Seidman v. SNACK FACTORY, LLC

Filing 33

ORDER granting in part and denying in part 21 Defendant's Motion to Dismiss. See Order for details. Signed by Judge James I. Cohn on 3/26/2015. (dvh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-62547-CIV-COHN/SELTZER
JOSHUA SEIDMAN, et al.,
Plaintiffs,
vs.
SNACK FACTORY, LLC, etc.,
Defendant.
__________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT
THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss Plaintiff’s
Class Action Complaint [DE 21] (“Motion”). The Court has reviewed the Motion,
Plaintiff’s Response [DE 26], Defendant’s Reply [DE 32], other relevant portions of the
case file, and is otherwise advised in the premises. Upon consideration, the Motion will
be GRANTED in part and DENIED in part. Plaintiff’s allegations do not establish his
standing to pursue injunctive relief. But the Court will otherwise deny the Motion.
I.

Background
Plaintiff sues Defendant for trying to pass its products off as “all natural” even

though they are not. Defendant manufactures Pretzel Crisps. The Crisps’ packaging
claims they are “all natural.” But Plaintiff alleges “they contain unnatural, synthetic
and/or artificial ingredients, including but not limited to maltodextrin, soybean oil and in
at least one variety, dextrose and caramel color.” [DE 1 at 2.] Plaintiff details two
varieties of the offending crisps in his complaint: the sea salt and cracked pepper flavor,
and garlic parmesan. [Id. at 1–2.] But his Complaint expressly states that it is not

limited to these varieties. Plaintiff alleges that all Defendant’s Pretzel Crisps contain
maltodextrin and soybean oil. [Id. at 3.]
Per the Complaint, Plaintiff purchased Defendant’s Pretzel Crisps “approximately
4–5 times throughout the Class Period from one or more Publix Supermarkets located
in Weston, Broward County, Florida, on various dates from approximately September
2013 to September 2014, most recently on or about September 9, 2014.” [Id. at 17.]
His purchases “includ[ed] the Sea Salt and Cracked Pepper and Garlic Parmesan
flavors.” [Id.] But the Court construes his allegation that he purchased “the Products” to
include all Defendant’s Pretzel Crisp varieties. Plaintiff defines the term “the Products”
as Defendant’s “Pretzel Crisps, sold in a variety of flavors,” including but not limited to
the two flavors discussed in detail. [Id. at 1–2.] Plaintiff alleges that he paid a price
premium for the Products because of their “all natural” ingredients. Had he known the
Crisps were not truly natural, he would “not have purchased the Products.” [Id. at 18.]
Plaintiff sues on his own behalf and on behalf of those similarly situated. His
Complaint proposes two classes, one of Florida consumers and one of consumers
nationwide. [Id. at 19–20.] He brings the following five claims: (1) violation of the
Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§ 501.201, et
seq. [DE 1 at 24–26]; (2) Negligent Misrepresentation [id. at 26–27]; (3) Breach of
Express Warranty [id. at 27–28]; (4) violation of the Magnuson-Moss Warranty Act
(“MMWA”), 15 U.S.C. §§ 2301, et seq. [DE 1 at 28–29]; and (5) Unjust Enrichment [id.
at 29–30]. As part of his FDUTPA claim, Plaintiff asks the Court for an “order enjoining
the above described wrongful acts and practices.” [DE 1 at 26.]

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Defendant moves to dismiss for several reasons. First, Defendant argues that all
of Plaintiff’s claims must fail because he does not plausibly allege any harm
experienced due to Defendant’s alleged misrepresentations. [DE 21 at 10–15.] Next,
Defendant contends that Plaintiff’s demands for injunctive and declaratory relief are not
proper. [Id. at 15–17.] Third, Defendant moves to dismiss Plaintiff’s MMWA claim
because the “all natural” labels at issue do not constitute an express warranty as the act
requires. [Id. at 18–19.] And finally, Defendant takes issue with Plaintiff’s class
allegations. [Id. at 20–24.] The Court will separately address each of these arguments.
II.

Standard

Defendant moves to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6) and for lack of standing under Rule 12(b)(1). Per Rule
12(b)(6), a court shall grant a motion to dismiss where, based upon a dispositive issue
of law, the factual allegations of the complaint cannot support the asserted cause of
action. Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). Any “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Nonetheless, a complaint must be liberally construed, assuming the facts alleged
therein as true and drawing all reasonable inferences from those facts in the plaintiff’s
favor. Twombly, 550 U.S. at 555. A complaint should not be dismissed simply because
the court is doubtful that the plaintiff will be able to prove all of the necessary factual
allegations. Id. Accordingly, a well-pleaded complaint will survive a motion to dismiss
“even if it appears that a recovery is very remote and unlikely.” Id. at 556.
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Under Rule 12(b)(1), a challenge can be either “facial” or “factual.” Lawrence v.
Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990). Here, Defendant brings a facial
attack. The Court therefore considers solely the allegations in the complaint and any
exhibits attached to the complaint, see Stalley v. Orlando Reg’l Healthcare Sys., Inc.,
524 F.3d 1299, 1232 (11th Cir. 2008). It takes the allegations in the complaint as true
when deciding the motion. Lawrence, 919 F.2d at 1529.
III.

Discussion
A.

Plaintiff’s Class Allegations and Standing

Defendant devotes a substantial portion of its Motion to Plaintiff’s class
allegations. [See DE 21 at 20–25.] Specifically, Defendant argues that the Court
should not certify a nationwide class because Florida law will not govern cases in which
consumers purchased their Pretzel Crips in other states. [Id.] Defendant argues these
claims should accordingly be dismissed. Although this argument may have merit, it is
more appropriate for consideration at the class certification stage. Accordingly, the
Court will deny this portion of Defendant’s Motion without prejudice and without further
discussion.
The Court will, however, address Defendant’s argument that Plaintiff may sue
only upon purchases of Defendant’s sea salt and cracked pepper and garlic parmesan
varieties. Defendant contends that Plaintiff alleges he purchased only these two
varieties. This question is appropriate for a motion to dismiss. See Bohlke v. Shearer’s
Foods, LLC, No. 14-80727-ROSENBERG/BRANNON, 2015 WL 24941855, at *4 (S.D.
Fla. Jan. 20, 2015). Defendant raises this argument in a footnote, stating “[t]o the
extent that Plaintiff or the putative class members based their claims on purchasing

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other Snack Factory Pretzel Crisp products, these claims should be dismissed for lack
of standing. [DE 21 at 7 n.1.]
Defendant is right on the law but misreads Plaintiff’s allegations. “[I]n the
Eleventh Circuit, a named plaintiff in a consumer class action cannot raise claims
relating to products which she herself did not purchase.” Bohlke, 2015 WL 24941855,
at *4. But, as observed above, Plaintiff does allege that he purchased all varieties of
Defendant’s crisps. Accordingly, Defendant’s Motion will be denied as to this issue.
B.

Defendant’s 12(b)(6) Motion to Dismiss for Failure to State a
Claim.
1.

Damages Allegations

Defendant devotes the bulk of its brief to arguing that Plaintiff has insufficiently
pleaded damages, and that this does in all five of Plaintiff’s claims. [See DE 21 at 10–
15.] Plaintiff’s complaint alleges two theories of damages. First, Plaintiff alleges that he
paid a premium price for an all-natural product that he did not receive. [DE 1 at 16].
Second, Plaintiff alleges that because Defendant mislabeled the Products, they are
worthless and he is entitled to a full refund of the Products’ purchase price. [Id. at 30–
31.] Defendant contents that Plaintiff’s allegations concerning each of these theories
are conclusory and fail to state a claim in light of Twombly and Iqbal’s plausibility
standard.
This Court has previously addressed Defendant’s arguments in similar cases. In
January, District Judge Robin L. Rosenberg considered a motion to dismiss nearly
identical claims (concerning a different defendant’s product), also brought by Plaintiff’s
attorneys:
First, the Court quickly disposes of Defendant’s argument as
to Plaintiff’s price premium theory. The Court finds Plaintiff
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has alleged a plausible theory of damages, in that she
alleged that she paid a premium for the Products due to the
“All Natural” and “No Artificial Ingredients” labeling. That is
all that is required to be pled under the Federal Rules of Civil
Procedure. At this stage in the litigation, Plaintiff is only
required to state a claim that is plausible on its face, and this
she has done. Cf. Stires v. Carnival Corp., No. 6:02-cv-542ORL31JGG, 2003 WL 21356781, at *2 (M.D. Fla. Jan. 2,
2003) (“Although Stires did not specify the value of the
cruise promised and the value of the cruise received, which
is the proper measure of FDUPTA damages, she has
complied with Federal Rules of Civil Procedure 8(a) and 9.
Read in the light most favorable to Stires, it cannot be said
that she has failed to plead her claim with particularity.
Hence, dismissal is not warranted.”).
Bohlke, 2015 WL 249418, at *8. Judge Rosenberg also permitted the Bohlke plaintiff’s
complaint to proceed on the theory that she was entitled to recover the full purchase
price of the defendant’s product. Id. The undersigned reached the same conclusion in
Smith v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336 (S.D. Fla. 2009), and more recently
in Reilly v. Amy’s Kitchen, Inc., No. 13-21525-CIV-COHN/SELTZER, 2013 WL 9638985
(S.D. Fla. Dec. 9, 2013). Simply put, drawing on its “judicial experience and common
sense” the Court concludes that it is plausible that falsely touting a product as “all
natural” would wrongfully raise demand for that product and, consequently, its price.
Iqbal, 556 U.S. at 679. Precisely what damages—if any—that Plaintiff may be entitled
to is a matter for another day.
The Court is not persuaded by Defendant’s citation to Jacobs v. Tempur-Pedic
Int’l, Inc., 626 F.3d 1327 (11th Cir. 2010) and argument that Smith v. Wm. Wrigley Jr.
Co. actually supports its position. [See DE 32 at 6–7.] In Jacobs, the Eleventh Circuit
affirmed a district court’s decision to dismiss a complaint for failure to state a claim for
violation of the Sherman Act, 15 U.S.C. § 1. Jacobs, 626 F.3d at 1345. The Eleventh
Circuit reasoned that the plaintiff had not sufficiently pleaded that visco-elastic foam
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mattresses comprised a separate submarket from that of mattresses generally, where
plaintiff alleged only that the mattresses have “unique attributes” and “are more
expensive than traditional innerspring mattresses,” without also alleging “factual
allegations of the cross-elasticity of demand or other indications of price sensitivity that
would indicate whether consumers treat visco-elastic foam mattresses differently than
they do mattresses in general.” Id. at 1338. Here, by contrast, Plaintiff specifically
alleges that he paid more for the Pretzel Crisps because Defendant represented them
to be “all natural.” [DE 1 at 15–16.] The issue here is simpler than that in Jacobs, and
Plaintiff’s allegations strike closer to its heart. As observed above, this Court has
routinely held such allegations sufficient to survive a motion to dismiss.
The Court likewise rejects Defendant’s argument based on Smith v. Wm. Wrigley
Jr., Co. Defendant argues that in Wrigley, the plaintiff offered significant support of his
price-premium allegations: “[P]laintiff directly compared the price of Eclipse® to other
chewing gums, including specifically other non-Eclipse® chewing gums manufactured
by Wrigley.” [DE 32 at 7–8.] Defendant’s support for this statement apparently lies
with the undersigned’s observation in Wrigley that the plaintiff there pleaded “that ‘as a
result of [Wrigley’s] deceptive advertising campaign,’ Wrigley (1) ‘has elevated Eclipse®
gum into one of the top sellers in the product category;’ and (2) ‘has been able to
charge a premium price for Eclipse® gum over other chewing gum products, including
other Wrigley chewing gum products.’” 663 F. Supp. 2d at 1338.
The plaintiff’s allegations in Wrigley are not significantly more robust than
Plaintiff’s allegations here. Indeed, the two are almost identical, except that the Wrigley
plaintiff alleged that the defendant was able to charge more for Eclipse than it did for

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other Wrigley chewing gum brands. Further, the undersigned’s reasoning in Wrigley
did not rely on this observation. Instead the Court observed that Plaintiff alleged that he
saw Wrigley’s false advertising, that he purchased the offending product in reliance on
this advertising and that “as a result of the misleading messages . . . Wrigley has been
able to charge a price premium for Eclipse® gum.” Id. at 1349. The undersigned
concluded then, as it does now, that such allegations are sufficient.
2.

Plaintiff’s claims for injunctive and declaratory relief

The Court agrees with Defendant’s argument that Plaintiff lacks standing to
pursue the requested injunctive relief because he has not alleged intent to purchase
Defendant’s Pretzel Crisps in the future. The Court does so for the reasons recently
articulated by Magistrate Judge John J. O’Sullivan in Marty v. Anheuser-Bush
Companies, LLC, 43 F. Supp. 3d 1333 (2014), which Defendant cites in its Motion.
Simply put, Plaintiff has not alleged that he will ever purchase Defendant’s Pretzel
Crisps again, and thus cannot show any likelihood of future injury sufficient to afford him
standing to enjoin Defendant from continuing its purported mislabeling. Church v. City
of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (“Because injunctions regulate future
conduct, a party has standing to seek injunctive relief only if the party alleges, and
ultimately proves, a real and immediate—as opposed to a merely conjectural or
hypothetical—threat of future injury.”). The Complaint will be dismissed in part to the
extent it seeks such relief. As in Marty, however, the Court will permit Plaintiff to amend
the Complaint.
Plaintiff’s claim for declaratory relief will survive, however. Plaintiff correctly
observes that though he must show actual damages to obtain a money judgment

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against Defendant, the FDUTPA permits him to obtain declaratory relief in the absence
of such a showing. [See DE 26 at 12 (citing Wrigley, 663 F. Supp. 2d at 1338).]
Moreover, the FDUTPA specifically authorizes a plaintiff to obtain declaratory relief that
a past practice violates the act “[w]ithout regard to any other remedy or relief to which a
person is entitled.” Fla. Stat. § 501.211. Accordingly, Plaintiff’s claim for declaratory
relief is not merely “redundant of his substantive FDUTPA claim” as Defendant
contends. [See DE 21at 17.] Defendant’s Motion is accordingly denied as to this issue.
3.

Plaintiff’s MMWA claim

Finally, the Court addresses Defendant’s Motion to Dismiss Plaintiff’s claims
under the Magnuson-Moss Warranty Act. The Complaint alleges a violation of the
MMWA based upon Defendant’s purported breach of an express warranty. 1 [See DE 1
at 28–29.]
Defendant argues that Plaintiff’s MMWA claim fails because it is not based on an
express warranty at all. Defendant contends that “the Products’ ‘All Natural’ label is
merely a product description” and not the written warranty that the MMWA requires.
[DE 21 at 18.] In support, Defendant relies primarily on Hairston v. South Beach Bev.
Co., No. CV 12-1429-JWF, 2012 WL 1893818 (C.D. Cal. May 18, 202), in which the
Central District of California held that a soft drink’s “all natural” label constituted a nonactionable product description, rather than an express warranty.

1

The Complaint does state that its MMWA claim is also based on “Defendant’s breach
of the above implied warranty of fitness for a particular purpose.” [DE 1 at 28 (emphasis
added).] But the Complaint contains no description of such an implied warranty.
Additionally, Plaintiff’s Response addresses its MMWA claims only to the extent they
are based on breach of an express warranty. [See DE 26 at 13–15.] This reference to
an implied warranty in Plaintiff’s Complaint therefore appears to be a scrivener’s error
and the Court will not further address it.
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However, “[a]n MMWA claim depends on a state law claim for breach of
warranty.” Bohlke, 2015 WL 249418, at *12. Under Florida law, “[a]ny description of [a
good] which is made as part of the basis of the bargain creates an express warranty
that the goods shall conform to the description.” Fla. Stat. § 672.313(1)(b); see also,
Smith v. Wm. Wrigley, Jr., 663 F. Supp. 2d 1336, 1343 (S.D. Fla. 2009) (finding an
express warranty created by chewing gum packaging). Thus, under Florida law,
Defendant’s alleged packaging does create an express warranty. “Because Plaintiff’s
claim for breach of express warranty may proceed, the MMWA claim, at this juncture,
may proceed as well.” Bohlke, 2015 WL 249418, at *12.
IV.

Conclusion

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1.

Defendant’s Motion to Dismiss Plaintiff’s Class Action Complaint [DE 21]

is GRANTED in part and DENIED in part as follows:
a.

Plaintiff’s claims for injunctive relief are DISMISSED without

prejudice.
b.

Defendant’s arguments concerning class certification are at this

time DENIED without prejudice and may be reasserted at the class certification
stage.
c.
2.

Defendant’s Motion is DENIED in all other respects.

Plaintiff may file an Amended Complaint on or before April 2, 2015, that

addresses the issues identified in this Order.

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DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 26th day of March, 2015.

Copies provided to counsel of record via CM/ECF.

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