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Thornton v. Pinnacle Foods Group LLC

United States District Court, E.D. Missouri, Eastern Division

August 1, 2016

ERIKA THORNTON, individually and on behalf of all others similarly situated in Missouri, Plaintiff,
v.
PINNACLE FOODS GROUP LLC, Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant’s Motion to Dismiss. (Doc. No. 6) The motion is fully briefed and ready for disposition.

         I. Background

         Plaintiff Erika Thornton brought this putative class action in St. Louis City Circuit Court against Defendant Pinnacle Foods Group LLC (“Pinnacle”), asserting claims for violation of the Missouri Merchandising Practices Act (Count I) and unjust enrichment (Count II). She alleges that on at least one occasion in the five years preceding the filing of this action (the “Class period”), including in January 2016, she purchased a box of Duncan Hines Simple Mornings Blueberry Streusel Premium Muffin Mix (the “Mix”). (Complaint (“Compl.”), Doc. No. 5 at ¶¶ 7, 25) Pinnacle has labeled the Mix as containing “Nothing Artificial.” (Compl. at ¶¶ 2, 16) However, because the Mix contains monocalcium phosphate and xanthan gum, both of which are artificial, synthetic substances, [1] Plaintiff contends that Pinnacle’s representation that the Mix contains “Nothing Artificial” is false, deceptive, and misleading. (Compl. at ¶¶ 4, 16) Pinnacle removed the matter to this Court on February 5, 2016 (Doc. No. 1) and has moved to dismiss the complaint pursuant to Rules 8, 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure.

         II. Legal standard

         Rule 8 requires a plaintiff to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of that statement.

         When determining whether a claim has been stated, the Court accepts as true all factual allegations in the complaint and views them in the light most favorable to the plaintiff. Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993). “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 (2009) (citing Twombly, 550 U.S. at 570). “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.” Gomez v. Wells Fargo Bank, N.A., 676 F.3d 655, 660 (8th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). While a court must accept factual allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Carton v. Gen. Motor Acceptance Corp., 611 F.3d 451, 454 (8th Cir. 2010) (internal citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (internal citations omitted).

         A claim sounding in fraud is subject to a heightened pleading standard wherein the plaintiff “must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). To satisfy this requirement, the pleader must generally set forth the “who, what, when, where, and how of the misconduct charged.” BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007) (internal quotation marks and quoted cases omitted). “[C]onclusory allegations that a defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the rule.” Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 746 (8th Cir. 2002) (quoting Commercial Prop. v. Quality Inns Int’l, Inc., 61 F.3d 639, 644 (8th Cir. 1995)).

         III. Discussion

         A. MMPA - Count I

         To state a claim under the Missouri Merchandising Practices Act (“MMPA”), Mo. Rev. Stat. § 407.020 et seq., a plaintiff must show that (1) she purchased merchandise from the defendant; (2) for personal, family, or household purposes; and (3) suffered an ascertainable loss; (4) as a result of an unlawful practice. Mo. Rev. Stat. § 407.025(1); Polk v. KV Pharm. Co., No. 4:09CV00588 SNLJ, 2011 WL 6257466, at *4 (E.D. Mo. Dec. 15, 2011). Under the MMPA, “[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce...is declared to be an unlawful practice.” Mo. Rev. Stat. § 407.020.1. The MMPA is interpreted broadly to promote its purpose to protect consumers. Huch v. Charter Commc’ns., Inc., 290 S.W.3d 721, 724 (Mo. 2009).

         Citing orders of dismissal in Kelly v. Cape Cod Potato Chip Co. Inc., 81 F.Supp.3d 754, 762 (W.D. Mo. 2015) and Murphy v. Stonewall Kitchen, LLC, No. 1522-CC00481 (22nd Judicial Circuit (St. Louis City) Jan. 26, 2016), Pinnacle argues that Plaintiff has failed to plausibly allege that the label “Nothing Artificial” would have deceived a “reasonable consumer, ” first because Plaintiff has failed to offer any definition of “artificial” that applies to monocalcium phosphate and xanthan gum (Doc. No. 7 at 3-7), and second, because monocalcium phosphate and xanthan gum are disclosed in the ingredient list on the back of the Mix box (id. at 7-8).[2] In Kelly, a consumer brought a putative class action against potato chip producers, alleging the chips were falsely labeled and marketed as “all natural.” The court held that in the absence of any plausible definition for the term “natural, ” the plaintiff had failed to state a claim that the use of the term was deceptive or misleading under the MMPA. 81 F.Supp.3d at 759-61. Murphy, another putative class action, involved a claim that a cupcake mix was deceptively labeled and marketed as “all natural” because it contained sodium acid pyrophosphate (“SAPP”), an artificial and/or synthetic substance. The court found as a matter of law that defendants’ labeling of its cupcake mix was not deceptive or misleading because SAPP was specifically listed as an ingredient and dismissed plaintiff’s MMPA claim.

         The Court finds Pinnacle’s arguments unpersuasive. Whether a reasonable consumer would be deceived by a product label is generally a question of fact that cannot be resolved on a motion to dismiss.[3] See Anderson v. The Hain Celestial Group, Inc., 87 F.Supp.3d 1226, 1236 (N.D. Cal. 2015); Musgrave v. ICC/Marie Callender’s Gourmet Products Division, No. 14CV02006 JST, 2015 WL 510919, at *6 (N.D. Cal. Feb. 5, 2015); Ham v. Hain Celestial Group, Inc., 70 F.Supp.3d 1188, 1193 (N.D. Cal. 2014). Plaintiff alleges facts that, if true, establish a deceptive or false claim as to the Mix. Specifically, she alleges the Mix contains monocalcium phosphate and xanthan gum, both of which are artificial, synthetic substances. (Compl. at ¶ 3) The Court finds no basis to disregard those allegations, which identify the specific compounds that are purportedly “artificial.” See Bohlke v. Shearer’s Foods, LLC, No. 9:14CV80727, 2015 WL 249418, at *9 (S.D. Fla. Jan. 20, 2015) (citing Dye v. Bodacious Food Co., No. 9:14CV80627-WPD, DE 14, at 8-9 (S.D. Fla. Sept. 9, 2014)). Thus, Pinnacle’s argument as to the meaning of “artificial” does not warrant a dismissal of any claims.

         As for Pinnacle’s “ingredient list defense, ” the Court finds it plausible that a consumer might rely on the representation “Nothing Artificial” without looking at the ingredients, or that a consumer might not know that monocalcium phosphate and xanthan gum are “artificial” ingredients. (See Doc. No. 9 at 8-10) This Court recently found that “the mere presence of an ingredient statement on the back of a product does not eliminate the possibility that reasonable consumers may be misled, ” and that the effect that an ingredient statement may have on a reasonable consumer’s understanding of advertising and product labels involves a factual inquiry. Blue Buffalo Co. v. Nestle Purina Petcare Co., No. 4:15CV384 RWS, 2015 WL ...


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