Coleman v. Burger King Corp.

• Docket Number: 22-cv-20925-ALTMAN/Reid
• Decision Date: 25 August 2023
• Parties: WALTER COLEMAN, et al., Plaintiffs, v. BURGER KING CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Florida

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WALTER COLEMAN, et al., Plaintiffs,
v.
BURGER KING CORPORATION, Defendant.

No. 22-cv-20925-ALTMAN/Reid

United States District Court, S.D. Florida

August 25, 2023

ORDER

ROY K. ALTMAN UNITED STATES DISTRICT JUDGE

The Defendant, Burger King Corporation, has moved to dismiss the Plaintiffs' Amended Complaint on various grounds. See Motion to Dismiss [ECF No. 20]. For the reasons set out below, the Motion to Dismiss is GRANTED in part and DENIED in part.

The Facts

This is a class action against Burger King. The Plaintiffs' primary allegation is that Burger King, through its advertisements and in-store ordering boards, “materially overstates” the size of (and the amount of beef contained in) many of its burgers and sandwiches. Amended Complaint [ECF No. 18] ¶¶ 6-8, 11. So, for instance, the Plaintiffs claim that Burger King used to “more fairly advertise[ ] the size of the Whopper on its website and store menus.” Id. ¶¶ 6-7. But, in September 2017, “Burger King began to materially overstate the size of its burgers in its advertisements.” Id. ¶ 3. The Plaintiffs maintain that “[a] side-by-side comparison of Burger King's former Whopper advertisement to the current Whopper advertisement shows that the burger increased in size by approximately 35% and the amount of beef increased by more than 100%. Although the size of the Whopper and the beef patty increased materially in Burger King's advertisements, the amount of beef or ingredients contained in the actual Whopper that customers receive did not increase.” Id. ¶¶ 8-9.

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The named Plaintiffs are residents of-and bought Burger King products in-Florida, New York, Illinois, Massachusetts, Michigan, California, Connecticut, Ohio, Kentucky, Mississippi, Pennsylvania, and Arizona. See Amended Complaint ¶¶ 32-51. These Plaintiffs all claim that they bought Burger King burgers or sandwiches based on the representations Burger King made in its advertisements and ordering boards. Ibid. But, they continue, they were disappointed to discover that the burgers they bought came with much less meat than they'd expected. Ibid. They also insist that they wouldn't have bought the burgers or sandwiches if they'd known the food items were going to be smaller than advertised. Ibid. As relief, they request “monetary damages fully compensating all individuals who were deceived by Defendant as a result of purchasing Defendant's Overstated Menu Items” and “injunctive relief requiring Defendant to provide corrected advertising and/or to discontinue the Overstated Menu Items.” Id. ¶ 31.

In its Motion, Burger King contends that “[f]ood in advertisements is and always has been styled to make it look as appetizing as possible. That is hardly news; reasonable consumers viewing food advertising know it innately. This lawsuit unreasonably pretends otherwise.” Motion to Dismiss at 1. Burger King insists that it “makes very clear how much beef the Whopper contains.” Id. at 2. As the company explains:

BKC makes very clear how much beef the Whopper contains “Our Whopper Sandwich is a 1/2 lb* of savory flame-grilled beef topped with juicy tomatoes, fresh lettuce creamy mayonnaise, ketchup, crunchy pickles, and sliced white onions on a soft sesame seed bun,” with the asterisk after the burger's weight referring to the “[w]eight based on a pre-cooked patty.” See https://www.bk.com/menu/picker-picker5520 Plaintiffs do not and cannot contend that BKC delivered them less than a quarter pound of beef with any Whopper or Big King. They argue, instead, that they “expected” more beef, ostensibly because of the protruding patties in the pictures they included in the [Amended Complaint]. All of Plaintiffs' claims, however, fail to meet the objective requirement of reasonableness that is subject to judicial scrutiny at the pleading stage.

Id. at 2-3. Burger King thus asks us to dismiss all four of the Plaintiffs' claims.

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The Law

To survive a motion to dismiss under Rule 12(b)(6), “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)). To meet this “plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The standard “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the required element.” Rive// v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309-10 (11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016).

Analysis

I. Count I: Violation of State Consumer-Protection Laws

To comply with federal pleading standards, a complaint “must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(A)(2). THE FEDERAL RULES ALSO REQUIRE PLAINTIFFS TO “STATE [THEIR] CLAIMS . . . IN NUMBERED PARAGRAPHS, EACH LIMITED AS FAR AS PRACTICABLE TO A SINGLE SET OF CIRCUMSTANCES.” FED. R. CIV. P. 10(B). AS THE ELEVENTH CIRCUIT HAS EXPLAINED, A COMPLAINT IS AN IMPERMISSIBLE “SHOTGUN” PLEADING IF IT:

(1) contains multiple counts where each count adopts the allegations of all preceding counts; (2) is replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action; (3) fails to separate into a different count

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each cause of action; or (4) asserts multiple claims against multiple defendants without specifying which defendant is responsible for which act.

Embree v. Wyndham Worldwide Corp., 779 Fed.Appx. 658, 662 (11th Cir. 2019). Count I of the Complaint plainly falls into this third category because the Plaintiffs “fail[ ] to separate into a different count each cause of action.” Ibid.

The Plaintiffs' first cause of action lists-in a single paragraph that spans four pages-fifty different state (and DC) consumer-protection statutes. See Amended Complaint ¶ 73. The count then follows this prodigious list with one brief, conclusory allegation: “Defendant,” the Plaintiffs say, “violated the above stated consumer protection laws by its deceptive practices and Plaintiffs and Class members were damaged as a result, the exact amount to be determined at trial.” Id. ¶ 75. This won't do. The Plaintiffs “must separate each cause of action into a separate paragraph, and they must support each cause of action with specific (non-conclusory) factual allegations.” Brodowicz v. Walmart, Inc., 2022 WL 3681958, at *2 (S.D. Fla. June 6, 2022) (Altman, J.); see also Davis v. Coast Dental Servs., LLC, 2022 WL 4217141, at *3 (M.D. Fla. Sept. 13, 2022) (Barber, J.) (“Mixing causes of action and failing to separate them into separate counts is problematic because it muddles which facts go to which claims and prevents each claim from standing on its own merit before the Court.”); Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1275 (11th Cir. 2006) (“We [ ] remind district courts of their supervisory obligation to sua sponte order repleading pursuant to Federal Rule of Civil Procedure 12(e) when a shotgun complaint fails to link adequately a cause of action to its factual predicates.”).

But that doesn't mean the Plaintiffs should file a second amended complaint that asserts fifty separate state consumer-protection claims-unless, of course, they can find a named plaintiff from every state. As we're about to explain, we think the named Plaintiffs do have standing to assert claims on behalf of absent class members from other states. But that's not to say that a named Florida plaintiff can assert a stand-alone count under, for instance, Georgia's consumer-protection statute-and on behalf of Georgia consumers-without having purchased the Defendant's products (or seen the

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Defendant's ads) in Georgia. Such a count (it seems to us) would fail to state a viable claim under Rule 12(b)(6). To understand why, think of a Florida plaintiff who brings an action only on his own behalf for an injury he sustained when he bought the defendant's product in Florida. Imagine, too, that our hypothetical plaintiff decides to include two counts in his complaint: a FDUTPA count for the injury he sustained in Florida and a claim under Georgia's consumer-protection statute. The problem with the second count (as we'll soon see) isn't that our plaintiff lacks standing to bring it: He was, after all, injured by the defendant's deceptive practices, and a favorable decision would redress his grievances. The problem, rather, is that he'll have failed to meet the requirements of Georgia law-principally because he'll have failed to show any connection between his injury and any activity by the defendant in the State of Georgia.

So, too, here. Right now, our named Plaintiffs are asserting only their own claims. One day, we may allow them to assert the claims of unnamed class members from other states. But, as of today, they haven't been given that permission. So, they must file a second amended complaint that includes consumer-protection counts only for those states in which the named plaintiffs purchased their Burger King products. They may (and probably should) assert in some of those counts that,...