Decerbo v. Melitta United States of America Inc.

Middle District of Florida, flmd-8:2016-cv-00850

MOTION to Dismiss Plaintiff's Class Action Complaint Defendant Melitta USA Inc.'s Motion to Dismiss Class Action Complaint and Incorporated Memorandum of Law by Melitta United States Of America Inc.

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6 PageID 100 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JILL DECERBO, on Behalf of Herself and Case No. 8:16-cv-00850-EAK-AAS all Other Similarly Situated, and the General Public, Plaintiff, v. MELITTA USA INC., Defendant. DEFENDANT MELITTA USA INC.'S MOTION TO DISMISS CLASS ACTION COMPLAINT AND INCORPORATED MEMORANDUM OF LAW Pursuant to Rule 12(b)(1) and Rule 12(b)(6), Federal Rules of Civil Procedure, and Rule 3.01, Local Rules for the United States District Court for the Middle District of Florida, Defendant Melitta USA Inc. ("Melitta"), moves on the following grounds to dismiss Plaintiff's Class Action Complaint (the "Complaint"): 1. As set forth in detail in the attached and incorporated Memorandum of Law in Support of Melitta's Motion to Dismiss Class Action Complaint (the "Memorandum"), Plaintiff lacks standing to pursue injunctive relief as pled in the Complaint, and lacks standing to assert claims for products Plaintiff did not purchase. 2. As set forth in detail in the attached and incorporated Memorandum of Law in Support of Melitta's Motion to Dismiss Class Action Complaint (the "Memorandum"), the Complaint fails to properly state any claim for relief against Melitta. 3. Accordingly, for the reasons detailed in the Memorandum, the Complaint should be dismissed. 6 PageID 101 MEMORANDUM OF LAW IN SUPPORT OF MELITTA'S MOTION TO DISMISS CLASS ACTION COMPLAINT I. INTRODUCTION Plaintiff Jill Decerbo's Complaint hinges on allegations that Melitta's product labeling misleads consumers to believe that the two products at issue obtain their characterizing flavor from natural ingredients only. However, the Complaint conveniently omits a critical aspect of the product labeling – the fact that the product labels expressly identify that they are made with "Natural and Artificial Flavors." As described below, the Complaint is fatally deficient on multiple grounds. First, Plaintiff's claims conflict with Article III's standing requirements. Plaintiff seeks injunctive relief, but cannot allege any future injury, as she plainly stated that she will not continue buying Melitta's products unless the label is changed1 (and of course, even if Plaintiff did purchase Melitta's products in the future, she could not claim to have been deceived again). Plaintiff also seeks to assert claims regarding varieties of Melitta's flavored coffee products, including those sold in cans, bags and single-serving pods, that Plaintiff did not purchase. Plaintiff lacks standing to assert claims for products she did not purchase. Second, Plaintiff has failed to state a claim under Count I for violation of the New Jersey Consumer Fraud Act. Plaintiff does not identify any affirmative misrepresentation sufficient to sustain a claim, nor are her allegations of a violation of FDA regulations sufficient to allege unlawful conduct. Plaintiff's only allegation – material omission – fails to account for the fact that the product labeling expressly states that it is made from "Natural and Artificial Flavors." Moreover, Plaintiff failed to plead ascertainable loss with particularity under Federal Rule of Civil Procedure 9(b) ("Rule 9b"), as she failed to even identify the price she paid for the products she purchased, let alone provide facts sufficient to 1 If the label were changed, there could be no alleged deception and thus no future injury. 2 6 PageID 102 demonstrate that the price she paid was more than the price for comparable products on the market. Third, Plaintiff's Second claim under the New Jersey Truth-In-Consumer Contract, Warranty and Notice Act fails, as it requires a predicate violation to sustain the claim. Because all of Plaintiff's other claims fail as a matter of law for the reasons discussed herein, this claim necessarily also fails. Fourth, Plaintiff's Third and Fourth claims for breach of express and implied warranties cannot survive the pleading stage, as Florida law requires privity of contract for warranty claims – a fact Plaintiff has not and cannot allege. To the extent Plaintiff asserts that New Jersey law should apply to these claims, they still fail. For the same reason as above, Plaintiff has not identified an affirmative representation sufficient to constitute an express warranty. Further, Plaintiff has not identified any defect in the product sufficient to state a claim for breach of implied warranty. As all of Plaintiff's claims for relief fail as a matter of law, the Court should dismiss the Complaint in its entirety. II. FACTUAL ALLEGATIONS IN THE COMPLAINT A. The Parties Melitta owns, manufactures, and sells various flavored coffee products across the United States. Compl. ¶ 3. Among the various products it sells are varieties of flavored coffee, including "Hazelnut Crème" flavored coffee and "French Vanilla" flavored coffee. Compl. ¶ 4. Moreover, Melitta sells its flavored coffee products in several different delivery methods, such as cans of ground coffee, bags of ground coffee, and single-serving pods. Compl. ¶ 3. These products are made with both natural and artificial ingredients to achieve the characterizing flavor of any given product. See Compl. ¶ 21. 3 6 PageID 103 Plaintiff Jill DeCerbo is a New Jersey resident who claims to have purchased Melitta's Hazelnut Crème and French Vanilla ground coffee in a can (together, the "Products"). Compl. ¶¶ 18-19, 26. Without any additional specificity, Plaintiff claims that she purchased these Products "regularly over the past four years." Compl. ¶ 20. Plaintiff does not identify how much she paid for any single purchase of the Products. B. The Allegations Plaintiff claims that she was misled by the Products' labeling to believe that the Products were made with natural hazelnut and vanilla flavors rather than the artificial flavoring that is actually used. Compl. ¶¶ 21-23. Specifically, Plaintiff alleges that she was deceived by the "Product's front label representation that it contained only natural flavorings." Compl. ¶ 22. Then, Plaintiff claims that a reasonable consumer "is not required to scrutinize the back of the label" to discover a false or misleading representation – in other words, that Melitta unlawfully omitted language from the front of the label. Compl. ¶¶ 23, 26. Plaintiff alleges that Melitta misleads consumers by failing to identify on the front of the Product label that the Product is artificially flavored, in violation of FDA regulations. Compl., ¶¶ 34, 36-37. Plaintiff further alleges that she would not have purchased the Products absent the misrepresentations and omissions, or would not have paid as much for them. Compl. ¶ 39. Plaintiff does not identify how much she paid for her purchase of the Products nor the price of comparable products that were less expensive. See, Compl. In fact, Plaintiff claims that the Products are inexpensive. Compl. ¶11. Also, Plaintiff claims that she lost money because the Products she purchased were not naturally flavored. Compl. ¶38. Despite these serious accusations, Plaintiff claims that she "intends to, desires to, and will purchase the Product again when she is able to do so with the assurance that Products' labeling conveying 4 6 PageID 104 that the Products are naturally flavored is lawful and consonant with the Products' ingredients." Compl. ¶ 25. As a result of this alleged misconduct, Plaintiff brings claims under the New Jersey Consumer Fraud Act (N.J. STAT. ANN. § 56:8-2) ("NJCFA") and the New Jersey Truth in Consumer Contract, Warranty and Notice Act ("TCCWNA") (N.J.S.A. § 56:12–15), and for breach of express and implied warranties. Compl. ¶¶ 73-114. Plaintiff alleges these claims on behalf of herself and all other purchasers of Melitta's products in New Jersey and other states that have similar consumer protection statutes from March 29, 2010, to present. Compl. ¶¶64-72. Lastly, Plaintiff seeks restitution, compensatory and statutory damages, punitive damages, injunctive relief, and attorney's fees. Compl., Prayer for Relief. C. The Actual Product Packaging Plaintiff cannot deny that the Products' packaging identifies that the Products are made with natural and artificial flavors. Compl. ¶ 7. Indeed, a review of the complete Products' packaging is instructive. The Products are packaged in tin cans with circular labels. Exs. A & B.2 The "front" of the label (as in the portion likely to be viewed by a consumer while on the store shelf) does not state or otherwise imply that the characterizing 2 In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a court may consider documents that are integral to or explicitly relied upon in the complaint without converting a motion to dismiss into a motion for summary judgment. Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F. 3d 1364, 1369 (11th Cir. 1997); see also King v. Movie Tickets.com, Inc., 555 F. Supp. 2d 1339, 1340 n.2 (S.D. Fla. 2008) (taking judicial notice of documents that plaintiff referred to in the complaint that were central to plaintiff's claims); Cheney v. Cyberguard Corp., 2000 WL 1140306, at * 3 (S.D. Fla. July 31, 2000) ("Where the plaintiff has referred to certain documents in the complaint that are central to the plaintiff's claim, the court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal") (internal quotations and citations omitted). "[A] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document. Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Here, Plaintiff's Complaint embeds unintelligible copies of the product labeling for the products she purchased. Compl. ¶ 26. However, the partial pictures Plaintiff embedded in the text of her Complaint are insufficient for the Court to fully evaluate Plaintiff's claims, or view the product packaging as a whole. As such, Melitta respectfully requests that the Court take judicial notice of the Products' labeling, attached hereto as Exhibits A and B. 5 6 PageID 105 flavor is natural. Id. There are no vignettes or pictures of hazelnuts or vanilla leaves on the packaging – but rather only a cup of coffee. Id. Moreover, the portion identifying the flavor of the coffee does not state that it is naturally flavored. Id. Even the explanation at the bottom of the packaging accurately describes the Products' content. See, e.g., Exs. A & B (The Hazelnut Crème product states "Buttery rich flavor of wild hazelnuts with a sweet creamy finish;" the French Vanilla product states "Rich, creamy smooth vanilla flavor with a delicious caramel finish;" and neither descriptive languages state that the flavoring is natural). However, the Products' labels do clearly state that they are "100% Premium Coffee, with Natural and Artificial Flavors." Exs. A & B. Because the Products at issue are sold in a circular container, the information regarding the characterizing flavor is immediately next to the "front" of the Product packaging, well within the reasonable line of sight for a prospective consumer. Id. Unlike other packaging methods, such as the bags that Plaintiff admits are not misleading (Compl. ¶28),3 the statement that the Products are made with natural and artificial flavors is not on the back of the packaging. Exs. A & B. III. LEGAL STANDARD FOR A MOTION TO DISMISS Federal Rule of Civil Procedure 12(b)(6) requires dismissal for failure to state a claim upon which relief may be granted. The determination of whether a complaint states a plausible claim for relief is a content-specific task that requires the reviewing court to draw on its judicial experience and common sense. See, e.g., APR Energy, LLC v. Pakistan Power Resources, LLC, 653 F.Supp.2d 1227, 1231 (M.D. Fla. 2009). "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." Bell 3 Despite conceding the bags' labels are not misleading, Plaintiff's defined putative class includes purchasers of the bags of coffee. Compl. ¶¶ 3, 65. 6 6 PageID 106 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The "[f]actual allegations must be enough to raise a right to relief above the speculative level"; the complaint must include "enough facts to state a claim to relief that is plausible on its face." Id. at 555, 570. "Threadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice," nor do "unadorned, the-defendant-unlawfully-harmed-me" accusations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, Rule 9(b) requires that "[i]n allegations of fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." As such, Plaintiff's claims under the consumer protection laws (NJCFA and TCCWNA) are subject to Rule 9(b)'s heightened pleading requirements. See Nelson v. XACTA 3000 Inc., 2009 WL 4119176, * 3 (D.N.J. Nov. 24, 2009). A party may also file a motion to dismiss with the Court for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the "case or controversy" requirement of Article III of the U.S. Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Because a suit brought by a plaintiff without Article III standing does not constitute a "case or controversy," federal courts lack subject matter jurisdiction over such a suit. Marty v. Anheuser-Busch Companies, LLC, 43 F. Supp. 3d 1333, 1353-54 (S.D. Fla. 2014). IV. PLAINTIFF LACKS STANDING TO SEEK INJUNCTIVE RELIEF To satisfy Article III's standing requirement, a plaintiff must allege that she has suffered an "injury in fact," i.e., an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. See Friends of the Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S. 167, 181 (2000). Second, a plaintiff must plead a causal connection between the injury and the conduct complained of - the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... 7 6 PageID 107 th[e] result [of] the independent action of some third party not before the court." See Lujan, 504 U.S. at 560. Third, it must be likely, and not merely speculative, that the injury will be redressed by a favorable decision. See id. at 561. The party asserting the claim has the burden of establishing these elements. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). A plaintiff must demonstrate standing "for each claim he seeks to press" and for "each form of relief sought." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (quoting Friends of the Earth, 528 U.S. at 185); see also Lujan, 504 U.S. at 561. Consistent with this requirement, a named class action plaintiff must suffer an injury-in-fact for every claim. See Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1373 (S.D. Fla. 2015). "The plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants." Warth v. Seldin, 422 U.S. 490, 501 (1975). In class actions, the named plaintiff must allege and demonstrate that she personally has been injured, not just that unidentified class members were injured. See id. Federal courts in Florida have consistently held that to establish standing for injunctive relief, a plaintiff must allege likelihood of future injury, e.g., intent to purchase the product again. A likelihood of future injury cannot be supported where the plaintiff has stated that he would not have bought the product had he known the truth about the misleading label. See Marty, 43 F.Supp.3d at 1353-54 ("Because there are no allegations in the Amended Complaint that the plaintiffs would purchase Beck's in the future, the undersigned finds that the plaintiffs have failed to plead 'a real and immediate threat of future injury,' . . . and thus have failed to plead standing to seek injunctive relief."); see also Herazo v. Whole Foods Mkt., Inc., 2015 WL 4514510, at *3 (S.D. Fla. July 24, 2015) ("The only logical deduction from these allegations is that the Plaintiffs will not be purchasing the homeopathic medication in the future. Consistent with the principles enunciated in Lujan, the 8 6 PageID 108 Court dismisses the claim for injunctive relief for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1)."); Duty Free Americas, Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1271-72 (11th Cir. 2015) ("DFA claimed at oral argument that it would suffer injury if it resumes purchasing from Estée Lauder and becomes subject to Estée Lauder's requirements. This cannot be characterized as a 'concrete' or 'actual' injury in fact because, by its very terms, it has not yet occurred, and indeed may never occur."). With this in mind, federal courts in other jurisdictions also consistently dismiss claims for prospective injunctive relief where there is no likelihood that the plaintiff will use or purchase the challenged product in the future or, even if the plaintiff does purchase the product, there is no likelihood that he will again be deceived. See, e.g., Anderson v. Hain Celestial Group, Inc., 87 F. Supp. 3d 1226, 1235 (N.D. Cal. 2015) ("past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects.") (internal citation and quotation omitted); Mason v. Nature's Innovation, Inc., 2013 WL 1969957, at *4 (S.D. Cal. May 13, 2013) ("In this case, it is apparent that Plaintiff has no intention of buying Defendant's [product] again in the future. . . Therefore, Plaintiff has not established the likelihood of future injury from Defendant's alleged misrepresentations regarding the product and lacks Article III standing to seek injunctive relief."); Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939, 951 (S.D. Cal. 2007); Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128, 1151 & n.17 (N.D. Cal. 2010); Wang v. OCZ Tech. Grp., Inc., 276 F.R.D. 618, 626 (N.D. Cal. 2011); Elkind v. Revlon Consumer Prods. Corp., 2015 WL 2344134, at *3 (E.D.N.Y. May 14, 2015); Bond v. Fleet Bank (RI), N.A., 2002 WL 373475, at * 3 (D.R.I. Feb. 21. 2002). Plaintiff's prayer for injunctive relief fails here because Plaintiff has not alleged even a possibility, let alone a likelihood, that her alleged injuries will occur again. Plaintiff attempts to plead around Article III's standing requirement by alleging that "Plaintiff intends 9 6 PageID 109 to, desires to, and will purchase the Product again when she is able to do so with the assurance that Products' labeling conveying that the Products are naturally flavored is lawful and consonant with the Products' ingredients." Compl. ¶ 21. This attempt at circumvention fails, as Plaintiff's desire to purchase products with different labeling in the future does not mean that there is an imminent threat that she will be injured by any product on the market today. And if the label is changed such that it is not misleading, Plaintiff will likewise suffer no future injury. Anderson, 87 F. Supp. 3d at 1235 ("The fact that Plaintiff can 'plead that she maintains an interest in the product' and that 'she would purchase the product in the future if it were properly labeled and did not contain non-natural ingredients' is completely inconsistent with her theory of liability, and with any injunctive relief that could actually issue in this case."); Elkind, 2015 WL 2344134, at *3 ("Plaintiffs are now aware of the alleged misrepresentations that they challenge, so there is no danger that they again be will be deceived by them."); Rahman v. Mott's LLP, 2014 WL 5282106, at *6 (N.D. Cal. Oct. 15, 2014) (holding that plaintiff's allegation that "he wishes to purchase [the product] again in the future if the challenged statement is removed from the label" was insufficient to create a likelihood of future injury); Reed v. Dynamic Pet Prods., 2015 WL 4742202, at * 12 (S.D. Cal. July 30, 2015) (dismissing prayer for injunctive relief despite allegations that plaintiff would purchase the product in the future if the label were changed). Indeed, the Complaint is devoid of any allegation that Plaintiff still uses the Products or would use them (the versions currently on the market) in the future. And even if Plaintiff were to purchase one of Melitta's products currently on the market at some point in the future, Plaintiff could not plausibly allege that she would be deceived again, because she admits she is now aware of the alleged deception. 10 6 PageID 110 V. PLAINTIFF LACKS STANDING TO PURSUE CLAIMS AGAINST PRODUCTS SHE DID NOT PURCHASE Plaintiff purports to assert claims regarding not only the Products' varieties that she alleges to have purchased—namely, Melitta's Hazelnut Crème and French Vanilla ground coffee in a can, see Compl. ¶ 19 – but also numerous other varieties of flavored coffee that Plaintiff does not allege to have purchased. See Compl. ¶ 29. Specifically, Plaintiff purports to assert claims involving the following flavored coffee products that she apparently never even purchased: Hazelnut Crème Decaf, Pumpkin Spice, Home for the Holidays; Parisian Vanilla, Vanilla Crème Brulee, and Vanilla Hazelnut. Compl. ¶ 29. Further, Plaintiff purports to bring claims over products contained in different types of packaging (with different labeling) than the packaging versions of the Products that she purchased, including coffee in bags and single-serving pods. Compl. ¶ 3. However, under the law of the Eleventh Circuit, "at least one named plaintiff must establish Article III standing for each class subclaim. In other words, Article III standing of a named plaintiff must be established on a claim-by-claim basis within the Eleventh Circuit, and deferring the standing determination to the class[—]certification stage will yield no different result." Toback v. GNC Holdings, Inc., 2013 WL 5206103, at *4 (S.D.Fla. Sept. 13, 2013) (citing Prado–Steiman v. Bush, 221 F.3d 1266, 1279–80 (11th Cir. 2000) (internal citations omitted)). A plaintiff lacks Article III standing to bring claims on behalf of products he did not purchase "because he cannot conceivably allege any injuries from products that he never purchased or used." Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1373 (S.D. Fla. 2015). While some jurisdictions have held that a putative class representative may have standing to sue on products he did not purchase if the subject labeling is substantially 11 6 PageID 111 similar,4 courts in the Eleventh Circuit have rejected that reasoning. See, e.g., Dapeer v. Neutrogena Corp., 95 F. Supp. 3d at 1373 (discussing Toback, 2013 WL 5206103, at *4) ("the named plaintiff in a consumer class action lacked standing to challenge a non- purchased product because there was no injury-in-fact as to that product, even if he purchased a substantially similar product."). Accordingly, the Court should dismiss for lack of Article III standing Plaintiff's claims regarding all versions of Melitta's flavored coffee other than the versions that Plaintiff actually purchased – Hazelnut Crème and French Vanilla ground coffee in a can. VI. PLAINTFF HAS FAILED TO STATE A CLAIM UNDER COUNT I FOR A VIOLATION OF THE NEW JERSEY CONSUMER FRAUD ACT The NJCFA provides in relevant part as follows: The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice. . . N.J. STAT. ANN. § 56:8-2. In order to state a claim under the NJCFA, a plaintiff must allege "1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss." Bonnieview Homeowners Assoc., LLC v. Woodmont Bldr., 655 F. Supp. 2d 472, 504 (D. N. J. 2009) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (2009)). Unlawful conduct may be alleged in the form of (a) affirmative acts, (b) knowing omissions, or (c) regulatory violations. Id. "To constitute 4 In any event, Plaintiff has not alleged, and cannot allege, the labeling on the different types of packaging is similar, because it is not. 12 6 PageID 112 consumer fraud. . . the business practice in question must be 'misleading' and stand outside the norm of reasonable business practice in that it will victimize the average consumer. . . ." Id. Statutory fraud claims brought under the NJCFA that "sound in fraud" are subject to the heightened pleading requirements set forth in Rule 9(b). See Nelson v. XACTA 3000 Inc., 2009 WL 4119176, at *3 (D.N.J. Nov. 24, 2009). Claims that fail to meet these stringent pleading requirements are subject to dismissal. See Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 524, 526-27 (D.N.J. 2008) (dismissing NJCFA claim based on alleged fraudulent statements where plaintiffs failed to allege when the statements were made, or when plaintiffs were exposed to such statements); see also Nelson, 2009 WL 4119176, at *3 (dismissing NJCFA claim for failure to meet heightened pleading requirements of Rule 9(b)); Parker v. Howmedica Osteonics Corp., 2008 WL 141628, at *3-4 (D.N.J. Jan. 14, 2008) (same); Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 2d 494, 512 (D.N.J. 1999) (same). A. Plaintiff Failed To Allege An Affirmative Misrepresentation Affirmative act violations consist of an "affirmative misrepresentation. . . which is material to the transaction and which is a statement of fact, found to be false, [and] made to induce the buyer to make the purchase." Suarez v. E. Int'l Coll., 428 N.J. Super. 10, 30-31 (App. Div. 2012). In Mason v. Coca-Cola Co., 774 F. Supp. 2d 699 (D.N.J. 2011), plaintiff asserted a claim that defendant committed affirmative acts of fraud and deception by persuading consumers to purchase Diet Coke Plus by including "the term 'Plus' and the language 'Diet Coke with Vitamins and Minerals'" on the packaging, which allegedly "suggested to consumers that the product was healthy and contained nutritional value, when it did not." 774 F. Supp. 2d at 703. The court found that plaintiff's broad assumption that "defendant intended for Diet Coke Plus's vitamin and mineral content to deceive plaintiffs 13 6 PageID 113 into thinking the beverage was 'healthy' . . . [w]ithout more specificity as to how defendant made false or deceptive statements of the soda" failed to sufficiently plead the "affirmative act" required for an NJCFA claim. Id. Here, although Plaintiff alleges that Melitta "deliberately fail[ed] to label the Products in accord with federal labeling regulation" (Compl. ¶ 55), Plaintiff does not allege that Melitta made an affirmative representation of fact that the Products were flavored solely with natural flavorings or, alternatively, that the Products were not artificially flavored. There are no vignettes or pictures of hazelnuts or vanilla leaves on the packaging – only a cup of coffee. Exs. A & B. Moreover, the portion identifying the flavor of the coffee does not state that it is naturally flavored. Id. Even the explanation at the bottom of the packaging accurately described the Products' content. See, e.g., Exs. A & B (The Hazelnut Crème product states "Buttery rich flavor of wild hazelnuts with a sweet creamy finish;" the French Vanilla product states "Rich, creamy smooth vanilla flavor with a delicious caramel finish;" and neither description states that the flavoring is natural). In fact, Plaintiff does not allege any specific statements made by Melitta through the Products' packaging. Moreover, Plaintiff does not allege that she reviewed and relied upon any affirmative representation prior to purchasing the Products. Lastly, Plaintiff has not provided any specificity as to how any of Melitta's representations were false or deceptive. Because Plaintiff has not pled a claim for affirmative misrepresentation, Plaintiff's claim under the NCJFA must be dismissed. See Mason, 774 F. Supp. 2d at 703. B. Plaintiff's Claim For Material Omission Fails As A Matter Of Law To establish a knowing omission under the NJCFA, "plaintiff must show that defendant (1) knowingly concealed (2) a material fact (3) with the intention that plaintiff rely upon the concealment. Judge v. Blackfin Yacht Corp., 357 N.J.Super. 418, 425 (2003); Alban v. BMW of North America, LLC, 2010 WL3636253, *9 (D.N.J. Sept. 8, 2010) (internal 14 6 PageID 114 quotation marks omitted). Allegations of a NJCFA violation based on a knowing omission requires the plaintiff to show "that the defendant acted with knowledge," and intent is an essential element of the fraud. Cox v. Sears Roebuck & Co., 138 N.J. 2, 18 (1994); accord, Suarez v. E. Int'l Coll., 428 N.J. Super. 10, 31 (App. Div. 2012); Alban, 2010 WL3636253, at *9 (plaintiff's allegation that the defendant admitted knowledge of the purported defect more than three years after plaintiff purchased vehicle did not support NJCFA claim based on knowing omissions). Here, Plaintiff's allegation that Melitta knowingly omitted reference to the fact that the characterizing flavor of the Products is from artificial ingredients is implausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("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."). Plaintiff argues that Melitta "omit[ed] the required information regarding artificial flavoring" with knowledge. Compl., ¶ 55. However, a cursory review of the Products' label clearly identifies under the heading "Ingredients" that the Products are made with "Natural and Artificial Flavors." Exs. A & B. Moreover, because the Products at issue are packaged in cans (with circular labels), the "Ingredients" portion of the label identifying that the Products contain "Natural and Artificial Flavors" appears immediately adjacent to the "front" of the packaging. Id. Contrary to Plaintiff's contention, Melitta did not omit this information from the Products' labeling. As discussed above, the front of the Products' packaging makes no representation that the Products' flavoring is derived from solely natural ingredients. Exs. A & B. Nor does the Products' packaging contain any depictions relating to the flavor of the Products that would mislead a consumer into believing the flavor was derived from natural ingredients. Id. Plaintiff simply takes issue with the location of the words "Natural and Artificial Ingredients" on the Product labeling. Plaintiff cannot plausibly allege that Melitta 15 6 PageID 115 knowingly concealed that the Products' characterizing flavor is derived from natural and artificial ingredients. Even if Plaintiff could plausibly allege such an omission, Plaintiff cannot plausibly allege that Melitta intended to omit this language, as it clearly appears on the Products' packaging. As such, Plaintiff's claim for a knowing omission must fail as a matter of law. C. Plaintiff Has Not And Cannot Claim A Regulatory Violation Under The NJCFA The third category of unlawful acts under the NJCFA consists of violations of specific regulations promulgated under the Act. The New Jersey Supreme Court in Cox v. Sears Roebuck & Co., 138 N.J. 2, 14-19 (1994) specifically stated that this third category of unlawful acts is "based on regulations enacted under N.J.S.A. 56:8-4." New Jersey Statute 56:8-4 states: To accomplish the objectives and to carry out the duties prescribed by this act, the Attorney General, in addition to other powers conferred upon him by this act, may issue subpoenas to any person, administer an oath or affirmation to any person, conduct hearings in aid of any investigation or inquiry, promulgate such rules and regulations, and prescribe such forms as may be necessary, which shall have the force of law. N.J. STAT. ANN. § 56:8-4 (emphasis added). The rules and regulations promulgated by the Division of Consumer Affairs under the foregoing authority are set forth in the New Jersey Administrative Code, Sections 13:45A-1.1 et seq. None of the regulations contained in these code sections address the food labeling requirements of the FDA. Indeed, courts have held that violations of FDA regulations cannot serve as the basis for a claimed regulatory act violation of the NJCFA. See, e.g., Mason, 774 F. Supp. 2d at 703 n.2 (holding that a violation of an FDA regulation did not provide a basis for an unlawful practice: "The third category [of regulation violations] does not apply here, as only a violation of regulations enacted under N.J.S.A. 56:8–4 can serve as a basis for a 16 6 PageID 116 claim of an unlawful practice under the NJCFA."). Here, Plaintiff claims that Melitta violated the NJCFA by violating New Jersey Administrative Code Section 8:21-1.3, which incorporates the applicable FDA labeling regulations. However, the New Jersey regulation was enacted under the authority of New Jersey Statute Section 24:2-1 by the State Department of Health. See N.J. Admin. Code § 8:21-1.3. Because the specific FDA labeling regulations were not incorporated by the Division of Consumer Affairs under N.J.S.A. 56:8-4, Melitta cannot have committed a "regulatory act violation" of the NJCFA as a matter of law. D. Plaintiff Failed To Plead Ascertainable Loss With Particularity. Assuming arguendo the Court finds that Plaintiff adequately alleged unlawful conduct, Plaintiff has also failed to adequately plead an ascertainable loss. Simply pleading payment of the relevant purchase price does not demonstrate an ascertainable loss. See Parker v. Howmedica Osteonics Corp., 2008 WL 141628, at *3-4 (D.N.J. Jan. 14, 2008) (dismissing NJCFA claim for failure to meet Rule 9(b) pleading requirements, and stating "the Court finds that Plaintiff's payment of the purchase price of the Trident System does not meet the ascertainable loss requirement.") Moreover, bare allegations that other comparable products cost less are also insufficient to establish an ascertainable loss. See In re Toshiba Amer. HD DVD Marketing & Sales Prac. Lit., 2009 WL 2940081, at *13 (D.N.J. Sept. 11, 2009) (NJCFA claim did not meet Rule 9(b) pleading requirements where plaintiffs failed to allege how much regular DVD players cost at the time, "i.e., how much of a 'premium' they claim to have paid for their HD DVD Players."); see also Franulovic v. Coca Cola Co., 2007 WL 3166953, at *11 (D.N.J. Oct. 25, 2007) ("She has not alleged when she purchased Enviga or for what price ... which advertising enticed her to buy Enviga, her expectations for Enviga based on the advertising, or Enviga's failure to live up to those expectations."); Shelton v. Restaurant.com 17 6 PageID 117 Inc., 2010 WL 2384923, at *4 (D.N.J. June 15, 2010) ("the pleadings are devoid of any facts which quantify or measure what loss was suffered"); In re Ford Motor Co. E–350 Van Products Liability Litigation (No. II), 2010 WL 2813788, at *28 (D.N.J. July 9, 2010) ("The allegations set forth by the New Jersey Plaintiffs are replete with generalized statements concerning loss; however, the evidence submitted by the New Jersey Plaintiffs contains no specific proofs such that the losses could be quantified or measured."); Shannon v. Howmedica Osteonics Corp., 2010 WL 421096, at *3 (D.N.J. Feb. 1, 2010) (citing Parker, 2008 WL 141628 (holding that allegation of purchase price, without other comparison information, is not enough)). Here, Plaintiff has not identified the purchase price of the Products, nor has she made any attempt to quantify any additional cost she allegedly incurred as a result of purchasing the Products. Plaintiff simply alleges that she purchased the Products and that Melitta charges more for the Products than other comparable flavored coffee products cost. Compl., ¶¶ 19, 40. Plaintiff does not allege how much she paid for the Products or that the Products are more expensive than comparable products (other than a conclusory allegation).5 Even so, simply pleading payment of the purchase price does not demonstrate an ascertainable loss with the requisite particularity. See Parker, 2008 WL 141628, at *3-4 (dismissing NJCFA claim for failure to meet Rule 9(b) pleading requirements, and stating "the Court finds that Plaintiff's payment of the purchase price of the Trident System does not meet the ascertainable loss requirement.") 5 Interestingly, Plaintiff alleges that the Products she purchased were "inexpensive" (Compl. ¶ 11), which calls into question whether she actually did pay more for the Products than comparable flavored coffee products costs. 18 6 PageID 118 VII. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER COUNT II FOR A VIOLATION OF THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT The New Jersey Truth in Consumer Contract, Warranty and Notice Act ("TCCWNA") provides: No seller, lessor, creditor, lender or bailee shall in the course of his business offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign after the effective date of this act which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State of Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed. N.J.S.A. § 56:12–15. To state a claim under the TCCWNA, a plaintiff must allege that: (1) the plaintiff is a consumer; (2) the defendant is a seller; (3) the "seller offers a consumer contract" or gives or displays any written notice, or sign; and (4) the contract, notice or sign includes a provision that "violate[s] any legal right of a consumer" or responsibility of a seller. Watkins v. DineEquity, Inc., 591 Fed.Appx. 132, 135 (3d Cir. 2014); Bosland v. Warnock Dodge, Inc., 933 A.2d 942 (App.Div.2007), aff'd, 964 A.2d 741 (2009). The TCCWNA only bolsters rights established by other laws; it does not create any new consumer rights. Watkins, 591 Fed.Appx. at 134. Accordingly, Plaintiff's TCCWNA claim relies upon the same unlawful conduct alleged to support the NJCFA claim. See Mladenov v. Wegmans Food Markets, Inc., 124 F. Supp. 3d 360, 380 (D.N.J. 2015) ("Plaintiffs bring their TCCWNA claims under two theories: Defendants' alleged violation of Plaintiffs' rights under the CFA, and Defendants' alleged violation of Plaintiffs' rights under 21 C.F.R. § 101.95. . . . Since the Court finds that Plaintiffs' have failed to state viable CFA claims, Plaintiffs' TCCWNA claims cannot survive to the extent they rely on the alleged CFA violations."). 19 6 PageID 119 Plaintiff's TCCWNA claim fails because each other claim in the Complaint also fails. Because Plaintiff's TCCWNA claim is premised derivatively on other purported statutory or warranty claims, the independent failure of these claims likewise dooms the TCCWNA claim. See Compl. ¶ 94 ("Defendant's conduct as described herein violated Plaintiff's and the Class's clearly established legal right to have the Products labeled in accordance with state law."). As described herein, Plaintiff has failed to state a claim for violation of the NJCFA, breach of express warranty or breach of implied warranty. Further, Plaintiff's reliance on violations of FDA regulations do not create liability under the TCCWNA. See Mladenov v. Wegmans Food Markets, Inc., 124 F. Supp. 3d 360, 380 (D.N.J. 2015) ("Plaintiffs' TCCWNA claims also fail to the extent they rely on alleged violations of 21 C.F.R. § 101.95."); see also In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 788 (3d Cir.1999) ("It is well settled ... that the FDCA creates no private right of action."). As such, Plaintiff's claim under the TCCWNA must be dismissed. VIII. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER COUNT III FOR BREACH OF EXPRESS WARRANTY Plaintiff's common law cause of action for breach of express warranty fails on numerous grounds. Plaintiff's Complaint conclusorily claims that "[t]he Product's front label misleadingly asserts that the Product is flavored with the natural ingredients described by each Product's characterizing flavor." Compl. ¶ 98. Unlike the New Jersey statutory claims described above, Plaintiff does not identify which state's law applies to this claim. Regardless, Plaintiff's claim fails under either Florida (the forum state) or New Jersey (Plaintiff's resident state) law. 20 6 PageID 120 A. Plaintiff Has Not Alleged, And Cannot Allege, Privity With Melitta, As Required Under Florida Law Florida law applies to Plaintiff's breach of express warranty claim. International Ins. Co. v. Johns, 874 F.2d 1447, 1458 n.19 (11th Cir. 1989) ("because the parties failed to consider the choice of law in this diversity case, we must presume that the substantive law of the forum (Florida) controls."); American Home Assur. Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1238 (11th Cir. 1985) (affirming trial court's decision to apply Florida law in the absence of a choice of law analysis establishing a different state's law must apply); Topp, Inc. v. Uniden American Corp., 483 F. Supp. 2d 1187, 1189 (S.D. Fla. 2007) (affirming the general rule that the law of the forum state (Florida) applies to diversity cases).6 "Under Florida law, the plaintiff must be in privity of contract to recover under theories of breach of express or implied warranties." Fields v. Mylan Pharmaceuticals, Inc., 751 F. Supp. 2d 1257, 1259 (N.D. Fla. 2009); Toliver v. Monaco Coach Corp., 2006 WL 1678842, at *2 (M.D. Fla June 16, 2006) ("Privity is required even if suit is brought against a manufacturer."). "A plaintiff who purchases a product but does not buy it directly from the defendant, is not in privity with that defendant." T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995). Here, Plaintiff does not, and cannot, allege that she purchased the Products directly from Melitta. Indeed, Plaintiff alleges that she purchased the Products primarily at a Shoprite store, a retailer of the Products. Compl. ¶ 20. As such, Plaintiff is not in privity of contract with Melitta and cannot state a claim for breach of express warranty under Florida law. 6Here, Plaintiff invokes diversity jurisdiction through the application of the Class Action Fairness Act of 2005 (Compl. ¶ 2), establishing diversity jurisdiction for class actions that meet the applicable requirements. 21 6 PageID 121 B. Even If New Jersey Law Applies, Plaintiff Failed To State A Claim For Breach Of Express Warranty Plaintiff may attempt to argue in opposition to this Motion that New Jersey law should apply to the warranty claims. Even if Plaintiff were able to establish that New Jersey law should apply to these claims (despite Florida's rigorous choice of law analysis), Plaintiff's claims still fail as a matter of law. To state a claim for breach of express warranty under New Jersey law, a plaintiff must allege that: (1) Defendant made an affirmation, promise or description about the product; (2) this affirmation, promise or description became part of the basis of the bargain for the product; and (3) the product ultimately did not conform to the affirmation, promise or description. Dzielak v. Whirlpool Corp., 26 F.Supp.3d 304, 324 (D.N.J. 2014). Plaintiff is required to plead the existence of an express warranty with sufficient facts to support the claim. Simmons v. Stryker Corp., 2008 WL 4936982, at *2 (D.N.J. Nov. 17, 2008). The failure to identify specific representations constituting an affirmation of fact is sufficient grounds to dismiss a claim for breach of express warranty. Parker, 2008 WL 141628, at * 6. An otherwise general statement may create a warranty if it could be reasonably understood to constitute a representation that the product possesses a certain quality. Dzielak, 26 F.Supp.3d at 324 (quoting L.S. Health & Son, Inc. v. AT&T Info, Sys., Inc., 9 F.3d 561, 570 (7th Cir. 1993)). However, it is the plaintiff's burden to allege that such a representation could be reasonably understood by consumers to create an express warranty. Id. at 325. Plaintiff's allegations do not identify an affirmative representation about the Products. Rather, Plaintiff alleges that "[t]he Product's front label misleadingly conveys that the Product is flavored with the natural ingredients described by each Product's characterizing flavor." Compl. ¶ 62. As in Parker and Simmons, Plaintiff has failed to identify any specific 22 6 PageID 122 representation constituting an affirmation of fact regarding the origin of the ingredients used to make the characterizing flavor for the Products. To the extent Plaintiff claims that the representation of the characterizing flavor itself (i.e. "Hazelnut Crème" of "Vanilla") created an express warranty, Plaintiff has not alleged, and cannot allege, that customers reasonably understood that the simple identification of the flavoring in the Products meant that the flavor derived solely from natural ingredients. The Products' labeling does not have any images or vignettes that would mislead consumers to believe that the Products contain natural ingredients only. Exs. A & B. Nor do the labels claim that the characterizing flavor was derived solely from natural ingredients. Id. Melitta did not make an affirmative representation regarding the Products. Simply identifying the flavor of the Products cannot fairly be understood to represent that the flavoring came solely from natural ingredients. Without an affirmative representation, there cannot be an express warranty. IX. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER COUNT IV FOR BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE For the same reasons as discussed in Section VIII(A) above, Florida law applies to Plaintiff's claim for breach of implied warranty. Also, as discussed above, "[u]nder Florida law, the plaintiff must be in privity of contract to recover under theories of breach of express or implied warranties." Fields v. Mylan Pharmaceuticals, Inc., 751 F. Supp. 2d 1257, 1259 (N.D. Fla. 2009); Kramer v. Piper Aircraft Corp., 520 So.2d 37 (Fla. 1988) (Florida law requires privity for implied warranty claims); David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d 1309, 1323 (S.D. Fla. 2009) (same). Again, Plaintiff has not alleged, and cannot allege, that she is in privity of contract with Melitta and, therefore, cannot sustain a claim for breach of implied warranty. 23 6 PageID 123 To the extent Plaintiff argues that New Jersey law should apply, Plaintiff's implied warranty claim still fails. New Jersey law provides: "[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose." N.J. Stat. Ann. § 12A:2-315. The implied warranties under New Jersey law are intended to "protect buyers from loss where the goods purchased are below commercial standards or are unfit for the buyer's purpose." Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992). To establish a breach of the implied warranty, Plaintiff must show that the product she purchased was defective. Id. Claims of misleading advertising are insufficient to sustain a claim for breach of implied warranty. Crozier v. Johnson & Johnson Consumer Companies, Inc., 901 F.Supp.2d 494, 509 (D.N.J. 2012). ("[E]stablishing a breach of the implied warranties of merchantability and fitness for a particular purpose requires a showing regarding the product's functionality, not the advertisements that allegedly induced a customer to purchase it."). Plaintiff's conclusory allegations that the Products' labeling implied that the Products were "suitable for use as a naturally-flavored coffee product" (Compl. ¶ 63), fails to meet the pleading requirement to sustain a claim for breach of implied warranty. Plaintiff does not allege that the Products were defective (i.e. that Plaintiff was not able to drink the coffee product). Instead, Plaintiff hinges her claim on the allegation that the Products' labeling was misleading and induced her to purchase them. Compl. ¶¶ 63, 105. However, the court in Crozier dismissed similar claims for breach of implied warranty with prejudice based on allegations of misleading advertising without a basis to claim a defect in the product. 901 F.Supp.2d at 509. The Court should likewise dismiss Plaintiff's claims here with prejudice. 24 6 PageID 124 X. CONCLUSION Based on the foregoing, Melitta respectfully requests that the Court dismiss Plaintiff's Complaint in its entirety. Respectfully submitted, /s/ Matthew M. Gurvitz Daniel S. Silverman (admitted pro hac vice) Matthew M. Gurvitz (admitted pro hac vice) VENABLE LLP 2049 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 229-9930 Facsimile: (310) 229-9901 Email: DSSilverman@Venable.com Email: MMGurvitz@Venable.com Michael S. Hooker Florida Bar No. 330655 Guy P. McConnell Florida Bar No. 472697 PHELPS DUNBAR LLP 100 S. Ashley Drive, Suite 1900 Tampa, FL 33602 Telephone: (813) 472-7550 Facsimile: (813) 472-7570 Email: Michael.Hooker@phelps.com Email: Guy.McConnell@phelps.com COUNSEL FOR DEFENDANT MELITTA USA INC. 25 6 PageID 125 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have on this 7th day of June, 2016, electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which automatically sends an electronic notification to all counsel of record and other CM/ECF participants. /s/ Matthew M. Gurvitz Matthew M. Gurvitz