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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United States District Court
Central District of California

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In re Trader Joe’s Tuna Litigation

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Case No. 2:16-cv-01371-ODW(AJWx)
ORDER GRANTING MOTION TO
DISMISS CASE [40]

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I.

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INTRODUCTION

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Defendants Trader Joe’s Company and Trader Joe’s East Inc. (collectively,

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“Trader Joe’s”) move to dismiss Plaintiffs’ First Amended Complaint on several

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bases.

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Defendants’ Motion.

(ECF No. 40.)

For the reasons discussed below, the Court GRANTS
II.

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FACTUAL BACKGROUND

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Plaintiff Sarah Magier resides in New York and purchased Trader Joe’s tuna in

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New York City through 2013.1 (First Am. Compl. (“FAC”) ¶ 9, ECF No. 38.) Magier

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purchased the tuna after reading the can’s label, which she alleges represented that the

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can contained an adequate amount of tuna for a five ounce can. (Id.) Magier contends

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that the label’s representations substantially influenced her decision to purchase the

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Plaintiffs do not specify when Plaintiff Magier began purchasing Trader Joe’s tuna.

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tuna. (Id.) Further, Magier claims that she would not have purchased the tuna if she

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knew the cans were underweight and/or underfilled. (Id.)

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Plaintiff Atzimba Reyes resides in California, and she purchased Trader Joe’s

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tuna in Davis, California, through 2014.2 (Id. ¶ 10.) Similarly to Magier, Reyes also

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contends that the alleged representations on the can’s label substantially influenced

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her to purchase the product. (Id.) In addition, Reyes claims that she would not have

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purchased the Trader Joe’s tuna if she knew the cans were substantially underfilled

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and/or underweight. (Id.)

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Plaintiffs determined that the Trader Joe’s tuna cans were underfilled and

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underweight by commissioning testing with the U.S. National Oceanic and

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Atmospheric Administration (“NOAA”) on December 1, 2015. (See id. ¶¶ 2–7.)

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NOAA tested several varieties of Trader Joe’s tuna according to the FDA’s standards

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for canned tuna, pursuant to 21 C.F.R. § 161.190. This statute determines the standard

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fill of tuna within a container based on its pressed cake weight. See 21 C.F.R. §

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161.190(c). The NOAA tests based on this method determined that several varieties

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of Trader Joe’s tuna fell 19.2%, 24.8%, 24.8%, 11.1%, 9.9%, and 13.9% below the

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minimum standard of fill for pressed cake tuna. (See FAC ¶¶ 2–7.) Accordingly,

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Plaintiffs bring the following claims: breach of express warranty, breach of implied

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warranty of merchantability, unjust enrichment, negligent misrepresentation, and

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fraud. (See generally id.) In addition, Plaintiff Magier brings claims on behalf of

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herself and the New York subclass for violation of New York General Business Law

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§§ 349, 350. (Id. ¶ 8.) Plaintiff Reyes also brings claims on behalf of herself and the

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California subclass for violation of California’s Consumer Legal Remedies Act

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(“CLRA”), Unfair Competition Law (“UCL”), and False Advertising Law (“FAL”).

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(Id.)

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Trader Joe’s now moves to dismiss Plaintiffs’ complaint. It argues that it did

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not make any false or misleading representations and that Plaintiffs were not injured

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Plaintiffs do not specify when Plaintiff Reyes began purchasing Trader Joe’s tuna.
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because they received what they thought they were purchasing—cans of tuna

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weighing five ounces. (Mot. 1.) Trader Joe’s contends that because the crux of

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Plaintiffs’ complaint rests on failing to meet the pressed cake weight standard, there is

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no false representation since the pressed cake weight is not represented anywhere on

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the tuna can labels. (Id.) Trader Joe’s tuna can labels only specify the drained weight

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and net weight. (Id.) Moreover, Trader Joe’s notes that the drained and net weights

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on its tuna can labels were accurate (and the amount of tuna sometimes exceeded

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these numbers). (Id. (“Indeed, the very testing relied on by Plaintiffs demonstrates

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that, on average, the tested products contain tuna in excess of the ‘net weight’ and

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‘drained weight’ represented on the labels.”); see also Trader Joe’s Canned Tuna

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Labels, Ex. 11, ECF No. 40-6; Results of Unofficial NOAA Tests in Dec. 2015, Ex.

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12, ECF No. 40-6.) Trader Joe’s further argues that the pressed weight standard in 21

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C.F.R. § 161.190—promulgated in 1957—is outdated and actively being considered

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for revision by the FDA, as evidenced by: (1) the FDA’s stated intent to rule on a

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Citizens’ Petition to amend the standard of fill to a tuna can’s drained weight; and (2)

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the FDA’s issuance and extension of a temporary marketing permit (“TMP”) to major

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tuna processors3 to market tuna under the drained weight standard. (Mot. 4–5; see

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also Trader Joe’s Req. to Participate in TMP for Canned Tuna (TJ’s Req.”), Ex. 10,

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ECF No. 40-6.) Trader Joe’s criticizes the continued use of the pressed cake weight

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standard under 21 C.F.R. § 161.190, stating that it was designed for three-piece tuna

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cans of the past, can only be measured by properly trained individuals, and is only still

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applied in the United States, while the drained-weight standard is accepted

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internationally. (Mot. at 4–5.) The major tuna processors’ TMP was issued and

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extended indefinitely, while Trader Joes’ application for a TMP is still pending before

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the FDA. (TJ’s Req.; Temporary Permit for Market Testing, Ex. 14, ECF No. 40-6.)

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The relevant major tuna processors are Bumble Bee Foods, StarKist, and Tri-Union Seafoods. (See
Temporary Permit for Market Testing.)
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III.

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LEGAL STANDARD

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A motion to dismiss under either Rule 12(c) or 12(b)(6) is proper where the

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plaintiff fails to allege a cognizable legal theory or where there is an absence of

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sufficient facts alleged under a cognizable legal theory.

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Twombly, 550 U.S. 544, 555 (2007); see also Shroyer v. New Cingular Wireless Serv.,

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Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). That is, the complaint must “contain

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sufficient factual matter, accepted as true, to state a claim to relief that is plausible on

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its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

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omitted).

Bell Atlantic Corp. v.

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Accusations of fraud require a heightened particularity in pleading. See Fed. R.

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Civ. P. 9(b). Federal Rule of Civil Procedure 9(b) establishes that an allegation of

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“fraud or mistake must state with particularity the circumstances constituting fraud.”

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The “circumstances” required by Rule 9(b) are the “who, what, when, when, where,

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and how” of the fraudulent activity. Cafasso, ex rel. U.S. v. Gen. Dynamics C4 Sys.,

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Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). In addition, the allegation “must set forth

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what is false or misleading about a statement, and why it is false.”

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heightened pleading standard ensures that “allegations of fraud are specific enough to

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give defendants notice of the particular misconduct which is alleged to constitute the

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fraud charged so that they can defend against the charge and not just deny that they

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have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).

Id.

This

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Generally, a court should freely give leave to amend a complaint that has been

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dismissed, even if not requested by the party. See Fed. R. Civ. P. 15(a); Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). However, a court may deny

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leave to amend when it “determines that the allegation of other facts consistent with

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the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib.

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Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).

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IV.

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DISCUSSION

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Trader Joe’s moves to dismiss Plaintiffs’ FAC on several different grounds: (1)

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Implied Preemption; (2) Conflict Preemption; (3) the Doctrine of Primary

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Jurisdiction; and (4) a failure to state a viable claim. (See generally Mot.) Because

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the Court finds that Plaintiffs’ claims are impliedly preempted, it focuses its discussion

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on that analysis and declines to reach Trader Joe’s other bases for dismissal.

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A.

Implied Preemption Standard

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Under 21 U.S.C. § 337(a) of the Federal Food, Drug, and Cosmetic Act

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(“FDCA”), all proceedings to enforce Food and Drug Administration (“FDA”)

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regulations “shall be by and in the name of the United States.” See also Buckman Co.

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v. Plaintiffs’ Legal Comm’n, 531 U.S. 341, 349 n.4 (2001) (“The FDCA leaves no

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doubt that it is the Federal Government rather than private litigants who are authorized

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to file suit for noncompliance” with its provisions). If a private litigant files a state

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law claim that also violates the FDCA, it must fit through a “narrow gap” in order to

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escape implied preemption. Perez v. Nidek Co., 711 F.3d 1109, 1120 (9th Cir. 2013).

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“The Eighth Circuit has aptly described the ‘narrow gap’ through which a state-law

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claim must fit to escape preemption by the FDCA: ‘The plaintiff must be suing for

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conduct that violates the FDCA (or else his claim is expressly preempted by §

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360k(a)), but the plaintiff must not be suing because the conduct violates the FDCA

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(such a claim would be impliedly preempted under Buckman).’” Id. (quoting In re

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Medtronic, 623 F.3d 1200, 1204 (8th Cir. 2010) (emphasis in original)). Thus, “under

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principles of implied preemption . . . private litigants may not bring a state-law claim

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against a defendant when the state-law claim is in substance (even if not in form) a

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claim for violating the FDCA.” Loreto v. Procter & Gamble Co., 515 F. App’x 576,

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579 (6th Cir. 2013) (internal quotation marks omitted). In simpler terms, a plaintiff

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must state a claim based on a violation of some other law—such as state tort law—

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that also happens to violate the FDCA. The claim cannot be primarily premised on a

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violation of the FDCA.

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B.

Analysis

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Trader Joe’s argues that because “Plaintiffs plainly premise the FAC on an

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alleged violation of the FDCA,” their claims are impliedly preempted. (Mot. 10.)

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Indeed, in their FAC, Plaintiffs describe how testing Trader Joe’s tuna cans pursuant to

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the method in 21 C.F.R. § 161.190 revealed that the pressed cake weights were lower

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than required. (FAC ¶ 2.) Under each claim, Plaintiffs allege that Trader Joe’s

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represented that the tuna cans contained an adequate amount of tuna and that they

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were legal for sale in the U.S. (Id. ¶¶ 26, 31, 42, 46, 53, 60, 68, 75, 89.) However, the

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tuna can labels did not indicate the pressed cake weight; they only listed the accurate

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drained and net weight. (Trader Joe’s Canned Tuna Labels, Ex. 11, ECF No. 40-6.)

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Therefore, Trader Joe’s argues that Plaintiffs are suing because Trader Joe’s conduct

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violates FDA regulations about standards of fill for tuna. Under 21 U.S.C. § 337(a),

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Plaintiffs cannot file suit as private litigants to enforce the FDCA’s provisions.

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In their opposition, Plaintiffs discuss a nearly identical case against another tuna

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manufacturer. See Hendricks v. StarKist Co., 30 F. Supp. 3d 917 (N.D. Cal. 2014).

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There, the court found that while the plaintiff’s state law claims were all based on

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Defendants’ conduct that violated the FDCA, the plaintiff’s allegations sufficiently

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“thread the gap” within the Ninth Circuit’s rule in Perez. See 711 F.3d at 1120.

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Plaintiffs also note that their claims do not mention 21 C.F.R. § 161.190 and are

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brought pursuant to state law because Defendants allegedly underfilled the cans of

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tuna. (Opp’n 8, ECF No. 45.)

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Plaintiffs’ arguments and reliance on Hendricks are unconvincing. Plaintiffs’

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claims could not exist based solely on traditional state tort law; “the existence of [the]

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federal enactment[] is a critical element in their case.” See Buckman, 531 U.S. at 353.

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That is, the standard for pressed cake weight pursuant to 21 C.F.R. § 161.190 is

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critical to each of Plaintiffs’ state law claims, though Plaintiffs do not outright allege

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this. Unlike Hendricks, where the plaintiff’s state law claims were almost identical to

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the FDCA’s requirements, here, Plaintiff’s state-law claims do not “mirror the relevant

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sections of the FDCA.” See Khasin v. Hershey Co., No. 5:12–CV–01862 EJD, 2012

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WL 5471153, at *4 (N.D. Cal. Nov. 9, 2012). Plaintiffs even state that they would not

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have purchased Trader Joe’s tuna if they had known the cans’ fill did not comply with

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FDA standards.

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misrepresented that the tuna cans contained an adequate amount of tuna, Plaintiffs

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must be relying on the FDA’s pressed cake weight standard, because the labels were

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otherwise accurate. (See Trader Joe’s Canned Tuna Labels, Ex. 11, ECF No. 40-6;

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Results of Unofficial NOAA Tests in Dec. 2015, Ex. 12, ECF No. 40-6.) Plaintiffs

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explain in detail how testing showed that the tuna cans were underfilled based on the

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pressed cake weight and then make claims of misrepresentation and deceptive

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practices under state law. (See generally FAC); see also Verzani v. Costco Wholesale

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Corp., No. 09 CIV 2117 CM, 2010 WL 3911499, at *3 (S.D.N.Y. Sept. 28, 2010),

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aff’d, 432 F. App’x 29 (2d Cir. 2011) (“[Plaintiff’s] persistent allegations that Costco’s

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labeling of the Shrimp Tray violates the FDCA[’s] . . . regulations on the labeling of

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‘shrimp cocktails’ indicates that his true purpose is to privately enforce alleged

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violations of the FDCA, rather than to bring a [state-law] claim for unfair and

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deceptive business practices.”). In this way, Plaintiffs attempt to pass off FDCA

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claims, otherwise enforceable only by the FDA, as privately enforceable state law

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claims.

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mechanism is thwarted if savvy plaintiffs can label as arising under a state law for

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which there exists a private enforcement mechanism a claim that in substance seeks to

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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

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In sum, Plaintiffs’ claims would not exist without the FDCA. See Loreto, 515

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F. App’x at 579 (“If the claim would not exist in the absence of the FDCA, it is

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impliedly preempted”). Plaintiffs allege that Trader Joe’s misrepresented that its cans

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contained an adequate amount of tuna, and if Plaintiffs knew the amount was

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inadequate, they would not have purchased the tuna cans. (FAC ¶¶ 9–10.) Plaintiffs

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also maintain that the reason the amount in the tuna cans was inadequate is because it

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failed to meet the pressed cake weight standard under 21 C.F.R. § 161.190. (See id. ¶

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28.) Consequently, the theory underlying Plaintiffs’ state-law claims depends entirely

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on an FDA regulation. Plaintiffs’ state law claims are in reality claims violations of an

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FDA regulation, and therefore, the FDCA prohibits Plaintiffs from bringing them. On

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this basis, the Court GRANTS Defendants’ Motion to Dismiss. Because this is the

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first dismissal of Plaintiffs’ complaint, the Court will allow leave to amend within

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thirty days of the date of this order.
V.

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CONCLUSION

For the reasons discussed above, the Court hereby GRANTS Trader Joe’s
Motion to Dismiss. (ECF No. 40.)

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IT IS SO ORDERED.

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June 2, 2017

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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