Dumont v. Reily Foods Company et al

Filing 20

Judge Rya W. Zobel: Memorandum and Decision entered granting 10 Motion to Dismiss for Failure to State a Claim. Judgment may be entered dismissing the complaint. (McKillop, Matthew)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 18-10907-RWZ

KATHY DUMONT, individually and on
behalf of all others similarly situated
v.
REILY FOODS COMPANY, et al.

MEMORANDUM OF DECISION & ORDER
September 24, 2018
ZOBEL, S.D.J.
Plaintiff Kathy Dumont purchased a package of New England Coffee Company’s
Hazelnut Crème Coffee featuring a front label that “prominently described the coffee as
Hazelnut Cream ....” See Docket # 1 at 1. The product does not include hazelnut;
instead, as indicated on the back label of the package, it is “Naturally and Artificially
Flavored.” See Docket # 1 at 5. According to her complaint, plaintiff would not have
bought the coffee or would have paid less for it had she known the product did not
include hazelnuts. See id. at 4, 16. Individually and on behalf of a putative nationwide
class of similar consumers, plaintiff asserts three claims based upon this “[i]nnacurate
labeling”: violation of Mass. Gen. Laws ch. 93A, § 2 (Count 1); violation of Mass. Gen.
Laws ch. 266, § 91 (Count 2); and, in the alternative, unjust enrichment (Count III). See
Docket # 1 at 4, 13-17.
Defendants Reily Foods Company and New England Coffee Company have
moved to dismiss the complaint, which motion is allowed. To adequately state her

claims, plaintiff must set forth sufficiently particularized facts permitting at least the
reasonable inference that defendants’ coffee packaging “has the capacity to mislead
consumers, acting reasonably under the circumstances, to act differently from the way
they otherwise would have acted (i.e. to entice a reasonable consumer to purchase the
product).” See Carlson v. The Gillette Co., No. CV 14-14201-FDS, 2015 WL 6453147,
at *4 (D. Mass. Oct. 23, 2015) (quoting Aspinall v. Philip Morris Companies, Inc., 813
N.E.2d 476, 488 (Mass. 2004)). Beyond the allegation that “Plaintiff purchased NECC’s
Hazelnut Crème Coffee” and the conclusory assertion that she “reasonably believed
that the coffee contained ... hazelnut,” the complaint offers insufficient detail regarding
the circumstances of plaintiff’s purchase. See Docket # 1 at 1. Without more, her
complaint fails to pass muster under the relevant pleading standard. See Fed. R. Civ.
P. 9(b) (“in all averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity”).
Accordingly, defendants’ motion (Docket # 10) is allowed. Judgment may be
entered dismissing the complaint.

September 24, 2018

/s/Rya W. Zobel

DATE

RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

2