United States District Court, E.D. Missouri, Eastern Division
LAHONEE HAWKINS, individually and on behalf of all others similarly situated, Plaintiffs,
NESTLE U.S.A. INC., Defendant.
AMENDED OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Dismiss. [Doc. No. 24]. The motion is fully briefed. For the
reasons set forth below, the Motion is denied.
moves to dismiss the Amended Complaint under Fed.R.Civ.P.
12(b)(6) and 12(b)(1).
manufactures Raisonets candy. The products are regularly sold
at grocery stores, convenience stores, and other food retail
outlets throughout Missouri and the rest of the United
States. Plaintiff bought an opaque, non-pliable, cardboard
box of Raisonets for about $1.59 apiece at a Walgreens store
in Rolla, Missouri, for his personal, family, or household
purposes. His lawsuit focuses on Defendant's packaging of
spend an average of 13 seconds making an in-store purchasing
decision. The decision is heavily dependent on a
product's packaging, in particular, the package
dimensions. When faced with a large box and a smaller box,
both containing the same amount of product, a consumer is
more likely to choose the larger one, thinking it is a better
dimensions of a Raisonets box are 3⅛″ x
11⁄16″ x 6 3⁄16″. The front of the
box includes the description, “California Raisins
covered in chocolate.” The front of the box also
states: “NET WEIGHT 3.5 OZ (99.2 g)”; “190
CALORIES”; “5 g SAT FAT”; “15 mg
SODIUM”; and “28 g SUGARS” per ¼
cup. About 45% of each box has “slack filled, ”
or empty, space.
alleges that she “attached importance” to the
“size” of the Raisonets boxes, and was misled to
believe that she was “purchasing more Product than was
actually received.” She alleges that boxes are
“uniformly under-filled” or
“‘slack-filled, '”; the slack-filled
space serves no purpose; and had she known the boxes were
“substantially slack-filled, ” she would not have
purchased the products or would have purchased them on
different terms. She alleges that she “suffered an
ascertainable loss as a result of Defendant's unlawful
conduct because the actual value of the Products as purchased
was less than the value of the Products as
represented.” Plaintiff alleges that she
“would...likely purchase the Products in the future if
the Products complied with applicable laws.”
filed this lawsuit as a putative class action. In Count I,
she claims a violation of the Missouri Merchandising
Practices Act (MMPA) for a Missouri Consumer Subclass, and
she requests injunctive relief and damages under the statute.
Count II is a claim for unjust enrichment brought on behalf
of All Classes (class members in all states who purchased the
products), in which Plaintiff requests restitution or
disgorgement of Defendant's economic enrichment.
argues that Count I must be dismissed because Plaintiff fails
to state a claim under the MMPA and has no standing to seek
injunctive relief. Defendant also argues that argues that
Count II must be dismissed because it is derivative of her
legally insufficient MMPA claim.
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, (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (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). A court must
“‘draw on its judicial experience and common
sense, ' ” and consider the plausibility of the
plaintiff's claim as a whole, not the plausibility of
each individual allegation. Zoltek Corp. v. Structural
Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir. 2010)
(quoting Iqbal, 556 U.S. at 679).
considering a Defendant's motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), the Court
must first “distinguish between a ‘facial
attack' and a ‘factual attack' ” on the
Court's jurisdiction. Osborne v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990). When a 12(b)(1) motion
makes a facial attack, “the court restricts itself to
the face of the pleadings, and the non-moving party receives
the same protections as it would defending against a motion
brought under Rule 12(b)(6).” Id. (internal
citations omitted). On the other hand, a factual attack
requires the Court to consider “matters outside the
pleadings, and the non-moving party does not have the benefit
of 12(b)(6) safeguards.” Id. (internal
citations omitted). Defendant's motion in this matter
represents a facial attack on the Court's jurisdiction,
in that it challenges the legal sufficiency of the
Plaintiff's complaint to support the Court's
jurisdiction. Therefore, the Court will accept all of
Plaintiff's factual claims as true and construe the
allegations in Plaintiff's favor. Kulkay, 847
F.3d at 641.
elements of a claim under the MMPA are: (1) the purchase of
goods or services, (2) primarily for personal or household
purposes; and (3) an ascertainable loss of money or property,
(4) as a result of, or caused by, the use or employment by
another person of a method, act, or practice declared
unlawful under the MMPA. §§ 407.020 and 407.025.1.
See also Murphy v. Stonewall Kitchen, LLC, 503
S.W.3d 308, 311 (Mo. App. 2016); and Mo. Approved
Instructions (Civil) 39.01 (7th ed.).
argues that the MMPA count must be dismissed because
Plaintiff's allegations concerning unlawful practice and
ascertainable loss are not plausible. For the reasons
discussed below, the Court concludes that the allegations are
sufficient to state a claim.
of an unlawful practice
Missouri Supreme Court has characterized the MMPA as
“‘paternalistic legislation designed to protect
those that could not otherwise protect
themselves.'” High Life Sales Co. v.
Brown-Forman, Corp.,823 S.W.2d 493, 498 (Mo. 1992)
(quoting Electrical and Magneto Service Co. v. AMBAC
Intern'l Corp.,941 F.2d 660, 663 (8th Cir. 1991)).
See also Huch v. Charter Communications, Inc., 290
S.W.3d 721, 725 (Mo. 2009) (en banc) (noting that the
legislature enacted the MMPA to “regulate the
marketplace to the advantage of those who may fall victim ...