Dashnau v. Unilever Mfg. (US), Inc.

• Decision Date: 26 March 2021
• Docket Number: 19-CV-10102 (KMK)
• Citation: Dashnau v. Unilever Mfg. (US), Inc., 529 F.Supp.3d 235 (S.D. N.Y. 2021)
• Parties: Sharon DASHNAU & Gregory Rodriguez-Appeldorn, individually and on behalf of all others similarly situated, Plaintiffs, v. UNILEVER MANUFACTURING (US), INC., Defendant.
• Court: U.S. District Court — Southern District of New York

529 F.Supp.3d 235

Sharon DASHNAU & Gregory Rodriguez-Appeldorn, individually and on behalf of all others similarly situated, Plaintiffs,

v.UNILEVER MANUFACTURING (US), INC., Defendant.

19-CV-10102 (KMK)

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

Signed March 26, 2021

Christopher Patalano, Esq., Spencer Sheehan, Esq., Sheehan & Associates, P.C., Great Neck, NY, Counsel for Plaintiffs.

August T. Horvath, Esq., Foley Hoag LLP, New York, NY, Counsel for Defendant.

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Plaintiffs Sharon Dashnau ("Dashnau") and Gregory Rodriguez-Appeldorn ("Rodriguez-Appeldorn"; together, "Plaintiffs") bring this putative class action against Unilever Manufacturing (US), Inc. ("Defendant"), alleging that the labeling on Defendant's vanilla-flavored ice cream dessert bars is deceptive and misleading. Plaintiffs assert claims against Defendant for (1) violations of §§ 349 and 350 of the New York General Business Law, (2) negligent misrepresentation, (3) breaches of express warranty, the implied warranty of merchantability, and the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. , (4) fraud, and (5) unjust enrichment. Before the Court is Defendant's Motion To Dismiss the First Amended Complaint (the "Motion"). (See Not. of Mot. (Dkt. No. 19).) For the following reasons, the Motion is granted.

I. Background

A. Factual Background

The following facts are drawn from Plaintiffs’ First Amended Complaint and are taken as true for the purposes of resolving the instant Motion.

Defendant manufactures, distributes, markets, labels, and sells chocolate-coated bars of vanilla-flavored ice cream under the "Magnum" brand (the "Product"). (First Am. Compl. ("FAC") ¶ 1 (Dkt. No. 11).) The Product is sold to consumers through retail and online stores in packages of three bars. (Id. ¶ 2.) The front label of the Product contains the words, "Double Chocolate Vanilla," and describes the Product as "Vanilla Bean Ice Cream Dipped In A Chocolatey Coating, Chocolatey Sauce And Milk Chocolate." (Id. ¶ 3.)¹

Plaintiffs allege that the words "vanilla bean ice cream" convey four distinct messages to reasonable consumers. First, "vanilla is the characterizing flavor." (Id. ¶ 4.) Second, "vanilla is contained in a sufficient amount to flavor the product." (Id. ) Third, the Product's vanilla flavor is provided only "by the natural characterizing flavor of vanilla" and is "derived from vanilla extract or vanilla flavoring and unexhausted vanilla beans." (Id. ) And fourth, "no other flavors simulate, resemble, reinforce, extend[,] or enhance the [P]roduct's vanilla taste or compensate for any reduction in the amount of real vanilla used to supply the vanilla taste." (Id. )

Plaintiffs allege that the Product actually contains a "de minimis amount of real vanilla." (Id. ¶ 5.) Relying on a gas chromatography-mass spectrometry analysis (the "GC-MS Analysis") performed on the Product, Plaintiffs allege that to the extent the Product contains "real vanilla," it exists in such trace amounts as to be undetectable "by advanced scientific means." (Id. ¶¶ 103–04.)² The GC-MS Analysis also indicates that although the Product contains maltol and vanillin, two ingredients used to simulate the flavor of vanilla, the Product uses ethyl vanillin, which "is sourced from petroleum byproducts instead of vanilla beans." (Id. ¶ 110; see id. ¶¶ 102, 107–09; see also id. ¶ 5 ("[T]o the extent [the Product] tastes like vanilla, such flavor is mainly contributed by vanillin from non-vanilla sources.").)

In light of the Product's contents, Plaintiffs allege that "Defendant's branding and packaging of the Product is designed to—and does—deceive, mislead, and defraud ... consumers." (Id. ¶ 121.) Plaintiff Dashnau purchased the Product at a Walmart in Middletown, New York during the summer and fall of 2019. (Id. ¶ 137.) Plaintiff Rodriguez-Appeldorn purchased the Product at a store in Westchester County "on multiple occasions" in 2019 and 2020. (Id. ¶ 138.) Plaintiffs allege that they purchased the Product "because they liked the product type for its intended use and expected its vanilla flavor to come from only real vanilla beans." (Id. ¶ 139.) They further allege that if the vanilla flavor in the Product was "provided by flavors which modified or enhanced the vanilla," they would have "expected that to be indicated on the front label." (Id. ) Plaintiffs allege that the Product was materially less valuable than Defendant's labeling suggested, and if they had "known the truth," they would not have bought the Product, or at least would have paid less for it. (Id. ¶¶ 123–24.)

B. Procedural History

Plaintiffs filed their initial Complaint on November 1, 2019, (Dkt. No. 5), and filed their First Amended Complaint on May 13, 2020, (Dkt. No. 11). Defendant filed a pre-motion letter regarding its putative motion to dismiss on May 27, 2020, (Dkt. No. 12), Plaintiffs responded on June 15, 2020, (Dkt. No. 14), and the Court held a pre-motion conference on July 9, 2020, (see Dkt. (minute entry for July 9, 2020)). Pursuant to a briefing schedule set by the Court, (Dkt. No. 17), Defendant filed the instant Motion and supporting papers on August 10, 2020, (Dkt. Nos. 19–20). Plaintiffs filed an opposition on September 10, 2020, (Dkt. No. 21), and, with leave from the Court, (Dkt. No. 23), filed their revised Opposition on September 15, 2020, (Dkt. No. 24). Defendant filed its Reply on September 30, 2020. (Dkt. No. 25.) As courts in this District and other federal jurisdictions have granted similar motions in recent months, Defendant has apprised the Court of relevant supplemental authority on eight occasions. (Dkt. Nos. 26–33.)

II. Discussion

A. Standard of Review

The Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the ‘grounds’ of his [or her] ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (alteration and internal quotation marks omitted). Rather, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, 127 S.Ct. 1955, and a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face," id. at 570, 127 S.Ct. 1955, if a plaintiff has not "nudged [his] claims across the line from conceivable to plausible, the[ ] complaint must be dismissed," id. ; see also Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ("Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ " (alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2) )); id. at 678–79, 129 S.Ct. 1937 (" Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").

"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), and "draw[ ] all reasonable inferences in favor of the plaintiff," Daniel v. T&M Prot. Res., Inc. , 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC , 699 F.3d 141, 145 (2d Cir. 2012) ). Additionally, "[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration 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." Leonard F. v. Isr. Disc. Bank of N.Y. , 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Wang v. Palmisano , 157 F. Supp. 3d 306, 317 (S.D.N.Y. 2016) (same).

B. Analysis

As noted, Plaintiffs assert claims against Defendant for (1) violations of §§ 349 and 350 of the New York General Business Law, (2) negligent misrepresentation, (3) breaches of express warranty, the implied warranty of merchantability, and the Magnuson Moss Warranty Act, (4) fraud, and (5) unjust enrichment. (See FAC ¶¶ 149–86.) In considering these claims, the Court does not write on a blank slate. In recent months, seven other courts in this District have dismissed nearly identical claims against manufacturers of similar vanilla-flavored products (the "SDNY Vanilla Cases"). See Cosgrove v. Oregon Chai, Inc. , No. 19-CV-10686, 520 F.Supp.3d 562, 581–88 (S.D.N.Y. Feb. 21, 2021) (dismissing same causes of action based on vanilla-flavored chai tea); Twohig v. Shop-Rite Supermarkets, Inc. , 518 F. Supp. 3d 154, 160–68 (S.D.N.Y. Feb. 11, 2021) (same with respect to vanilla-flavored soymilk); Wynn v. Topco Assocs., LLC , No. 19-CV-11104, 2021 WL 168541, at *2–7 (S.D.N.Y. Jan. 19, 2021) (same with respect to vanilla-flavored almond milk); Barreto v. Westbrae Nat., Inc. , No. 19-CV-9677, 518 F.Supp.3d 795, 800–09 (S.D.N.Y. ...