Brown et al v. Miller Brewing Co. et al

Filing 87

MEMORANDUM DECISION AND ORDER Plaintiffs' Motion for Sanctions (Dkt. 43 ) is DENIED. Plaintiffs' Motion for Entry of Default (Dkt. 44 ) is DENIED. Plaintiffs' Motion to Re-issue Summons (Dkt. 45 ) and Second Motion to Re-issue Summ ons (Dkt. 48 ) are DENIED as MOOT. Plaintiffs' Motion to Allow Complaint to be Amended (Dkt. 46 ) and Second Motion to Allow Complaint to be Amended (Dkt. 49 ) are DENIED as MOOT. Plaintiffs' Motion for Extension of Time to Respond to M otion to Dismiss (Dkt. 60 ) is GRANTED. The Response (Dkt. [ 64 ) is considered timely. Plaintiffs' Motion for Declaratory Relief (Dkt. 66 ) is DENIED as MOOT. Defendants' Motion to Strike Sur-reply (Dkt. 85 ) is DENIED. Defendants Motion to Dismiss (Dkt. 53) and the Joinder (Dkt. 67 ) are GRANTED. Plaintiffs' Complaint is DISMISSED, with prejudice. Signed by Judge Ronald E. Bush. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KEITH A. BROWN, JEREMY J.
BROWN, CORY A. BAUGH,
WOODROW J. GRANT, and STEVEN
T. THOMPSON,

Case No. 1:12-cv-00605-REB
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
vs.
MILLER BREWING CO., ANHEUSERBUSCH CO., ADOLPH COORS CO.,
BROWN-FURMAN CO., AMERICAN
BRANDS INC., PEPSI-COLO (Pepsico),
R.J.R. NABISCO, GALLO WINERY’S
(Ernest and Julio Gallo),
Defendants.

Pending before the Court are several motions ripe for decision, including
Defendants’ Joint Motion to Dismiss the Complaint for Failure to State a Valid Claim.
(Dkt. 53.) All parties that have appeared in this action have consented to the jurisdiction
of a United States Magistrate Judge to enter final orders in this case. (Dkt. 84.) See 28
U.S.C. § 636(c) and Fed. R. Civ. P. 73. Having reviewed and fully considered the current
record, the Court enters the following Order dismissing Plaintiffs’ Complaint and
addressing all other pending motions.

MEMORANDUM DECISION AND ORDER - 1

SUMMARY OF DECISION
Plaintiffs Keith A. Brown, Jeremy J. Brown, Woodrow J. Grant, and Steven T.
Thompson are four Idaho Department of Correction inmates, and Plaintiff Cory A. Baugh
is a former inmate. Each alleges to have starting drinking as a youth and to have become
an alcoholic. Together, they bring a tort action sounding in products liability law against
several manufacturers and distributors of alcoholic beverages (the “manufacturers”), who
allegedly failed to warn Plaintiffs that consuming alcohol can be habit-forming or
addictive, with the risk of causing far-reaching personal injuries and other harm,
including lengthy periods of incarceration. (Dkt. 1.)
Plaintiffs acknowledge that a key element in supporting a failure-to-warn claim is
alleging facts demonstrating that the manufacturers had a duty to warn consumers that
alcohol can be habit-forming and addictive. They agree that the current state of the law is
that manufacturers have no legal duty to warn of the commonly-known dangers of alcohol
abuse. They ask the Court to draw a distinction between the commonly-known dangers of
alcohol abuse, and what they allege is a non-obvious danger, i.e., that some individuals
are predisposed to alcoholism, and that persons so predisposed may become addicted
upon their first drink, regardless of their intention to drink responsibly. Plaintiffs seek
$1 billion in damages, injunctive relief in the form of a new label to be required upon all
alcoholic beverages warning that alcohol is habit-forming and addictive, and a judicial
declaration that alcohol is habit-forming and addictive.

MEMORANDUM DECISION AND ORDER - 2

Because this is a civil dispute between citizens of different states, it is brought
under the federal diversity jurisdiction statute, which means that the Court applies the
substantive law of the state of Idaho to decide Plaintiffs’ tort claims. See 28 U.S.C. §
1332. Idaho products liability law, which draws directly upon Section 402A of the
Restatement (Second) of Torts, requires a warning only if the danger of using a particular
product is not obvious. Although the Idaho Supreme Court has not yet addressed a case
factually similar case to this one, the Court concludes from its review of current Idaho
products liability law that the Idaho Supreme Court would not depart from the common
law rule that the dangers of alcohol, including the risk of becoming an alcoholic, are
obvious, regardless of whether one is predisposed to that disease, and that manufacturers
need not warn of obvious dangers.
In reaching its conclusion, the Court draws support from factually similar cases
from jurisdictions across the United States. While several intermediate state courts have
proposed an expansion of the duty of alcoholic beverage manufacturers to answer to
different types of alcohol abuse – the dangers of which were not actually known or
heeded by injured or deceased drinkers – no highest level state appellate court has upheld
such an expansion, relying on the obviousness of the dangers associated with alcoholic
beverages, known to mankind for ages.
After a thorough review of Idaho law and the law of other jurisdictions, the Court
concludes, as a matter of law, that manufacturers have no duty to warn in the manner
alleged in the Complaint, because it is commonly known to the public that alcohol poses
MEMORANDUM DECISION AND ORDER - 3

an obvious danger – encompassing many different subcategories of danger – to those who
choose to consume it. The Court declines to draw subtle distinctions among the various
dangers associated with alcohol, because each distinct danger derives from the same
obvious danger. In addition, because the distinctions from which a new duty might arise
are myriad, the Court concludes that requiring a warning for each distinction is
impracticable.
Further, the Court concludes that manufacturers’ efforts to persuade the public to
purchase their products by using enticing alcoholic beverage advertisements do not mask
the obvious dangers of consuming alcohol and do not give rise to a higher duty of the
manufacturers of alcohol. Modern society has elected to permit alcohol as a legal
substance available to consumers, albeit with restrictions upon age, amount, and location.
In so doing, society has placed responsibility in legislative bodies to regulate the
manufacture, sale, and use of alcohol, and to define the legal consequences of drinking
alcohol.
For all of these reasons, the Court will not recognize a common law duty different
from or beyond that already put in place by state and federal legislatures. Consequently,
Defendants’ Motion to Dismiss is granted. Plaintiff’s Complaint is dismissed with
prejudice, without opportunity to amend, because the Court has determined that
amendment would be futile.

MEMORANDUM DECISION AND ORDER - 4

PLAINTIFFS’ PRELIMINARY MOTIONS
1.

Plaintiffs’ Motion for Sanctions (Dkt. 43)
Plaintiffs argue that, because Defendants Brown-Forman Corporation, Anheuser-

Busch Companies, LLC, and E. & J. Gallo Winery did not seek an extension of time to
answer the Complaint until the last day of the answer period (Dkt. 35), those Defendants
should be sanctioned by being ordered to return the cost of service to Plaintiffs. However,
Defendants need show only good cause for such an extension of time when the request is
filed within the answer period. See Fed. R. Civ. P. 6(b)(1)(A). Defendants asked for an
extension within the answer period, and have put forward good cause for their request.
Accordingly, the Motion for Sanctions is denied.
2.

Plaintiffs’ Motion for Entry of Default (Dkt. 44)
Defendants Brown-Forman Corporation and Anheuser-Busch Companies, LLC,

were granted an extension of time to file an answer or motion to dismiss on September
10, 2013, and the Court specifically ordered that no motions for entry of default be filed.
(Dkt. 39.) Nonetheless, Plaintiffs filed a Motion for Entry of Default on September 16,
2013. (Dkt. 44.) Such Motion has no adequate legal and factual basis, and it is denied.
3.

Plaintiffs’ Motion for Extension of Time to Respond to Motion to Dismiss
(Dkt. 60)
Plaintiffs sought additional time to respond to the Motion to Dismiss. (Dkt. 60.)

The Response was filed on November 25, 2013. (Dkt. 64.) Good cause appearing, the
Motion is granted and the Response is deemed timely filed.

MEMORANDUM DECISION AND ORDER - 5

DEFENDANTS’ MOTION TO DISMISS
Brown-Forman Corporation (sued as “Brown-Furman Co.”), Anheuser-Busch
Companies, LLC (sued as “Anhesuer-Busch Co.”), and E. & J. Gallo Winery (sued as
“Gallo Winery’s, Ernest and Julio Gallo), joined by PepsiCo (sued as “Pepsi-colo”),
move the Court for dismissal of the Complaint for failure to state a claim upon which
relief can be granted. (Dkt. 53, 67.) In addition, PepsiCo moves for dismissal based upon
failure to serve in a timely manner. (Dkt. 67.)
1.

Standard of Law under Rule 12
As a general proposition, to survive a motion to dismiss under Federal Rule of

Civil Procedure 12, 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) (internal quotation marks omitted). Dismissal is appropriate if there is a lack of
any cognizable legal theory or a failure to plead sufficient facts to support a cognizable
legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In deciding a motion to dismiss for failure to state a claim, the court generally
should not consider materials outside the complaint and pleadings. See Cooper v. Pickett,
137 F.3d 616, 622 (9th Cir. 1997). However, the court may consider attachments to the
complaint and any document referred to in (even if not originally appended to) the
complaint, when the authenticity of such a document is not in question. Id. at 622-23. A
court may also take judicial notice of matters of its own records, In re Korean Air Lines
Co., Ltd., Antitrust Litigation, 642 F.3d 685, 689 n.1 (9th Cir. 2011), and public records,
MEMORANDUM DECISION AND ORDER - 6

such as records and reports of administrative bodies, Barron v. Reich, 13 F.3d 1370, 1377
(9th Cir. 1994).
Plaintiffs have filed a Response to the Motion to Dismiss that includes exhibits.
They also have filed a Sur-reply, and a document entitled “Issues of Material Facts in
Dispute.” (Dkts. 60-1, 64, 80, 81.) In their Reply to those filings, the Defendants ask the
Court to strike the “Issues of Material Facts in Dispute,” because the pending motion is
filed under Federal Rule of Civil Procedure 12(b), rather than as a motion for summary
judgment filed under Rule 56. (Dkt. 71, p. 2., n. 2.) Even so, to protect their interests in
the event that the Court considers the motion under Rule 56, Defendants have filed a
response to Plaintiffs’ “Issues of Material Facts in Dispute.” (Dkt. 70.)
Plaintiffs have not sought leave to convert the Motion to Dismiss into a motion for
summary judgment under Rule 56. Defendants argue that the Plaintiffs’ submissions are
improper in the context of a motion to dismiss, which is to be determined solely upon the
pleadings and attached exhibits.
When the party filing or responding to a motion to dismiss submits exhibits
beyond the pleadings, the Court has the discretion to decide whether to exclude or
consider those exhibits in deciding the motion to dismiss. If the exhibits are considered,
then the Court must give notice to the parties that it intends to convert the motion to
dismiss into a motion for summary judgment. See Swedberg v. Marotzke, 339 F.3d 1139,
1144-45 (9th Cir. 2003).

MEMORANDUM DECISION AND ORDER - 7

The threshold question presented in the Motion to Dismiss – that is, whether
Defendants had a duty to warn the general public of the habit-forming and addictive
nature of alcoholic beverages, or whether they had no duty because of the obviousness of
the danger – is a matter of law to be decided by the Court.1 This includes the sub-issue of
whether it is common knowledge among the general public that alcohol may be habitforming and addictive. See Puckett v. Oakfabco, Inc., 979 P.2d 1174, 1182 (Idaho 1999)
(the risks that a ladder might slip or a person might fall from the ladder are so obvious
that, as a matter of law, the defendant had no obligation to warn of them); Joseph E.
Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387 (Texas 1991) (under Texas law,
the existence of a duty to warn or instruct as to the proper use of a product is a question of
law).
The exhibits submitted with Plaintiffs’ response consist of alcoholic beverage
magazine advertisements, photographs of alcoholic beverage containers, articles about
alcoholism, and copies of various laws and regulations. Because these are not exhibits to
a pleading, the Court in the exercise of its discretion will exclude them as evidentiary
submissions. To the extent that Plaintiffs intend to rely on the exhibits to support the
merits of their claims, the submissions are inappropriate at the motion to dismiss stage.
Plaintiffs must first demonstrate that they have alleged facts that state a cognizable claim
for relief before they are entitled to have the merits of any claim heard.

1

Plaintiffs mistakenly assert in their “Issues of Material Facts in Dispute” that such a question is
one of fact. (Dkt. 60-1.)
MEMORANDUM DECISION AND ORDER - 8

Further, even assuming that Plaintiffs have submitted the exhibits to support their
arguments in opposition to the Defendants’ motion to dismiss, the exhibits are
unnecessary for such a purpose. Plaintiffs have thoroughly explained the theory of their
case in the Complaint, Response, and Sur-reply. Plaintiffs contend that (1) alcoholic
beverage manufacturers advertise the pleasurable rather than the dangerous aspects of
their products; (2) the implications of alcohol use upon individual health, upon the public
health generally, and upon public safety are the subject of scientific study; (3) alcohol is a
highly-regulated product because of risks associated with its use; and (4) there are risks
associated with the use of alcohol, and the dangerousness of alcohol use is the same
whether, for example, the alcohol is found in a large keg of beer or in a bottle of beer.
2.

As a Matter of Law, There is No Duty to Warn as Alleged by Plaintiffs in
their Complaint
A.

Plaintiffs’ Particular Allegations

Plaintiffs allege that Defendants had a duty to attach a warning label to their
alcoholic beverages warning consumers of the possibility that a person could become
addicted to drinking alcohol even if he or she drank reasonably, due to the possibility of a
predisposition to developing the disease of alcoholism. Plaintiffs contend that if
Defendants had attached such a warning, none of the Plaintiffs would have taken his first
drink as a youth. In their own words, “[t]his case is about the protection of the American
public from a product that when consumed in an amount that is not abusive becomes
addictive to approximately 14% of the American public.” (Dkt. 64, p. 6.)

MEMORANDUM DECISION AND ORDER - 9

Defendants, however, contend that alcohol manufacturers and distributors have no
duty to warn consumers of obvious or commonly-known potential dangers of drinking
alcohol, such as alcoholism or the prospect of prolonged or excessive use of alcoholic
beverages. In response, Plaintiffs ask rhetorically: “Is it known that there is approximately
14% of the American Public, who, upon drinking 6 to 8 ounces of ethyl alcohol is
addicted for the rest of their life?” (Dkt. 64, p. 6.) Plaintiffs “agree that there is no
LEGAL duty to warn of the COMMONLY KNOWN dangers of alcohol abuse and
alcoholism,” (capitalization in original), but they argue that manufacturers have a duty to
warn nonetheless, because (a) some individuals are predisposed to becoming alcoholics;
and (b) such a predisposition is not a commonly-known danger. (Id.)
B.

Idaho Law Does Not Support Recognition of a Common Law Duty to
Warn Owed by Alcohol Manufacturers, as that Duty is Argued by
Plaintiffs

This is a diversity action, and the alleged events giving rise to the claim for relief
occurred in Idaho. Therefore, the Court looks to Idaho law to determine whether such a
duty exists. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
The Idaho appellate courts have not spoken to the precise issue of whether such a
duty to warn as argued by Plaintiffs exists in regard to the manufacture and sale of
alcoholic beverages. However, “the concept of strict liability for products liability cases
as embodied in the Restatement of Torts, Second, § 402A (1965)” has been adopted “[as]
a proper basis for liability in Idaho.” Rindlisbaker v. Wilson, 519 P.2d 421, 428 (Idaho
1974) (citing Shields v. Morton Chemical, 518 P.2d 857 (Idaho 1974)); see also Bryant v.
MEMORANDUM DECISION AND ORDER - 10

Technical Research Co., 654 F.2d 1337, 1343 (9th Cir. 1981) (same, applying Idaho law).
Under § 402A, even a product that is safely designed and manufactured can be
dangerously defective if the manufacturer has reason to know of the dangerous
propensities of the product but fails adequately to warn purchasers or users. Rindlisbaker,
519 P.2d at 427-28; Restatement (Second) of Torts, § 402A cmt. h (1965). However, the
duty to warn of a product’s dangerous propensities “is limited to situations wherein the
danger is not obvious.” Rindlisbaker, 519 P.2d at 428. “[I]f the danger is obvious, or if
the danger is known to the person injured, the duty to warn does not attach.” Mico Mobile
Sales & Leasing, Inc. v. Skyline Corp., 546 P.2d 54, 60 (Idaho 1975) (citations omitted).2
Of importance to this case, § 402A specifically refers to alcohol as an illustration
of a product in which there is no duty to warn of dangerous propensities because of the
obvious nature of such a danger. “Good whiskey is not unreasonably dangerous merely
because it will make some people drunk, and is especially dangerous to alcoholics.”
Restatement (Second) of Torts § 402A cmt. i (1965) (emphasis added). Further:
[A] seller is not required to warn with respect to products, or
ingredients in them, which are only dangerous, or potentially so, when
consumed in excessive quantity, or over a long period of time, when the
danger, or potentiality of danger, is generally known and recognized. Again
the dangers of alcoholic beverages are an example, as are also those of
foods containing such substances as saturated fats, which may over a period
2

The Idaho Supreme Court has not yet addressed or adopted the more recent Restatement (Third)
of Torts: Products Liability (1998) in a products liability case. However, Defendants point to comment j
and the official Reporters’ Note to comment j of the Restatement (Third) of Torts: Products Liability § 2
(1998) to show that the general rule regarding obvious risks is consistent with the Restatement (Second)
of Torts § 402A. (See Defendants’ Memo, Dkt. 53-1, p. 9.) The outcome of the Motion to Dismiss would
be the same under both the Restatement (Second) of Torts and the Restatement (Third) of Torts.
MEMORANDUM DECISION AND ORDER - 11

of time have a deleterious effect upon the human heart.
Restatement (Second) of Torts § 402A cmt. j (1965).
C.

The Law of Other Jurisdictions Does Not Support an Extension of the
Duty of Alcohol Manufacturers to Warn the Public

In sum, there is nothing in existing Idaho products liability law to support the relief
sought by Plaintiffs in their Complaint. Such a lack of precedent to support Plaintiffs’
claims is significant, but the Court also examines the decisions of other jurisdictions to
help inform its decision upon how Idaho law would decide this question. See, e.g.,
All-States Leasing Co. v. Bass, 538 P.2d 1177, 1181 (Idaho 1975) (Idaho Supreme Court
“persuaded [to adopt a position] after a careful review of [out-of-state] authorities . . . and
the weight of authority”). The Court has reviewed other duty to warn cases involving the
manufacture and sale of alcohol relied upon by Defendants in support of their position,
and has conducted its own research.
Plaintiffs argue that none of the cases cited by Defendants addresses their
particularized claim – that this is not simply a case about individuals who choose to
overindulge in alcohol, but rather is about those persons who are immediately susceptible
to becoming addicted to alcohol even if they intend to drink responsibly. The same
purported distinction in the risk of harm, and the alleged duty to warn, was raised in a
Texas case in which plaintiffs were chronic alcoholics who sued a distiller seeking
damages allegedly caused by alcohol as an addictive drug. McGuire v. Joseph E. Seagram
& Sons, Inc., 790 S.W.2d 842 (Tex. App. 1990), rev’d 814 S.W.2d 385 (Tex. 1991).

MEMORANDUM DECISION AND ORDER - 12

In McGuire, the plaintiffs alleged that the defendant distillery had a duty to warn
consumers that:
(1) Continued use or excessive use of alcohol would cause cirrhosis
of the liver; (2) Alcohol is a drug; (3) Alcohol is a depressant; (4) Alcohol
causes diseases of the stomach and duodenum; (5) Alcohol inhibits medical
treatment; (6) Alcohol is toxic to the brain cells and tissues; (7) Alcohol is
toxic to tissues of the stomach, liver and heart; (8) Drinking alcohol for
pleasure or recreational purposes may lead to psychological and physical
dependency; (9) Alcohol compromises the immune system; (10) Some
people are genetically predisposed to alcoholism; (11) Psychological and
social factors may predispose a person to alcoholism; (12) Alcohol is
harmful to health; (13) Over two (2) drinks per day is harmful to health;
(14) They failed to warn of the signs and symptoms of alcoholism; (15)
They failed to instruct on the symptoms of alcoholism; (16) They failed to
instruct on safe use of the drug; (17) They failed to warn that alcoholism
causes marital discord, family problems and financial problems; (18) They
failed to warn that alcoholism will deteriorate or destroy conjugal relations;
(19) They failed to warn that alcoholism is a lifetime disease and that
recovery is impossible; (20) That “denial” prohibits addicts from
recognizing an addiction and receiving treatment; (21) That treatment of the
addiction is very costly and beyond the economic means of most alcohol
addicts; (22) They failed to warn of the latent, hidden and concealed
hazards, defects and dangerous effects of the drug alcohol; (23) They failed
to warn Ronald McGuire's family and friends of the signs and symptoms of
alcoholism; (24) They failed to instruct Ronald McGuire, his family and
friends to encourage him to seek help at the first symptoms of alcoholism.
Id. at 845.
Notably, the defendant distillery in McGuire acknowledged “that there are health
dangers in drinking too much and too long and, for some people, in drinking at all.” 814
S.W.2d at 387 (emphasis added). Nonetheless, the trial court dismissed the case for
failure to state a claim. On intermediate appeal, the Texas Court of Appeals reversed that
decision. Given the “[v]astly increasing complexities in relationships between and among

MEMORANDUM DECISION AND ORDER - 13

human beings (coupled with entire new fields of scientific knowledge and empirical
wisdom),” the intermediate appeals court said there was reason to reexamine the law and
to “implant correlative duties.” 790 S.W.2d at 852. That ruling did not ultimately prevail,
however, as the Texas Supreme Court overturned the Court of Appeals, reasoning:
From ancient times, the danger of alcoholism from prolonged and excessive
consumption of alcoholic beverages has been widely known and
recognized. See generally G. Austin, Alcohol in Western Society From
Antiquity to 1880: A Chronological History 3–45 (1985); M. Lender & J.
Martin, Drinking in America: A History 16–21, 36–40, 44–46, 64–74
(1982). See also Ex Parte Townsend, 64 Tex.Crim. 350, 144 S.W. 628,
631–33 (1911). Consequently, we hold that, because the danger of
developing the disease of alcoholism from prolonged and excessive
consumption of alcoholic beverages is and has been generally known and
recognized, it is within the ordinary knowledge common to the community.
Therefore, under the limited circumstances present in this cause, Seagram
had no duty to warn or instruct of this particular danger arising from the
prolonged and excessive consumption of alcoholic beverages.
814 S.W.2d at 388.
D.

Plaintiffs’ Efforts to Distinguish their Claims from Similar Claims
Decided under Existing Case Law Are Unconvincing

In the present case, Plaintiffs apparently seek to differentiate (and require warnings
for) people predisposed to the disease of alcoholism from those who are not. That
argument, however, simply misses the mark. The obvious danger of drinking alcohol is
the same for every person, regardless of whether or not a person might have a
predisposition (of whatever nature) for alcoholism. That such a danger is arguably even
more profound for an alcoholic does not change the underlying obviousness of the danger
– whether for those who might be predisposed to alcoholism or for those not so

MEMORANDUM DECISION AND ORDER - 14

predisposed. Plaintiffs would have the Court create a common law duty to require a
warning to any consumer that (a) alcohol has “dangerous properties,” and (b) “if you
drink this product that you will get a disease.” (Dkt. 64, pp. 10, 13.) The disconnect, of
course, is that the second prong of such a warning is already subsumed by the first – i.e.,
“alcohol has dangerous properties.” That danger, in the view of this Court and in the view
of every other court that has rendered a final decision upon this particular issue, is an
obvious one.
The invitation to recognize a common law duty to warn such as Plaintiffs bring
forward here has been made elsewhere. See, e.g., Cook v. MillerCoors, LLC, 872 F.Supp.
2d 1346, 1351 (M.D. Fla. 2012) (because the dangers of alcohol are well-known,
“MillerCoors owed no duty to warn against the known risks of consuming alcohol, even
to excess”); Maguire v. Pabst Brewing Co., 387 N.W.2d 565, 570 (Iowa 1986) (“We are
not persuaded . . . that it is practical to expect a wholesale purveyor of alcoholic
beverages to devise an adequate warning of the particular tolerance of each consumer. . . .
[A]lthough persons engaging in consumption of alcoholic beverages may not be able to
ascertain precisely when the concentration of alcohol in their blood, breath, or urine
reaches the proscribed level, they should in the exercise of reasonable intelligence,
understand what type of conduct places them in jeopardy of violating the law.”) (internal
quotation marks and alteration omitted); Malek v. Miller Brewing Co., 749 S.W.2d 521,
524 (Tex. App. 1988) (“[B]eer drinkers . . . are bound, as a matter of law, to recognize the
danger of intoxication. Given the[] precedents, we hold that the degree of intoxication to
MEMORANDUM DECISION AND ORDER - 15

be expected from any particular brand of beer [including “lite” beer] does not require a
duty to warn, or give rise to a fact question.”).
No highest level state appellate court in the country has chosen to make subtle
distinctions as to the degree of use, or differences between particular users of alcohol
(including the possibility of propensities for alcohol abuse), which is what Plaintiffs ask
this Court to do here. Further, no lower state court has done so and survived higher court
review. The Court acknowledges that scientific study has added to the general discussion
of the perils and dangers of alcohol, and that such study has included additional research
into the etiology of alcoholism. Such information, however, does not remodel or diminish
the obvious danger already known.
E.

Widening the Scope of the Duty to Warn is Impracticable

Legal commentary upon the Texas Supreme Court’s rejection in McGuire of the
plaintiffs’ invitation to widen the scope of warnings for alcohol has reasoned that the
nuances of the issue, such as Plaintiffs seek to exploit in this case, leave no sensible legal
or factual blackboard upon which to chalk a duty to warn:
Whatever else may be said for it, the case just described is not a
legitimate failure-to-warn case. Given the irrefutable fact of widespread
knowledge of the dangers of chronic alcohol abuse, a claim of inadequate
warning could proceed only if the court were willing to predicate liability
based on either: (1) the need for defendants to supply consumers with
highly specific information that generally is subsumed within broader
categories of risks well-known to society; or (2) the desirability of adding
tiny increments of information to the store of public knowledge. Many of
the allegations in the Texas beverage alcohol case called for specificity that
added nothing more than useless detail to what were generally understood
risks. As numerous courts and commentators have noted, detailed warnings
MEMORANDUM DECISION AND ORDER - 16

that impart no new information are costly to society.
That warnings should not be cluttered with needless detail seems
elementary. However, what about the claims based on aspects of alcoholism
that are less well known or more controversial? Consider, for example, the
contention that distillers should have warned that “some people are
genetically predisposed to alcoholism.” Many people probably are unaware
of the possibility of biological predisposition to addiction. Even so, the
demand that it be included in the warning is impractical. Opinions differ
widely regarding what causes alcohol addiction. If biological predisposition
is to be the subject of a warning, should not consumers also be told that
many scientists believe that the evidence to support the biological
predisposition theory is inconclusive? Moreover, if evidence suggests a
strong correlation between chronic alcoholism and cultural and social class
characteristics, should this information, although offensive to many,
become part of the warning label? As these examples show, one always can
identify some tidbit of information or detail of recent medical knowledge
that a manufacturer might have included. A cause of action that one can
establish merely by claiming that some tiny increment of information
should be added to the product label is virtually identical to
product-category liability. In truth, the product is faulted not because the
warnings of its dangers are inadequate, but rather because the product is
controversial and deemed by some to fail the overall risk-utility test for
society.
James A. Henderson, Jr. and Aaron D. Twerski, Closing the American Products Liability
Frontier: The Rejection of Liability without Defect, 66 N.Y.U. L. Rev. 1263, 1324-25
(Nov. 1991) (footnotes omitted).
This Court agrees. It would be next to impossible to create an effective warning
label that would warn of the myriad combinations of alcohol use and of human
characteristics that might contribute to alcoholism. And, even if it could be done, it would
be unnecessary, because the danger of alcoholism is subsumed in the general dangers of
alcohol commonly known to the public.

MEMORANDUM DECISION AND ORDER - 17

F.

Advertising that Entices the Use of Alcoholic Beverages Does Not Give
Rise to a Higher Duty to Warn of the Dangers Inherent in Consuming
Alcohol

Nor does Plaintiffs’ argument that Defendants’ advertising focuses upon the
pleasurable nature of their products support a higher duty to warn against the perils of
alcoholism. In Gawloski v. Miller Brewing Co., 644 N.E.2d 731 (Ohio App. 1994), the
court explained:
A common awareness and understanding of the dangers associated
with prolonged and excessive alcohol use has existed in our culture for
centuries. Our nation continues to inform its citizens of those dangers,
supporting the community’s common knowledge with well-documented and
highly publicized scientific and statistical information that repeatedly warns
of the detrimental physical, psychological, and emotional effects caused by
prolonged and excessive alcohol use. Even though we acknowledge that
beer advertising is pervasive in our society, we hold that, as a matter of law,
a beer manufacturer’s commercial images, although enticing, are not
enough to neutralize or nullify the immense body of knowledge a
reasonable consumer possesses about the dangers of alcohol. Therefore, a
reasonable consumer could not, as a matter of law, ignore basic common
knowledge about the dangers of alcohol and justifiably rely upon beer
advertisements and their idyllic images to conclude that the prolonged and
excessive use of alcohol is safe and acceptable.
Id. at 736 (internal citations omitted).
Plaintiffs point to nothing that might suggest the Idaho Supreme Court would view
this issue any differently from the jurisdictions that have confronted similar claims based
on the relationship between alcohol advertisements and warnings about alcohol abuse.

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G.

Society has Chosen to Place Responsibility in Legislative Bodies to
Regulate the Manufacture, Sale, and Use of Alcohol, and to Define the
Consequences of Drinking Alcohol

With few exceptions, such as selling alcohol to a minor or an obviously intoxicated
person, the general rule of law in the United States has been the same for decades – the
individual who makes a personal choice to drink alcohol is responsible for the
consequences that follow, whether small or great.3 As described by the Texas court in
Brown-Forman Corp. v. Brune, 893 S.W.2d 640 (Tex. App. 1994):
Alcoholic beverages are dangerous products. Many human tragedies
can be traced to an individual’s use of alcohol. Nevertheless, this country
has made a political decision to allow alcoholic beverages to be sold in the
marketplace.
***
Considering the extensive involvement of the federal and state
government in regulating alcoholic beverages, we conclude that the subject
of warnings on alcoholic beverages and placing instructions for use on an
alcoholic beverage container should be left to the legislative process. The
issues relevant to this case have for so long been political issues we
conclude that courts are ill-equipped to develop effective and feasible
warnings and instructions.
A former generation of Americans found that [the] evils [of
whiskey] outweighed [] advantages to be derived from using whiskey as a
beverage and made a political decision forbidding its manufacture and sale
for such purposes. But the noble experiment of prohibition did not work
and [prohibition was] . . . repealed. This again represented a political
judgment. . . .

3

For example, Idaho’s Dram Shop Act specifically provides: “The legislature finds that it is not
the furnishing of alcoholic beverages that is the proximate cause of injuries inflicted by intoxicated
persons. . . .” I.C. § 23-808(1). The Act further provides that “No claim or cause of action . . . shall lie on
behalf of the intoxicated person nor on behalf of the intoxicated person’s estate or representatives.” I.C.
§ 23-808(4)(a).
MEMORANDUM DECISION AND ORDER - 19

Id. at 646, 647 (alterations in original).
Although there is no place for recognition of a common-law duty as is sought here
by Plaintiffs, there is also no mistaking the fact that alcohol manufacturers’ duties as to
sale of and the extent of the warnings concerning the consumption of alcohol have been
imposed through legislative action. Indeed, the very fact of the extensive regulation of the
sale and use of alcohol is further evidence that the danger of the use of alcohol is already
known by the general population, including the setting of minimum ages for the
consumption of alcohol; restrictions upon when, to whom, and what kind of alcohol can
be sold; and the imposition of criminal penalties for being under the influence of alcohol
when engaging in certain activities, such as driving.
3.

Conclusion
Against that backdrop, and consistent with the common law rule described in

§ 402A of the Restatement (Second) of Torts, this Court concludes that Idaho law would
not depart from the long-standing and widely-applied rule described in this decision.
Furthermore, the Court is mindful of the admonition that “[f]ederal courts should ‘hesitate
prematurely to extend the law . . . in the absence of an indication from the state courts or
the state legislature that such an extension would be desirable.’” Del Webb Communities,
Inc. v. Partington, 652 F.3d 1145, 1154 (9th Cir. 2011) (quoting Torres v. Goodyear Tire
& Rubber Co., 867 F.2d 1234, 1238 (9th Cir. 1989)).

MEMORANDUM DECISION AND ORDER - 20

Accordingly, for all of the foregoing reasons, the Court concludes that Plaintiffs
have failed to state a claim upon which relief can be granted. Dismissal is appropriate
under Rule 12(b)(6). The Court need not consider whether Defendant PepsiCo was timely
served with the Complaint, nor is there need to decide the pre-emption and statute of
limitations issues.
CONSIDERATION OF AMENDMENT AND REMAINING MOTIONS
It remains for the Court to decide whether to dismiss Plaintiffs’ Complaint with or
without prejudice. In this Circuit, “plaintiffs may seek amendment after an adverse ruling,
and in the normal course district courts should freely grant leave to amend when a viable
case may be presented.” Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir.
2002).
In addition, pro se complaints are held to less stringent standards than formal
pleadings drafted by lawyers. Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)). That leniency recognizes the difficulty the
pro se litigant may face in fashioning a pleading when unschooled in the law and
inexperienced in the process. Such leniency cannot, however, open a door to the
courtroom that the law otherwise does not recognize.
Hence, given the Court’s ruling described above as to the absence of any duty to
warn such as Plaintiffs have claimed, the Court must consider whether giving Plaintiffs an
opportunity to file a third amended complaint would be futile. See Lopez v. Smith, 203
F.3d 1122, 1129 (9th Cir. 2000) (a pro se pleading may be dismissed without notice of the
MEMORANDUM DECISION AND ORDER - 21

deficiencies and an opportunity to amend if a complaint “lacks merit entirely” and cannot
be saved by amendment). In this particular context – that is, the question of whether any
amendment would simply be a futile amendment – the Court has considered those
exhibits filed by Plaintiffs which Plaintiffs contend are evidence that alcohol can be habitforming and addictive, that Defendants do not disclose in their advertising the habitforming or addictive nature of alcoholic beverages, and that alcohol is a highly-regulated
product because it is dangerous. (Exhibits to Dkt. 64; Dkt. 79.) The Court reviewed such
exhibits for additional arguments or evidence that might be gleaned from such materials
that would support amendment of Plaintiffs’ Complaint so as to overcome the threshold
legal infirmity that otherwise exists. However, after such review the Court concludes that
the exhibits add nothing to reframe the nature of the obvious danger of alcohol use in a
way that would give support to the type of duty to warn for which Plaintiffs argue.
Accordingly, the Court will dismiss Plaintiffs’ claims in this case with prejudice,
that is, they cannot be refiled. Further, the proposed First and Second Amended
Complaints seeking to correct the names of the unserved defendants will not be allowed,
as the claims in such proposed Amended Complaints simply raise the same theories
against the unserved defendants as those asserted against the parties who have appeared.
Such claims, therefore, regardless of service of process, are also subject to dismissal and
could not be saved by amendment. See Columbia Steel Fabricators v. Ahlstrom Recovery,
44 F.3d 800, 802 (9th Cir. 1995) (upholding “dismissal with prejudice in favor of a party
which had not yet appeared, on the basis of facts presented by other defendants which had
MEMORANDUM DECISION AND ORDER - 22

appeared”); Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (“A
District Court may properly on its own motion dismiss an action as to defendants who
have not moved to dismiss where such defendants are in a position similar to that of
moving defendants or where claims against such defendants are integrally related.”).
Plaintiffs’ “Motion for Declaratory Relief” seeks relief which is not properly
pursued by motion, but rather can be pursued only by adding an additional count to the
existing Complaint. In addition, the “declaratory relief” Plaintiffs seek, even if added to
their Complaint, seeks a remedy that – for the reasons already described in this decision –
could not be successful in any event.
The Court will not strike Plaintiffs’ Sur-reply (Dkt. 81). In the context of this case,
where plaintiffs are proceeding pro se and the defendants are represented by multiple law
firms, the Court allows pro se plaintiffs that additional opportunity to explain the theory
of their case. The Court has considered the Sur-reply in the manner described in this
decision, consistent with applicable rules and in the exercise of the Court’s discretion.
Accordingly, the Court denies Defendants’ Motion to Strike the Sur-reply (Dkt. 85).
In summary, the Complaint is dismissed with prejudice, and the following motions
are denied as moot: Plaintiffs’ Motion to Allow Complaint to be Amended (Dkt. 46);
Second Motion to Allow Complaint to be Amended (Dkt. 49); Plaintiff’s Motion to Reissue Summons (Dkt. 45); Plaintiff’s Second Motion to Re-issue Summons (Dkt. 48); and
Plaintiffs’ Motion for Declaratory Relief. (Dkt. 66).

MEMORANDUM DECISION AND ORDER - 23

ORDER
1.

Plaintiffs’ Motion for Sanctions (Dkt. 43) is DENIED.

2.

Plaintiffs’ Motion for Entry of Default (Dkt. 44) is DENIED.

3.

Plaintiffs’ Motion to Re-issue Summons (Dkt. 45) and Second Motion to Re-issue
Summons (Dkt. 48) are DENIED as MOOT.

4.

Plaintiffs’ Motion to Allow Complaint to be Amended (Dkt. 46) and Second
Motion to Allow Complaint to be Amended (Dkt. 49) are DENIED as MOOT.

5.

Plaintiffs’ Motion for Extension of Time to Respond to Motion to Dismiss (Dkt.
60) is GRANTED. The Response (Dkt. 64) is considered timely.

6.

Plaintiffs’ Motion for Declaratory Relief (Dkt. 66) is DENIED as MOOT.

7.

Defendants’ Motion to Strike Sur-reply (Dkt. 85) is DENIED.

8.

Defendants’ Motion to Dismiss (Dkt. 53) and the Joinder (Dkt. 67) are
GRANTED.

9.

Plaintiffs’ Complaint is DISMISSED, with prejudice.
DATED: January 17, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

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