Bardsley v. Nonni's Foods LLC, 20 Civ. 2979 (NSR)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtNELSON S. ROMÁN, UNITED STATES DISTRICT JUDGE:
PartiesLISA BARDSLEY, individually and on behalf of all others similarly situated, Plaintiff, v. NONNI'S FOODS LLC, Defendant.
Decision Date16 March 2022
Docket Number20 Civ. 2979 (NSR)

LISA BARDSLEY, individually and on behalf of all others similarly situated, Plaintiff,
v.

NONNI'S FOODS LLC, Defendant.

No. 20 Civ. 2979 (NSR)

United States District Court, S.D. New York

March 16, 2022


OPINION & ORDER

NELSON S. ROMÁN, UNITED STATES DISTRICT JUDGE:

This putative class action alleges that Defendant Nonni's Foods LLC misrepresented to consumers the extent to which its “Limone Biscotti” from its Nonni's brand (“the Product”) is flavored only or predominantly from lemons. (Am. Compl. at 1-9, ECF No. 17.) Plaintiff Lisa Bardsley, individually and on behalf of others similarly situated, brings this action against Defendant asserting claims for violations of New York's General Business Law §§ 349 and 350, negligent misrepresentation, breach of express warranty, breach of implied warranty of merchantability, violation of the Magnuson Moss Warranty Act, fraud, and unjust enrichment. (Id. at 9-14.) Presently pending before the Court is Defendant's motion to dismiss Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) and (6). (ECF No. 23.) For the following reasons, the Court GRANTS IN PART, DENIES IN PART Defendant's motion to dismiss.

BACKGROUND

I. Factual Background

The following facts are derived from the Amended Complaint and are taken as true and constructed in the light most favorable to Plaintiff for the purposes of this motion.

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Defendant manufactures, distributes, markets, labels, and sells singular long, crisp, twice-baked Italian cookies (biscotti) purporting to be flavored mainly or exclusively by lemon, as depicted in the image below:

Image Omitted

(Am. Compl. ¶¶ 1, 3.) The label also states that the Product's ingredients include:

Ingredients: WHEAT FLOUR (WHEAT FLOUR MALTED BARLEY FLOUR, SUGAR, WHITE CONFECTIONERY SUGAR COATING (SUGAR, PALM KERNEL OIL, WHOLE MILK POWDER, REDUCED MINERAL WHEY POWDER, NONFAT MILK POWDER, SOY LECITHIN [AN EMULSIFIER], SALT, AND VANILLA), EGGS, SALTED BUTTER (SWEET CREAM, SALT) NATURAL FLAVOR, BAKING POWDER (SODIUM ACID PYROPHOSPHATE, BAKING SODA, CORN STARCH, MONOCALCIUM PHOSPHATE), SALT

(Id. ¶ 12.)

Plaintiff alleges the Product's label is misleading because the Product is neither exclusively nor predominantly flavored from lemons. (Id. ¶¶ 10-11, 13-27.) Specifically, she claims that the

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Product's ingredients list includes a “natural flavor, ” which means that the lemon flavor is not derived exclusively from lemons. (Id. ¶ 13.) She alleges that this ingredient contains a de minimis amount of lemon oil and that the lemon taste it provides is mainly from lemon oil extenders and enhancers from non-lemon sources. (Id. ¶¶ 14, 20.) Plaintiff claims that under federal regulations, Defendant's Product is misleading because it fails to disclose that the source of the lemon taste is not only from lemons but from non-lemon sources. (Id. ¶¶ 23-26.)

Plaintiff also alleges that laboratory testing of the Product reveals that “[t]hough [it contains] citral, the main flavor compound in lemons, through the isomers neral and geranial, it lacks other compounds essential to a lemons taste.” (Id. ¶ 31.) Hence, she claims that “the Product's flavoring lacks the complexity and taste expected by consumers because the added lemon oil extenders (‘Other Natural Flavor') mainly provide citrus notes, instead of the balanced flavor of lemons.” (Id. ¶ 34.)

Plaintiff claims that Defendant's omission and failure to disclose these facts is deceptive and misleading to consumers who want a lemon-flavored product that contains flavoring mainly from lemons and that tastes like lemon. (Id. ¶ 36.) She avers that Defendant knows consumers “are willing to pay higher prices for the real thing because flavor from a characterizing ingredient involves minimal and less processing-it is more natural.” (Id. ¶¶ 6, 35.) As such, Plaintiff claims that Defendant's branding and packaging of the Product is designed to, and does, deceive, mislead, and defraud plaintiffs and consumers. (Id. ¶ 38.) She also claims that Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers. (Id. ¶ 39.) Particularly, Plaintiff claims that as a result of the false and misleading representations, Defendant sold the Product at a premium price, approximately no less than $3.98 per box of 8, excluding tax, compared to other similar products

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represented in a non-misleading way, and higher than it would be sold absent the misleading representations and omissions. (Id. ¶ 42.)

Plaintiff alleges that she purchased the Product on at least one occasion, including in October 2019 at the Hannaford Supermarket in New Windsor, New York 12553. (Id. ¶ 54.) She claims to be among a class of consumers who bought the Product for its intended use, and that she relied upon the front label's representations to expect a lemon taste that would come exclusively and/or predominantly from real lemons and not from artificial lemon flavorings. (Id. ¶ 55.) Plaintiff further claims that she would not have paid as much for the Product absent Defendant's false and misleading statements and omissions. (Id. ¶¶ 57-59.)

II. Procedural Background

On April 13, 2020, Plaintiff filed the original operative class action complaint (Compl., ECF No. 1.) On October 2, 2021, Defendant filed a letter seeking leave to file a motion to dismiss, which also stated the grounds on which Defendant would move for dismissal. (ECF No. 13.) Four days later, Plaintiff requested an extension of time to file an amended complaint that would address the deficiencies set forth in Defendant's letter and obliviate the need for a motion to dismiss, which the Court subsequently granted. (ECF Nos. 15 & 16.) On December 1, 2020, Plaintiff filed her Amended Complaint on behalf of all purchasers of the Product who reside in New York, asserting claims for (1) violation of New York General Business Law §§ 349 and 350; (2) breach of express warranty; (3) breach of implied warranty of merchantability; (4) violation of the Magnuson Moss Warranty Act; (5) negligent misrepresentation; (6) fraud; and (7) unjust enrichment. (Am. Compl., ECF No. 17.) As relief, Plaintiff seeks both monetary damages and injunctive relief that would require Defendant to correct the Product's allegedly misleading label. (Id.)

On December 23, 2021, Defendant again sought leave to file a motion to dismiss, which the Court subsequently granted and issued a briefing schedule. (ECF Nos. 20 & 22.) On March 23, 2021,

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the parties filed their respective briefing on the instant motion: Defendant its notice of motion (ECF No. 23), memorandum in support (“Motion, ” ECF No. 24), reply (“Reply, ” ECF No. 25); and Plaintiff her response in opposition (“Response in Opposition, ” ECF No. 26).

LEGAL STANDARD

I. Federal Rule of Civil Procedure 12(b)(1)

A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Where, as here, the jurisdictional challenges are raised at the pleading stage, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008). It is “presume[d] that general [fact] allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990) (alterations added). The court also may consider affidavits and other evidence outside the pleadings to resolve the jurisdictional issue, but it may not rely on conclusory or hearsay statements contained in affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968 (2005). Indeed, courts “must” consult factual submissions “if resolution of a proffered factual issue may result in the dismissal of the complaint for want of jurisdiction.” Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n. 6 (2d Cir. 2001).

II. Federal Rule of Civil Procedure 12(b)(6)

In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to

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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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action will not do”; rather, the complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In applying these principles, the Court may consider facts alleged in the complaint and documents attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (internal quotation marks and citation omitted).

DISCUSSION

Plaintiff asserts claims against Defendant for (1) violations of New York General Business Law (“GBL”) §§ 349 and 350, (2) negligent misrepresentation, (3) breach of express warranty, (4) breach of implied warranty of merchantability, (5) violation of the Magnuson Moss Warranty Act (“MMWA”), (6) fraud, and (7) unjust enrichment. (See Am. Compl. at 9-14.) Defendant seeks to dismiss all claims based on several grounds, including: (1) lack of subject matter jurisdiction; (2) failure to plausible allege consumer deception; and (3)...

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