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Kelly v. Cape Cod Potato Chip Co., Inc.

United States District Court, W.D. Missouri, Western Division

January 27, 2015

TONYA KELLY, on behalf of herself and all others similarly situated, Plaintiff,

Page 755

For Tonya Kelly, Plaintiff: Brenda G. Hamilton, Christopher S. Shank, LEAD ATTORNEYS, David Lee Heinemann, Stephen J. Moore, Shank & Hamilton, P.C., Kansas City, MO; Dane C. Martin, Graves Garrett, LLC - KCMO, Kansas City, MO.

For Snyder's-Lance, Inc., Cape Cod Potato Chip Company, Inc., Defendants: George Francis Verschelden, John C. Aisenbrey, Stinson Leonard Street LLP - KC 2900, Kansas City, MO; Kiran H Mehta, PRO HAC VICE, Troutman Sanders LLP, Charlotte, NC; Matthew G. Ball, PRO HAC VICE, K& L Gates LLP, San Francisco, CA.

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Dean Whipple, United States District Judge.

Before the Court is the Motion to Dismiss Plaintiff's Class Action Petition (Doc. 7) filed by Defendants Cape Cod Potato Chip Company, Inc. and Snyder's-Lance, Inc. Plaintiff Tonya Kelly opposes the motion. Defendants move to dismiss Plaintiff's Class Action Petition (the " Petition" ) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. They argue that Plaintiff has failed to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). In addition, they assert that the Court lacks subject-matter jurisdiction under Rule 12(b)(1) as to some of the claims because Plaintiff has failed to establish standing. Upon review, the Court concludes that the motion should be granted and the Petition should be dismissed for failure to state a claim on which relief can be granted. The Court also concludes that Plaintiff lacks standing to seek injunctive relief and to assert claims as to products that she did not purchase.

I. Background

Plaintiff filed her Petition in the Circuit Court of Jackson County, Missouri, alleging Defendants violated the Missouri Merchandising Practices Act (" MMPA" ), Mo. Rev. Stat. § 407.010 et seq. Thereafter, Defendant Snyder's-Lance, Inc. removed the case to this court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1453. Plaintiff alleges that Defendants, national producers and marketers of Kettle Cooked Potato Chip brand snack food, have been falsely labeling and marketing sixteen different

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varieties of Cape Cod Chips (the " Chips" ) as " all natural" products that contains " no preservatives," when the Chips are actually not all natural and contain preservatives. The Petition further alleges that these false and deceptive marketing practices allow Defendants to differentiate the Chips from comparable products and to charge a higher price, or price premium, for the product. Plaintiff seeks relief for herself and on behalf of all consumers who, from November 25, 2008 to the present purchased the Chips in the State of Missouri in the form of actual and punitive damages, interest, restitution, injunctive and declaratory relief, attorney fees and costs.

II. Applicable Law

In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain " enough facts 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 A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint is plausible if its " factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). The complaint must contain more than labels and conclusions or a formulaic recitation of the elements of the claim. Twombly, 550 U.S. at 555. For purposes of a Rule 12(b)(6) motion, the court must accept the allegations of the complaint as true; however, the court is " not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678.

To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must prove constitutional standing by showing (1) an injury-in-fact; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Republican Party v. Klobuchar, 381 F.3d 785, 791-92 (8th Cir. 2004) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Establishing an injury-in-fact requires a showing of " an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. at 791.

III. Analysis

Defendants argue three main bases for dismissal: (1) Plaintiff has failed to state a plausible claim that she has suffered an ascertainable loss of money or property; (2) Plaintiff has failed to plausibly allege that the labeling of the Chips as " natural" is false or deceptive; and (3) Plaintiff lacks standing in two ways: (a) to seek injunctive relief, because she has admitted that she would not purchase the chips again; and (b) to assert claims as to the 12 varieties of the Chips that she did not purchase, because she suffered no loss as to those varieties.

To successfully present a claim under the MMPA, a plaintiff must allege that she (1) purchased merchandise from the defendant; (2) for personal, family, or household purposes; and (3) suffered an ascertainable loss of money or property; (4) as a result of defendant's use of one of the methods, acts or practices declared unlawful by the Act. See Mo. Rev. Stat. ยง 407.025.1. Those unlawful methods, acts or practices include " any deception, fraud, false pretense, false promise, misrepresentation, ...

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