O'Hara v. Diageo-Guinness, USA, Inc.

Decision Date29 March 2018
Docket NumberC.A. No. 15–14139–MLW
Parties Kieran O'HARA, Plaintiff. v. DIAGEO–GUINNESS, USA, INC. and Diageo North America, Inc., Defendants.
CourtU.S. District Court — District of Massachusetts

Kevin J. McCullough, Mazow McCullough PC, Michael C. Forrest, Forrest, LaMothe, Mazoe, McCullough, Yasi & Yasi, Salem, MA, for Plaintiff.Douglas Dreier, Samuel A. Danon, Hunton & Williams LLP, Miami, FL, Euripides D. Dalmanieras, Foley Hoag LLP, Boston, MA, Leslie W. Kostyshak, Hunton & Williams, LLP, Washington, DC, for Defendants.


Mark L. Wolf, United States District Judge


Defendants Diageo–Guinness, USA, Inc. and Diageo North America, Inc. make and market Guinness Extra Stout ("Extra Stout"), a form of beer, for distribution in the United States. Plaintiff Kieran O'Hara filed a putative class complaint alleging that he bought Extra Stout in part because defendants deceptively advertised that it was brewed at St. James's Gate brewery, Dublin, Ireland. Plaintiff alleges that Extra Stout was actually brewed in New Brunswick, Canada. Plaintiff alleges that he paid more for the beer than he would have if defendants had disclosed its origin. Plaintiff subsequently filed an amended complaint with seven claims, including unjust enrichment, misrepresentation, and unfair and deceptive practices in violation of Mass. Gen. Laws Chapter 93A. Defendants have moved to dismiss.

The court is denying the motion with respect to Count I, alleging misrepresentation. It is also denying the motion with respect to Counts III and IV to the extent that they allege that statements on defendants' website violated Mass. Gen. Laws Chapter 93A. The Amended Complaint states plausible claims that these statements reasonably deceived plaintiff into buying and paying a price premium for Extra Stout.

However, the court is dismissing the Chapter 93A claims to the extent that they are based on the labels affixed to Extra Stout's bottles and packaging. The labels were approved by the Alcohol Tobacco Tax and Trade Bureau (the "TTB") and, therefore, are entitled to safe harbor protection under Chapter 93A, § 3. It is also dismissing Count II, alleging unjust enrichment, because plaintiff has adequate remedies at law. In addition, plaintiff has not alleged any threatened injury to himself that could be prevented by prospective relief, and his claim for a declaratory judgment duplicates his claims for damages. Accordingly, the claims for injunctive and declaratory relief are also being dismissed.

A. Motion to Dismiss

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." This pleading standard does not require "detailed factual allegations," but does require "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In addition, "some allegations, while not stating ultimate legal conclusions, are nevertheless so threadbare or speculative that they fail to cross ‘the line between the conclusory and the factual’ " and must be disregarded. Penalbert–Rosa v. Fortuno–Burset, 631 F.3d 592, 595 (1st Cir. 2011)(quoting Twombly, 550 U.S. at 557 n.5, 127 S.Ct. 1955 ).

To survive a motion to dismiss under Rule 12(b)(6), the 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). In considering a motion to dismiss under Rule 12(b)(6), the court must "take all factual allegations as true and ... draw all reasonable inferences in favor of the plaintiff." Rodriguez–Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007) ; Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009). An entitlement to relief is "plausible" if the facts "raise a reasonable expectation that discovery will reveal evidence" of the alleged misconduct, "even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ; see also Ocasio–Hernandez v. Fortuno–Burset, 640 F.3d 1, 17 (1st Cir. 2011). Nevertheless, "where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "[G]uaging a pleaded situation's plausibility is a ‘context-specific’ job that compels [the court] ‘to draw on’ [its] ‘judicial experience and common sense.’ " Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (quoting Iqbal, 556 U.S. at 677, 129 S.Ct. 1937 ).

In addition, Rule 9(b) requires that "in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." This standard means that a complaint must specify the "time, place, and content of an alleged false representation," including misrepresentations forming the basis of a Chapter 93A claim. Mulder v. Kohl's Pep't Stores, Inc., 865 F.3d 17, 22 (1st Cir. 2017).

Under Rule 12(b)(6), the district court must consider the complaint, attached exhibits, "documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) ; In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003). "The court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within [the court's] jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." F.R.E. 201(b). This includes "documents the authenticity of which [is] not disputed by the parties," Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993), and "official public records," Freeman v. Town of Hudson, 714 F.3d 29, 36–37 (1st Cir. 2013). When such a document contradicts an allegation in the complaint, the document trumps the allegation. See Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000) (citing Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998) ). These rules derive from "the axiom that a writing is the best evidence of its contents ... [and the] tenant that a court may look to matters of public record in deciding a Rule 12(b)(6) motion." Colonial Mortgage Bankers, 324 F.3d at 15–16.

When a defendant seeks dismissal based upon an affirmative defense, "the facts establishing the defense must be clear on the face of the plaintiff's pleadings." Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001). "Furthermore, review of the complaint, together with any other documents appropriately considered under Federal Rule of Civil Procedure P. 12(b)(6), must ‘leave no doubt’ that the plaintiff's action is barred by the asserted defense." Id.

B. Standing

The same standards apply to defendants' challenges to plaintiff's standing. The plaintiff must support each element of standing "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Therefore, where, as here, the factual allegations in the pleadings concerning jurisdiction are unchallenged, the court "must credit the plaintiff's well-pleaded factual allegations (usually taken from the complaint, but sometimes augmented by an explanatory affidavit or other repository of uncontested facts), draw all reasonable inferences from them in her favor, and dispose of the challenge accordingly." Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

To have standing to sue under Article III of the Constitution, plaintiff must have "a personal stake in the outcome of the controversy." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (citing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ). He "must allege and show that [he] personally ha[s] been injured" or will be injured without judicial relief, and "not that injury has been suffered" or will be suffered "by other, unidentified members of the class to which [he] belong[s] and which [he] purport[s] to represent." Id. at 502, 95 S.Ct. 2197. "Unless [the plaintiff] can thus demonstrate the requisite case or controversy between [himself] personally and [defendants], [he] may [not] seek relief on behalf of [himself] or any other member of the class." Id.

In addition, the "plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Town of Chester, N.Y. v. Laroe Estates, Inc., ––– U.S. ––––, 137 S.Ct. 1645, 1650, 198 L.Ed.2d 64 (2017). Therefore, a plaintiff who has standing to seek damages must also demonstrate standing to pursue injunctive relief." Id."Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

The "irreducible constitutional minimum of standing consists of three elements." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. First, there must be an "actual or imminent" " ‘injury in fact’—an invasion of a legally protected interest which is concrete and particularized." Id.; see also Katz v. Pershing, LLC, 672 F.3d 64, 71–72 (1st Cir. 2012). A threatened injury confers standing to seek injunctive relief if it "is ‘certainly impending,’ or there is a ‘substantial...

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