Amy Joseph v. Trader Joes Company

Filing 54

ORDER GRANTING MOTION TO DISMISS CASE 40 by Judge Otis D. Wright, II: The Court hereby GRANTS Trader Joes Motion to Dismiss. The Court will allow leave to amend within thirty days of the date of this order. (lc)

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O 1 2 3 4 5 6 United States District Court Central District of California 7 8 9 In re Trader Joe’s Tuna Litigation 10 11 Case No. 2:16-cv-01371-ODW(AJWx) ORDER GRANTING MOTION TO DISMISS CASE [40] 12 13 14 15 16 I. 17 INTRODUCTION 18 Defendants Trader Joe’s Company and Trader Joe’s East Inc. (collectively, 19 “Trader Joe’s”) move to dismiss Plaintiffs’ First Amended Complaint on several 20 bases. 21 Defendants’ Motion. (ECF No. 40.) For the reasons discussed below, the Court GRANTS II. 22 FACTUAL BACKGROUND 23 Plaintiff Sarah Magier resides in New York and purchased Trader Joe’s tuna in 24 New York City through 2013.1 (First Am. Compl. (“FAC”) ¶ 9, ECF No. 38.) Magier 25 purchased the tuna after reading the can’s label, which she alleges represented that the 26 can contained an adequate amount of tuna for a five ounce can. (Id.) Magier contends 27 that the label’s representations substantially influenced her decision to purchase the 28 1 Plaintiffs do not specify when Plaintiff Magier began purchasing Trader Joe’s tuna. 1 tuna. (Id.) Further, Magier claims that she would not have purchased the tuna if she 2 knew the cans were underweight and/or underfilled. (Id.) 3 Plaintiff Atzimba Reyes resides in California, and she purchased Trader Joe’s 4 tuna in Davis, California, through 2014.2 (Id. ¶ 10.) Similarly to Magier, Reyes also 5 contends that the alleged representations on the can’s label substantially influenced 6 her to purchase the product. (Id.) In addition, Reyes claims that she would not have 7 purchased the Trader Joe’s tuna if she knew the cans were substantially underfilled 8 and/or underweight. (Id.) 9 Plaintiffs determined that the Trader Joe’s tuna cans were underfilled and 10 underweight by commissioning testing with the U.S. National Oceanic and 11 Atmospheric Administration (“NOAA”) on December 1, 2015. (See id. ¶¶ 2–7.) 12 NOAA tested several varieties of Trader Joe’s tuna according to the FDA’s standards 13 for canned tuna, pursuant to 21 C.F.R. § 161.190. This statute determines the standard 14 fill of tuna within a container based on its pressed cake weight. See 21 C.F.R. § 15 161.190(c). The NOAA tests based on this method determined that several varieties 16 of Trader Joe’s tuna fell 19.2%, 24.8%, 24.8%, 11.1%, 9.9%, and 13.9% below the 17 minimum standard of fill for pressed cake tuna. (See FAC ¶¶ 2–7.) Accordingly, 18 Plaintiffs bring the following claims: breach of express warranty, breach of implied 19 warranty of merchantability, unjust enrichment, negligent misrepresentation, and 20 fraud. (See generally id.) In addition, Plaintiff Magier brings claims on behalf of 21 herself and the New York subclass for violation of New York General Business Law 22 §§ 349, 350. (Id. ¶ 8.) Plaintiff Reyes also brings claims on behalf of herself and the 23 California subclass for violation of California’s Consumer Legal Remedies Act 24 (“CLRA”), Unfair Competition Law (“UCL”), and False Advertising Law (“FAL”). 25 (Id.) 26 Trader Joe’s now moves to dismiss Plaintiffs’ complaint. It argues that it did 27 not make any false or misleading representations and that Plaintiffs were not injured 28 2 Plaintiffs do not specify when Plaintiff Reyes began purchasing Trader Joe’s tuna. 2 1 because they received what they thought they were purchasing—cans of tuna 2 weighing five ounces. (Mot. 1.) Trader Joe’s contends that because the crux of 3 Plaintiffs’ complaint rests on failing to meet the pressed cake weight standard, there is 4 no false representation since the pressed cake weight is not represented anywhere on 5 the tuna can labels. (Id.) Trader Joe’s tuna can labels only specify the drained weight 6 and net weight. (Id.) Moreover, Trader Joe’s notes that the drained and net weights 7 on its tuna can labels were accurate (and the amount of tuna sometimes exceeded 8 these numbers). (Id. (“Indeed, the very testing relied on by Plaintiffs demonstrates 9 that, on average, the tested products contain tuna in excess of the ‘net weight’ and 10 ‘drained weight’ represented on the labels.”); see also Trader Joe’s Canned Tuna 11 Labels, Ex. 11, ECF No. 40-6; Results of Unofficial NOAA Tests in Dec. 2015, Ex. 12 12, ECF No. 40-6.) Trader Joe’s further argues that the pressed weight standard in 21 13 C.F.R. § 161.190—promulgated in 1957—is outdated and actively being considered 14 for revision by the FDA, as evidenced by: (1) the FDA’s stated intent to rule on a 15 Citizens’ Petition to amend the standard of fill to a tuna can’s drained weight; and (2) 16 the FDA’s issuance and extension of a temporary marketing permit (“TMP”) to major 17 tuna processors3 to market tuna under the drained weight standard. (Mot. 4–5; see 18 also Trader Joe’s Req. to Participate in TMP for Canned Tuna (TJ’s Req.”), Ex. 10, 19 ECF No. 40-6.) Trader Joe’s criticizes the continued use of the pressed cake weight 20 standard under 21 C.F.R. § 161.190, stating that it was designed for three-piece tuna 21 cans of the past, can only be measured by properly trained individuals, and is only still 22 applied in the United States, while the drained-weight standard is accepted 23 internationally. (Mot. at 4–5.) The major tuna processors’ TMP was issued and 24 extended indefinitely, while Trader Joes’ application for a TMP is still pending before 25 the FDA. (TJ’s Req.; Temporary Permit for Market Testing, Ex. 14, ECF No. 40-6.) 26 27 28 3 The relevant major tuna processors are Bumble Bee Foods, StarKist, and Tri-Union Seafoods. (See Temporary Permit for Market Testing.) 3 III. 1 LEGAL STANDARD 2 A motion to dismiss under either Rule 12(c) or 12(b)(6) is proper where the 3 plaintiff fails to allege a cognizable legal theory or where there is an absence of 4 sufficient facts alleged under a cognizable legal theory. 5 Twombly, 550 U.S. 544, 555 (2007); see also Shroyer v. New Cingular Wireless Serv., 6 Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). That is, the complaint must “contain 7 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on 8 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks 9 omitted). Bell Atlantic Corp. v. 10 Accusations of fraud require a heightened particularity in pleading. See Fed. R. 11 Civ. P. 9(b). Federal Rule of Civil Procedure 9(b) establishes that an allegation of 12 “fraud or mistake must state with particularity the circumstances constituting fraud.” 13 The “circumstances” required by Rule 9(b) are the “who, what, when, when, where, 14 and how” of the fraudulent activity. Cafasso, ex rel. U.S. v. Gen. Dynamics C4 Sys., 15 Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). In addition, the allegation “must set forth 16 what is false or misleading about a statement, and why it is false.” 17 heightened pleading standard ensures that “allegations of fraud are specific enough to 18 give defendants notice of the particular misconduct which is alleged to constitute the 19 fraud charged so that they can defend against the charge and not just deny that they 20 have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Id. This 21 Generally, a court should freely give leave to amend a complaint that has been 22 dismissed, even if not requested by the party. See Fed. R. Civ. P. 15(a); Lopez v. 23 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). However, a court may deny 24 leave to amend when it “determines that the allegation of other facts consistent with 25 the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. 26 Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 27 28 4 IV. 1 DISCUSSION 2 Trader Joe’s moves to dismiss Plaintiffs’ FAC on several different grounds: (1) 3 Implied Preemption; (2) Conflict Preemption; (3) the Doctrine of Primary 4 Jurisdiction; and (4) a failure to state a viable claim. (See generally Mot.) Because 5 the Court finds that Plaintiffs’ claims are impliedly preempted, it focuses its discussion 6 on that analysis and declines to reach Trader Joe’s other bases for dismissal. 7 A. Implied Preemption Standard 8 Under 21 U.S.C. § 337(a) of the Federal Food, Drug, and Cosmetic Act 9 (“FDCA”), all proceedings to enforce Food and Drug Administration (“FDA”) 10 regulations “shall be by and in the name of the United States.” See also Buckman Co. 11 v. Plaintiffs’ Legal Comm’n, 531 U.S. 341, 349 n.4 (2001) (“The FDCA leaves no 12 doubt that it is the Federal Government rather than private litigants who are authorized 13 to file suit for noncompliance” with its provisions). If a private litigant files a state 14 law claim that also violates the FDCA, it must fit through a “narrow gap” in order to 15 escape implied preemption. Perez v. Nidek Co., 711 F.3d 1109, 1120 (9th Cir. 2013). 16 “The Eighth Circuit has aptly described the ‘narrow gap’ through which a state-law 17 claim must fit to escape preemption by the FDCA: ‘The plaintiff must be suing for 18 conduct that violates the FDCA (or else his claim is expressly preempted by § 19 360k(a)), but the plaintiff must not be suing because the conduct violates the FDCA 20 (such a claim would be impliedly preempted under Buckman).’” Id. (quoting In re 21 Medtronic, 623 F.3d 1200, 1204 (8th Cir. 2010) (emphasis in original)). Thus, “under 22 principles of implied preemption . . . private litigants may not bring a state-law claim 23 against a defendant when the state-law claim is in substance (even if not in form) a 24 claim for violating the FDCA.” Loreto v. Procter & Gamble Co., 515 F. App’x 576, 25 579 (6th Cir. 2013) (internal quotation marks omitted). In simpler terms, a plaintiff 26 must state a claim based on a violation of some other law—such as state tort law— 27 that also happens to violate the FDCA. The claim cannot be primarily premised on a 28 violation of the FDCA. 5 1 B. Analysis 2 Trader Joe’s argues that because “Plaintiffs plainly premise the FAC on an 3 alleged violation of the FDCA,” their claims are impliedly preempted. (Mot. 10.) 4 Indeed, in their FAC, Plaintiffs describe how testing Trader Joe’s tuna cans pursuant to 5 the method in 21 C.F.R. § 161.190 revealed that the pressed cake weights were lower 6 than required. (FAC ¶ 2.) Under each claim, Plaintiffs allege that Trader Joe’s 7 represented that the tuna cans contained an adequate amount of tuna and that they 8 were legal for sale in the U.S. (Id. ¶¶ 26, 31, 42, 46, 53, 60, 68, 75, 89.) However, the 9 tuna can labels did not indicate the pressed cake weight; they only listed the accurate 10 drained and net weight. (Trader Joe’s Canned Tuna Labels, Ex. 11, ECF No. 40-6.) 11 Therefore, Trader Joe’s argues that Plaintiffs are suing because Trader Joe’s conduct 12 violates FDA regulations about standards of fill for tuna. Under 21 U.S.C. § 337(a), 13 Plaintiffs cannot file suit as private litigants to enforce the FDCA’s provisions. 14 In their opposition, Plaintiffs discuss a nearly identical case against another tuna 15 manufacturer. See Hendricks v. StarKist Co., 30 F. Supp. 3d 917 (N.D. Cal. 2014). 16 There, the court found that while the plaintiff’s state law claims were all based on 17 Defendants’ conduct that violated the FDCA, the plaintiff’s allegations sufficiently 18 “thread the gap” within the Ninth Circuit’s rule in Perez. See 711 F.3d at 1120. 19 Plaintiffs also note that their claims do not mention 21 C.F.R. § 161.190 and are 20 brought pursuant to state law because Defendants allegedly underfilled the cans of 21 tuna. (Opp’n 8, ECF No. 45.) 22 Plaintiffs’ arguments and reliance on Hendricks are unconvincing. Plaintiffs’ 23 claims could not exist based solely on traditional state tort law; “the existence of [the] 24 federal enactment[] is a critical element in their case.” See Buckman, 531 U.S. at 353. 25 That is, the standard for pressed cake weight pursuant to 21 C.F.R. § 161.190 is 26 critical to each of Plaintiffs’ state law claims, though Plaintiffs do not outright allege 27 this. Unlike Hendricks, where the plaintiff’s state law claims were almost identical to 28 the FDCA’s requirements, here, Plaintiff’s state-law claims do not “mirror the relevant 6 1 sections of the FDCA.” See Khasin v. Hershey Co., No. 5:12–CV–01862 EJD, 2012 2 WL 5471153, at *4 (N.D. Cal. Nov. 9, 2012). Plaintiffs even state that they would not 3 have purchased Trader Joe’s tuna if they had known the cans’ fill did not comply with 4 FDA standards. 5 misrepresented that the tuna cans contained an adequate amount of tuna, Plaintiffs 6 must be relying on the FDA’s pressed cake weight standard, because the labels were 7 otherwise accurate. (See Trader Joe’s Canned Tuna Labels, Ex. 11, ECF No. 40-6; 8 Results of Unofficial NOAA Tests in Dec. 2015, Ex. 12, ECF No. 40-6.) Plaintiffs 9 explain in detail how testing showed that the tuna cans were underfilled based on the 10 pressed cake weight and then make claims of misrepresentation and deceptive 11 practices under state law. (See generally FAC); see also Verzani v. Costco Wholesale 12 Corp., No. 09 CIV 2117 CM, 2010 WL 3911499, at *3 (S.D.N.Y. Sept. 28, 2010), 13 aff’d, 432 F. App’x 29 (2d Cir. 2011) (“[Plaintiff’s] persistent allegations that Costco’s 14 labeling of the Shrimp Tray violates the FDCA[’s] . . . regulations on the labeling of 15 ‘shrimp cocktails’ indicates that his true purpose is to privately enforce alleged 16 violations of the FDCA, rather than to bring a [state-law] claim for unfair and 17 deceptive business practices.”). In this way, Plaintiffs attempt to pass off FDCA 18 claims, otherwise enforceable only by the FDA, as privately enforceable state law 19 claims. 20 mechanism is thwarted if savvy plaintiffs can label as arising under a state law for 21 which there exists a private enforcement mechanism a claim that in substance seeks to 22 enforce the FDCA”). (See FAC ¶¶ 9–10.) In order to claim that Trader Joe’s See Loreto, 515 F. App’x at 579 (“The statute’s public enforcement 23 In sum, Plaintiffs’ claims would not exist without the FDCA. See Loreto, 515 24 F. App’x at 579 (“If the claim would not exist in the absence of the FDCA, it is 25 impliedly preempted”). Plaintiffs allege that Trader Joe’s misrepresented that its cans 26 contained an adequate amount of tuna, and if Plaintiffs knew the amount was 27 inadequate, they would not have purchased the tuna cans. (FAC ¶¶ 9–10.) Plaintiffs 28 also maintain that the reason the amount in the tuna cans was inadequate is because it 7 1 failed to meet the pressed cake weight standard under 21 C.F.R. § 161.190. (See id. ¶ 2 28.) Consequently, the theory underlying Plaintiffs’ state-law claims depends entirely 3 on an FDA regulation. Plaintiffs’ state law claims are in reality claims violations of an 4 FDA regulation, and therefore, the FDCA prohibits Plaintiffs from bringing them. On 5 this basis, the Court GRANTS Defendants’ Motion to Dismiss. Because this is the 6 first dismissal of Plaintiffs’ complaint, the Court will allow leave to amend within 7 thirty days of the date of this order. V. 8 9 10 CONCLUSION For the reasons discussed above, the Court hereby GRANTS Trader Joe’s Motion to Dismiss. (ECF No. 40.) 11 12 13 IT IS SO ORDERED. 14 15 June 2, 2017 16 17 18 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 8

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