Gordon v. Target Corp., 20-CV-9589 (KMK)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtKenneth M. Karas, United States District Judge
Decision Date18 March 2022
PartiesLOVELYN GORDON, individually and on behalf of all others similarly situated, Plaintiff, v. TARGET CORPORATION, Defendant.
Docket Number20-CV-9589 (KMK)

LOVELYN GORDON, individually and on behalf of all others similarly situated, Plaintiff,


No. 20-CV-9589 (KMK)

United States District Court, S.D. New York

March 18, 2022

Spencer Sheehan, Esq. Sheehan & Associates, P.C. Great Neck, NY Counsel for Plaintiff

Paul Garrity, Esq. Sheppard, Mullin, Richter & Hampton LLP New York, NY Counsel for Defendant


Kenneth M. Karas, United States District Judge

Lovelyn Gordon (“Plaintiff”) brings this putative class action against Target Corporation (“Defendant”), alleging that the labeling on Defendant's “Toddler Next Stage” toddler drink is deceptive and misleading. Plaintiff asserts claims for damages against Defendant for (1) violations of §§ 349 and 350 of the New York General Business Law (“GBL”), N.Y. G.B.L. §§ 349, 350; (2) violation of the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 201, et seq.; (3) common law breach of express warranty; (4) common law breach of the implied warranty of merchantability; (5) common law negligent misrepresentation; (6) common law fraud; and (7) unjust enrichment. (See generally First Am. Compl. (“FAC”) (Dkt. No. 11).) Plaintiff also seeks injunctive relief to correct the alleged misrepresentations. (See Id. at 17.)


Before the Court is Defendant's Motion To Dismiss the Amended Complaint (the “Motion”). (See Not. of Mot. (Dkt. No. 17).) For the foregoing reasons, the Motion is granted.

I. Background

A. Materials Considered

As a threshold matter, the Court determines the proper treatment of eight documents that Defendant has requested the Court consider in deciding this Motion, either on the grounds that the documents were incorporated into the First Amended Complaint (“FAC”) by reference or that the Court may take judicial notice of the documents as public records.

Generally, “[w]hen considering a motion to dismiss, the Court's review is confined to the pleadings themselves, ” because “[t]o go beyond the allegations in the [c]omplaint would convert the Rule 12(b)(6) motion to dismiss into one for summary judgment pursuant to [Rule] 56.” Thomas v. Westchester Cnty. Health Care Corp., 232 F.Supp.2d 273, 275 (S.D.N.Y. 2002). “Nevertheless, the Court's consideration of documents attached to, or incorporated by reference in the [c]omplaint, and matters of which judicial notice may be taken, would not convert the motion to dismiss into one for summary judgment.” Id.; see also Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (explaining that “when ruling on Rule 12(b)(6) motions to dismiss, ” courts may “consider the complaint in its entirety . . ., documents incorporated into the complaint by reference, and matters of which a court may take judicial notice” (quotation marks omitted)); Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019) (“In deciding a Rule 12(b)(6) motion, the court may consider ‘only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matters of which judicial notice may be taken.'” (alteration omitted) (quoting Saimels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993))).

And, “in adjudicating a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), a district court may resolve disputed factual issues by reference to evidence


outside the pleadings, including affidavits.” Rutherford v. Fla. Union Free Sch. Dist., No. 16-CV-9778, 2019 WL 1437823, at *2 (S.D.N.Y. Mar. 29, 2019) (alterations omitted) (quoting JTE Enters., Inc. v. Cuomo, 2 F.Supp.3d 333, 339 (E.D.N.Y. 2014)).

Defendant argues that several of the documents in question were incorporated into the FAC by reference; specifically, (1) a rendering of the Product's full label, (2) the full image of the Non-GMO Project's verification seal, and (3) a publication referenced in the FAC. (See Def.'s Request for Judicial Not. (“Def.'s RJN”) 3 (Dkt. No. 19); see also Def.'s RJN Exs. 1-3 (Dkt. Nos. 19-1, 19-2, 19-3).) The Court agrees. “Generally, a court may incorporate documents referenced where (1) [the] plaintiff relies on the materials in framing the complaint, (2) the complaint clearly and substantially references the documents, and (3) the document's authenticity or accuracy is undisputed.” Stewart v. Riviana Foods Inc., No. 16-CV-6157, 2017 WL 4045952, at *6 (S.D.N.Y. Sept. 11, 2017) (emphasis omitted) (collecting cases). Plaintiff clearly relied on all three documents in framing the FAC and all three documents are clearly and substantially referenced in the FAC. (See, e.g., FAC ¶¶ 5 & n.3, 10-21, 23, 25, 27, 45-46, 54.) Moreover, Plaintiff does not challenge their authenticity or accuracy. (See generally Pl.'s Mem. of Law in Opp'n to Mot. To Dismiss (“Pl.'s Mem.”) (Dkt. No. 20).) As such, the Court will consider these documents in ruling on Defendant's Motion. See Stewart, 2017 WL 4045952, at *6-7 (considering images of packaging of product at issue as incorporated by reference into complaint); see also N. Am. Olive Oil Ass'n v. D'Avolio Inc., 457 F.Supp.3d 207, 220 (E.D.N.Y. 2020) (“A court may consider the full text of documents partially quoted in the complaint so long as there is no dispute regarding the accuracy or authenticity of the document.”).


Defendant argues that the Court may take judicial notice of five other documents: (1) a U.S. Food & Drug Administration (“FDA”) guidance document entitled “Nutrition and Supplement Facts Labels: Questions and Answers Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals, ” (2) an FDA guidance document entitled “Labeling of Infant Formula, ” (3) an FDA guidance document entitled “Voluntary Labeling Indicating Whether Foods Have or Have Not Been Derived from Genetically Modified Plants, ” (4) a copy of the FDA's informational webpage entitled “GMO Crops, and Food for Animals, ” and (5) a copy of the FDA's informational webpage entitled “GMO Crops, Animal Food, and Beyond.” (See Def.'s RJN 3; see also Def.'s RJN Exs. 4-8 (Dkt. Nos. 19-4, 19-5, 19-6, 19-7, 19-8).) The Court, again, agrees with Defendant. “Courts may take judicial notice of public documents or documents of public record” in addition to “records of administrative bodies, ” such as government agencies like the FDA. Casey v. Odwalla, Inc., 338 F.Supp.3d 284, 294 (S.D.N.Y. 2018) (collecting cases). As such, courts routinely take judicial notice of FDA guidance documents and documents which are publicly available on the FDA's website. See, e.g., Apotex Inc. v. Acordia Therapeutics, Inc., 823 F.3d 51, 59-60 (2d Cir. 2016) (taking judicial notice of FDA guidance document); Simon v. Smith & Nephew, Inc., 990 F.Supp.2d 395, 401 n.2 (S.D.N.Y. 2013) (taking judicial notice of “public records contained on the FDA website”). The Court will do the same here.

Plaintiff's argument in opposition to the Court's consideration of these document relies on two cases, Cabrera v. Schafer, 178 F.Supp.3d 69 (E.D.N.Y. 2016), and Kortright Capital Partners LP v. Investcorp Investment Advisers Ltd., 327 F.Supp.3d 673 (S.D.N.Y. 2018), (see Pl.'s Mem. 12), but neither concerned the consideration of documents outside of the four corners of the pleadings on a motion to dismiss. See Kortright, 327 F.Supp.3d at 688 (declining the


plaintiff's invitation for the court to “sift through the record” in considering a motion for sanctions); Cabrera, 178 F.Supp.3d at 71-72 (considering motion in limine by the defendants for an order taking judicial notice of adjudicative facts). As such, Plaintiff's arguments in reliance on these cases are inapplicable.

Plaintiff also argues that “[s]hould the Court take judicial notice of Defendant's exhibits, it should be ‘for the limited purpose of determining what statements it contains' [sic], ‘not for the truth of the matters' [sic] as alleged by Defendant.” (Pl.'s Mem. 12 (quoting Force v. Facebook, Inc., 934 F.3d 53, 59 n.5 (2d Cir. 2018)).) Plaintiff recounts the correct standard, and the Court will follow it.

B. Factual Background

The following facts are drawn from the FAC and assumed to be true for the purposes of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam). Where relevant, the Court also recounts facts from the various other materials the Court has ruled it may consider at this stage.

Defendant is a company which sells products ranging from groceries to consumer electronics in its approximately 1, 900 stores located in all 50 states. (See FAC ¶¶ 75-76.) Defendant's private labels, or store brands, are known for their high quality and are considered equivalent to their branded counterparts. (See Id. ¶ 77.) One such store brand is Defendant's up & up™ brand, which Defendant uses for its consumer health products. (See Id. ¶ 78.) Among other things, Defendant manufactures, markets, and sells milk-based powder products enriched with iron to both infants and non-infants under its up & up™ brand. (See Id. ¶¶ 1, 10.) This Action involves Defendant's up & up™ branded “Toddler Next Stage” product (the “Product”), a milk-based powder drink designed for toddlers over the age of one year. (See Id. ¶¶ 1, 15, 78.)


1. Transition Formulas and Toddler Nutrition

By way of background, Plaintiff alleges that since 2003, rates of breastfeeding have increased significantly, which has resulted in a decrease in sales of infant formula. (See Id. ¶ 6.) To make up for such declining sales of infant formulas, companies have introduced products marketed as “transition formulas, ” “follow-on formulas, ” “weaning formulas, ” “toddler milks, ” and “growing-up milks” (hereinafter, “Transition Formulas”) and designed for children between 12 and 36 months old (i.e., above the age of infancy) which are effectively just re-branded infant formula. (Id. ¶¶ 7, 33.) Between...

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