Brodie v. Green Spot Foods, LLC

• Decision Date: 30 November 2020
• Docket Number: 20 Civ. 1178 (ER)
• Citation: 503 F.Supp.3d 1
• Parties: Carol BRODIE, Plaintiff, v. GREEN SPOT FOODS, LLC, d/b/a Better Than Foods USA, Amazon.com Services LLC, "John Does 1–10," and "ABC Corps. 1–10" (the last two being fictitious designations), Defendants.
• Court: U.S. District Court — Southern District of New York

503 F.Supp.3d 1

Carol BRODIE, Plaintiff,

v.GREEN SPOT FOODS, LLC, d/b/a Better Than Foods USA, Amazon.com Services LLC, "John Does 1–10," and "ABC Corps. 1–10" (the last two being fictitious designations), Defendants.

20 Civ. 1178 (ER)

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

Signed November 30, 2020

Rosemarie Elizabeth Arnold, Fort Lee, NJ, for Plaintiff.

Angela A. Lainhart, Nicoletti Gonson Spinner LLP, New York, NY, for Defendant Green Spot Foods, LLC.

Beth S. Rose, Sills Cummis & Gross, P.C., New York, NY, for Defendant Amazon.com Services LLC.

OPINION & ORDER

Ramos, D.J.:

Carol Brodie brings this action against Green Spot Foods, LLC ("Green Spot"), Amazon.com Services LLC ("Amazon"), John Does 1–10, and ABC Corps. 1–10 for injuries she sustained after consuming a product known as Better than Pasta, which she purchased on Amazon's website. Before the Court is Amazon's motion to dismiss the negligence, breach of implied and express warranty, deceptive practices, and false advertising claims against it in the second amended complaint ("SAC"), pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 69. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

I. BACKGROUND

Green Spot manufactures, packages, advertises, and sells "Better than Pasta" products. Doc. 68 ¶¶ 23, 28–29. These products are pasta substitutes whose primary ingredient is a root plant called konjac. Id. ¶ 10. When consumed, konjac swells from its original size in the human digestive tract and may become indigestible. Id. ¶¶ 17, 19. It may also cause choking and stomach or intestinal blockage. Id. ¶ 19. These dangers are "generally well-known" and have led the U.S. Food and Drug Administration ("FDA"), Health Canada (a similar regulatory body), the European Commission, and other food safety regulatory bodies to ban certain foods containing konjac or issue warnings about its risks. Id. ¶ 20–21. While Better than Pasta's packaging states that the food is "made from organic Konnyaku flour, from the root of an ancient Japanese organic plant called Konjac," id. ¶ 11, the packaging does not provide warnings about konjac's purported risks, id. ¶ 22.

Green Spot distributes and sells Better than Pasta on Amazon.com, a website operated by Amazon. Id. ¶¶ 26, 31. In order to sell its products on the website, Green Spot assented to the Amazon Services Business Solutions Agreement ("BSA"). Id. ¶ 33. The BSA grants Amazon a "license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially ... exploit in any and all" of a third-party seller's "materials," which consist of all "[t]rademarks, [c]ontent, ... [p]roduct information ... and other items or information provided or made available by" the third-party seller. Id. ¶ 34. The BSA also gives Amazon "sole discretion to determine the content, appearance, design, functionality and all other aspects of the Amazon sites, including by redesigning, modifying, removing or restricting access to any of them, and by suspending, prohibiting or removing any listing." Id. ¶ 37. According to Brodie, Green Spot initially created all advertising for the product, but Amazon also marketed and advertised the product on Amazon.com. Id. ¶¶ 29, 31, 48. Green Spot also participates in a program called Fulfillment by Amazon ("FBA"), under which it stores Better than Pasta in Amazon's warehouses and Amazon ships the product to customers directly. Id. ¶ 44.

Amazon offers certain guarantees to customers with respect to Better than Pasta. First, for products sold by third parties such as Green Spot, Amazon offers the A-Z Guarantee ("Guarantee"), which guarantees that customers can obtain a refund if a third-party item "was damaged, defective, materially different, or you changed your mind." Id. ¶ 40. Second, Amazon designated Better than Pasta as an "Amazon's Choice" product on the website. Id. ¶ 41. Brodie alleges that this designation "specifically promoted and/or guaranteed the quality of Better than Pasta products." Id.

Amazon.com has a feature allowing customers to leave reviews of the products sold on the website, and both Amazon and third-party sellers are notified when a review is posted and what the review says. Id. ¶¶ 52–53. According to Brodie, Green Spot and Amazon were made aware of the dangers of Better than Pasta because they received numerous customer complaints about the health issues caused by consuming the product. Id. ¶¶ 51, 54. The SAC cites to thirteen such complaints. Id. ¶ 54. For example, one individual complained, "I tried this pasta for the first time last night, and today I'm having SEVERE intestinal cramps. Buyer beware! I did a web search and discovered some Konjac root products have been banned because they can actually cause an intestinal blockage."¹ Id. ¶ 54(g). Brodie alleges that Green Spot may have directed Amazon to remove other negative complaints about the product. Id. ¶ 55. Brodie also alleges that Green Spot pays or incentivizes individuals to leave "false positive reviews" with Amazon's knowledge, and Amazon allows this practice to occur without deleting these reviews. Id. ¶¶ 59–60.

Brodie, a resident of New York, purchased multiple bags of Better than Pasta from Amazon.com on or about June 26, 2019. Id. ¶ 61. Hours after she prepared the product on July 22, 2019, Brodie felt sick in her stomach, felt her stomach expand, and developed cramps. Id. ¶ 63. The following day, she went to the emergency room and was then admitted to New York-Presbyterian Hospital, where she remained for three days. Id. ¶¶ 64–66. She was released on July 25, 2019 but suffered other physical and financial injuries for several months after consuming the product. Id. ¶¶ 66–83. Brodie also left a negative review on Amazon.com complaining about her injuries. Id. ¶ 56.

Brodie filed suit on February 11, 2020. Doc. 1. Her initial complaint asserted eight claims against Green Spot, Amazon, and various other defendants: (1) negligence, (2) breach of implied warranty, (3) breach of express warranty, (4) consumer fraud through deceptive practices and false advertising, (5) common law fraud, (6) unjust enrichment, (7) strict liability based on design or manufacturing defect, and (8) strict product liability based on failure to warn. After an Order of this Court directing Brodie to clarify the basis for the court's subject matter jurisdiction, Doc. 11, she amended her complaint on February 19, 2020, and alleged the citizenship of each named defendant. Doc. 19. The same defendants and claims were retained. See id. On June 29, 2020, Brodie amended her complaint for a second time. Doc. 68. The SAC names only Green Spot, Amazon, and the fictitious John Does 1–10 and ABC Corps. 1–10 as defendants. Further, the SAC retains all claims except common law fraud and unjust enrichment. On June 30, 2020, Amazon filed the instant motion to dismiss four of the five claims Brodie asserts against it: negligence, breach of warranty, deceptive practices, and false advertising. Doc. 69.

II. LEGAL STANDARD

When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is required to "accept as true the facts alleged in the [c]omplaint, drawing all reasonable inferences in favor of the plaintiff" to determine whether plaintiff has properly stated a claim upon which relief can be granted. Koch v. Christie's Int'l PLC , 699 F.3d 141, 145 (2d Cir. 2012). But this requirement does not apply to legal conclusions, recitals of the elements of a cause of action, bare assertions, or conclusory allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678, 681, 686, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 554–55, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Instead, a complaint must contain sufficient factual matter to state a claim to relief that is plausible—not merely possible—on its face. Id. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). On a motion to dismiss, the court may consider facts stated in the complaint, appended exhibits, documents incorporated by reference, and matters of which judicial notice may be taken. L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 422 (2d Cir. 2011).

III. DISCUSSION

A. Negligence (Count I)

To state a claim of negligence under New York law,² a plaintiff must show "(1) that [defendant] owed [her] a duty, or obligation, recognized by law, (2) a breach of the duty, (3) a reasonably close causal connection between [defendant's] conduct and the resulting injury and (4) loss or damage resulting from the breach." McCarthy v. Olin Corp. , 119 F.3d 148, 156 (2d Cir. 1997) (internal quotation marks omitted) (citing Becker v. Schwartz , 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978) ). Amazon contends that, as a retailer, its duty to Brodie was minimal and required only "an ordinary inspection" of Better than Pasta.³ Doc. 69-1 at 8.⁴ It claims that the product's alleged defects, such as its potential to "swell[ ] in the human digestive tract" and cause other gastrointestinal issues, could have been discovered only through expert analysis of the product's contents, an act above and beyond an ordinary inspection. Doc. 80 at 3.

Amazon correctly notes that New York law imposes different duties upon manufacturers of a product and its retailers, particularly with respect to sealed packages. A manufacturer may be liable for injuries sustained by a purchaser as a result of a manufacturing flaw, defective design, or lack of adequate warnings for the use of the product. Liriano v. Hobart Corp. , 92 N.Y.2d 232, 237, 677 N.Y.S.2d 764, 700 N.E.2d 303 (1998). With respect to such warnings, "[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known." Id. (emphasis added) (citations omitted). By contrast, a retailer is only "under a duty to inspect for and to discover such defects...