Axon v. Citrus World, Inc.

• Decision Date: 10 December 2018
• Docket Number: 18-cv-4162 (ARR) (RML)
• Citation: 354 F.Supp.3d 170
• Parties: Alexandra AXON, on Behalf of Herself and All Others Similarly Situated, Plaintiff, v. CITRUS WORLD, INC. and Florida's Natural Growers, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

354 F.Supp.3d 170

Alexandra AXON, on Behalf of Herself and All Others Similarly Situated, Plaintiff,

v.CITRUS WORLD, INC. and Florida's Natural Growers, Inc., Defendants.

18-cv-4162 (ARR) (RML)

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

Signed December 10, 2018

Bradley Forrest Silverman, Todd Seth Garber, Finkelstein, Blankenship, Frei-Pearson & Garber, LLP, White Plains, NY, Kim Richman, The Richman Law Group, Brooklyn, NY, for Plaintiff.

Daniel H. Coultoff, Pro Hac Vice, Christina Y. Taylor, Pro Hac Vice, Latham, Shuker, Eden & Beaudine, LLP, Orlando, FL, Tom M. Fini, Catafago Fini LLP, New York, NY, for Defendants.

Opinion & Order

ROSS, United States District Judge:

On July 20, 2018, Alexandra Axon ("Axon" or "plaintiff") filed a putative class action complaint against Florida's Natural Growers, Inc. and its parent company, Citrus World, Inc. (collectively, "Florida's Natural" or "defendant"). Florida's Natural sells a variety of orange juice products ("products") that contain trace amounts of glyphosate, an herbicide used to kill weeds. Plaintiff alleges that the use of the term "natural" in defendant's brand name is deceptive because glyphosate is not a natural ingredient. Plaintiff brings putative class claims under New York's consumer protection statute on behalf of herself and other New York purchasers. Plaintiff also brings putative common law class claims under the laws of all states on behalf of herself and a putative nationwide class of purchasers. Before the court is defendant's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim, pursuant to Rule 12(b)(6). Because plaintiff fails to assert a plausible claim, defendant's motion to dismiss under Rule 12(b)(6) is granted.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant is a "leading producer of premium orange juice." See Compl. ¶ 15, ECF No. 1. Defendant's products bear the company's brand name, "Florida's Natural." See id. ¶¶ 1(a)–(e), 15. Axon, a citizen of New York, "regularly purchased" Florida's Natural orange juice at a Key Food store located in Brooklyn. Id. ¶¶ 8, 12. Axon alleges that, in making these purchases, she relied on the statement that the product was "natural." See id. ¶ 12.

Glyphosate is an herbicide used to kill weeds. Id. ¶¶ 2, 27. It is created by artificially replacing one of the hydrogen atoms in the amino acid glycine

with a phosphonomethyl group. Id. ¶¶ 28–29. Thus, plaintiff argues, glyphosate is an "[un]natural" "synthetic biocide." Id. ¶¶ 2–3, 30. According to laboratory tests conducted on defendant's products, they contain glyphosate levels of 5.11 nanograms per milliliter. Id. ¶ 26.¹ Because defendant's products contain glyphosate, plaintiff contends that its use of the word "natural" is false and misleading. See, e.g. , id. ¶¶ 12, 33, 37–39. She alleges that "[r]easonable consumers do not expect glyphosate to be found in truly natural orange juice," id. ¶ 33, and that she "would not have purchased, or would not have paid a premium for, [defendant's] Products had Florida's Natural not misrepresented the process by which their orange juice is made," id. ¶ 13.²

The Food and Drug Administration ("FDA") has not promulgated a regulation governing the use of the term "natural" on food labeling. See FDA, "Natural" on Food Labeling, U.S. Dep't Health and Human Servs., https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm456090.htm (last updated Oct. 22, 2018) ("FDA Notice Update") ("[T]he FDA has not engaged in rulemaking to establish a formal definition of the term ‘natural.’ "). In 2015, however, the FDA "announc[ed] the establishment of a docket to receive information and comments on the use of the term ‘natural’ in the labeling of human food products," including comments on whether the FDA "[s]hould ... define, through rulemaking, the term ‘natural.’ " Use of the Term "Natural" in the Labeling of Human Food Products; Request for Information and Comments, 80 Fed. Reg. 69,905, 69,905, 69,908 (Nov. 12, 2015) ("FDA Notice"). The comment period closed on May 10, 2016. See FDA Notice Update. While the FDA has not yet defined the term "natural," it does have a "longstanding policy" regarding the use of the term on food labels. See FDA Notice, 80 Fed. Reg. at 69,906 (noting that the FDA has interpreted the term "natural" to mean that "nothing artificial or synthetic ... has been added to[ ] a food that would not normally be expected to be in the food," but that this policy "was not intended to address food production methods, such as the use of genetic engineering or ... the use of pesticides" (quoting Food Labeling: Nutrient Content Claims, General Principles, Petitions, Definition of Terms; Definitions of Nutrient Content Claims for the Fat, Fatty Acid, and Cholesterol Content of Food, 58 Fed. Reg. 2302, 2407 (Jan. 6, 1993) (to be codified at 21 C.F.R. pts. 5, 101) ) ).³

The complaint in this action was filed on July 20, 2018. See Compl. at 18. Axon is the only plaintiff identified by name, but Axon purports to represent a nationwide class of all consumers who purchased Florida's Natural products, as well as a sub-class of all New York residents who purchased those products. See id. ¶ 41. Plaintiff alleges four causes of action against Florida's Natural: (1) violation of New York General Business Law § 349 (" NYGBL § 349") for deceptive practices (on behalf of the New York sub-class); (2) violation of New York General Business Law § 350 (" NYGBL § 350") for false advertising (on behalf of the New York sub-class); (3) breach of express warranty (on behalf of the nationwide class); and (4) unjust enrichment (on behalf of the nationwide class).See id. at 11–17.

On August 20, 2018, Florida's Natural requested a pre-motion conference to obtain permission to file a motion to dismiss plaintiff's complaint. See Def.'s Pre-Motion Letter, ECF No. 16. On August 29, 2018, plaintiff submitted an opposition to defendant's request. See Pl.'s Opp'n Def.'s Pre-Motion Letter, ECF No. 17. After reviewing the parties' letters, I determined that a pre-motion conference was not necessary and authorized defendant to bring its motion in support of dismissal. See Notice (Other) (Aug. 31, 2018). On September 21, 2018, defendant moved to dismiss under Rule 12(b)(1) on the basis that plaintiff lacks standing to bring her purported causes of action, and under Rule 12(b)(6) on the basis that plaintiff has failed to state a claim upon which relief can be granted. See Notice of Def.'s Mot. to Dismiss, ECF No. 18; Def.'s Mem. of Law. Plaintiff opposes defendant's motion. See Pl.'s Opp'n.

DISCUSSION

Defendant moves to dismiss the complaint for lack of standing and failure to state a claim. For the following reasons, defendant's motion to dismiss plaintiff's claims on standing grounds is denied, and the motion to dismiss for failure to state a claim is granted.

I. Defendant's motion to dismiss plaintiff's claims on standing grounds is denied.

Each plaintiff invoking the jurisdiction of the federal courts must demonstrate that she has standing under Article III "for each claim [s]he seeks to press." DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). "To satisfy the ‘irreducible constitutional minimum’ of Article III standing, a plaintiff must demonstrate (1) ‘injury in fact,’ (2) a ‘causal connection’ between that injury and the complained-of conduct, and (3) a likelihood ‘that the injury will be redressed by a favorable decision.’ " Strubel v. Comenity Bank , 842 F.3d 181, 187–88 (2d Cir. 2016) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "If plaintiffs lack Article III standing, a court has no subject matter jurisdiction to hear their claim." Mahon v. Ticor Title Ins. Co. , 683 F.3d 59, 62 (2d Cir. 2012) (quoting Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C. , 433 F.3d 181, 198 (2d Cir. 2005) ). "The plaintiff bears the burden of ‘alleg[ing] facts that affirmatively and plausibly suggest that it has standing to sue.’ " Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l. , 790 F.3d 411, 417 (2d Cir. 2015) (alteration in original) (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL , 671 F.3d 140, 145 (2d Cir. 2011) ). "In assessing the plaintiff's assertion of standing, ‘[I] accept as true all material allegations of the complaint and construe the complaint in favor of the [plaintiff].’ " Id. (original alterations omitted) (quoting W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP , 549 F.3d 100, 106 (2d Cir. 2008) ).

Defendant first claims that plaintiff lacks Article III standing because she has not suffered any injury as a result of defendant's alleged wrongdoing. See Def.'s Mem. of Law 23–26. Plaintiff contends that she has suffered an economic injury because "she purchased the products at a price premium based on [defendant's] misleading labeling." Pl.'s Opp'n 33. A plaintiff's allegation that she purchased products bearing misleading labels and sustained financial injury as a result is sufficient to give that plaintiff Article III standing. See, e.g. , In re Frito-Lay N. Am., Inc. All Nat. Litig. , No. 12-MD-2413 (RRM)(RLM), 2013 WL 4647512, at *11 (E.D.N.Y. Aug. 29, 2013). Thus, plaintiff has Article III standing.

Defendant also argues that plaintiff lacks statutory standing to bring her NYGBL claims. See Def.'s Reply 14–15. "For statutory standing, ‘the question is whether the plaintiff has a cause of action under the statute.’ " Robainas v. Metro. Life Ins. Co. , No. 14cv9926 (DLC), 2015 WL 5918200 (S.D.N.Y. Oct. 9, 2015) (quoting Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm'n , 768 F.3d 183, 201 (2d Cir. 2014) ). Defendant alleges that under the NYGBL, simply purchasing a product is insufficient to support a cause of action for...