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Krumm v. Kittrich Corp.

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

December 17, 2019

CHRISTINE KRUMM, individually and on behalf of all others similarly situated, Plaintiffs,



         In this putative class action, named plaintiff Christine Krumm claims that defendant Kittrich Corporation violated various federal and Missouri state consumer protection laws by marketing and selling an ineffective insect repellant. Krumm seeks class certification for a nationwide class consisting of all non-resale purchasers of the allegedly ineffective repellant, and a subclass consisting of all class members who purchased the repellant in Missouri. Pending before the Court is Kittrich's motion to dismiss for lack of subject-matter jurisdiction, lack of personal jurisdiction, and failure to state a claim. For the reasons discussed below, I am denying the motion to dismiss on all grounds, except as to Count IV of Krumm's complaint.


         Defendant Kittrich manufactures and sells EcoSMART Insect Repellant. The repellant consists of a formula of “naturally occurring active ingredients” which the Environmental Protection Agency classifies as “minimum risk pesticides.” Def.'s Memorandum, ECF 14 at pg. 1. The repellant comes in a handheld spray bottle, labelled front and back with information and instructions. In relevant part, the repellent's front label states: “KEEPS AWAY MOSQUITOES, TICKS & GNATS!” The back label reads: “EcoSMART Insect Repellent is made from a proprietary blend of plant oils. It repels for hours. It's safe, it's effective. It's smart - Naturally.” Below this introduction is an instructional paragraph, which directs users to “[a]pply every 2-3 hours or as needed as effectiveness varies with excessive perspiration.” The back label also contains the following disclaimer:

LIMITATION OF LIABILITY: To the extent consistent with applicable law, Kittrich makes no warranties of merchantability or of fitness for a particular purpose, nor any other express or implied warranty except as stated above. Buyer assumes all responsibility for safety and use not in accordance with label, directions and precautionary statements.

         Plaintiff Krumm alleges she purchased a bottle of the repellant for approximately $6.00 from a Shop ‘n Save retail store in the Summer of 2016. Complaint, ECF 1 at pg. 5. Krumm maintains she “carefully read” the repellant's labelling before making the purchase, and that she “used the [repellant] according to its directions and the [repellant] was ineffective to repel mosquitos.” Consequently, she alleges she “would not have purchased the [repellant] at all, ” or would have only bought it for a “substantially reduced price.” Krumm brings six counts against Kittrich under federal and Missouri state law stemming from the alleged misrepresentations of the repellant's efficacy.

         Kittrich's Motion to Dismiss

         Kittrich seeks to dismiss Krumm's complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). First, Kittrich contends Krumm lacks standing to sue, thus the Court should dismiss the case in its entirety for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). In support, Kittrich argues 1) Krumm fails to adequately allege that she suffered a cognizable injury in fact, and 2) her claim is moot because of a pre-litigation tender of payment. Second, Kittrich challenges the factual sufficiency of Krumm's pleadings, and contends that three of Krumm's six counts should be dismissed due to various procedural and/or substantive deficiencies. Fed.R.Civ.P. 12(b)(6). Finally, Kittrich asserts that the Court should dismiss Krumm's claims on behalf of the nationwide class for lack of personal jurisdiction over the out-of-state (i.e. non-Missouri) purchasers. Fed.R.Civ.P. 12(b)(2). I will exercise my discretion to consider Kittrich's jurisdictional challenges first because its Rule 12(b)(6) defenses are moot if the Court lacks subject-matter or personal jurisdiction. See Siegfried v. Boehringer Ingelheim Pharm., Inc., No. 4:16 CV 1942 CDP, 2017 WL 2778107, at *2 (E.D. Mo. June 27, 2017).

         A. Subject Matter Jurisdiction

         Kittrich first moves to dismiss Krumm's complaint under Rule 12(b)(1) for lack of standing. Specifically, Kittrich argues Krumm has not adequately alleged that she suffered a ‘concrete and particularized' injury in fact. The injury in fact requirement is one of three elements of the “irreducible constitutional minimum of standing[.]” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560).

         By attacking the sufficiency of Krumm's pleadings, Kittrich presents a facial challenge to the Court's jurisdiction. A facial attack, as opposed to a factual attack, is when a movant “asserts that the [challenged pleading] fails to allege sufficient facts to support subject matter jurisdiction.” Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018) (internal citations omitted). When confronted with a facial challenge under Rule 12(b)(1), 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).” Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (citation omitted). In other words, “all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993).

         In light of this standard, Krumm has adequately alleged a cognizable economic injury in fact. Krumm alleges she personally read the repellant's label and purchased a bottle in reliance of its representation that it repels mosquitos. Krumm further alleges she “used the [repellant] according to its directions and the [repellant] was ineffective[1] to repel mosquitos.” Krumm's pleaded injury is therefore particularized-she alleges the specific repellant she purchased and used did not, in fact, repel mosquitos. See In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 616 (8th Cir. 2011); O'Neil v. Simplicity, Inc., 574 F.3d 501, 503 (8th Cir. 2009) (holding plaintiffs must allege that their product exhibited the alleged defect in order to establish standing). Further, Krumm's injury is concrete; Krumm alleges she relied on the repellant's label in deciding to buy the repellant, that the repellant's labels were false or misleading, and that she would not have purchased the repellant had she known the labels were false or misleading. These allegations are sufficient to establish an economic injury in fact:

[Plaintiff] claims that his economic injury stems from Defendant's false, misleading, or deceptive labeling practices, and that he would not have purchased the product had he known that the labels were false or misleading. Furthermore, Plaintiff's complaint alleges that he saw the labels and relied on them in making his purchasing decision. This is sufficient to support standing.

Johnson v. Atkins Nutritionals, Inc., No. 2:16-CV-04213-MDH, 2017 WL 6420199, at *3 (W.D. Mo. Mar. 29, 2017); see also Wallace v. ConAgra Foods Inc., 747 F.3d 1025, 1029 (8th Cir. 2014) (“When the alleged harm is economic, the ‘injury in fact' question is straightforward.”). Accordingly, because Krumm has standing to sue individually, the class action may proceed: “The requirements for standing do not change in the class action context. A putative class action can proceed as long as one named plaintiff has standing.” In re SuperValu, Inc., 870 F.3d 763, 768 (8th Cir. 2017) (internal citations omitted).

         Alternatively, Kittrich contends Krumm's individual claims were rendered moot by a pre-litigation tender of payment, thus the Court should dismiss for lack of subject-matter jurisdiction. The mootness doctrine requires proof of an actual, justiciable controversy at the time a plaintiff files suit: “In order to invoke federal- court jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable interest, or personal stake, in the outcome of the action.” Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528 (2013) (internal quotations and citation omitted). On November 16, 2018, Kittrich mailed Krumm a certified $20.00 cashier's check to “cover all costs in purchasing the [repellant].” Aff. of Priscilla Sambrano, ECF 14-1 at pg. 3. The value of the check was “three times the value of a full refund, ” so Kittrich argues Krumm was made “(more than) whole” before she filed suit. Krumm rejected the check and returned it to Kittrich; accordingly, she contends her individual and class-wide claims are unaffected by the tender of payment. The facts are undisputed, so the sole issue is a legal question: Whether issuing a consumer an unsolicited and unaccepted refund before she files suit preemptively moots her individual claims in a subsequently filed class action.

         The Supreme Court has held that a plaintiff's individual claim in a putative class action is not rendered moot by a rejected settlement offer and simultaneous offer of judgment under Rule 68:

When a plaintiff rejects such an offer-however good the terms-her interest in the lawsuit remains just what it was before. And so too does the court's ability to grant her relief. An unaccepted settlement offer- like any unaccepted contract offer-is a legal nullity, with no operative effect. As every first-year law student learns, the recipient's rejection of an offer leaves the matter as if no offer had ever been made. . . So assuming the case was ...

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