United States District Court, W.D. Missouri, Central Division
ROBERT BRATTON, individually and on behalf of all others similarly situated, Plaintiff,
THE HERSHEY COMPANY,
NANETTE K. LAUGHREY United States District Judge
case concerns filling requirements for boxes of
Reese's® Pieces® and Whoppers® candies.
Defendant, The Hershey Company, moves for summary judgment.
For the reasons set forth below, the motion is granted.
has manufactured and sold Whoppers in 5-ounce cardboard boxes
since 2001, and Reese's Pieces in 4-ounce cardboard boxes
since 2002, and throughout these periods, the size of each
box has remained consistent. Doc. 118, at 2, ¶ 1; Doc.
125, at iv, ¶ 1. Since at least 2006, Plaintiff Robert
Bratton has purchased both products regularly. Doc. 118, at
2, ¶ 2; Doc. 125, at iv, ¶ 2. Mr. Bratton guessed
that, on average, he purchased each of these products
“at least five [times] a month.” Doc. 118, at 2,
¶ 3; Doc. 125, at iv, ¶ 3. This totals
approximately 600 boxes of each of the boxes of candy at
issue in this litigation. Doc. 118, at 2, ¶ 5; Doc. 125,
at v, ¶ 5.
Bratton testified that he initially “expected the boxes
to be full, ” but “at some point . . . [he]
realized that they're not . . . .” Doc. 118-4
(Bratton Deposition Tr.), at 71:16-72:11. Although Mr.
Bratton claimed to have always clung to his hope that the
boxes would be full, he acknowledged that he did not
“expect the box to be miraculously filled the next time
[he] b[ought] it . . . .” Id., at 72:17-25.
Mr. Bratton guessed that the 600 or so boxes of Whoppers and
Reese's Pieces that he purchased in the last ten years
contained between 30 and 40 percent empty space.
Id., at 98:14-99:24. Despite his knowledge
concerning approximately how much candy and how much empty
space would be in each box, he continued to buy an average of
five boxes a month. See, e.g., id., at 77:7-20;
September 22, 2016, Plaintiff purchased a 4-ounce box of
Reese's Pieces and a 5-ounce box of Whoppers from a
Gerbes store in Columbia, Missouri. Doc. 118, at 3, ¶
10; Doc. 125, at vi, ¶ 10. These are the only purchases
of the Reese's Pieces and Whoppers boxes that Plaintiff
can specifically recall. Doc. 118, at 4, ¶ 12; Doc. 125,
at vi, ¶ 12. Mr. Bratton paid $1.00 for each box of
candy. Doc. 118, at 4, ¶ 13; Doc. 125, at vi, ¶ 13.
When asked at his deposition if there was “a price that
[he] would not have been willing to pay for the Reese's
Pieces box, ” he replied, “[I]f they'd been
$1.50 or $2 or something, I probably would have waited until
I could get them somewhere else . . . .” Doc. 118-4, at
104:3-104:9. But he also acknowledged having paid $4 for a
box of the candies at the movie theater. Id., at
104:10-14. Mr. Bratton estimates that he paid $4.00 a box for
approximately 30 percent of the boxes he purchased in the
last decade. Doc. 118, at 3, ¶ 6; Doc. 125, at v, ¶
Bratton claims that, since learning of the facts giving rise
to this litigation, he “ha[s] not bought any
more” theater boxes of Reese's Pieces or Whoppers.
Doc. 125-1, at Tr. 86:16-87:1.
Bratton filed this lawsuit in state court as a putative class
action. Count I alleges violation of the Missouri
Merchandising Practices Act (MMPA) and seeks injunctive
relief and damages. Count II alleges unjust enrichment and
seeks restitution or disgorgement of Hershey's purported
removed the case to federal court and then moved to dismiss
the case. The Court denied Hershey's motion to dismiss.
now moves for summary judgment on both of Mr. Bratton's
movant is entitled to summary judgment “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Although, the Court must
resolve all conflicts of evidence in favor of the nonmoving
party, the Court must enter summary judgment “against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Robert Johnson Grain Co. v. Chemical
Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Bratton has brought two claims against Hershey, for violation
of Missouri's Merchandising Practices Act
(“MMPA”), and for unjust enrichment. As discussed
below, Mr. Bratton cannot establish the existence of an