Zaycer v Sturm Foods, Inc. et al
MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 9/12/12. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CECILE L. ZAYCER,
STURM FOODS, INC., ET AL.
CIVIL ACTION NO.: RDB-11-3693
This putative class action lawsuit arises out of a complaint filed by Cecile L. Zaycer
(“Plaintiff” or “Zaycer”) on behalf of herself and other persons similarly situated who
purchased a Weis brand single-serve coffee product in Maryland, New Jersey, New York,
Pennsylvania, and/or West Virginia.
Plaintiff has sued Defendants Sturm Foods, Inc.
(“Sturm”), TreeHouse Foods, Inc. (“TreeHouse”), and Weis Foods, Inc. (“Weis”)
(collectively “Defendants”), for (1) violations of the consumer protection laws of Maryland,
Pennsylvania, and West Virginia (Counts I, II, VI); (2) violations of New York’s Deceptive
Acts and Practices Law and False Advertising Law (Count III, IV); and (3) violations of New
Jersey’s Fraud in Sales or Advertising of Merchandise Law (Count V).
Pending before this Court is Defendants’ Joint Motion to Dismiss (ECF No. 13).
Defendants Sturm and Weis move this Court to dismiss Counts II through VI of the
Plaintiff’s Amended Complaint for lack of standing pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure. Defendant TreeHouse moves for dismissal on the ground that this
Court lacks personal jurisdiction under Rule 12(b)(2). This Court has reviewed the entire
record and finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the
reasons that follow, Defendants’ Motion to Dismiss (ECF No. 13) will be GRANTED.
Plaintiff Cecile L. Zaycer is a citizen of Maryland and purports to represent a class of
plaintiffs in Maryland, New Jersey, New York, Pennsylvania, and West Virginia. Pl.’s Am.
Compl. ¶ 1, ECF No. 5. Plaintiff seeks damages for herself and others similarly situated who
were injured by the Defendants’ alleged violations of numerous state consumer protection
laws. Id. ¶ 24. Essentially, Plaintiff alleges that Defendants engaged in unfair or deceptive
acts in selling, packaging, and marketing of single-serve coffee cartridges known as “KCups” (the “Product”), for use in Keurig brand coffee machines.
The Plaintiff alleges that the Product is intentionally designed and packaged to
deceive and mislead to the consumer by way of its stated ingredients and purpose as an
“alternative to other ‘K-Cup’ brands of ground coffee.” Id. ¶¶ 15, 19. Specifically, the
Plaintiff alleges that the terms “Soluble & Microground” on the packaging are used as a
replacement for “Instant” and thus intentionally misleading and intended to defraud and
mislead consumers. Id. ¶ 20. Additionally, the Plaintiff alleges that the product container,
shelf display, and store location are intentionally selected to confuse and mislead consumers
into buying a product that will provide the same “freshly brewed cup of coffee” provided by
a Keurig K-Cup. Id. Defendants are Sturm Foods, Inc., TreeHouse Foods, Inc., and Weis
Foods, Inc.1 Sturm, a corporate citizen of Wisconsin, is the manufacturer and distributor of
the Product at issue. Id. ¶ 2. TreeHouse, a corporate citizen of Illinois, is the parent
This case is brought pursuant to 28 U.S.C. § 1332 on the basis of diversity of citizenship.
company of Sturm. Id. ¶ 3. Weis, a corporate citizen of Pennsylvania, operates retail grocery
stores in Maryland, New Jersey, New York, Pennsylvania, and West Virginia where it sells
the Product. Id. ¶ 4.
On or about December 19, 2011, Zaycer purchased the Product from a Weis grocery
store in Laurel, Maryland. Id. ¶ 7. According to the Plaintiff, the Product at issue contains
“instant coffee” rather than actual coffee grounds. Id. ¶ 17. The user of the Product finds
that the hot water from the Keurig brewer is merely added to the instant coffee in the singleserve cup, producing a hot cup of “instant coffee” instead of “freshly brewed coffee.” Id. ¶¶
17-18. Left behind, after this process, is an empty plastic cup. Id. ¶ 18.
The Plaintiff seeks to certify a class comprised of every person who purchased the
Product in a Weis store because each potential class member was “similarly deceived, misled,
and damaged by the packaging and false or misleading statements contained thereupon.” Id.
The potential Plaintiff Class contains sub-classes, each sub-class comprised of
purchasers from the individual states where Weis sells the Product, specifically, Maryland,
New Jersey, New York, Pennsylvania, and West Virginia. Id. ¶ 25. The Plaintiff asserts that
the multiple states have similar consumer protection laws and the facts are the same among
the potential class members. Id. ¶ 26. Additionally, the Plaintiff asserts that these facts
predominate over any questions affecting only individual members, making the class actions
superior to other available methods for adjudicating the controversy. Id. ¶ 27. At this time,
Zaycer is the only named plaintiff, and all of the events that caused her injury occurred from
a single purchase of the Product in a Weis store in Maryland. Id. ¶ 7.
In their Motion to Dismiss, Defendants argue that the Plaintiff lacks standing to sue
under the separate consumer protection laws of New Jersey, New York, Pennsylvania, or
West Virginia (Counts II – VI). Def.’s Mot. to Dismiss, ECF No. 13. Accordingly, the
Defendants do not challenge the Plaintiff’s Article III standing concerning the alleged
violations of the Maryland Consumer Protection Act (Count I). Additionally, Defendant
TreeHouse moves to dismiss on the ground that TreeHouse has no contacts in Maryland
and as a result, this Court lacks personal jurisdiction over the company. Id.
In her Opposition to Defendants’ Motion to Dismiss, Plaintiff does not contest
Defendant TreeHouse’s Motion to Dismiss for lack of personal jurisdiction. Pl.’s Opp. at 1,
n. 1, ECF No. 21. However, Plaintiff does contest the Motion to Dismiss for lack of
standing as to Defendants Sturm and Weis. Id. at 1. Plaintiff’s opposition to the Motion to
Dismiss for lack of standing is premised on an interpretation of two Supreme Court cases
that the Plaintiff claims direct the court to consider the issue of class certification prior to
the issue of Article III standing. Id. at 5-8. Drawing on Ortiz v. Fibreboard Corp., 527 U.S. 815
(1999) and Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997), Zaycer argues that class
certification is “logically antecedent” to the Article III standing inquiry, and as a result, this
Court should delay considering standing until the class has been certified and it can consider
the standing with reference to the class as a whole. Id. at 8.
STANDARD OF REVIEW
Defendants move to dismiss Plaintiff’s case for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. A motion to dismiss for
lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)
challenges a court’s authority to hear the matter brought by a complaint. See Davis v.
Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). A plaintiff carries the burden of
establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999);
Biktasheva v. Red Square Sports, Inc., 366 F. Supp. 2d 289, 294 (D. Md. 2005). The court may
“consider evidence outside the pleadings” in a 12(b)(1) motion to determine if it has
jurisdiction over the case. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945
F.2d 765, 768 (4th Cir. 1991). “The court should grant the 12(b)(1) motion only if the
material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a
matter of law.” Biktasheva, 366 F.Supp.2d at 294 (quoting Richmond, 945 F.2d at 768).
Under Rule 12(b)(1), if a party lacks standing the court automatically lacks subject
matter jurisdiction. See Pitt County v. Hotels.com, L.P., 553 F.3d 308, 312 (4th Cir. 2009). To
meet the standing requirement, “[a] plaintiff must allege personal injury fairly traceable to the
defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.”
Allen v. Wright, 468 U.S. 737, 750 (1984); see also Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir.
The crux of this case concerns whether the Plaintiff has standing to represent
potential class members who were harmed by the Product under the consumer protection
laws of states where the Plaintiff is not a citizen. The threshold question this Court must
answer in ruling on this motion to dismiss is whether it should evaluate the named plaintiff’s
standing to bring the claims asserted under the individual state’s consumer protection laws in
Counts II through VI or whether it should wait until the class certification stage to make this
assessment. This Court will first address the preliminary issues pertaining to the personal
jurisdiction over Defendant TreeHouse and the Plaintiff’s standing to bring Count I under
the Maryland Consumer Protection Act. In order to frame the issue at bar, the “logically
antecedent” concept will then be examined. This Court will evaluate the Plaintiff’s argument
that class certification should be considered “logically antecedent” to the Article III standing
inquiry. Finally, this Court will consider the threshold question and evaluate the timing of
the Article III standing inquiry as it concerns the Plaintiff’s ability to bring claims on behalf
of unnamed plaintiffs.
In the Defendants’ Joint Motion to Dismiss, Defendant TreeHouse moves to dismiss
for lack of personal jurisdiction pursuant to Rule 12(b)(2). Def.’s Mot. to Dismiss at 2, ECF
No. 13. TreeHouse argues that it is a corporate citizen of Illinois and Delaware. Def.’s
Mem. in support of Mot. to Dismiss at 4, ECF No. 14. Moreover, TreeHouse claims that
the Plaintiff’s allegations are untrue because TreeHouse itself has no operating business and
therefore cannot and “does not manufacture, advertise, offer for sale or sell any products
anywhere.” Id. at 5. The Plaintiff does not contest the Motion to Dismiss and acknowledges
that this Court lacks personal jurisdiction over TreeHouse. Pl.’s Opp. at 1, n. 1, ECF No.
21. Accordingly, the Defendants’ Motion to Dismiss will be GRANTED as it pertains to
TreeHouse. Hereinafter, the term “Defendants” refers only to Strum and Weis as those
Defendants acknowledge that this Court may exercise personal jurisdiction over them.
Framing the Issue
The Plaintiff argues that class certification is “logically antecedent” to the Article III
standing inquiry and thus standing should not be addressed during the motion to dismiss
In making this argument, the Plaintiff extrapolates from two Supreme Court
decisions, Amchem Prods., Inc. v. Windsor, 521 U.S 591 (1997) and Ortiz v. Fibreboard Corp., 527
U.S. 815 (1999), in which the Supreme Court addressed standing when attempting to settle
an asbestos tort liability case. Both Amchem and Ortiz dealt with a proposed settlement that
would have affected unnamed plaintiffs who had not yet suffered any asbestos-related
injury.2 The Court deferred consideration of the standing of the unnamed plaintiffs until
after class certification because the class certification issues were “‘logically antecedent’ to
Article III concerns” and therefore could be “treated before Article III standing.” Oritz, 527
U.S. at 831; see Amchem, 521 U.S. at 612.
The Court recognized that Article III
considerations generally must be dealt with before reaching the merits of a case, however, to
rule on standing before class certification in Oritz and Amchem would have “required the
Court to make a determination as to the standing of persons who were not actually parties to
the case, but who were only proposed parties to the case.” In re Wellbutrin XL Antitrust Litig.,
260 F.R.D. 143, 153 (E.D. Pa. 2009). The Supreme Court analyzed the dispositive class
certification issues first while being “‘mindful that [Rule 23’s] requirements must be
Both Amchem and Ortiz were cases involving a class certified under Rule 23(b)(1)(B) on a limited
fund rationale which provided for payment of damages to class members. A “limited fund” exists
when “numerous persons make claims against a fund insufficient to satisfy all claims.” Amchem, 521
U.S. at 614. Generally, courts will only certify a class under this subsection of Rule 23 if the
defendant has severely limited assets or is almost insolvent. See Ortiz, 527 U.S. at 864.
interpreted in keeping with Article III’s constraints.’” Ortiz, 527 U.S. at 831 (quoting
Amchem, 521 U.S. at 612-13).
The Court of Appeals for the Fourth Circuit has not yet ruled on the “logically
antecedent” concept. This concept, as laid out in Amchem and Ortiz, has, as one observer
noted, “caused a great deal of mischief.” Linda S. Mullenix, Standing and Other Dispositive
Motions After Amchem and Ortiz: The Problem of “Logically Antecedent” Inquiries, 2004 Mich. St.
L. Rev 703, 707 (Fall 2004). A decision by United States District Court for the Northern
District of Illinois provides a useful summary of this issue and its treatment by courts around
Some courts have taken an almost categorical approach, routinely resolving
class certification questions prior to conducting a standing inquiry. See In re
Packaged Ice Antitrust Litig., 779 F. Supp. 2d 642, 653–57 (E.D. Mich. 2011)
(providing a good overview of the state of the law). Others have taken a
“nuanced” approach, attempting to fashion a governing principle to determine
when class certification is considered “logically antecedent.” See Linda S.
Mullenix, Standing and Other Dispositive Motions After Amchem and Ortiz: The
Problem of “Logically Antecedent” Inquiries, 2004 Mich. St. L. Rev 703, 727 (Fall
2004) (describing Payton v. Cnty. of Kane, 308 F.3d 673 (7th Cir. 2002) and
Rivera v. Wyeth–Ayerst Labs., 283 F.3d 315, 319 n.6 (5th Cir. 2002)). Finally,
some courts limit Ortiz and Amchem to the “very specific situation of a
mandatory global settlement class,” and do not interpret those cases to require
courts to consider class certification before standing. See, e.g., Easter v. American
West Fin., 381 F.3d 948, 962 (9th Cir. 2004).
In re Plasma-Derivative Protein Therapies Antitrust Litig., MDL 2109, 2012 WL 39766, at *4 (N.D.
Ill. Jan. 9, 2012). The categories described in In re Plasma-Derivative provide a framework
within which this court can analyze the arguments put forward by the parties in this case.
Relying on the decision in Ortiz, the Plaintiff argues that “where the matter is a class
action and there is a logical reason to delay the standing decision, the Rule 23 class
certification stage of the litigation is the appropriate time to evaluate class standing.” Pl.’s
Opp. at 8, ECF No. 21. In furthering her position, the Plaintiff generally relies on cases that
fall into the second category described by the In re Plasma-Derivative court. This category of
decisions takes a nuanced approach, evaluating the facts of each case in order to determine if
issues of class certification are “logically antecedent” to the Article III standing inquiry.
Class certification is not “logically antecedent” to standing
The Plaintiff cites Payton v. County of Kane, 308 F.3d 673 (7th Cir. 2002) for the
proposition that the court should define the class first and then assess whether the proposed
class representatives can satisfy the necessary requirements of Rule 23.
In Payton, six
arrestees filed a putative class action on behalf of themselves and all others similarly situated
who had paid a fee to be released on bail from jails from various counties in Illinois. The
named plaintiffs sought to certify a class that would include anyone who paid a fee in
nineteen counties even though the named plaintiffs had direct claims in only two counties.
The district court dismissed all of the claims and denied the motion for class certification as
moot. The Court of Appeals for the Seventh Circuit found that the named plaintiffs did
have standing to sue in two counties where they had direct claims. The court then addressed
the “thorniest issue in this case: the propriety of maintaining a suit against the other 17
counties, for which we have no specific named plaintiffs.” Payton, 308 F.3d at 677-78.
The Payton court questioned whether, for standing purposes, it should “look only to
the named plaintiffs, or if, once the requirements of Rule 23 are met, the true plaintiff is the
class as a whole.” Id. at 678. In beginning its analysis of the timing of the standing inquiry,
the Payton court noted the Ortiz “directive to consider issues of class certification prior to
issues of standing.” Id. at 680. To support the finding that the standing issues should be put
off until after class certification, the court invoked the “juridicial link” doctrine. Id. at 678.
The Payton court described the “juridicial link” doctrine as allowing a class action to
go forward if the “plaintiffs as a group—named and unnamed—have suffered an identical
injury at the hands of several parties related by way of a conspiracy or concerted scheme, or
otherwise ‘juridicially related in a manner that suggests a single resolution of the dispute
would expeditious.’” Id. at 679 (quoting La Mar v. H & B Novelty & Loan Co., 489 F.2d 461,
466 (9th Cir. 1973)).
The bail bond at issue was permitted by state statute so “it is
reasonable for the putative plaintiff class to try to hold all counties accountable within one
suit.” Id. at 680. Although being skeptical that use of the “juridicial link” doctrine would
lead to sound analysis of the issue, the Payton court found a link sufficient to allow the
named plaintiffs to bring suit on behalf of the unnamed plaintiffs because they shared the
same legal claims through a state statute. Id. at 681-82. Despite this finding, the court
emphasized that this would not be the case “where the named plaintiff is trying to piggyback on the injuries of the unnamed class members” because “a named plaintiff cannot
acquire standing to sue by bringing his action on behalf of others who suffered injury which
would have afforded them standing had they been named plaintiffs.” Id. at 682 (internal
The Plaintiff’s reliance on Payton is misplaced for several reasons. First, the United
States Court of Appeals for the Fourth Circuit does not recognize the “juridicial link”
doctrine. See Faircloth v. Fin. Asset Sec. Corp. Mego Mortgage Homeowner Loan Trust, 87 F. App’x
314, 318 (4th Cir. 2004) (noting that the Fourth Circuit has yet to recognize the “juridicial
link” doctrine). Although not recognizing the doctrine, the Fourth Circuit has explained that
the doctrine requires that the defendants “be linked by way of some ‘conspiracy or concerted
scheme’ with a defendant against whom the representative does have a direct claim.” Id.
(citing Payton, 308 F.3d at 678-79); see also Dash v. FirstPlus Home Loan Owner Trust 1996-2, 248
F. Supp. 2d 489, 505 (M.D.N.C. 2003) (interpreting the Payton court’s ruling on the
“juridicial link” doctrine to cases “that have either a contractual obligation among all
defendants, or a state or local statute which requires common action by defendants”).
Moreover, the plaintiff’s reliance on Payton ignores Seventh Circuit cases post-Payton that
limit the requirement in Ortiz to situations where “an appellate court simultaneously facing
both class certification and Article III standing issues must deal with Rule 23 issues first
when they are dispositive.” In re Potash Antitrust Litig., 667 F. Supp. 2d 907, 923 (N.D. Ill.
2009) (citing to Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir. 2008), which decided
individual standing before class certification). Outside of the Seventh Circuit, courts have
also been hesitant to give Amchem and Ortiz a broad reading because those cases dealt with
the standing of absent class members, not the named plaintiffs, and also because neither case
even questioned the well-established standing doctrine cases previously issued by the
Supreme Court.3 See In re Wellbutrin, 260 F.R.D. at 154.
While Zaycer correctly relies on Payton for the Ortiz exception that “once a class is
properly certified, statutory and Article III standing requirements must be assessed with
reference to the individual named-plaintiffs,” Payton, 308 F.3d at 680, however, Zaycer does
See, e.g., Lewis v. Casey, 518 U.S. 343 (1996) (requiring that a named plaintiff allege and show
personal injury even if that injury is shared by a large number of other people); Warth v. Seldin, 422
U.S. 490 (1975) (same); O’Shea v. Littleton, 414 U.S. 488 (1974) (permitting courts to adjudicate only
cases and controversies). See infra Part IV for a more detailed discussion of these cases.
not share the characteristics of the Payton plaintiffs that made class certification issues
logically antecedent to Article III standing. Zaycer does not claim that there is a “conspiracy
or concerted scheme” nor does she establish that she is suing under the same consumer
protection laws, only that the questions of fact are common to all class members in the
various states where the Product is sold. Pl.’s Am. Compl. ¶ 27, ECF No. 5. The Plaintiff’s
Complaint attempts to establish that the unnamed plaintiffs’ all suffered the same harm as
the named plaintiff, and that the legal claims are not different because the laws of the various
states are similar to each other. The factual similarities in no way relieve the Plaintiff from
establishing her own individual standing because standing doctrine imposes a “general
prohibition on a litigant’s raising another person’s legal rights” because of the “requirement
that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.”
Allen v. Wright, 468 U.S. 737, 751 (1984).
While accepting the plaintiff’s assertion that the Ortiz exception applies where the
standing question depended on the certification of the class, this Court does not accept that,
in this case, the Ortiz exception means that “class standing is best addressed at the Rule 23
class certification stage of litigation, and not on a preliminary motion to dismiss.” Pl.’s Opp.
at 6. The Plaintiff has not shown that issues of class certification are “logically antecedent”
to the Article III standing inquiry. After reviewing the multitude of cases cited by the parties
in this case, this Court finds the weight of authority favors the Defendants’ position, and the
Court will therefore resolve the standing challenge before class certification.
The Plaintiff does not have standing to bring Counts II-VI
The Constitution permits the federal courts to adjudicate only actual cases and
controversies. See U.S. CONST. art. III, § 2; O’Shea v. Littleton, 414 U.S. 488, 493 (1974);
Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009). The standing inquiry, as an aspect of the
cases and controversy requirement, involves “both constitutional limitations on federal-court
jurisdiction and prudential limitations on its exercise.” Kowalski v. Tesmer, 543 U.S. 125, 12829 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Essentially, the constitutional
standing inquiry determines whether a particular litigant “is entitled to have the court decide
the merits of the dispute or of particular issues.” Warth, 422 U.S. at 498. In order to satisfy
the constitutional standing requirements, three factors must be met:
(1) [the party] has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Bishop, 575 F.3d at 423 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000)); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Individual standing is not merely a pleading requirement, but an “indispensable part of the
plaintiff’s case” that “must be supported in the same way as any other matter on which the
plaintiff bears the burden of proof.” Lujan, 504 U.S. at 561; Miller v. Brown, 462 F.3d 312,
316 (4th Cir. 2006) (“The party attempting to invoke federal jurisdiction bears the burden of
Prudential standing rules counsel the court to refuse to adjudicate some claims. See
Allen, 468 U.S. at 751. The first self-imposed constraint guides the court to refuse standing
to an individual asserting a “‘generalized grievance’ shared by all or a large class of citizens”
because “that harm alone normally does not warrant exercise of jurisdiction.” Warth, 422
U.S. at 499. The second constraint requires that the interests asserted by the plaintiff “fall
within the zone of interests protected or regulated by the statutory provision or
constitutional guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997). The
third constraint demands that the court be very cautious when the “plaintiff’s claims to relief
rests on the legal rights of third parties.” Warth, 422 U.S. at 500-01.
Even if the court chooses to allow an exception to prudential standing rules, a
plaintiff must still allege an injury in fact in accordance with Article III’s requirements. See id.
at 501; Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 39 (1976) (holding it necessary that a
“plaintiff who seeks to invoke judicial power stand to profit in some personal interest”).
The general rule against plaintiffs asserting the legal rights or interests of third parties stems
from the concern that the party bringing the claim has “the appropriate incentive to
challenge (or not challenge) governmental action and to do so with the necessary zeal and
appropriate presentation.” Kowalski, 543 U.S. at 129. The rule against representing third
parties is not absolute, but the exceptions are limited in two ways. First, the party asserting
the right must have a “close” relationship with the third party, and second, the third party
must be hindered in bringing suit to vindicate its own rights. See id. at 129-30.
In the context of a putative class action, the inquiry into the named plaintiff’s
standing is no different than in an ordinary case. See In re Wellbutrin, 260 F.R.D. at 152. The
named plaintiff “must allege a distinct and palpable injury to himself, even if it is an injury
shared by a large class of other possible litigants.” Warth, 422 U.S. at 501. “That a suit may
be a class action . . . adds nothing to the question of standing, for even named plaintiffs who
represent a class must allege and show that they personally have been injured, not that injury
has been suffered by other, unidentified members of the class to which they belong and
which they purport to represent.”
Lewis v. Casey, 518 U.S. 343, 357 (1996) (internal
After inspecting the Plaintiff’s complaint this Court concludes that the Plaintiff does
not have standing to bring the causes of action alleged in Counts II-VI. As discussed supra,
the Plaintiff’s standing is not “logically antecedent” to class certification and her standing
must be analyzed separately. See Warth, 422 U.S. at 501; In re Checking Account Overdraft
Antitrust Litig., 694 F. Supp. 2d 1302, 1324-25 (“[A] claim cannot be asserted on behalf of a
class unless at least one named plaintiff has suffered the injury that gives rise to the claim.”).
Zaycer was neither harmed by the Product, nor purchased the Product, in any state other
than Maryland. Zaycer suffered no injury-in-fact, and is not in imminent danger of being
injured by the Product in any of the states except Maryland. Because the injury to the
named plaintiff occurred in Maryland, she has no standing to sue under any state consumer
protection law except for Maryland’s.4
None of the consumer protection laws in Counts II-VI allow an out-of-state plaintiff to sue. See
Lewis v. Ford Motor Co., 263 F.R.D. 252, 258-59 (W.D. Pa. 2009) (dismissing a potential class action
pursuant to Pennsylvania’s Consumer Protection Act because the plaintiff did not provide evidence
that each potential class member was a Pennsylvania citizen); Kaufman v. Sirius XM Radio, Inc., 751 F.
Supp. 2d 681, 686 (S.D.N.Y. 2010) aff’d, 2012 WL 1109397 (2d Cir. Apr. 4, 2012) (holding that “a
nationwide class suing under [New York’s Deceptive Acts and Practices Law] GBL § 349 would
have to be limited to those who engaged in a transaction that deceived them in New York.”); Mountz
v. Global Vision Products, Inc., 3 Misc. 3d 171, 177 (N.Y. Sup. Ct. 2003) (holding that in order to sue
under New York’s False Advertising law “some part of the underlying transaction must occur in
New York State”); Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275, 280 (D.N.J. 2011)
(prohibiting a plaintiff from representing a class pursuant to New Jersey’s Fraud in Sales or
Advertising of Merchandise Law because the plaintiff did “not have standing to pursue a claim that
For the foregoing reasons the Defendants’ Joint Motion to Dismiss Counts II-VI of
Plaintiff’s Amended Complaint for Lack of Standing and TreeHouse’s Motion to Dismiss
for Lack of Personal Jurisdiction (ECF No. 13) is GRANTED.
A separate Order follows.
September 12, 2012
Richard D. Bennett
United States District Judge
products [ ]he neither purchased nor used did not work as advertised”) (internal citation omitted);
Silvious v. Coca Cola Co., 2012 WL 1565288, at *4 (N.D. W.Va. May 2, 2012) (holding that in order to
obtain standing, a plaintiff must show an injury-in-fact under the West Virginia Consumer
Protection Act and “must have suffered damage as a result of the use or employment of an unlawful
trade practice”) (internal citations omitted).
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