Hawkins v. Nestle U.S.A. Inc.

• Decision Date: 16 February 2018
• Docket Number: Case No.: 4:17CV205 HEA
• Citation: 309 F.Supp.3d 696
• Parties: Lahonee HAWKINS, individually and on behalf of all others similarly situated, Plaintiffs, v. NESTLE U.S.A. INC., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

309 F.Supp.3d 696

Lahonee HAWKINS, individually and on behalf of all others similarly situated, Plaintiffs,

v.NESTLE U.S.A. INC., Defendant.

Case No.: 4:17CV205 HEA

United States District Court, E.D. Missouri, Eastern Division.

Signed February 16, 2018

David L. Steelman, Steelman, Gaunt & Horsefield, Rolla, MO, Naomi B. Spector, KamberLaw LLP, La Jolla, CA, for Plaintiffs.

Carmine R. Zarlenga, III, Mayer Brown LLP, Washington, DC, Dale Joseph Giali, Elizabeth Jean Crepps, Keri E. Borders, Mayer Brown LLP, Los Angeles, CA, for Defendant.

AMENDED OPINION, MEMORANDUM AND ORDER

HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant's Motion to Dismiss. [Doc. No. 24]. The motion is fully briefed. For the reasons set forth below, the Motion is denied.

Defendant moves to dismiss the Amended Complaint under Fed. R. Civ. P. 12(b)(6) and 12(b)(1).

Facts and Background¹

Defendant manufactures Raisonets candy. The products are regularly sold at grocery stores, convenience stores, and other food retail outlets throughout Missouri and the rest of the United States. Plaintiff bought an opaque, non–pliable, cardboard box of Raisonets for about $1.59 apiece at a Walgreens store in Rolla, Missouri, for his personal, family, or household purposes. His lawsuit focuses on Defendant's packaging of the candies.

Consumers spend an average of 13 seconds making an in-store purchasing decision. The decision is heavily dependent on a product's packaging, in particular, the package dimensions. When faced with a large box and a smaller box, both containing the same amount of product, a consumer is more likely to choose the larger one, thinking it is a better value.

The dimensions of a Raisonets box are 3 ?? x ¹¹/₁₆? x 6 ³/₁₆?. The front of the box includes the description, "California Raisins covered in chocolate." The front of the box also states: "NET WEIGHT 3.5 OZ (99.2 g)"; "190 CALORIES"; "5 g SAT FAT"; "15 mg SODIUM"; and "28 g SUGARS" per ¼ cup. About 45% of each box has "slack filled," or empty, space.

Plaintiff alleges that she "attached importance" to the "size" of the Raisonets boxes, and was misled to believe that she was "purchasing more Product than was actually received." She alleges that boxes are "uniformly under-filled" or " ‘slack-filled,’ "; the slack-filled space serves no purpose; and had she known the boxes were "substantially slack-filled," she would not have purchased the products or would have purchased them on different terms. She alleges that she "suffered an ascertainable loss as a result of Defendant's unlawful conduct because the actual value of the Products as purchased was less than the value of the Products as represented." Plaintiff alleges that she "would...likely purchase the Products in the future if the Products complied with applicable laws."

Plaintiff filed this lawsuit as a putative class action. In Count I, she claims a violation of the Missouri Merchandising Practices Act (MMPA) for a Missouri Consumer Subclass, and she requests injunctive relief and damages under the statute. Count II is a claim for unjust enrichment brought on behalf of All Classes (class members in all states who purchased the products), in which Plaintiff requests restitution or disgorgement of Defendant's economic enrichment.

Discussion

Defendant argues that Count I must be dismissed because Plaintiff fails to state a claim under the MMPA and has no standing to seek injunctive relief. Defendant also argues that argues that Count II must be dismissed because it is derivative of her legally insufficient MMPA claim.

Legal Standards

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "enough facts 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A complaint is plausible if its "factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). A court must " ‘draw on its judicial experience and common sense,’ " and consider the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ).

When considering a Defendant's motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court must first "distinguish between a ‘facial attack’ and a ‘factual attack’ " on the Court's jurisdiction. Osborn v. United States , 918 F.2d 724, 729 n.6 (8th Cir. 1990). When a 12(b)(1) motion makes a facial attack, "the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Id. (internal citations omitted). On the other hand, a factual attack requires the Court to consider "matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards." Id. (internal citations omitted). Defendant's motion in this matter represents a facial attack on the Court's jurisdiction, in that it challenges the legal sufficiency of the Plaintiff's complaint to support the Court's jurisdiction. Therefore, the Court will accept all of Plaintiff's factual claims as true and construe the allegations in Plaintiff's favor. Kulkay v. Roy , 847 F.3d 637, 641 (8th Cir.2017).

Count I—MMPA claim

The elements of a claim under the MMPA are: (1) the purchase of goods or services, (2) primarily for personal or household purposes; and (3) an ascertainable loss of money or property, (4) as a result of, or caused by, the use or employment by another person of a method, act, or practice declared unlawful under the MMPA. §§ 407.020 and 407.025.1. See also Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo. App. 2016) ; and Mo. Approved Instructions (Civil) 39.01 (7^th ed.).

Defendant argues that the MMPA count must be dismissed because Plaintiff's allegations concerning unlawful practice and ascertainable loss are not plausible. For the reasons discussed below, the Court concludes that the allegations are sufficient to state a claim.

Allegation of an unlawful practice

The Missouri Supreme Court has characterized the MMPA as " ‘paternalistic legislation designed to protect those that could not otherwise protect themselves.’ " High Life Sales Co. v. Brown–Forman, Corp., 823 S.W.2d 493, 498 (Mo. 1992) (quoting Electrical and Magneto Service Co. v. AMBAC Intern'l Corp., 941 F.2d 660, 663 (8th Cir. 1991) ). See also Huch v. Charter Communications, Inc. , 290 S.W.3d 721, 725 (Mo. 2009) (en banc) (noting that the legislature enacted the MMPA to "regulate the marketplace to the advantage of those who may fall victim to unfair business practices"). As such, the law is very broadly written. Section 407.020(1) declares and describes unlawful practices as follows:

The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce ... in or from the State of Missouri, is declared to be an unlawful practice.

See also 34 Mo. Practice Personal Injury and Torts Handbook § 29:2, "Elements of the action" (2016 ed.) ("The prohibitions of V.A.M.S. § 407.020 are construed broadly to reach any deception or unfair practice[.]") (and citations therein). The focus of the statutory scheme is on the defendant's conduct. "A consumer's reliance on an unlawful practice is not required under the MMPA." Murphy , 503 S.W.3d at 311 (citing Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 774 (Mo. 2007) (en banc) ). Ultimately, the MMPA requires courts to make case-by-case determinations of whether a defendant's conduct violates principles of fair dealing. Huch v. Charter Commc'ns, Inc., 290 S.W.3d 721, 724 (Mo. 2009) (en banc ).

"[I]n order to prevent evasion by overly meticulous definitions," the statutory scheme does not provide definitions of any particular unlawful practices. Clement v. St. Charles Nissan, Inc., 103 S.W.3d 898, 900 (Mo. App. 2003) (citing State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo. App. 1988) ). The Missouri Supreme Court explained in Ports Petroleum Co. of Ohio v. Nixon that absent statutory definitions, it would "consider[ ] the plain and ordinary meaning of the words themselves, ... which," in the case of "unfair practice" were "unrestricted, all-encompassing and exceedingly broad." 37 S.W.3d 237, 240 (Mo. 2001). Accordingly, "[f]or better or worse, the literal words cover every practice imaginable and every unfairness to whatever degree." Id.

The MMPA does grant the Missouri Attorney General authority to promulgate rules, and the rules that have been promulgated under the MMPA are instructive here. See United Pharmacal Co. of Mo. v. Mo. Bd. of Pharmacy, 159 S.W.3d 361, 365 (Mo. 2005) (en banc) (properly promulgated rules have the force and effect of law). For example, under 15 C.S.R. § 60–9.020(1), "deception" is defined as "any method, act, use, practice, advertisement or solicitation that has the tendency or capacity to mislead, deceive or cheat, or that tends to create a false impression." Under 15 C.S.R. § 60–9.030(1), "Deceptive Format," "[i]t is deception for any person in an advertisement or sales presentation to use any format which because of its overall appearance has the tendency or capacity to mislead consumers." Another rule, 15 C.S.R. § 60–9.070(1), defines "misrepresentation" as "an assertion not in accord with the facts[.]" The rules further provide that reliance and intent are not elements...