Womick v. The Kroger Co.

ANTHONY WOMICK, Individually, and on Behalf of All Others Similarly Situated, Plaintiff, v. THE KROGER CO., Defendant.

No. 21-CV-00574-NJR

United States District Court, S.D. Illinois

April 28, 2022

MEMORANDUM AND ORDER

NANCY J. ROSENSTENGEL, Chief U.S. District Judge.

Pending before the Court is a Motion to Strike Plaintiff Anthony Womick's Class Allegations filed by Defendant The Kroger Co. (“Kroger”) (Doc. 29). For the reasons set forth below, the Motion to Strike is denied.

Background

Womick alleges that Kroger manufactures, packages, advertises distributes, and sells various types of ground coffee under its own private label brand in canisters. (Doc. 1-1, p. 5). Kroger represents the number of cups that can be made depends on the size of the canisters:

• The 11.5-ounce (326 g.) canisters represent they can make about 90 cups.

• The 24-ounce (680 g.) canister represent they can make about 185 cups.

• The 25-ounce (708 g.) canisters represent they can make about 195 cups.

• The 29-ounce (822 g.) canisters represent they can make about 225 cups.

• The 30.5-ounce (864 g.) canisters represent they can make about 235 cups.

(Id. at pp. 6-8). Brewing instructions on the back of Kroger's canisters provide two methods: (1) to make one cup, the directions state the consumer is to use one rounded tablespoon of coffee for each six fluid ounces of cold water; and (2) to make ten cups, the consumer is to use a half cup of coffee. (Id. at p. 8).

Womick asserts these representations are false even when following Kroger's brewing instructions. (Id. at pp. 8-9). Following Kroger's instruction to use one rounded tablespoon, the 30.5-ounce canisters “will produce no more than, and probably less than, ” approximately 173 cups of coffee, not 235 cups as the canister indicated. (Id.). Womick provided the below table showing the maximum number of cups Kroger represents can be made using the one-cup method, compared to the actual maximum number that the canister will make using a 5-gram, not rounded tablespoon, along with the difference (number of cups the consumer paid for but did not receive):

Class Product Size

Represented yield

Actual yield

Difference

11.5 oz.

90 cups

65 cups

25 cups

24 oz.

185 cups

136 cups

49 cups

25 oz.

195 cups

141 cups

54 cups

29 oz.

225 cups

164 cups

61 cups

30.5 oz.

235 cups

173 cups

62 cups

(Id. at p. 10).

Under the alternative instructions for making ten cups of coffee Womick claims the Class Products also fail to make the number of cups represented on the canister. Assuming one tablespoon of ground coffee weighs five grams, there are eight tablespoons in a half cup, meaning a half cup of ground coffee weighs forty grams.

(Id. at p. 10). Womick provided another table to demonstrate that Kroger's ten cup instruction produces less than the amount represented on the canister:

Class Product Size

Represented yield

Actual yield

Difference

11.5 oz.

90 cups

81.5 cups

8.5 cups

24 oz.

185 cups

170 cups

15 cups

25 oz.

195 cups

177 cups

18 cups

29 oz.

225 cups

205.5 cups

19.5 cups

30.5 oz.

235 cups

216 cups

19 cups

(Id.).

Womick alleges that he regularly purchased Kroger's 29 oz. and 30.5 oz. products from 2020-2021. (Id. at p. 13). Prior to making these purchases, Womick read the representation on the label regarding the number of cups that could be made from Kroger's products, and at all times Womick believed and had a reasonable expectation that the labeling on the products was truthful and accurate. (Id.). Womick proclaims he typically followed Kroger's 10-serving instructions when making coffee. (Id.). Finally, Womick claims that, as a direct result of Kroger's misrepresentations of the number of cups that can be made from its products, he has been deprived of the benefit of their bargain in purchasing these products because the products had less value than represented. (Id. at pp. 13-14).

Womick brings a class action with three claims against Kroger: (1) Violation of the Illinois Consumer Fraud and Deceptive Business Practice Act (“ICFA”) By Means of Unfair Business Practices; (2) Violation of the ICFA By Means of Deceptive Acts or Practices; and (3) Unjust Enrichment. (Doc. 1-1). Kroger moved to dismiss pursuant to Rules 8, 9(b), and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 12). The motion to dismiss was granted as to injunctive relief, but denied as to Kroger's remaining arguments. (Doc. 27).

Kroger answered Womick's complaint-but on the same day-moved to strike the class allegations in Womick's complaint pursuant to Rules 12(f), 23(c)(1)(a), and 23(d)(1)(D) of the Federal Rules of Civil Procedure.

Analysis

It is well-established that a disputed issue of law should not be decided on a Rule 12(f) motion. First Impressions Salon Inc. v. Nat'l Milk Producers Fed'n, 214 F.Supp.3d 723, 726 (S.D. Ill. 2016). Further, “[m]otions to strike class allegations are generally disfavored.” Harris v. Rust-Oleum Corp., 2022 WL 952743, at *3 (N.D. Ill. Mar. 30, 2022) (citing Murdock-Alexander v. Tempsnow Emp., 2016 WL 6833961, at *3 (N.D. Ill. Nov. 21, 2016)).

Still, courts must determine whether to certify actions as class actions “[a]t an early practicable time after a person sues or is sued as a class representative.” FED R. CIV. P. 23(C)(1)(A). DISTRICT COURTS WITHIN THE SEVENTH CIRCUIT HAVE HELD THAT MOTIONS TO STRIKE CLASS ALLEGATIONS ARE APPROPRIATE WHEN DETERMINING WHETHER CASES WILL PROCEED AS A CLASS ACTION. Harris, 2022 WL 952743, at *3 (collecting cases). “Most often, motions to strike are granted when the defendant shows that the underlying class claims either require individualized inquiries, there are substantive variations in the governing law, or both.” Id. (citing Jones v. BRG Sports, Inc., 2019 WL 3554374, at *5 (N.D. Ill. Aug. 1, 2019); Hill v. Wells Fargo Bank, N.A., 946 F.Supp.2d 817, 832 (N.D. Ill. 2013)).

District courts within the Seventh Circuit “evaluate motions to strike class allegations under Rule 23, not Rule 12(f).” Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 295 (N.D. Ill. 2014) (collecting cases). At first, “[c]ourts disagree[d] as to which party shoulders the burden of persuasion when the propriety of class certification is raised by means of a motion to strike class allegations.” Huddleston v. Am. Airlines, Inc., 2018 WL 4742097, at *2 (N.D. Ill. Oct. 2, 2018); Compare Wright v. Fam. Dollar, Inc., 2010 WL 4962838, at *2 (N.D. Ill. Nov. 30, 2010) (noting “[e]ven when the defendant initiates the court's review of class allegations, the burden remains on the plaintiff to establish that the suit may be maintained as a class action”), with Rysewyk v. Sears Holdings Corp., 2015 WL 9259886, at *8 (N.D. Ill.Dec. 18, 2015) (“Unlike with a motion for class certification, defendants, as the movants, bear the burden of persuasion on their motion to strike”). But recently courts agree “where the plaintiffs have not yet had the benefit of class discovery, the defendant ‘bears the burden of proving that the proposed class is not certifiable.'” Kurt v. Platinum Supplemental Ins., Inc., 2021 WL 3109667, at *13 (N.D. Ill. July 22, 2021) (quoting Dowding v. Nationwide Mut. Ins. Co., 490 F.Supp.3d 1291, 1298 (N.D. Ill. 2020)); see also Advanced Dermatology v. Fieldwork, Inc., 550 F.Supp.3d 555, 568 (N.D. Ill. 2021).

A. Kroger Answered Plaintiff's Complaint Before Filing the Motion to Strike

Under Rule 12, the Court may strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(F). TO DO SO, THE COURT MAY ACT ON ITS OWN OR “ON MOTION MADE BY A PARTY EITHER BEFORE RESPONDING TO THE PLEADING OR, IF A RESPONSE IS NOT ALLOWED, WITHIN 21 DAYS AFTER BEING SERVED WITH THE PLEADING.” Id.

Womick argues that Kroger's motion to strike is time-barred. The Court disagrees.

“Rule 12(f)(1) does not impose any time constraint on courts like it does on parties in Rule 12(f)(2), so courts read that omission to mean they may consider a motion to strike at any point in a case.” Red Label Music Publ'g, Inc. v. Chila Prods., 388 F.Supp.3d 975, 981 (N.D. Ill. 2019); see also Williams v. Jader Fuel Co., 944 F.2d 1388, 1399-400 (7th Cir. 1991) (“Courts have read Rule 12(f) to allow a district court to consider a motion to strike at any point in a case, reasoning that it is considering the issue of its own accord despite the fact that its attention was prompted by an untimely filed motion . . . The district court elected to reach the merits of [plaintiff's] motion to strike despite its untimely filing. We, too, address the merits.”).

B. Commonality Requirements of Rule 23(a)(2)

Kroger argues that Womick's purported “common questions” do not meet the commonality requirement because Womick seeks to “certify one class that consists of all individuals in Illinois ‘who purchased one or more of the Class Product in Illinois during the Class Period.'” (Doc. 29, p. 6). Kroger continues, “[Womick's] claims will require proof as to forty-five different products (nine coffee types x five sizes) to determine whether each labeling was unfair or deceptive.” (Id. at p. 7). Kroger reasons “whether one size coffee canister's advertised approximate yield is deceptive does not affect whether another size coffee canister's advertised approximate yield is deceptive.” (Id.).

In Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013), the Court's analysis did not focus on the possibility that the plaintiff's claims would require proof as to the different washing machines sold in overlapping periods beginning in 2001 and 2004. See id. at 801 (acknowledging that “in the context of Rule 23(a)(2), the rule that provides that class actions are permissible only when there are issues common to the members of the class (as of...