United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE DISTRICT JUDGE
matter is before the Court on Defendant Vaughan Food,
Inc.'s Motion to Dismiss Count III and Count XI of
Plaintiff s First Amended Complaint (ECF No. 41). The motion
is fully briefed and ready for disposition.
action arises from romaine lettuce allegedly contaminated
with E.coli 0157:H7. Defendant Vaughan Foods, Inc.
("Vaughan") supplied romaine lettuce to Schnuck
Markets, Inc. ("Schnucks") for use in Schnucks
salad bars. Plaintiff Chartis Specialty Insurance Company
("Chartis") is the insurer and assignee of
Schnucks. The parties understood that the lettuce would be
used in Schnucks salad bar locations and sold for human
consumption to the general public. In late 2011 or early
2012, Vaughan delivered romaine lettuce to Shnucks, and
Schnucks placed the lettuce in its salad bars at various
locations. According to Plaintiff, the lettuce was
contaminated with E.coli 0157:H7, resulting in illnesses to
people residing in several states. Plaintiff filed a
Complaint in in the Circuit Court of St. Louis County,
Missouri against Defendant Vaughan and Defendant C&E
Farms, Inc., which supplied Vaughan with romaine lettuce
directly from its farms. Defendants removed the case to
federal court on the basis of diversity jurisdiction. On June
22, 2016, Plaintiff Chartis filed a First Amended Complaint,
alleging 12 counts against the Defendants, including various
breaches of warranties, negligence, strict liability, breach
of contract, and breach of indemnity. (First Amended Compl.,
ECF No. 39) Specific to the present motion, Plaintiff brought
claims for breach of implied warranty of fitness for a
particular purpose (Count III) and breach of contract (Count
XI) against Defendant Vaughan.
regard to motions to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), a complaint
must be dismissed if it fails to plead "enough facts to
state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (abrogating the "no set of facts" standard
set forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). While the Court cautioned that the holding does not
require a heightened fact pleading of specifics, "a
plaintiffs obligation to provide the 'grounds' of his
' entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. at 555. In
other words, "[f]actual allegations must be enough to
raise a right to relief above the speculative level. . .
." Id. This standard simply calls for enough
facts to raise a reasonable expectation that discovery will
reveal evidence of the claim. Id. at 556.
must liberally construe the complaint in the light most
favorable to the plaintiff and accept the factual allegations
as true. See Id. at 555; see also Schaaf v.
Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.
2008) (stating that in a motion to dismiss, courts accept as
true all factual allegations in the complaint); Eckert v.
Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008)
(explaining that courts should liberally construe the
complaint in the light most favorable to the plaintiff).
Further a court should not dismiss the complaint simply
because the court is doubtful that the plaintiff will be able
to prove all of the necessary factual allegations.
Twombly, 550 U.S. at 556. However, "[w]here the
allegations show on the face of the complaint there is some
insuperable bar to relief, dismissal under Rule 12(b)(6) is
appropriate." Benton v. Merrill Lynch &
Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation
omitted). Courts '"are not bound to accept as true a
legal conclusion couched as a factual allegation.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). When considering a motion
to dismiss, a court can "begin by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth." Id. at
679. Legal conclusions must be supported by factual
allegations to survive a motion to dismiss. Id.
motion to dismiss, Defendant Vaughan argues that Plaintiffs
claim for breach of implied warranty for a particular purpose
should be dismissed because the lettuce was used for its
normal and ordinary purpose, human consumption for salads,
and not for any particular purpose. Plaintiff, on the other
hand, contends that the lettuce was used for the particular
purpose of being sold in a raw, unprepared state in Schnucks
salad bars. A claim for breach of implied warranty of fitness
for a particular purpose exists:
[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 section 400.2-316 an implied
warranty that the goods shall be fit for such purpose.
Mo. Rev. Stat. § 400.2-315. As described in comment 2 of
the statute, a '"particular purpose' is
different from the ordinary purpose for which the goods are
used in that it envisages a specific use by the buyer which
is peculiar to the nature of his business." Mo. Rev.
Stat. § 400.2-315 at comment 2. When determining whether
a product is used for a unique, as opposed to ordinary,
purpose, "the key inquiry is not whether anyone else can
be found who puts the goods to the same use, but whether the
buyer's use is sufficiently different from the customary
use of the goods to make it not an ordinary use of the
goods." Ingram River Equip., Inc. v. Pott Indus.,
Inc., 816 F.2d 1231, 1233-34 (8th Cir. 1987); see
also Howard Constr. Co. v. Bentley Trucking, Inc., 186
S.W.3d 837, 843 (Mo.Ct.App. 2006) (stating that a claim for
breach of implied warranty of fitness for a particular
purpose requires sufficient evidence to create a question of
fact whether the purchaser intended to use concrete sand for
any particular purpose outside the ordinary use, which was to
instant case, the Court finds that Plaintiff is unable to
state a claim for breach of implied warranty of fitness for a
particular purpose. As Defendant Vaughan notes, lettuce is
ordinarily sold in its raw form and consumed in salads.
Nothing in Plaintiffs First Amended Complaint or in its
response in opposition to the motion to dismiss disputes this
notion. While Plaintiff attempts to convert the use of
lettuce to something unique by virtue of its sale in Schnucks
salad bars, the Court finds that the location does not alter
the ordinary use of the lettuce, which is sold in its raw
state and consumed in salads. Indeed, the First Amended
Complaint states on its face that Vaughan should have known
"that the produce was intended for a particular purpose,
including commercial resale and consumption by end
consumers." (FAC ¶ 42) (emphasis supplied) Because
Plaintiff has failed to demonstrate that the lettuce was
purchased for a special purpose, the Court will grant
Defendant's motion to dismiss Count III of Plaintiffs
First Amended Complaint. See Doe v. Miles, Inc., No.
ED75100, 2000 WL 667383, at * 7 (Mo.Ct.App. May 23, 2000)
("a breach of the implied warranty of fitness for a
particular purpose may not be established without substantial
evidence that the article or product was bought for a purpose
that was special or 'particular' to the buyer and
distinct from the article's or product's ordinary
regard to Plaintiffs breach of contract claim, Defendant
argues that the claim should be dismissed because the
complaint does not state any facts that could present a
plausible claim for breach of contract under the UCC.
Plaintiff asserts that discovery is required to determine
whether Schnucks justifiably revoked its acceptance pursuant
to delivery and that Plaintiff suffered more than economic
loss, as Plaintiff was forced to dispose of the lettuce
because of Vaughan's alleged breach.
Missouri law, remedies for economic loss sustained by reason
of damage to or defects in products sold are limited to those
under the warranty provisions of the UCC."
Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322
S.W.3d 112, 130-31 (Mo. 2010) (citation omitted). The
remedies for a breach of contract under the UCC are available
to a buyer "[w]here the seller fails to make delivery or
repudiates or the buyer rightfully rejects or justifiably
revokes acceptance then with respect to any goods
involved." Mo. Rev. Stat. § 400.2-711. With respect
to breach of warranty claims, remedies "are available to
a buyer who has finally accepted ...