶ 11.) Simeone additionally alleges that “[i]f [she] had known that the Products contained preservatives, then [she] would not have purchased the Products or would have paid significantly less for [them].” (Id.) Jones purchased “Texas Toast with Real Garlic at a Target store in Yonkers, New York in August 2021” (id. ¶ 12), and Charney purchased “Parmesan Texas Toast, Texas Toast with Real Garlic, and [] Ultimate Garlic Texas Toast at a Gristedes store, an Ideal Market store, and/or a Key Food store in New York, New York before and during 2019-2020,” (id. ¶ 13). Like Simeone, both Jones and Charney allege that they relied on the “No Preservatives” label in making their purchases and would not have purchased the Products in question or would have paid less if they had been aware at the time of purchase that the Products contained preservatives. (Id. ¶¶ 12, 13.)

C. Procedural History

Plaintiffs filed their Complaint on November 3, 2021. (See Compl. (Dkt. No. 1).) On January 10, 2022, Defendant filed a letter-motion requesting to file a motion...