McMorrow et al v. Mondelez International, Inc.
Filing
30
ORDER denying Plaintiffs' 25 Motion for Leave to File Amended Complaint. Defendant shall file a responsive pleading to the operative complaint within 14 days of the date of this Order. Signed by Judge Cynthia Bashant on 10/17/2018. (jah)
1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
SOUTHERN DISTRICT OF CALIFORNIA
11
PATRICK MCMORROW, et al.,
12
Case No. 17-cv-2327-BAS-JLB
Plaintiffs,
13
v.
14
[ECF No. 25]
MONELEZ INTERNATIONAL,
INC.,
15
16
ORDER DENYING MOTION
FOR LEAVE TO AMEND
COMPLAINT
Defendant.
17
18
Presently before the Court is Plaintiffs’ Motion for Leave to Amend
19
Complaint, (“Mot.,” ECF No. 25). Also before the Court is Defendant’s opposition
20
to the Motion, (ECF No. 28), and Plaintiffs’ reply in support of the Motion, (ECF
21
No. 29). The Court finds this Motion suitable for determination on the papers
22
submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated
23
below, this Court DENIES Plaintiffs’ Motion.
24
I.
BACKGROUND
25
Plaintiffs Patrick McMorrow and Marco Ohlin filed a complaint against
26
Defendant Mondelez International, Inc. in November 2017. (ECF No. 1.) Plaintiffs
27
alleged they were deceived into buying Defendant’s belVita Breakfast Products (the
28
“Products”) and alleged violations of the Consumer Legal Remedies Act, Unfair
–1–
17cv2327
1
Competition Law, and False Advertising Law, as well as breaches of express and
2
implied warranties. Defendant filed a motion to dismiss. (ECF No. 7.) Before the
3
Court ruled on the motion, Plaintiffs filed an amended complaint, which added
4
Melody DiGregorio as a Plaintiff and alleged violations of various California and
5
New York laws. (ECF No. 13.) Defendant moved to dismiss the amended complaint.
6
(ECF No. 15.) The Court granted in part and denied in part Defendant’s motion.
7
(ECF No 23.)
8
In the order, the Court analyzed whether Plaintiffs’ claims were preempted by
9
the Federal Food, Drug, and Cosmetic Act (“FDCA”). As relevant here, the Court
10
analyzed Plaintiffs’ “fiber” claims, which centered on the following advertising
11
statements: “a nutritious, convenient breakfast choice that contains slow-release
12
carbs from wholesome grains to help fuel your body for 4 hours” “Power up People,”
13
“Enjoy belVita Breakfast Biscuits as part of a balanced breakfast with a serving of
14
low-fat dairy and fruit,” “specifically baked to release energy regularly and
15
continuously to fuel your body throughout the morning,” and “satisfying morning
16
energy to start your day off right.” The Court noted the FDCA preempts three types
17
of labeling claims (or statements): express nutrient content claims, implied nutrient
18
content claims, and health claims. (Id. at 10.) An implied nutrient content claim
19
“must either suggest (1) a nutrient is absent or present in a food ‘in a certain amount
20
(e.g. “high in oat bran”)’ or (2) a food helps ‘maintain[] healthy dietary practices’
21
and is made along with ‘an explicit claim or statement about the nutrient (e.g.
22
“healthy, contains 3 grams (g) of fat”).’” (Id. at 14 (quoting 21 C.F.R. §
23
101.13(b)(2)(i), (ii)).) The Court found Plaintiffs’ fiber claims were implied-nutrient
24
content claims and implied “that the Products contain a high enough amount of fiber
25
from whole grains to last four hours.” (Id.) Therefore, the fiber claims were
26
preempted by the FDCA.
27
The Court granted the motion to dismiss Plaintiffs’ fiber claims without leave
28
to amend. (Id. at 28.) The Court granted the motion to dismiss Plaintiffs’ warranty
–2–
17cv2327
1
claims with leave to amend and permitted Plaintiffs to file a second amended
2
complaint. Plaintiffs then filed a second amended complaint. Five days after doing
3
so and before Defendant could file a responsive pleading, Plaintiffs filed the present
4
motion seeking leave to file a third amended complaint.
5
II.
LEGAL STANDARD
6
Rule 15(a) of the Federal Rules of Civil Procedure provides that after a
7
responsive pleading has been served, a party may amend its complaint only with the
8
opposing party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a). “The
9
court should freely give leave when justice so requires,” and apply this policy with
10
“extreme liberality.” Id.; DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th
11
Cir. 1987). However, leave to amend is not to be granted automatically. Zivkovic v.
12
S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Jackson v. Bank of
13
Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)). Granting leave to amend rests in the
14
sound discretion of the district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326,
15
1331 (9th Cir. 1996).
16
The Court considers five factors in assessing a motion for leave to amend: (1)
17
bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of the
18
amendment, and (5) whether the plaintiff has previously amended the complaint.
19
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Foman v. Davis,
20
371 U.S. 178, 182 (1962). The party opposing amendment bears the burden of
21
showing any of the factors above. See DCD Programs, 833 F.2d at 186. Of these
22
factors, prejudice to the opposing party carries the greatest weight. Eminence
23
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). However, absent
24
prejudice, a strong showing of the other factors may support denying leave to amend.
25
See id.
26
“Futility of amendment can, by itself, justify the denial of a motion for leave
27
to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Futility is a measure
28
of the amendment’s legal sufficiency. “[A] proposed amendment is futile only if no
–3–
17cv2327
1
set of facts can be proved under the amendment . . . that would constitute a valid and
2
sufficient claim or defense.” Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th
3
Cir. 1988). Thus, the test of futility is identical to the one applied when considering
4
challenges under Rule 12(b)(6) for failure to state a claim upon which relief may be
5
granted. Baker v. Pac. Far E. Lines, Inc., 451 F. Supp. 84, 89 (N.D. Cal. 1978); see
6
Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (“A district court does not
7
err in denying leave to amend . . . where the amended complaint would be subject to
8
dismissal.” (citation omitted)).
9
III.
ANALYSIS
10
Plaintiffs seek leave to add new claims to their complaint: “allegations that the
11
‘high’ fiber claim violates applicable food labeling regulations, which are actionable
12
under California’s and New York’s consumer protection statutes.” (Mot 1.) In sum,
13
Plaintiffs allege the Court found in its prior order that Defendant’s advertising
14
statements make “a ‘high’ fiber claim.” (Id. at 4.) Given this, Plaintiffs allege “the
15
Products fail to make the required total fat disclosure and fail meet the requirements
16
for a ‘high’ fiber claim” per federal code regulations. (Id.) Therefore, Plaintiffs
17
request “leave to amend to add additional allegations of these violations.” (Id.)
18
Plaintiffs allege the proposed amendment is a “natural consequence[] of accepting
19
the Court’s finding.” (Id. at 5.)
20
Defendant’s response is two-fold: (1) Plaintiffs offer no compelling reason to
21
file a fourth complaint; and (2) Plaintiffs’ proposed amendments are futile. As to
22
Defendant’s first argument, a plaintiff need not offer a “compelling reason” to amend
23
a complaint. Instead, the Court must look for evidence of bad faith, undue delay,
24
prejudice to the defendant, futility of the amendment, and whether the plaintiff has
25
previously amended the complaint. Johnson, 356 F.3d at 1077 (9th Cir. 2004). The
26
Court finds no evidence of undue delay or bad faith. Although the Court finds it
27
strange that Plaintiffs filed their second amended complaint and immediately moved
28
to file another amended complaint, (rather than simply move to amend before filing
–4–
17cv2327
1
at all), this is not evidence of bad motive. Nor is there evidence of a repeated failure
2
to cure deficiencies through prior amendments because Plaintiffs seek to add a brand
3
new allegation that the Court has not yet analyzed. Further, Defendant will not be
4
prejudiced by the amendment because Defendant will be required to respond to the
5
operative complaint, regardless of which version that may be.
6
The Court now turns to futility. Plaintiffs’ proposed amendment centers on 21
7
C.F.R. § 101.54(b) and (d)(1)–(2). (Mot. 3.) Under section (b), the term “high” may
8
be used on a food label if the food contains twenty percent or more of the Reference
9
Daily Intake or the Daily Reference Value per reference amount customarily
10
consumed. 21 C.F.R. § 101.54(b). Under subsection (d), if a food label claims the
11
food is “high in fiber” and the food is not “low” in fat, then the label “shall disclose
12
the level of total fat per labeled serving.” Id. § 101.54(d)(1). Plaintiffs allege
13
Defendant’s Products do not meet the requirements of a “high” fiber claim because
14
they do not contain twenty percent of the Daily Reference Value of fiber. (Mot 4.)
15
Plaintiffs also allege the Products do not make the required total fat disclosure. (Id.)
16
Defendant argues Plaintiffs’ amendment would be futile because 21 C.F.R.
17
§ 101.54 only applies if the claim explicitly states the product is “high” in fiber, not
18
if a claim or statement only suggests it. (Opp’n 5.) Defendant cites a few cases, one
19
being Coe v. General Mills, Inc., No. 15-cv-5112-TEH, 2016 WL 4208287 (N.D.
20
Cal. Aug. 10, 2016). There, the court rejected the argument that the use of the name
21
“Cheerios Protein” is the same as advertising the Cheerios contained a “good source”
22
of protein. 2016 WL 4208287, at *4. Therefore, the regulation under 21 C.F.R. §
23
101.54(c) (which comes into play if the food advertises it contains a “good source”
24
of something) does not apply. “The regulation governing such claims applies only
25
to the use of the words ‘good source,’ ‘contains,’ or ‘provides’—none of which is
26
present here.” Id. (citing 21 C.F.R. § 101.54(c).)
27
The Court agrees with this reasoning. Simply because the Court found
28
Defendant’s advertising statements imply the Products are high in fiber does not
–5–
17cv2327
1
trigger Defendant to advertise or label the Products as “high” in fiber nor follow any
2
rules related to this. In its prior order, the Court specifically stated Defendant’s
3
statement “suggests the Products include a high amount of fiber,” (ECF No. 23, at
4
15), and this is not the same as a finding that Defendant does or should advertise the
5
Products as “high” in fiber per the code. The Products do not even advertise they
6
contain any fiber, so there is certainly no requirement that the label quantify the
7
amount of fiber the Products contain. This follows the plain meaning of the language
8
of the code, which says: The term “‘high’ . . . may be used on the label . . . provided
9
that the food contains” the required amount of the nutrient. 21 C.F.R. § 101.54(b)(1).
10
Subsection (d) provides, “If a nutrient content claim is made with respect to the level
11
of dietary fiber . . . .” then certain labeling requirements must be met.
12
§ 101.54(d)(1) (emphasis added). The code does not state that a Product must
13
advertise it contains a “high” level of fiber and follow other requirements if it indeed
14
contains fiber. Therefore, Plaintiffs’ proposed amendment which would allege a
15
labeling violation under 21 C.F.R. § 101.54 is futile.
16
IV.
Id.
CONCLUSION
17
For the foregoing reasons, the Court DENIES Plaintiffs’ Motion to Amend.
18
(ECF No. 25.) As stipulated, Defendant shall file a responsive pleading to the
19
operative complaint within fourteen (14) days of the date of this Order.
20
IT IS SO ORDERED.
21
22
DATED: October 17, 2018
23
24
25
26
27
28
–6–
17cv2327
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?