Porrazzo v. Bumble Bee Foods, LLC

• Decision Date: 30 September 2011
• Docket Number: No. 10–CV–4367 (CS).,10–CV–4367 (CS).
• Parties: Lee PORRAZZO, Plaintiff, v. BUMBLE BEE FOODS, LLC and the Stop & Shop Supermarket Company, LLC, Defendants.
• Court: U.S. District Court — Southern District of New York

822 F.Supp.2d 406

Lee PORRAZZO, Plaintiff,

v.BUMBLE BEE FOODS, LLC and the Stop & Shop Supermarket Company, LLC, Defendants.

No. 10–CV–4367 (CS).

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

Sept. 30, 2011.

Christina Maria Killerlane, Law Offices of James J. Killerlane, White Plains, NY, for Plaintiff.

Kenneth A. Schoen, Scott H. Goldstein, Bonner, Kiernan, Trebach & Criciata, New York, NY, for Defendants.

OPINION AND ORDER

SEIBEL, District Judge.

Before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 19), and Defendants' unopposed Motion for Judicial Notice, (Doc. 22). For the reasons stated below Defendants' Motion for Judicial Notice is GRANTED and Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.

I. Background

The following facts are assumed to be true for purposes of the motion.

Plaintiff Lee Porrazzo consumed approximately ten six-ounce cans of tuna fish per week from approximately January 2006 to October 2008. (Am. Compl. ¶ 1.) ¹ The tuna fish was canned by Defendant Bumble Bee Foods, LLC (“Bumble Bee”). ( Id.) Plaintiff purchased this tuna fish, which was frequently on sale, from Defendant Stop & Shop Supermarket Company (“Stop & Shop”). ( Id.) During this time Bumble Bee promoted its tuna fish as an “excellent and safe source of high quality protein, vitamins, minerals and Omega–3 fatty acids, as well as being low in saturated fats and carbohydrates[,] and touted its product as being ‘heart healthy.’ ” ( Id. ¶ 3.) The Bumble Bee tuna fish did not provide any warning that it contained mercury, “an odorless, colorless, tasteless, poisonous, heavy metal.” ( Id. ¶ 4.)

At some point between January 2006 and October 2008, Plaintiff began to experience, two to three times per week, “episodes of chest pains, heart palpitations, sweatiness, dizziness, and lightheadedness,” which led him to believe that he had a heart condition. ( Id. ¶ 5.) Plaintiff sought medical attention and underwent numerous tests to understand the cause of his symptoms, but none of these tests provided an answer. ( Id. ¶ 5.) On April 14, 2006, Plaintiff went to the White Plains Hospital Emergency Room because he believed (incorrectly) that he was having a heart attack. ( Id. ¶ 6.)

On or about October 1, 2008, Plaintiff's primary care practitioner ordered a heavy metals blood test, which showed that there was an elevated level of mercury in Plaintiff's blood. ( Id. ¶ 7.) Specifically, Plaintiff's blood mercury level was 23 mcg/L as opposed to the less than 10 mcg/L, which is normal. ( Id.) On the same date, the New York State Department of Health contacted Plaintiff by telephone, advised him that he had a dangerous level of mercury in his blood, asked him questions, filled out a questionnaire, and instructed him to stop eating tuna fish. ( Id. ¶ 8.) Plaintiff stopped eating tuna fish, and a blood test on November 4, 2008, revealed that his mercury levels had returned to normal. ( Id. ¶ 9.) Plaintiff no longer suffered the heart attack-like symptoms previously described, but he alleges that he “remains worried today about what effects the mercury has had on his health.” ( Id.)

Plaintiff filed the Amended Complaint on August 31, 2010, alleging claims for: (1) breach of implied warranty of merchantability and fitness for consumption; (2) failure to warn under both strict liability and negligence theories; (3) “emotional distress;” (4) violations of New York State Agriculture and Markets Law; and (5) violations of New York State General Business Law. (Doc. 9.)

II. Legal StandardsA. Motion to Dismiss

“To survive a motion to dismiss, 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, 129 S.Ct. 1937, 1949, 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 has 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. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S.Ct. at 1950.

In considering whether a complaint states a claim upon which relief can be granted, the court may “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and then determine whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. Deciding whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief’ ” Id. (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).

B. Consideration of Documents Outside the Pleadings

When deciding a motion to dismiss, the Court is entitled to consider the following:

(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [a] defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011) (internal quotation marks omitted); accord Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir.2002). A document is considered “integral” to the complaint where the plaintiff has “reli[ed] on the terms and effect of [the] document in drafting the complaint.” Chambers, 282 F.3d at 153 (emphasis omitted). Such reliance “is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.” Id.; see Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006) (integral documents may include documents partially quoted in complaint or on which plaintiff relied in drafting complaint). If a document outside of the complaint is to form the basis for dismissal, however, two requirements must be met in addition to the requirement that the document be “integral” to the complaint: (1) “it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document,” and (2) “[i]t must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.” Faulkner, 463 F.3d at 134.III. DiscussionA. Documents the Court May Consider

Before addressing the merits of Defendants' Motion to Dismiss, I must first address which documents may properly be considered on this motion. Defendants' request that I take judicial notice of the following documents of the United States Food and Drug Administration (“FDA”):

• “What You Need to Know About Mercury in Fish and Shellfish,” published by the United States Department of Health and Human Services and the United States Environmental Protection Agency, (Goldstein Cert. Ex. A) ²;

• “Backgrounder for the 2004 FDA/EPA Consumer Advisory: What You Need to Know About Mercury in Fish and Shellfish,” published by the United States Food and Drug Administration and the United States Environmental Protection Agency, (Goldstein Cert. Ex. B);

• Letter from Lester M. Crawford, D.V.M., Ph.D., United States Commissioner of Food and Drugs, to Bill Lockyer, Attorney General of the State of California, dated August 12, 2005, re: a suit filed on June 21, 2004 in San Francisco Superior Court, (Goldstein Cert. Ex. C);

• Section 540.600 of the Federal Food and Drug Administration's Compliance Policy Guide, which allows up to one part of methyl mercury per million non-mercury parts of the edible portion of seafood, (Goldstein Cert. Ex. D);

• FDA Letter Responding to Martek Petition, dated September 8, 2004, (Goldstein Cert. Ex. E).

“Rule 201 of the Federal Rules of Evidence permits judicial notice of a fact that is ‘either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably[ ] questioned.’ ” U.S. v. Bryant, 402 Fed.Appx. 543, 545 (2d Cir.2010). Further, it is well-established that courts may take judicial notice of publicly available documents on a motion to dismiss. See Byrd v. City of N.Y., No. 04–CV–1396, 2005 WL 1349876, at *1 (2d Cir. June 8, 2005) (“[M]aterial that is a matter of public record may be considered in a motion to dismiss.”); Blue Tree Hotels Inv. (Can.) v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004) (courts can “look to public records, including complaints filed in state court, in deciding a motion to dismiss”); In re Yukos Oil Co. Secs. Litig., No. 04–CV–5243, 2006...