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Webb v. Dr Pepper Snapple Group, Inc.

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

April 25, 2018

ARNOLD E WEBB, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; Plaintiff,
v.
DR PEPPER SNAPPLE GROUP, INC., DR PEPPER/SEVEN UP, INC., Defendants.

          ORDER DENYING DEFENDANTS' MOTION TO DISMISS

          ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT.

         Before the Court is Defendants Dr Pepper Snapple Group, Inc. and Dr Pepper/Seven Up, Inc. (“Defendants”)' Motion to Dismiss. (Doc. 18.) Defendants seek dismissal of Plaintiff Arnold E. Webb's Complaint (doc. 1) pursuant to Federal Rules of Civil Procedure 12(b)(6), 9(b), and 12(b)(1). Plaintiff filed suggestions in opposition (doc. 22) as well as supplemental authority (doc. 29). Defendants filed a reply. (Doc. 30.)[1] For the reasons stated below, the motion is DENIED.

         I. Background

         Plaintiff brings this putative class action lawsuit alleging Defendants engaged in false and misleading business practices regarding the marketing and sale of its Canada Dry Ginger Ale (the “Product”). (Doc. 1 ¶ 1.) Specifically, Plaintiff alleges that Defendants “labeled, packaged, and marketed the Product as being ʽMade from Real Ginger, ' indicating that the Product contains ginger.” (Id. at ¶ 2.) According to Plaintiff, laboratory tests concluded that “the Product does not contain a detectable amount of ginger.” (Id. at ¶ 3.) Plaintiff alleges that he and other consumers purchased the Product, “reasonably relying on Defendants' deceptive representation about the Product, and believing that the Product contained a detectable amount of ginger.” (Id. at ¶ 5.) Plaintiff further alleges that “[h]ad [he] and other consumers known that the Product did not contain a detectable amount of ginger[, ] they would not have purchased the Product or would have paid significantly less for the Product.” (Id. at ¶ 5.)

         Plaintiff brings the following claims against Defendants: violation of Missouri's Merchandising Practices Act (“MMPA”) (Count I); breach of express warranty (Count II); breach of implied warranty of merchantability (Count III); common law fraud (Count IV); intentional misrepresentation (Count V); negligent misrepresentation (Count VI); and “[q]uasi contract/[u]njust enrichment/[r]estitution” (Count VII).[2] (Doc. 1.) Plaintiff seeks damages, restitution, declaratory relief, and injunctive relief. (Id. at ¶ 7.)

         II. Standards of Review

         A. Rule 12(b)(6)

         A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted[.]” Federal Rule of Civil Procedure 8(a)(2) sets forth the pleading standard and requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Although Rule 8 does not require “detailed factual allegations, ” a pleading must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient facts, “accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (citing Twombly, 550 U.S. at 570). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully[]” or pleaded facts that are “merely consistent with a defendant's liability[.]” Id. (citing Twombly, 550 U.S. at 557) (internal quotation marks omitted).

         When considering a motion to dismiss, the Court must accept as true all allegations in the complaint, but is not bound by legal conclusions disguised as factual allegations. Id. at 678-79. “The complaint must be liberally construed in the light most favorable to the plaintiff.Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). The moving party has the burden to show that no claim has been stated. See 2-12 Moore's Federal Practice - Civil § 12.34 (2017). “A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief.” Coleman, 40 F.3d at 258.

         B. Rule 9(b)

         Federal Rule of Civil Procedure 9(b) provides a heightened pleading requirement for claims involving allegations of fraud, negligent misrepresentation, or intentional misrepresentation. Khaliki v. Helzberg Diamond Shops, Inc., 2011 WL 1326660, at *3 (W.D. Mo. Apr. 6, 2011); Great Lakes Transmission Ltd. P'ship v. Essar Steel Minnesota LLC, 871 F.Supp.2d 843, 859-60 (D. Minn. May 15, 2012). See also Peterson-Price v. U.S. Bank Nat. Ass'n, 2010 WL 1782188, at *12 (D. Minn. May 4, 2010) (“Rule 9(b)'s pleading requirements apply to claims alleging misrepresentations, whether styled as intentional misrepresentations or negligent misrepresentations.”). Rule 9(b) provides that “a party must state with particularity the circumstances constituting fraud[.]” To comply with Rule 9(b)'s particularity requirement, “the complaint must plead such facts as the time, place, and content of the defendant's false representations, as well as the details of the defendant's fraudulent acts, including when the acts occurred, who engaged in them, and what was obtained as a result.” U.S. ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006) (citation omitted). “Put another way, the complaint must identify the ‘who, what, where, when, and how' of the alleged fraud.” Id. (citations omitted).

         C. Rule 12(b)(1)

         Similar to a Rule 12(b)(6) motion to dismiss, when a defendant raises a facial challenge to subject-matter jurisdiction through a Rule 12(b)(1) motion to dismiss, the plaintiff enjoys certain safeguards. Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016). The Court accepts the allegations in the complaint as true, construing them most favorably to the plaintiff, and will not look beyond the face of the complaint to determine jurisdiction. See Id. The party invoking federal jurisdiction has the burden to establish he or she has standing to assert the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

         III. Discussion

         A. Sufficiency of Pleading Actionable Misrepresentation

         Defendants argue Plaintiff has failed to plead an actionable claim that the Product's label “Made From Real Ginger” was false, misleading, or unfair. Defendants contend that Plaintiff's conclusion regarding the misrepresentation on the label is not supported by Plaintiff's allegations that the lab test results showed no “detectable amount of ginger” contained in the Product. Defendants contend Plaintiff's conclusion is false because: (1) Plaintiff's interpretation of the representation is unreasonable, and (2) Plaintiff has not pled the falsity of the representation with particularized details about the lab testing. Defendants therefore argue that Plaintiff's failure to plead a “cogent factual pleading” that the Product is not, in fact, “made from” ginger, disposes of the entire case.

         Plaintiff argues he has sufficiently pled that the representation is false by alleging that the Product does not contain a detectable amount of ginger as shown by lab testing. In support, Plaintiff argues that the MMPA prohibits a representation that is truthful but nonetheless misleading to reasonable consumers. Plaintiff argues a reasonable consumer could believe that a product labeled “Made From Real Ginger” would contain at ...


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