Daniel v. Mondelez Int'l, Inc.

• Decision Date: 26 February 2018
• Docket Number: 17–CV–00174 (MKB)
• Parties: Tamika DANIEL, on behalf of herself and others similarly situated, Plaintiff, v. MONDELEZ INTERNATIONAL, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

287 F.Supp.3d 177

Tamika DANIEL, on behalf of herself and others similarly situated, Plaintiff,

v.MONDELEZ INTERNATIONAL, INC., Defendant.

17–CV–00174 (MKB)

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

Filed February 26, 2018

C.K. Lee, Lee Litigation Group, PLLC, New York, NY, for Plaintiff

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Tamika Daniel commenced a putative class action on behalf of herself and all others similarly situated against Defendant Mondelez International Inc. (Compl., Docket Entry No. 1.) Plaintiff alleges that "non-functional slack-fill" ("excessive empty space") in Defendant's Swedish Fish brand candy product (the "Product") misrepresents the amount of food, (id. ¶¶ 2–4), which violates sections 349 and 350 of New York's General Business Law ("GBL") and constitutes common law fraud under New York state law, (id. ¶¶ 58, 66, 72, 82). Plaintiff seeks monetary damages, injunctive relief, and attorneys' fees. (Id. ¶¶ 64, 71, 80, 87.) Defendant moves to dismiss the Complaint pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. (Def. Mot. to Dismiss ("Def. Mot."), Docket Entry No. 22; Def. Mem. in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 22–1.) For the reasons discussed below, the Court grants Defendant's motion to dismiss in its entirety. The Court grants Plaintiff leave to amend only her statutory claims and finds that she lacks standing to pursue injunctive relief.

I. Background

The facts alleged in the Complaint are assumed to be true for the purpose of deciding Defendant's motion. Plaintiff is a citizen of the state of New York and resides in Kings County. (Compl. ¶ 19.) Defendant is a corporation organized under the laws of Virginia with its headquarters in Illinois.¹ (Id. ¶ 21.) Plaintiff alleges that Defendant misleadingly "label[s], packag[es], and advertis[es]" its Product which is "regularly sold at convenience stores, grocery stores, and supermarkets." (Id. ¶¶ 1, 22.)

According to Plaintiff, the Product is "packaged in a transparent plastic pouch inside a non-transparent thin cardboard box" standing "almost exactly [six] inches tall." (Id. ¶¶ 4–5.) Plaintiff asserts that the size of the box misleads purchasers by "mak[ing] it appear as though [consumers] are buying more than what is actually being sold." (Id. ¶ 4.) While conceding that some "slack-fill," (the empty space within the Product's packaging), may be justified, Plaintiff alleges that the current amount "exceeds" what is necessary. (Id. ¶ 6.) By way of comparison, Plaintiff alleges that Trolli® Sour Brite Crawlers minis and Dots®, other gummy candies, are packaged in similar sized boxes with significantly less slack-fill. (Id. ¶¶ 6–9.) Relying on these comparisons, Plaintiff contends that the Product contains misleading slack-fill as defined by the Federal Food Drug & Cosmetic Act ("FDCA") Section 403(d) ( 21 U.S.C. 343(d) ), the Code of Federal Regulations Title 21 part 100, et seq. , and parallel state laws. (Id. ¶¶ 2, 32–33.)

Plaintiff purchased two boxes of the Product relying on the size of the containers. (Id. ¶ 19.) Plaintiff first purchased the Product on Long Island, New York in 2016. (Id. ) Despite noticing the slack-fill, Plaintiff assumed that that particular box "had been inadequately filled by accident." (Id. ) Plaintiff only "realized that the slack-fill was there by design" after purchasing another box on December 8, 2016, at the Atlantic Center Target Store in Brooklyn, New York for $1.08. (Id. ) Having purchased the Product "on the reasonable assumption that [the] box was filled to functional capacity," Plaintiff was disappointed by the extent of slack-fill, and "would not have paid [$1.08] had she known that the box was more than half empty or had the box been proportioned to its actual contents." (Id. ¶ 20.)

Plaintiff includes in the Complaint photographs of the Product's packaging as well as that of the alleged comparator candies. (See id. ¶¶ 4, 6, 8.) Defendant proffers additional photographs and details regarding the Product's packaging and that of the comparator candies.² (See Sandra Hanian Decl. in Supp. of Def. Mot. ("Hanian Decl.") ¶ 3, Docket Entry No. 22–2.) Defendant's photographs include a snapshot of the Product's nutritional label listing various facts such as the serving size (seven pieces) and number of servings (two). (Id. ¶ 3(b).) Defendant also states that the candy boxes "indicate that [the Product] is manufactured by Mondelez Global LLC" while Trolli® Sour Brite Crawlers minis and Dots® are manufactured by Ferrara Candy Company and Tootsi Roll Industries, LLC respectively.³ (Id. ¶ 4.) Plaintiff does not dispute the authenticity of the photographs and references in the Defendant's declaration and also relies extensively on the Product's packaging and that of the alleged comparators.

II. Discussion

a. Standards of review

i. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, "accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor." Concord Assocs., L.P. v. Entm't Prop. Trust , 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time Warner Inc. , 282 F.3d 147, 152 (2d Cir. 2002) ); see also Tsirelman v. Daines , 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ. , 131 F.3d 326, 329 (2d Cir. 1997) ). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ. , 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc. , 712 F.3d 705, 717–18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is "inapplicable to legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

ii. Rule 9(b)

" Rule 9(b) requires that ‘[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.’ " United States ex rel. Ladas v. Exelis, Inc. , 824 F.3d 16, 25 (2d Cir. 2016) (alteration in original) (quoting Fed. R. Civ. P. 9(b) ). "To satisfy this Rule, a complaint alleging fraud must ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ " Id. (quoting Shields v. Citytrust Bancorp, Inc. , 25 F.3d 1124, 1128 (2d Cir. 1994) ). Ultimately, whether a complaint satisfies Rule 9(b)"depends ‘upon the nature of the case, the complexity or simplicity of the transaction or occurrence, the relationship of the parties and the determination of how much circumstantial detail is necessary to give notice to the adverse party and enable him to prepare a responsive pleading.’ " United States v. Wells Fargo Bank, N.A. , 972 F.Supp.2d 593, 616 (S.D.N.Y. 2013) (citation omitted); see United States ex rel. Wood v. Allergan, Inc. , 246 F.Supp.3d 772, 787 (S.D.N.Y. 2017) (quoting same); Kane ex rel, U.S. v. Healthfirst, Inc. , 120 F.Supp.3d 370, 383 (S.D.N.Y. 2015) (quoting same); U.S. ex rel. Bilotta v. Novartis Pharm. Corp. , 50 F.Supp.3d 497, 508 (S.D.N.Y. 2014) (quoting same);; see also Rombach v. Chang , 355 F.3d 164, 171 (2d Cir. 2004) (discussing the purpose of the particularity requirement and emphasizing fair notice to the defendant).

b. Consideration of documents other than the Complaint

When considering a motion to dismiss, courts generally are "limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Wilson v. Kellogg Co. , 628 Fed.Appx. 59, 60 (2d Cir. 2016) (citation omitted); see also Nicosia v. Amazon.com, Inc. , 834 F.3d 220, 230–31 (2d Cir. 2016) ("A complaint ‘is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.’ " (citation omitted) ). Even "[w]here a document is not [expressly] incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint." Nicosia , 834 F.3d at 230–31. To take into account "materials extraneous to the complaint," a plaintiff must "rely on the terms and effect of the document in drafting the complaint; mere notice or possession is not enough.’ " Id. (citation omitted). In addition, "[e]ven where a document is considered " ‘integral’ to the complaint," "it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document," and "[i]t must also be clear that there exist no material disputed issues of fact regarding the relevance of the document." Id. (citations omitted).

The Court's consideration of Defendant's submissions regarding the labeling of the box does not convert this motion to dismiss to a motion for summary judgment. Defendant's submissions relate only to the packaging of the Product—the very basis for Plaintiff's claims. See St. John's Univ., New York v. Bolton , 757 F.Supp.2d 144, 156 (E.D.N.Y. 2010) ("In deciding a motion to dismiss under Rule 12(b)(6), the court may, at its discretion, consider matters of which judicial notice may be taken, as well as documents extrinsic to the complaint where a plaintiff ...