Kremers v. Coca-cola Co., Civil No. 09-333-GPM.

• Court: United States District Courts. 7th Circuit. Southern District of Illinois
• Writing for the Court: MURPHY
• Citation: 712 F.Supp.2d 759
• Decision Date: 27 April 2010
• Docket Number: Civil No. 09-333-GPM.
• Parties: Amanda KREMERS and Jason McCann, individually and on behalf of all others similarly situated, Plaintiffs,v.COCA-COLA COMPANY, Defendant.

712 F.Supp.2d 759

Amanda KREMERS and Jason McCann, individually and on behalf of all others similarly situated, Plaintiffs,
v.
COCA-COLA COMPANY, Defendant.

Civil No. 09-333-GPM.

United States District Court,
S.D. Illinois.

April 27, 2010.

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COPYRIGHT MATERIAL OMITTED

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Jeffrey A.J. Millar, Brent Coon & Associates, St. Louis, MO, Thomas G. Maag, Wendler Law P.C., Edwardsville, IL, for Plaintiffs.

Gene M. Williams, Shook, Hardy et al., Houston, TX, Holly P. Smith, James R. Eiszner, Jr., John F. Murphy, Laurie Ann Novion, Shook, Hardy et al., Kansas City, MO, Troy A. Bozarth, Gordon R. Broom, Hepler Broom LLC, Springfield, IL, for Defendant. MEMORANDUM AND ORDERMURPHY, District Judge:I Introduction

This case is before the Court on a motion for summary judgment by Defendant Coca-Cola Company (“Coca-Cola”) (Doc. 56). The Court has outlined the nature of the claims asserted in this case and the procedural history of the case in earlier orders in this case, see, e.g., Kremers v. Coca-Cola Co., Civil No. 09-333-GPM, 2009 WL 2365613, at *1 (S.D.Ill. July 24, 2009), and the Court sees no reason to repeat that recitation here. This suit concerns the marketing of the popular soft drink Coca-Cola (“Coke”), specifically so-called “Classic” Coke. Plaintiffs Amanda Kremers and Jason McCann, who sue on behalf of themselves and a proposed class of Illinois citizens, allege that Coca-Cola's conduct in labeling cans and bottles of “Classic” Coke with the terms “Original Formula” constitutes a deceptive and unfair trade practice. This is because, Kremers and McCann contend, the “Original Formula” of Coke, which was invented in 1886, called for Coke to be sweetened using sucrose (ordinary table sugar, in essence), whereas “Classic” Coke currently is sweetened using high fructose corn syrup (“HFCS”). In their complaint Kremers and McCann allege that selling a product containing HFCS as using the “Original Formula” for Coke comprises a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq. , and that Coca-Cola has been unjustly enriched through unlawful marketing activities. ¹ Coca-Cola now seeks summary judgment as to all of the claims in the case. For the reasons that follow, the Court grants Coca-Cola's motion.

II Analysis A. Legal Standard

As an initial matter the Court notes the standard under which it must evaluate a request for summary judgment. Rule 56 of the Federal Rules of Civil Procedure provides, in pertinent part, that “[a] party against whom relief is sought may move, with or without supporting affidavits, for summary judgment on all or part of the claim.” Fed.R.Civ.P. 56(b). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). In considering a motion for summary judgment, a court must review

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the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.1995); Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir.1981). On summary judgment a court may not make credibility determinations or weigh the evidence, because these are tasks for a fact-finder. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th Cir.1994). In evaluating a motion for summary judgment, “[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2009 WL 2905548, at *3 (S.D.Ill. Sept. 4, 2009) (quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994)). With this standard in mind, the Court turns to the matter of the propriety of summary judgment in this case.²
B. Summary Judgment on Kremers's Claims

Coca-Cola seeks summary judgment on Kremers's claims under the ICFA and for unjust enrichment on the grounds that they are time-barred. Illinois has a three-year statute of limitations for violations of the ICFA. See 815 ILCS 505/10a(e); Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 934 (S.D.Ill.2006); Kopley Group V, L.P. v. Sheridan Edgewater Props., Ltd., 376 Ill.App.3d 1006, 315 Ill.Dec. 218, 876 N.E.2d 218, 231 (2007). Also, Illinois has a five-year statute of limitations for claims of unjust enrichment. See 735 ILCS 5/13-205; Brown v. New York Life Ins. Co., No. 06 C 3339, 2008 WL 151390, at *2 (N.D.Ill. Jan. 15, 2008) (citing Frederickson v. Blumenthal, 271 Ill.App.3d 738, 208 Ill.Dec. 138, 648 N.E.2d 1060, 1063 (1995)).

In general, of course, a federal court sitting in federal diversity jurisdiction pursuant to 28 U.S.C. § 1332 must apply the substantive law of the state in which it sits. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Republic Tobacco Co. v. North Atl. Trading Co., 381 F.3d 717, 731-32 (7th Cir.2004); Land v. Yamaha Motor Corp., 272 F.3d 514, 516 (7th Cir.2001). “Statutes of limitations are generally considered part of the forum state's substantive law which federal courts must apply when sitting in diversity.” Ogden Martin Sys. of Indianapolis, Inc. v. Whiting Corp., 179 F.3d 523, 528 (7th Cir.1999)

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(quoting Evans v. Lederle Labs., 167 F.3d 1106, 1111-12 (7th Cir.1999)). Further, when applying a state statute of limitations, a federal court sitting in diversity must apply state law governing accrual of a cause of action for purposes of the commencement of a relevant limitations period. See Hollander v. Brown, 457 F.3d 688, 694 (7th Cir.2006) (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 748, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980)) (“Like the statute of limitations itself, rules that are an ‘integral part of the statute of limitations,’ such as tolling and equitable estoppel, are treated as substantive for purposes of the Erie doctrine.”); Kalmich v. Bruno, 553 F.2d 549, 552 (7th Cir.1977) (citing Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)) (“State law barring an action because of a statute of limitations is sufficiently ‘substantive,’ in the Erie sense, that a federal court in that state exercising diversity jurisdiction must respect it.”). In this case, the basis for federal subject matter jurisdiction is diversity of citizenship pursuant to Section 1332, as amended by the Class Action Fairness Act of 2005, Pub.L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). Accordingly, the Court must apply both the relevant limitations period or periods under Illinois law together with Illinois law governing the accrual of a cause of action for purposes of commencement of the applicable limitations period.

In general, of course, Illinois applies the so-called “discovery rule” in actions involving “tort, tort arising from contract, or other breach of contractual duty.” Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 209 Ill.Dec. 684, 651 N.E.2d 1132, 1136 (1995). Under the discovery rule, a cause of action under Illinois law does not accrue for purposes of the statute of limitations, and thus the relevant limitations period does not begin to run, “until the injured party knows or should have known of his injury.” City Nat'l Bank of Fla. v. Checkers, Simon & Rosner, 32 F.3d 277, 282 (7th Cir.1994) (quoting Knox Coll. v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 430 N.E.2d 976, 979 (1981)). See also Clay v. Kuhl, 189 Ill.2d 603, 244 Ill.Dec. 918, 727 N.E.2d 217, 220 (2000) (the discovery rule delays the accrual of a cause of action, and hence the start of the clock on the statute of limitations, until a plaintiff “knows or reasonably should know of an injury and that the injury was wrongfully caused.”); Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill.2d 240, 198 Ill.Dec. 786, 633 N.E.2d 627, 630-31 (1994) (the discovery rule “delays the commencement of the relevant statute of limitations until the plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused.”); Dockery v. Ortiz, 185 Ill.App.3d 296, 133 Ill.Dec. 389, 541 N.E.2d 226, 231 (1989) (“The effect of th[e] ‘discovery rule’ is to postpone the starting of the period of limitations until the injured party knows or should have known of his injury and also knows or reasonably should have known that it was wrongfully caused.”) (citations omitted). Cf. Tammerello v. Ameriquest Mortgage Co., No. 05 C 466, 2006 WL 2860936, at *7 (N.D.Ill. Sept. 29, 2006) (citing Knox Coll., 58 Ill.Dec. 725, 430 N.E.2d at 979) (a claim accrues under the ICFA “when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.”). Thus, the principal question for the Court to decide at this juncture is when Kremers knew or reasonably should have known of her alleged unlawful injury at the hands of Coca-Cola.

Importantly, “[t]he discovery rule does not allow a plaintiff to wait until the defendant admits it has caused plaintiff's damage,” and it “places the burden on plaintiffs to inquire as to the existence of a cause of action.”

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Carey v. Kerr-McGee Chem. Corp., 999 F.Supp. 1109, 1116 (N.D.Ill.1998). Put differently, under the discovery rule, a cause of action accrues when a plaintiff is “possessed of sufficient information concerning its injury to put a reasonable person on inquiry to determine whether actionable conduct is involved.” Vector-Springfield Props., Ltd. v. Central Ill. Light Co., 108 F.3d 806, 809 (7th Cir.1997). See also McWane, Inc. v. Crow Chicago Indus., Inc., 224 F.3d 582, 585 (7th...