Warren v. Coca-Cola Co.

670 F.Supp.3d 72

Kari WARREN, individually and on behalf of all others similarly situated, Plaintiff, v. The COCA-COLA COMPANY, Defendant.

No. 22-CV-6907 (CS)

United States District Court, S.D. New York

Signed April 21, 2023

Spencer Sheehan, Sheehan & Associates, P.C., Great Neck, New York, James Chung, Law Office of James Chung, Bayside, New York, Counsel for Plaintiff.

Steven A. Zalesin, Jane Metcalf, Michael Sochynsky, Patterson Belknap Webb & Tyler LLP, New York, New York, Counsel for Defendant.

OPINION & ORDER

Seibel, United States District Judge

Before the Court is Defendant's motion for judgment on the pleadings. (ECF No. 15.) For the following reasons, Defendant's motion is GRANTED.

I. BACKGROUND

A. Facts

For purposes of this motion, the Court accepts as true the facts, but not the conclusions, alleged by Plaintiff in her Complaint. (See ECF No. 1 ("Compl.").)

The Coca Cola Company ("Defendant" or "Coca-Cola") manufactures, distributes, markets, labels and sells "Margarita Hard Seltzer" under its Topo Chico brand (the "Product"). (Id. ¶ 1.) Plaintiff purchased the Product at various locations, including a ShopRite supermarket in Pearl River, New York, between May and June 2022. (Id. ¶ 56.) The Product is sold in 12-packs, which retail for $17.99, or approximately $1.50 per 12-ounce can. (Id. ¶ 36.) At the top of the Product's front label, there is a photograph of the four types of Margarita Hard Seltzer contained in the 12-pack: "Strawberry Hibiscus," "Signature Margarita," "Tropical Pineapple," and "Prickly Pear." (Id. ¶¶ 1, 3.) Beneath that photograph, the front label contains the brand name "Topo Chico," the word "Margarita," and the phrase "Hard Seltzer." (Id. ¶ 2.) These words appear on a yellow background containing faint images of agave plants. (Id.) The label further indicates that the Product is 4.5% alcohol by volume. (Id.) A picture of the front label included in Plaintiff's Complaint is reproduced below.

Image materials not available for display.

(Id. ¶ 1.)

Relying on the Product's front label, as well as the Merriam-Webster Dictionary, Wikipedia, and International Bartenders Association definitions of "Margarita," (id. ¶¶ 6-9), Plaintiff alleges that "[c]onsumers expect to receive a cocktail containing tequila when they order a margarita as this ingredient defines what a margarita is," (id. ¶ 5), and therefore "[c]onsumers will expect the Product to contain tequila," (id. ¶ 9). Plaintiff also contends that term "Hard Seltzer" on the Product's front label reinforces the expectation that the Product will contain tequila, (id. ¶ 10), as "the term 'hard' in the context of alcohol refers to distilled spirits, i.e., 'hard liquor' " like tequila, (id. ¶ 11; see id. ¶ 17 ("[C]onsumers understand 'hard' in the context of alcoholic beverages to refer to distilled spirits.")). Because the Product contains no tequila - or distilled spirits of any kind - and is instead made using fermented sugar alcohol, Plaintiff contends that the Product's front label deceived her and other consumers into believing that the Product contained tequila. (Id. ¶¶ 9, 19, 30.)

Plaintiff also maintains that the Product's front label is misleading because the Product does not contain sparkling mineral water sourced in Monterrey, Mexico, which Plaintiff claims "is an essential part of Topo Chico beverages." (Id. ¶ 31.) Put another way, because Plaintiff associates the Topo Chico brand with sparkling mineral water from that location, (id. ¶¶ 50-52), she was deceived into expecting the Product to contain that mineral water, (id. ¶ 57). Plaintiff claims that had she known that the Product contained neither tequila nor sparkling mineral water sourced in Mexico, she would not have purchased it, (see id. ¶¶ 30-31, 35), and that it was worth less than what she paid, (id. ¶ 33).

B. Procedural History

Plaintiff filed her Complaint on August 14, 2022, asserting claims for: (1) violations of Sections 349 and 350 of the New York General Business Law ("GBL"); (2) violations of "State Consumer Fraud Acts;" (3) breaches of express warranty and the implied warranty of merchantability and violation of the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. §§ 2301, et seq.; (4) common law fraud; and (5) unjust enrichment. (Compl. ¶¶ 70-101.) Plaintiff also wishes to represent a class of all persons residing in New York who purchased the Product during the relevant time period, as well as a separate multi-state class of similar purchasers from Montana, New Mexico, Idaho, South Carolina, Utah, Mississippi, and Alaska, (id. ¶¶ 63-69), and seeks both monetary damages and costs and expenses, including attorney's fees, (id. at 13-14).

Defendant timely answered on August 26, 2022. (See ECF No. 6.) That same day, the Court granted Defendant's request for a pre-motion conference concerning a proposed motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (See ECF No. 10.)¹ At the conference on September 20, 2022, the Court offered Plaintiff the opportunity to amend her Complaint, but her counsel declined, and acknowledged his understanding that the Court was unlikely to allow amendment later. (See Minute Entry dated Sept. 20, 2022.) The instant motion followed. (See ECF No. 15.)

II. LEGAL STANDARD

"The standard of review on a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is the same standard of review applied to a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)." Cruz v. AAA Carting & Rubbish Removal, Inc., 116 F. Supp. 3d 232, 241 (S.D.N.Y. 2015).²

"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 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." Id. "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." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937.

In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'shown' - 'that the pleader is entitled to relief.' " Id. (quoting Fed. R. Civ. P. 8(a)(2)).

"On a 12(c) motion, the court considers the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011). "A complaint is also deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint." Id. "A document is integral to the complaint where the complaint relies heavily upon its terms and effect," and "[m]erely mentioning a document in the complaint will not satisfy this standard." 170 Mercer LLC v. Rialto Cap. Advisors, LLC, No. 20-CV-2496, 2021 WL 1163649, at *2 (S.D.N.Y. Mar. 25, 2021). "Even if a document is integral to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document." Id.

Here, along with its motion, Defendant filed a Request for Judicial Notice, (see ECF No. 17), which attached pictures of the individual labels that appear on the cans of each of the four varieties of the Product, as well as a picture of the entire 12-pack packaging, including the Product's Nutrition Facts panel, (see id.). In her Complaint, Plaintiff only included images of the 12-pack's front label and the ingredient list excerpted from the Nutrition Facts panel. (See Compl. ¶¶ 1, 19.) The entire 12-pack packaging, including the complete Nutrition Facts panel, is "incorporated by reference" because it is "referenced in and relied on in the [C]omplaint," in the context of Plaintiff's allegations "that the product labels . . . are misleading." Eshelby v. L'Oréal USA, Inc., No. 22-CV-1396, 664 F.Supp.3d 417, 423 n.4 (S.D.N.Y. Mar. 27, 2023); see Randolph v. Mondelēz Glob. LLC, No. 21-CV-10858, 2022 WL 953301, at *1 n.1 (S.D.N.Y. Mar. 30, 2022) ("[T]he full labels, provided via a defendant's declaration, are cognizable on a motion to dismiss claims under GBL §§ 349 & 350, because the full packaging is integral to the complaint and incorporated by reference."). I will therefore consider the entire 12-pack packaging, and may do so without converting Defendant's motion into a motion for summary judgment. See Islam v. Fisher, No. 07-CV-3225, 2008 WL 650380, at *2 (S.D.N.Y. Mar. 6, 2008) ("The Court may consider...