Bynum v. Family Dollar Stores, Inc., 1:20-cv-06878 (MKV)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Decision Date21 March 2022
PartiesJOHNNIE BYNUM, individually and on behalf of all others similarly situated, Plaintiffs, v. FAMILY DOLLAR STORES, INC., Defendant.
Docket Number1:20-cv-06878 (MKV)

JOHNNIE BYNUM, individually and on behalf of all others similarly situated, Plaintiffs,


No. 1:20-cv-06878 (MKV)

United States District Court, S.D. New York

March 21, 2022



Plaintiff Johnnie Bynum brings this putative class action against Defendant Family Dollar Stores, Inc., for violations of the New York General Business Law (“GBL”) sections 349 and 350, and other common law claims. (First Amended Complaint (“FAC”) [ECF No. 14]).

Defendant has moved to dismiss Plaintiff's FAC. [ECF No. 19]. In support of its motion, Defendant submits a memorandum of law, (Def. Br. [ECF No. 22]), the declaration of Trent S. Dickey, counsel for Defendant, with an attached exhibit, (Dickey Decl. [ECF No. 20]), and the declaration of Anna Irvin, counsel for Defendant, (Irvin Decl. [ECF No. 21]). Plaintiff has filed a memorandum of law in opposition to Defendant's motion, (Pl. Opp'n [ECF No. 23]), and Defendant has replied, (Def. Reply [ECF No. 26]).

Having carefully considered the parties' arguments, the Court grants Defendant's motion and dismisses the FAC.


I. Factual Background

The facts are taken from the FAC, and are accepted as true for the purposes of this motion. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Defendant


Family Dollar Stores, Inc. manufactures, distributes, markets, labels, and sells 7-ounce bags of Eatz “smoked almonds” (the “product”). (FAC ¶ 1). Plaintiff alleges that he purchased the product from a Family Dollar store in the Bronx. (FAC ¶¶ 1-2, 47). The packaging for the almonds includes an image of the almonds, a red color scheme, and the words “Smoked Almonds.” (FAC ¶ 3). The ingredients list on the back of the package states that the package contains “ALMONDS ROASTED IN PEANUT, AND/OR COTTONSEED, AND/OR SUNFLOWER SEED, AND/OR CANOLA OIL . . . [and] NATURAL SMOKE FLAVOR.” (FAC ¶ 14) (emphasis added).

Plaintiff alleges that the use of the word “smoked” on the front label of the product deceived him into believing that the product obtained its flavoring from a natural smoking process. (FAC ¶¶ 18-19, 28). As Plaintiff alleges, the ingredients list on the back of the product's packaging confirms that the product does not obtain any flavoring from a natural smoking process. (FAC ¶¶ 14, 18). Instead, according to the FAC, the product merely contains “natural smoke flavor, ” or “smoke condensed into a liquid form.” (FAC ¶¶ 14, 18). Plaintiff alleges that almonds subjected to real smoking taste different from almonds that merely have “added smoke flavor.” (FAC ¶¶ 20-27). Plaintiff alleges that had he known that the product only was flavored with added “natural smoke flavor, ” he would not have purchased the product or would have paid less for it. (FAC ¶¶ 30-33).

II. Procedural History

Plaintiff commenced this case with the filing of his original Complaint. (Compl. [ECF No. 1]). With leave of Court, Plaintiff thereafter filed the FAC. (FAC).

The FAC asserts five causes of action: (1) a claim under GBL sections 349 and 350, (2) negligent misrepresentation, (iii) breaches of express warranty, implied warranty of


merchantability and Magnuson Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2310, et seq., (iv) fraud, and (v) unjust enrichment. (FAC ¶¶ 62-90). Plaintiff seeks injunctive relief, monetary damages, statutory damages, and attorneys' fees. (FAC ¶ 13).


To survive a Rule 12(b)(6) 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “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 (alterations, internal quotation marks, and citations omitted).

When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, the Court must limit our consideration to the factual allegations in the amended complaint, “which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.” Roth v. CitiMortgage Inc., 756 F.3d 178, 180 (2d Cir. 2014) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)).



This case is the latest in a long string of putative class actions brought under the same theories of recovery by the same lawyer alleging that the packaging on a popular food item is false and misleading.[1] Almost all these putative class actions have been dismissed at the pleadings stage for a failure to state a claim. Here, Plaintiff brings five causes of action, all premised on the contention that the description “Smoked” on the product's label misleads consumers into believing that the flavoring of the product is derived from at least some smoking as opposed to added smoke flavoring. (FAC ¶ 65). Since all five causes of action are premised on this same contention, if there is no material misrepresentation, none of Plaintiff's causes of action can survive this Motion. See, e.g., Cosgrove, 2020 WL 7211218, at *3 (explaining that because the plaintiffs' causes of action-identical to those here-were “all premised on the same contention” that the defendant's labeling of the product was materially misleading, if the defendant's product “does not mispresent the contents of the container as a matter of law, [then] all of [the] [p]laintiffs' claims must be dismissed”); Dashnau, 529 F.Supp.3d at 241 (same).

I. Plaintiff Fails To State A Claim Under New York General Business Law sections 349 and 350

GBL section 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce, ” and section 350 prohibits “[f]alse advertising in the conduct of any


business, trade or commerce.” GBL §§ 349-50. To successfully assert a claim under either section, a plaintiff must allege that a defendant has engaged in “(1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941, 967 N.E.2d 675, 675 (N.Y. 2012)). The allegedly deceptive acts or representations must be misleading to “a reasonable consumer.” Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314, 324, 774 N.E.2d 1190 (N.Y. 2002) Although the question of whether a business practice or advertisement is misleading to the reasonable consumer is generally a question of fact, see Hidalgo v. Johnson & Johnson Consumer Cos., Inc., 148 F.Supp.3d 285, 295 (S.D.N.Y. 2015), it is “well settled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer, ” Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). Plaintiff must do more than plausibly allege that a label might conceivably be misunderstood by some few consumers. “Instead, Plaintiff[] must plausibly allege that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Budhani v. Monster Energy Co., 527 F.Supp.3d 667, 676 (S.D.N.Y. 2021) (quoting Campbell v. Whole Foods Mkt. Grp., Inc., 516 F.Supp.3d 370, 381 (S.D.N.Y. 2021)).

Defendant argues that Plaintiff's FAC should be dismissed because the product's allegedly deceptive label would not mislead a reasonable customer. Defendant asserts that a reasonable consumer who saw the packaging would look to the language on the back of the package to clarify whether the product was smoked. (Def. Br. 12). Defendant argues that on the back of the package, the ingredient list clearly discloses that the product was not made by smoking, but was “roasted” and merely flavored with “Natural Smoked Flavor.” (See FAC


¶ 14). Plaintiff contends that this argument is foreclosed by the Second Circuit's opinion in Mantikas v. Kellogg, 910 F.3d 633 (2d Cir. 2018). (Pl. Opp'n 10).

In Mantikas, the Second Circuit held that a plaintiff had sufficiently alleged that the label on a box of Cheez-It crackers was misleading when it said “made with whole grain, ” despite the fact that the crackers contained more white flour than whole wheat flour. 910 F.3d at 634. The Second Circuit held that the mere fact that the crackers did contain some whole grain was insufficient to defeat the lawsuit, because the box's bold-faced “Made With Whole Grain” claim arguably “communicate[d] to the reasonable consumer that the grain in the product [was] predominantly, if not entirely, whole grain.” Id. at 637. Moreover, it was irrelevant to the analysis that the ingredient list on the back of the box clarified that enriched white flour was the predominant ingredient, since “a reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the box to correct misleading information set forth in large bold type on the front of the box.” Id.

Plaintiff argues that under Mantikas, Defendant cannot cite to the clarifying language on the back of the package to defeat it's claim that the front labelling of...

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