Twohig v. Shop-Rite Supermarkets, Inc.

• Decision Date: 11 February 2021
• Docket Number: No. 20-CV-763 (CS),20-CV-763 (CS)
• Citation: 519 F.Supp.3d 154
• Parties: Sean TWOHIG, Sandy Balbin, individually and on behalf of all others similarly situated, Plaintiffs, v. SHOP-RITE SUPERMARKETS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

519 F.Supp.3d 154

Sean TWOHIG, Sandy Balbin, individually and on behalf of all others similarly situated, Plaintiffs,

v.SHOP-RITE SUPERMARKETS, INC., Defendant.

No. 20-CV-763 (CS)

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

Signed February 11, 2021

Spencer Sheehan, Sheehan & Associates, P.C., Great Neck, New York, Michael R. Reese, Sue J. Nam, Reese LLP, New York, New York, Counsel for Plaintiffs.

August T. Horvath, Foley Hoag LLP, New York, New York, Counsel for Defendant.

OPINION & ORDER

Seibel, J.

Before the Court is Defendant's motion to dismiss Plaintiffs’ Amended Complaint. (Doc. 16.) For the following reasons, Defendant's motion is GRANTED.

I. BACKGROUND

A. Facts

For purposes of this motion, the Court accepts as true the facts, but not the conclusions, alleged by Plaintiffs in the Amended Complaint ("AC"), (Doc. 15).

Defendant ShopRite Supermarkets, Inc. ("ShopRite") manufactures, distributes, markets, labels, and sells organic vanilla soymilk under the Wholesome Pantry™ brand ("the Product") in its retail stores and on its website. (AC ¶ 1.) Plaintiff Twohig purchased the Product at ShopRite stores in Poughkeepsie, New York and Fishkill, New York on multiple occasions in 2019, and Plaintiff Balbin purchased the Product at a ShopRite store in Stony Point, New York on multiple occasions in 2020. (Id. ¶¶ 97-98.) The Product sells for approximately $2.74 for a 32-ounce carton and $3.99 for a 64-ounce carton, excluding tax. (Id. ¶ 77.) The front label of the Product contains the brand name "Wholesome Pantry" at the top. Beneath is a small banner that says "Organic." Under the banner is the word "Soymilk," and below that word, in a different font and color and a smaller size, is the word "Vanilla." (Id. ¶ 3.) A picture included in the AC of the Product's front label is below.

(Id. )

Plaintiffs contend that the front label deceived them into believing that the vanilla flavoring in the Product came only from vanilla beans and was not enhanced by non-vanilla flavors or artificial flavors. (Id. ¶¶ 96, 99-101.) But, they claim, vanillin – which is the main molecule in vanilla but is derived from wood pulp or sources other than the vanilla bean, (id. ¶¶ 13, 18, 54) – and other compounds contribute to the vanilla flavor of the Product. (Id. ¶¶ 22, 23, 37.) They contend that the ingredient list, which includes "Organic Natural Flavors" and "Organic Vanilla Extract," among other ingredients, (id. ¶ 37), "fails to clarify any front label ambiguity" because organic vanilla extract contributes less to the Product's vanilla taste "than the front label and the ingredient list would have consumers believe," (id. ¶ 70).

Plaintiffs rely on a consumer survey they commissioned to support their contentions. (Id. ¶¶ 34-35.) According to Plaintiffs, the survey found that over forty-three percent of consumers expected the origin of the Product's vanilla taste to be "vanilla beans from the vanilla plant" and that almost fifty-five percent of consumers would be less likely to purchase the Product if the taste were due to imitation vanilla flavoring. (Doc. 15-2 at 7-8;¹ see AC ¶¶ 35-36.) Plaintiffs also provide the results of a Gas Chromatography-Mass Spectrometry ("GC-MS") test performed on the Product, which they allege demonstrates that "the Product contains vanillin from non-vanilla sources," among other things. (AC ¶¶ 39-51.)

Plaintiffs assert that had they known that the source of the vanilla flavor in Defendant's soymilk did not come exclusively from vanilla beans, they would not have purchased it, (see id. ¶¶ 76, 99, 101, 103), and that it was worth less than what they paid, (id. ¶¶ 75, 105, 122).

B. Procedural History

Plaintiffs filed the original complaint in this action on January 28, 2020. (Doc. 1). On June 19, 2020, the Court granted Defendant's request for a pre-motion conference concerning a proposed motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Doc. 8.) At the conference on July 9, 2020, the Court gave Plaintiffs leave to amend. (See Minute Entry dated July 9, 2020.) Plaintiffs filed the AC on July 27, 2020. (Doc. 15.)² Plaintiffs assert state-law claims for: 1) violations of Sections 349 and 350 of the New York General Business Law ("GBL"), which prohibit deceptive business practices and false advertising; 2) fraud; 3) negligent misrepresentation; 4) breaches of express warranty and the implied warranty of merchantability, and violation of the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. ; and 5) unjust enrichment. (AC ¶¶ 118-151.) Plaintiffs wish to represent a class of all persons residing in New York who have purchased the Product, (id. ¶¶ 109-117), and seek both monetary damages and injunctive relief that would require Defendant to correct its allegedly misleading labeling, (id. at 24-25). Defendant moves to dismiss the AC pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 16.)

II. LEGAL STANDARD

"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, 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 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 hypertechnical, 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 , 556 U.S. at 678-79, 129 S.Ct. 1937.

In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937. 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 ‘shown’ – ‘that the pleader is entitled to relief.’ " Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2) ).

III. DISCUSSION

A. New York General Business Law Claims

Plaintiffs’ first cause of action arises under Sections 349 and 350 of the New York General Business Law ("GBL"). Section 349 prohibits "[d]eceptive acts or practices in the conduct of any business, trade, or commerce," and Section 350 prohibits "[f]alse advertising in the conduct of any business, trade or commerce." GBL §§ 349, 350. To state a claim under either section, Plaintiffs must show "first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act." Izquierdo v. Mondelez Int'l, Inc. , No. 16-CV-4697, 2016 WL 6459832, at *6 (S.D.N.Y. Oct. 26, 2016) (internal quotation marks omitted); see Orlander v. Staples, Inc. , 802 F.3d 289, 300 (2d Cir. 2015) ("To successfully assert a claim under either section, a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.") (internal quotation marks omitted). "[P]laintiffs must do more than plausibly allege that a ‘label might conceivably be misunderstood by some few consumers.’ " Sarr v. BEF Foods, Inc. , No. 18-CV-6409, 2020 WL 729883, at *3 (E.D.N.Y. Feb. 13, 2020) (internal quotation marks omitted). Instead, plaintiffs must "plausibly allege that a significant portion of the general consuming public or of targeted customers, acting reasonably in the circumstances, could be misled." Id. (same). "Although the question of whether a business practice or advertisement is misleading to a reasonable consumer is generally a question of fact, it is ‘well settled that a court may determine as a matter of law that an allegedly deceptive [practice] would not have misled a reasonable consumer.’ " Wynn v. Topco Associates, LLC , No. 19-CV-11104, 2021 WL 168541, at *2 (S.D.N.Y. Jan. 19, 2021) (internal citation omitted) (quoting Fink v. Time Warner Cable , 714 F.3d 739, 741 (2d Cir. 2013) ).

Plaintiffs argue in their brief that the " ‘VANILLA’ representation on the Product caused consumers, like Plaintiffs, to believe that the Product's vanilla flavor comes predominantly, if not exclusively, from the vanilla bean." (Doc. 18 at 2.) They contend that the "ingredient list fails to tell consumers or Plaintiffs that the vanilla taste of the Product is predominantly from artificial flavors and not real vanilla from the vanilla bean." (Id. at 3.) These and other statements about the alleged "false message that the vanilla flavoring comes predominantly from real vanilla," (id. at 10-11 (emphasis added); see id. at 8, 17), conflict with the AC, in which Plaintiffs allege that they believed the Product was flavored "only by vanilla beans," (AC ¶ 101) (emphasis added), that they purchased the Product in reliance on the representations that the Product's flavor "contained only...