Linda Hawkins v. UGI Corporation et al

Filing 54

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS 41 , 42 by Judge Dean D. Pregerson. Because Plaintiffs have not plausibly alleged that Defendants' representations were inaccurate or misleading, the CAC must be dismissed. Any amended complaint shall be filed within fourteen days of the date of this Order. (lom)

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NO JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LINDA HAWKINS, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS
SIMULARLY SITUATED,

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Plaintiff,
v.
UGI CORPORATION; AMERIGAS
PROPANE, INC.; AMERIGAS
PROPANE, L.P.; AMERIGAS
PARTNERS, L.P., doing
business as AMERIGAS
CYLINDER EXCHANGE;
FERRELLGAS COMPANY, INC.;
FERRELLGAS, L.P., doing
business as BLUE RHINO LLC;
FERRELLGAS, INC..;
FERRELLGAS PARTNERS FINANCE
CORP.; FERRELLGAS FINANCE
CORP.,
Defendants.
___________________________

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Case No. CV 14-08461 DDP (JCx)

ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS

[Dkt. 41, 42]

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Presently before the court are two separate, but similar

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motions to dismiss filed by Defendants UGI Corporation, Amerigas

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Propane, Inc., Amerigas Propane, L.P., Americas Partners, L.P.

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(collectively, “Amerigas”) and Ferrellgas, L.P., Ferrellgas, Inc.,

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Ferrellgas Partners Finance Corp., and Ferrellgas Finance Corp.

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(collectively, “Ferrelgas”).

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the parties and heard oral argument, the court grants the motion

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and adopts the following order.

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I.

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Having considered the submissions of

Background
Amerigas and Ferrelgas (collectively, “Defendants”) sell pre-

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filled propane cylinders to the public at locations such as

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hardware stores, supermarkets and gas stations.

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Amended Complaint (“CAC”) ¶ 11.)

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allow consumers to drop off “empty” propane cylinders and pick up

(Consolidated

Defendants operate cages that

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pre-filled cylinders.

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refill rather than exchange their cylinders at certain designated

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refill stations.

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(Id. ¶ 12.)

Alternatively, consumers may

(Id. ¶ 27.)

Plaintiffs allege, on behalf of a putative class, that

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Defendants fill their propane cylinders with fifteen pounds of

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propane, even though standard propane cylinders can hold over

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seventeen pounds.

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Defendants’ pre-filled propane cylinders bear labels identifying

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the “net weight” of the cylinders as fifteen pounds.

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Plaintiffs also allege that Defendants’ cages and other marketing

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materials instruct consumers to drop “empty” tanks near the cages

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before obtaining a pre-filled tank from inside the cage.

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27, 33-34.)

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(CAC ¶ 18.)

Plaintiffs further allege that

(Id. ¶ 27.)

(Id. ¶¶

Plaintiffs further allege that Defendants’ propane cylinders

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are not capable of being truly emptied, and that at the time

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propane-fueled appliances cease to ignite, the cylinders remain, on

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average, ten percent full.

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that the cylinders cannot be emptied, but do not inform consumers

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of that fact, and benefit by continually reselling the unused ten

(CAC ¶ 30.)

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Defendants allegedly know

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percent that remains when consumers drop off “empty” tanks.

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The CAC alleges twelve causes of action, including fraud claims,

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common law claims, and statutory claims under California law.

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claims are premised on the essential allegations that Defendants

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“net weight” labels and “empty cylinder” instructions mislead

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consumers into believing that Defendants’ pre-filled cylinders

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contain fifteen pounds of usable propane and are actually empty

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when consumers return them.

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CAC.

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II.

(Id.)

All

Defendants now move to dismiss the

Legal Standard
A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.”

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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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“accept as true all allegations of material fact and must construe

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those facts in the light most favorable to the plaintiff.”

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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need not include “detailed factual allegations,” it must offer

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“more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.”

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allegations that are no more than a statement of a legal conclusion

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“are not entitled to the assumption of truth.” Id. at 679.

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other words, a pleading that merely offers “labels and

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conclusions,” a “formulaic recitation of the elements,” or “naked

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assertions” will not be sufficient to state a claim upon which

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relief can be granted.

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quotation marks omitted).

Ashcroft v. Iqbal, 556 U.S.

When considering a Rule 12(b)(6) motion, a court must

Iqbal, 556 U.S. at 678.

Although a complaint

Conclusory allegations or

Id. at 678 (citations and internal

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Resnick

In

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“When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly

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give rise to an entitlement of relief.” Id. at 679.

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must allege “plausible grounds to infer” that their claims rise

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“above the speculative level.” Twombly, 550 U.S. at 555.

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“Determining whether a complaint states a plausible claim for

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relief” is a “context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense.”

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556 U.S. at 679.

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Plaintiffs

Iqbal,

III. Discussion
Defendants raise a threshold challenge to the plausibility of

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Plaintiffs’ claims.

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not, however, challenge the laws of physics, and concede the

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“obvious truth – some propane can linger in tanks that no longer

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sustain flame.”1

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is no way for [it] to design cylinders that dispel every ounce of

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propane contained within them.”

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does not allege that Defendants expressly represented to consumers

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that all of the propane contained in Defendants’ cylinders was

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usable or accessible.

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allegations of the CAC, considered “in context,” make clear that

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Defendants mislead consumers “as to the quantity of propane they

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were purchasing.”

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(E.g., Ferrelgas Motion at 5.)

(Id. at 4.)

Defendants do

Ferrelgas acknowledges that “there

(Ferrelgas Mot. at 7.)

The CAC

Nevertheless, Plaintiffs argue that the

(Dkt. 45 at 4.)

Plaintiffs’ argument is difficult to square with the
allegations of the CAC.

The CAC alleges that Defendants’ propane

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Indeed, the CAC acknowledges that the amount of propane
remaning in a cylinder “varies depending on factors such as ambient
temperature, altitude and air pressure.” (CAC n. 2.)
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cylinders bear labels stating that they contain a net weight of

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fifteen pounds of propane.

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are not accurate or truthful.

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how consumers could plausibly have been mislead as to the amount of

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propane they purchased.

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amount of propane does not save their claims from implausibility.

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It is well-known to consumers that it may be difficult or

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impossible to extract every bit of a product from its packaging, as

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any purchaser of toothpaste, peanut butter, shampoo, and a host of

The CAC does not allege that the labels
It is therefore unclear to the court

Plaintiffs’ emphasis on the “usable”

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other products is aware.

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JVS, 2013 WL 9760035 (C.D. Cal. Sept. 11, 2013) (dismissing claims

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relating to accurately labeled, difficult to extract lip balm, with

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prejudice).

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See Ebner v. Fresh Inc., No. SACV 13-477

Nor do references to the word “empty” on Defendants’ cages

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give rise to a plausible claim that Defendants mislead consumers to

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believe that all fifteen pounds of propane purchased could be

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extracted from Defendants’ cylinders.

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allege that Defendants made any express representations to that

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effect.

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instructing consumers how to complete a tank exchange.

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Specifically, consumers were instructed to leave “empty” tanks near

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the cages, then to seek the assistance of a retail employee, who

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would return to the cage with the consumer, unlock the cage, and

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provide the consumer with a tank full of fifteen pounds of propane.

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It is implausible that a consumer would interpret instructions

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regarding what to do with the propane tank in his possession as a

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representation that he would be able to utilize every last ounce of

First, the CAC does not

Second, the word “empty” appeared only in the context of

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the full tank he intended to purchase.2

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consumer knowledge, the natural properties of gaseous propane, and

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the vagaries of atmospheric conditions, would any such

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interpretation be reasonable.

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Nor, given general

Because Plaintiffs have not plausibly alleged that Defendants’

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representations were inaccurate or misleading, the CAC must be

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dismissed.

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days of the date of this Order.

Any amended complaint shall be filed within fourteen

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IT IS SO ORDERED.

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Dated: January 21, 2016
DEAN D. PREGERSON
United States District Judge

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Indeed, some consumers are likely willing to turn in even a
tank containing usable amounts of propane in exchange for the
certainty of a full tank.
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