St. Clair v. Kroger Co.

Decision Date14 October 2008
Docket NumberNo. 3:07CV03798.,3:07CV03798.
Citation581 F.Supp.2d 896
PartiesWendy ST. CLAIR, Plaintiff v. KROGER CO., Defendant.
CourtU.S. District Court — Northern District of Ohio

John L. Huffman, Mickel & Huffman, Toledo, OH, John T. Murray, Leslie 0. Murray, Murray & Murray, Sandusky, OH, for Plaintiff.

David W. Wicklund, Shumaker, Loop & Kendrick, Toledo, OH, Craig A. Hoover, E. Desmond Hogan, J. Raymond Reduque, Hogan & Hartson, Washington, DC, for Defendant.


JAMES G. CARR, Chief Judge.

This is a case arising under the Ohio Consumer Sales Practice Act [CSPA], O.R.C. § 1345, et seq., and the Uniform Commercial Code [UCC], as adopted in Ohio as O.R.C. § 1302, for fraudulent misrepresentation and breach of warranty, respectively. Plaintiff Wendy St. Clair alleges that Kroger Co., a national grocer headquartered in Cincinnati, Ohio, misled consumers by labeling beef products as "aged" when they in fact did not qualify for that designation.

Jurisdiction exists under 28 U.S.C. § 1332(d), as amended by the Class Action Fairness Act [CAFA].1 Pending is defendant's motion to dismiss. [Doc. 4]. For the reasons discussed below, defendant's motion shall be granted, except to the extent that plaintiff can show cause as to why I retain jurisdiction over her individual CSPA claim.


While shopping at Kroger Co., plaintiff purchased products labeled "aged beef" with the understanding that aged meat is superior to its unaged counterpart.2 According to plaintiff, the process of aging improves the meat's quality and taste by allowing enzymatic activity to degrade complex proteins. The aging process also lowers the beefs moisture level, meaning that aged meat has more meat and less water. The United States Department of Agriculture [USDA] sets forth the requirements for "aged beef" in their Food Standards and Labeling Policy Book. [Doc. 1].

The beef products (carcass or cuts) are maintained in a fresh unfrozen state for a minimum of 14 days from the day of slaughter. Aging claims made within the supply chain (e.g., prior to the point of sale at retail or food service) shall specify the minimum number of days aged and the type of aging used on the principal display panel on the label (e.g., "Wet aged for a minimum of ___ days."). If an aging claim is made at the point of sale to the consumer, the minimum claimed for aging shall appear on the principal display panel of the label (e.g., "Aged for a minimum of a minimum of ___ days.").

Kroger labels its beef products as "U.S.D.A. Choice Tender Aged Beef" [Doc. 1] and advertises them as such. St. Clair alleges that Kroger's beef products are not aged for fourteen days, but rather packed and shipped almost immediately after slaughter. She also asserts that defendant's labels do not specify the number of days that the beef has been aged, as required by USDA regulations. Finally, plaintiff argues that Kroger deliberately attempted to deceive consumers about the quality of its beef through its inaccurate labeling and marketing.

On November 13, 2007, St. Clair filed this lawsuit under the CSPA and UCC in the Wood County, Ohio, Court of Common Pleas. She filed on behalf of herself and all other persons in the state of Ohio who purchased beef labeled as "aged" for personal, family or household purposes in reliance on Kroger's misrepresentation from November 1, 2005 to the present. St. Clair estimates that the class contains tens of thousands of Kroger shoppers. On August 31, 2007, Kroger removed the case to this court.

Standard of Review

Under Rule 12(b)(6), a complaint must be dismissed if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, U.S., 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Plaintiff must offer "either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). Although the factual allegations in a complaint need not be detailed, they must sufficiently "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Assoc. of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir.2007); Twombly, supra, 127 S.Ct. at 1964-65.

In making this determination, I deem all factual allegations in the complaint to be true, Tellabs, supra, 127 S.Ct. at 2509, and "draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007). It is not my function, at this stage, to weigh evidence or evaluate credibility. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995).

1. Doctrine of Primary Jurisdiction

The doctrine of primary jurisdiction applies when a court and administrative agency have concurrent jurisdiction over the same matter. United States v. Western Pacific Railroad Co., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). The doctrine allows a court either to dismiss a case or suspend its proceedings pending referral of relevant issues to an administrative body for review. Id. at 64, 77 S.Ct. 161; Weinberger v. Bentex Pharms., Inc., 412 U.S. 645, 654, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973) (staying case); Pacific Chemical Products Co. v. Teletronics Services, Inc., 29 Ohio App.3d 45, 49-50, 502 N.E.2d 669 (1985) (upholding dismissal).

Courts only apply the doctrine if there is a "desire for uniformity of regulation" and "need for an initial consideration by a tribunal with specialized knowledge." Kocolene Oil Corp. v. Ashland Oil, Inc., 509 F.Supp. 741, 743 (S.D.Ohio 1981). "In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation." Western Pacific Railroad Co., supra, 352 U.S. at 64, 77 S.Ct. 161.

Kroger argues that the USDA's authority to regulate the labeling of meat products makes it a more appropriate place for adjudication and urges me to dismiss plaintiffs claims.3 I disagree and conclude that the doctrine of primary jurisdiction is not appropriate in this case.

A. Specialized Knowledge

Primary jurisdiction is appropriate if the case involves "technical or policy considerations which are beyond the court's ordinary competence and within the agency's particular field of expertise." MCI v. AT & T, 496 F.2d 214, 220 (3d Cir.1974).

Kroger cites two decisions invoking the doctrine of primary jurisdiction—in both cases, the parties asked the court to interpret or redefine an agency specification. In Kocolene, supra, 509 F.Supp. at 742, the dispute turned "on an interpretation of the word `purchase' as it is used in the Code of Federal Regulations." Similarly, in Public Citizen v. Foreman, 471 F.Supp. 586, 594 (D.D.C.1979), plaintiff asked the court to determine how the color effects of nitrite in bacon fit in the USDA's prohibition of food additives that "impart[ ] color."

Kroger urges me to apply the doctrine of primary jurisdiction because the term "aged" is used "in a peculiar or technical sense" requiring extrinsic evidence "to determine [its] meaning and proper application." See Kocolene, supra, 509 F.Supp. at 744. I disagree.

Determining whether Kroger marketed and labeled its beef in a false and misleading way does not require specialized knowledge of the meat industry or the body of regulations of the USDA. My role—and the role of the jury—is to determine whether Kroger complied with already clear regulations.4 Although this claim requires that I look at USDA standards, it differs from the cases cited by defendant, as it does not require the USDA to explain its own regulation or interpret a complex body of regulatory law. At this stage, there is no indication that a jury could not handle its task.

Kroger asserts that trial would involve expert testimony, which, in its view, would take this case out of the realm of ordinary fact finding and into areas of agency responsibility. At this stage, this prediction appears rather dubious. But even if I accept it as accurate, the mere fact that jurors might have to hear and consider expert testimony is no reason, without more, to conclude that they will be incapable of making accurate factual findings. The putative need for expert testimony does not require invocation of the doctrine of primary jurisdiction.

In any event, nothing in this case, as presently projected, appears in any way to involve refining/redefining agency regulations.

The decision in Kocolene is readily distinguishable. In that case, the dispute was pending before the Department of Energy. Though acceding to an agency's primary jurisdiction is not mandatory even in that circumstance, the doctrine is perceptibly more applicable where an administrative agency is already engaged and conducting proceedings involving the same question as a court. Id. at 743. The dispute in this case, unlike the situation in Kocolene, is not pending before an administrative body.

B. Administrative Uniformity

Courts also invoke primary jurisdiction to ensure nationwide uniformity in the application of federal regulations. See Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 439, 27 S.Ct. 350, 51 L.Ed. 553 (1907) (finding that uniform rates could not be achieved if judges and juries throughout the country were to determine the reasonableness of a carrier's established rate schedule); Kocolene, supra, 509 F.Supp. at 743 ("Primary jurisdiction reference to an agency is favored when it will promote evenhanded treatment and uniformity in a highly regulated area and when sporadic action by federal courts will disrupt an agency's delicate regulatory scheme.").

I disagree with Kroger's contention that permitting the USDA to consider plaintiff's contentions before this case proceeds would enhance regulatory uniformity. The question...

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