Reinitz v. Kellogg Sales Co.
| Docket Number | 21-cv-1239-JES-JEH |
| Decision Date | 02 June 2022 |
| Parties | ROBERTA REINITZ, individually and on behalf of all others similarly situated, Plaintiff, v. KELLOGG SALES COMPANY, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
This matter is now before the Court on Defendant's Memorandum and Motion (Doc. 6) to Dismiss and Plaintiff's Memorandum in Opposition (Doc. 10). Defendant has filed a Reply and with leave of Court, Supplemental Authority in the form of a recently published order in Chiappetta v. Kellogg Sales Co., No. 21-3545 (N.D. Ill. Mar. 1, 2022). For the reasons indicated herein, Defendant's Motion to Dismiss is GRANTED, although Plaintiff will be given leave to replead.
The following facts are taken from Plaintiff's Complaint which the Court accepts as true for the purposes of a motion to dismiss. Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015). Plaintiff filed a complaint on behalf of herself and the putative class of Illinois, Iowa, and Arkansas consumers who purchased Defendant Kellogg's Frosted Chocolate Fudge Pop-Tarts (“Fudge Pop-Tarts”) during the applicable statutes of limitations. (Doc. 1 at 11). Plaintiff complains that, despite the name and the chunk of fudge pictured on the label, Fudge Pop-Tarts do not contain milk and butter, collectively “milkfat, ” ingredients which she claims are integral to fudge. The ingredients on the back of the package are listed as sugar, various oils, whey, and cocoa, among others. (Doc. 1 at 7).
Plaintiff asserts that she would not have purchased the Fudge Pop-Tarts, or would not have paid a premium price for them, had she known the product “lack[ed] ingredients essential to fudge - butter and milk - and substitute[d], ” “lower quality and lower-priced, ” “vegetable oils and whey.”[1] (Doc. 1 at 7). A copy of the label and packaging is reproduced below:
(Image Omitted)
Plaintiff claims that the labeling was false, intended to deceive the consumer in violation of the Illinois Consumer Fraud Act (“ICFA”), 815 ILCS 505/1 et seq.; the Iowa and Arkansas consumer fraud acts; state law express and implied warranties of merchantability and the Magnuson Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2301, et seq.; and resulted in tortious negligent misrepresentation, common-law fraud, and unjust enrichment.
Plaintiff asserts that she has been economically injured in paying for Fudge Pop-Tarts not made with milkfat. She also requests injunctive relief, asserting that members of the putative class continue to face injury as they may well purchase the Fudge Pop-Tarts unaware that they do not contain milkfat. Plaintiff requests that the Court order that Defendant stop the allegedly deceptive practices and representations, disgorge profits, pay restitution to the class members, and pay punitive damages, fees, and costs.
Kellogg has moved to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; and to dismiss the claim for injunctive under Federal Rule of Civil Procedure 12(b)(1), for lack of standing. Plaintiff responds that she is not required, at the pleadings stage, to establish that the use of the term fudge is clearly misleading. She need only establish that her interpretation of the labeling is facially plausible. Bell v. Publix Super Markets, Inc., 982 F.3d 468, 494 (7th Cir. 2020) (Kanne, J. concurring). Plaintiff asks that the Court deny Defendant's motion to dismiss or, in the alternative, grant her leave to file an amended complaint.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint, but not the merits of a case. McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering such motions, courts “construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor.” Tamayo v. Blagovich, 526 F.3d 1074, 1081 (7th Cir. 2008). A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks sufficient facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (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.” Iqbal, 556 U.S. at 679.
Although a facially plausible complaint need not give “detailed factual allegations, ” it must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. These requirements ensure that a defendant receives “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The required level of factual specificity rises with the complexity of the claim. “A more complex case ... will require more detail, both to give the opposing party notice of what the case is all about and to show how, in the plaintiff's mind at least, the dots should be connected.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
Fraud claims, including those brought under the ICFA, must also meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b): See also, Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019); Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399 (7th Cir. 2011). In practice, this means that a plaintiff “must identify the ‘who, what, when, where, and how' of the alleged fraud.” Benson, 944 F.3d at 646 (quoting Vanzant v. Hill's Pet Nutrition, Inc., 934 F.3d 730, 738 (7th Cir. 2019)).
As noted, Defendant asserts that Plaintiff lacks standing to assert a claim for injunctive relief, thus divesting the Court of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). “As the party invoking federal jurisdiction, a plaintiff bears the burden of establishing the elements of Article III standing.” MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., No.17-01537, 2018 WL 340020, at *2-3 (C.D. Ill. Jan. 9, 2018) (citing Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015)). To establish standing plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” MAO-MSO, 2018 WL 340020, at *2-3 (citing Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)). Where, as here, there is a facial challenge to the court's subject matter jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the matter. Silha, 807 F.3d at 173. If a court does not have subject matter jurisdiction over a claim, it must be dismissed. In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986).
The ICFA safeguards “consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010) (internal citation and quotation marks omitted). Under the ICFA, “a statement is deceptive if it creates a likelihood of deception or has the capacity to deceive.” Pepperidge Farm, Inc., 2022 WL 203071, at *3 (citing Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir. 2001)). To state an ICFA claim, a plaintiff must allege “(1) a deceptive or unfair act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Siegel, 612 F.3d at 934. It is not enough to show the “mere possibility of fraud, ” as Plaintiff must show that fraud is a “necessary or probable inference from the facts alleged.” Spector v. Mondelez Int'l, Inc., 178 F.Supp.3d 657, 672 (N.D. Ill. 2016) (quoting People ex rel. Hartigan v. E & E Hauling, Inc., 607 N.E.2d 165, 174 (Ill. 1992)). This is, that a reasonable consumer would be deceived by the labeling of the product. The reasonable consumer test requires “a probability that a significant portion of the general consuming public...acting reasonably in the circumstances, could be misled.” Pepperidge Farm, Inc., 2022 WL 203071, at *3 (internal citation omitted). When considering an ICFA claim, “a court may dismiss the complaint if the challenged statement was not misleading as a matter of law.” Ibarrola v. Kind, LLC, 83 F.Supp.3d 751, 756 (N.D. Ill. 2015) (citing Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 940 (7th Cir. 2001). However, “if a plaintiff's interpretation of a challenged statement is not facially illogical, implausible, or fanciful, then a court may not conclude that it is nondeceptive as a matter of law. Bell, 982 F.3d 493 (emphasis in original).
Plaintiff describes fudge as a “sweet based on milkfat, which is how scholars of confectionery, home cooks, and everyone in between, has understood this food for over a century.” Plaintiff cites various dictionary definitions of fudge...
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...finding that the labels are unambiguous and noting that a reasonable consumer would not be misled. See Reinitz v. Kellogg Sales Co., 2022 WL 1813891, at *4 (C.D. Ill. June 2, 2022) (granting dismissal and finding that "[p]laintiff fails to support that a chocolate-tasting fudge product made......