Izquierdo v. Panera Bread Co.

• Decision Date: 30 March 2020
• Docket Number: 18-CV-12127 (VSB)
• Parties: Jose IZQUIERDO, individually and on behalf of all others similarly situated, Plaintiff, v. PANERA BREAD CO., a/k/a St. Louis Bread Co., Defendant.
• Court: U.S. District Court — Southern District of New York

450 F.Supp.3d 453

Jose IZQUIERDO, individually and on behalf of all others similarly situated, Plaintiff,

v.PANERA BREAD CO., a/k/a St. Louis Bread Co., Defendant.

18-CV-12127 (VSB)

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

Signed March 30, 2020

Anne Melissa Seelig, C.K. Lee, Lee Litigation Group, PLLC, New York, NY, Counsel for Plaintiffs.

Anne B. Sekel, Eileen Ridley, Nicole Michele Marschean, Foley & Lardner LLP, New York, NY, Counsel for Defendant.

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:

Plaintiff Jose Izquierdo ("Plaintiff"), on behalf of himself and a putative class, brings this action against Defendant Panera Bread Company, a/k/a St. Louis Bread Company ("Defendant" or "Panera") asserting several state law claims related to the allegedly deceptive and fraudulent sale of a "Blueberry Bagel." Before me is Defendant's motion to dismiss the first amended class action complaint for failure to state a claim. Because Plaintiff has failed to allege any future injury, Defendant's motion to dismiss Plaintiff's requests for injunctive relief for lack of standing is GRANTED. Because Plaintiff has stated sufficient facts to make out claims of violations of N. Y. Gen. Bus. §§ 349, 350, and 350-a(1), and for fraud, Defendant's motion to dismiss those claims is DENIED.

I. Factual Background ¹

Plaintiff is a New York citizen who resides in the Bronx. (FAC ¶ 15.)² Defendant is a "national bakery/café chain" organized under the laws of Delaware with principal executive offices in St. Louis, Missouri. (Id. ¶ 16.)

On August 8, 2018, Plaintiff visited a Panera store located at 452 5th Avenue, New York, New York 10018. (Id. ¶ 15.) He purchased a bagel ("the Bagel") that was "displayed in a basket on a wall behind the counter," affixed to which was a placard reading " ‘Blueberry,’ along with the number of calories (340)" in each "Blueberry" bagel. (Id. ¶ 19.) The basket was displayed "alongside [Defendant's] other bagel varieties." (Id. ) Above those baskets, Plaintiff alleges, was a sign reading "Food You Can Trust: We're advocates for clean food. We're committed to menu transparency. We're dedicated to having a positive impact on the food system." (Id. ¶ 20; id. Ex. B.) The ingredient list for the Bagel "is not displayed in-store." (Id. ¶ 21.) Panera also sells a Blueberry Muffin, which contains "fresh blueberries" as the second-to-last ingredient and no imitation blueberries. (Id. ¶¶ 43–44; id. Ex. E.)

Plaintiff supplies the following image of the Bagel:

(Id. Ex. A.)

Plaintiff alleges that he purchased the Bagel "reasonably relying on Defendant's representations that it was a genuine blueberry bagel," but that in fact the Bagel "contains only trace amounts of real blueberries" and a "far greater proportion of imitation blueberry ingredients." (Id. ¶¶ 15, 21.) "Even upon purchasing and closely inspecting the Product, a reasonable consumer cannot discern the imitation from the actual blueberry ingredients." (Id. ¶ 10.)

Plaintiff alleges that the ingredients list for the Bagel is as follows:

Enriched Flour (Wheat Flour, Malted Barley Flour, Niacin

, Reduced Iron, Thiamine Mononitrate, Riboflavin, Folic Acid ), Water, Blueberry Flavored Bites (Sugar, Enriched Wheat Flour [Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid ], Blueberry Solids, Sunflower Oil, Wheat Starch, Dextrose, Colored With Fruit Juice, Natural Flavor, Sodium Bicarbonate)³ , Brown Sugar, Infused Dried Blueberries (Wild Blueberries, Cane Sugar, Natural Flavor, Citric Acid, Sunflower Oil), Salt, Dough Improver (Malted Wheat Flour, Enriched Wheat Flour [Niacin, Reduced Iron, Thiamine Mononitrate, Riboflavin, Folic Acid ], Inactivated Yeast, Acerola Extract, Fungal Enzymes), Yeast (Yeast, Sorbitan Monostearate, Ascorbic Acid).

(Id. ¶¶ 26–27; id. Ex. A.) Plaintiff alleges that if he had "known that the [Bagel] in fact contains only trace amounts of blueberries, he would not have considered it a blueberry bagel and would not have purchased it, or would have paid significantly less for it. (Id. ¶ 15.) He further alleges that "[e]ven low-cost, supermarket-shelf blueberry bagels contain only real blueberry ingredients" and "[a] reasonable consumer would expect a blueberry bagel sold at a bakery-café that stresses its healthfulness and authenticity to contain more real blueberries than its low-cost, supermarket-shelf counterparts." (Id. ¶¶ 33, 35.)

II. Procedural History

Plaintiff commenced this action by filing a complaint on December 21, 2018. (Doc. 1.) The case was then assigned to Judge Deborah A. Batts. Defendant then requested and received two extensions of time to respond to the complaint. (Docs. 7–11.) On May 7, 2019, Defendant filed a motion to dismiss and supporting documents. (Docs. 14–16.)

On May 31, 2019, Plaintiff filed his first amended complaint, with exhibits. (Doc. 27.) On June 14, 2019, Defendant filed a motion to dismiss the first amended complaint, along with a memorandum of law and declaration in support. (Docs. 32 – 24.) Plaintiff filed his memorandum of law in opposition on June 28, 2019, (Doc. 35), and Defendant filed its reply memorandum of law on July 5, 2019, (Doc. 36). On February 20, 2020, this case was reassigned to me.

III. Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a 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 Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim will have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard demands "more than a sheer possibility that a defendant has acted unlawfully." Id. "Plausibility ... depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff's inferences unreasonable." L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 430 (2d Cir. 2011). A complaint need not make "detailed factual allegations," but it must contain more than mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted).

In considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in the plaintiff's favor. Kassner , 496 F.3d at 237. 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." Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002). Finally, although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Id.

IV. Materials Considered

As an initial matter, on this motion I consider only the first amended complaint and the exhibits attached thereto, which includes an image of the Bagel and ingredients list, a photograph of a Panera food display, as well as screen captures of various webpages. (FAC Exs. A–E.) Consistent with the black letter law, I decline to consider factual allegations and documents that are not contained in or attached to the First Amended Complaint, including Defendant's website as a whole because Defendant has not demonstrated that it is "integral to the complaint." See Chambers , 282 F.3d at 152. Specifically, I will not consider Defendant's factual allegations about the prices of other bagels sold by Panera, or the Panera's webpage submitted that displays these alleged prices. (See Defs.' Mem. 2 n.3; Beer Decl.; id. Exs. A.)⁴ Although Plaintiff provides an excerpt from Panera's website listing the ingredients in the Bagel, I do not find that Plaintiff "relies [so] heavily upon its terms and effect" that its entire website is "integral to the complaint." Chambers , 282 F.3d at 152. Defendant's request for me to consider the webpage is further undermined by the fact that it does not provide a URL for the excerpted webpage that would allow me to verify its authenticity and does not state on what date the webpage was accessed. (Def.'s Mem. 2 n.3; Beer Decl. ¶ 3; id. Ex. A.) Even if the page provided is an accurate reflect of Panera's website, the mere fact that it displayed certain bagel prices on some date does not mean that that those prices were the ones in place at the time Plaintiff visited the Panera location at 452 5th Avenue on August 8, 2018.

V. Discussion

Plaintiff brings this action on behalf of himself and "the New York class" of all other New York purchasers of the Bagel. (Id. ) He seeks damages and injunctive relief for violations of N.Y. G.B.L. § 349, which prohibits deceptive acts and practices in the conduct of business, and N.Y. G.B.L. § 350 and 350-A-1, which prohibits false advertising, and damages for common law fraud. Defendants move to dismiss all claims on the grounds that (1) Plaintiff lacks standing to seek injunctive relief; (2) Plaintiff has failed to state a claim of violation of N.Y. G.B.L. §§ 349, 350, and 350-a-1; and (3) Plaintiff has failed to state a claim of fraud. I address each possible ground for dismissal in turn.

A. Standing to Seek Injunctive Relief

1. Applicable Law

To satisfy the requirements of standing under Article III of the Constitution, a plaintiff must establish three elements: "(1) the plaintiff must have suffered an injury in fact, i.e. , an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be...