Borenkoff v. Buffalo Wild Wings, Inc.

Filing 33

OPINION AND ORDER: re: 24 MOTION to Dismiss Plaintiff's Amended Complaint filed by Blazin Wings, Inc., Buffalo Wild Wings, Inc. For the reasons stated above, the Court hereby GRANTS defendants' motion to dismiss at ECF No. 24. Plaintiff's first amended complaint at ECF No. 17 is DISMISSED. The Clerk of Court is directed to terminate this action. SO ORDERED. (Signed by Judge Katherine B. Forrest on 1/19/2018) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ALEXA BORENKOFF, on behalf of herself and :
all others similarly situated,
:
:
Plaintiff,
:
:
-v:
:
BUFFALO WILD WINGS, INC. and BLAZIN :
WINGS, INC.,
:
:
Defendants.
:
:
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KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 19, 2018

16-cv-8532 (KBF)
OPINION & ORDER

On November 2, 2016, Alexa Borenkoff (“plaintiff” or “Borenkoff”) commenced
this deceptive trade practices action against Buffalo Wild Wings, Inc. and Blazin
Wings, Inc. (collectively, “BWW” or “defendants”). (See Compl., ECF No. 2.)
Borenkoff subsequently filed an amended complaint on April 3, 2017. (See First
Amend. Compl. (“FAC”), ECF No. 17.) Currently before the Court is defendants’
motion to dismiss the FAC under Fed. R. Civ. P. 12(b) (“Rule 12(b)”). (ECF No. 24.)
For the reasons discussed below, the Court hereby GRANTS defendants’
motion.
I.

BACKGROUND
The factual allegations below are derived from plaintiff’s FAC, and are

presumed true for purposes of the present motion.
Defendants own, operate, and franchise more than one thousand restaurants
across the United States and internationally doing business as “Buffalo Wild

Wings.”1 (FAC ¶ 8.) Defendants’ restaurants are primarily known for serving
chicken wings and other meat products, but also offer certain non-meat options
including, inter alia, roasted garlic breaded mushrooms, cheese curds, and french
fries. (FAC ¶ 17.)
Alexa Borenkoff is a self-professed vegetarian who visited two different BWW
restaurants in or around January 2015. (FAC ¶ 20-22.) During both visits,
Borenkoff requested, consumed, and paid for orders of french fries and mozzarella
sticks. (FAC ¶ 23.) Although BWW’s menu contains a listing of ingredients, it
“does not list or reference using beef tallow” to fry non-meat food items. (FAC ¶ 1314.) According to Borenkoff, “[t]he industry standard is to use non-beef cooking oil
to fry items,” and “a reasonable consumer would not expect non-meat items to be
fried in beef tallow.” (FAC ¶ 15-16.)
Borenkoff’s complaint alleges that despite the lack of notice, and contrary to
“industry standard”, the items she consumed were cooked using beef tallow. (FAC
¶ 31, 40.) Borenkoff claims that defendants’ failure to disclose the use of beef tallow
to fry non-meat products constitutes a “material misrepresentation and omission[]”,
and that she would not have ordered, consumed, or “paid a premium” for french
fries or mozzarella sticks if she had known beef tallow was used. (FAC ¶ 25-27, 42.)
Borenkoff claims that she and other members of the proposed class “suffered
damages in an amount equal to the amount they paid to BWW.” (FAC ¶ 38.)

Defendants note that Buffalo Wild Wings, Inc. is incorrectly named as a defendant in this action
because Blazin Wings, Inc. “actually owns and operates the vast majority of BWW’s corporate
restaurants.” (Defs.’ Mem. at 3 n.2.) Because the Court concludes infra that this action must be
dismissed as to all named defendants, it does not address this argument specifically.
1

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Borenkoff commenced the present action against BWW on November 2, 2016.
(See generally Compl.) The FAC alleges, in sum, that defendants: (1) engaged in
deceptive and/or misleading trade practices by surreptitiously frying their non-meat
food items in beef tallow in violation of New York General Business Law (“GBL”) §
349 (FAC ¶¶ 67-73); and (2) have been unjustly enriched as a result of their “bad
faith conduct” (FAC ¶¶ 74-77). As to relief, Borenkoff is seeking: (1) compensatory
damages and/or restitution on behalf of herself and all other vegetarians misled by
defendants; (2) punitive damages; (3) injunctive and declaratory relief; and (4)
reasonable fees and costs. (FAC at 11.)
On April 24, 2017, defendants moved to dismiss the FAC. (ECF No. 24.)
Defendants argue that Borenkoff lacks Art. III standing, that she has failed to state
a claim under GBL § 349, and that her common law unjust enrichment claim fails
as a matter of law. (See generally Mem. of Law in Supp. of Defs.’ Mot. to Dismiss
Pl.’s First Amend. Compl. (“Defs.’ Mem.”), ECF No. 25.) Borenkoff opposed that
motion on May 22, 2017 (ECF No. 30), and defendants replied on June 5, 2017 (ECF
No. 31). This case was subsequently transferred to the undersigned for all purposes
on September 26, 2017.
II.

LEGAL PRINCIPLES
A. Rule 12(b)(1) Standard
“Determining the existence of subject matter jurisdiction is a threshold

inquiry and a claim is properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1) when the district court lacks the statutory or constitutional

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power to adjudicate it.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (citation omitted). “In resolving a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), the district court must take all
uncontroverted facts in the complaint (or petition) as true, and draw all reasonable
inferences in favor of the party asserting jurisdiction.” Tandon v. Captain's Cove
Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, “where
jurisdictional facts are placed in dispute, the court has the power and obligation to
decide issues of fact by reference to evidence outside the pleadings”, and “the party
asserting subject matter jurisdiction has the burden of proving by a preponderance
of the evidence that it exists.” Id. (internal quotations and alterations omitted).
Generally, a court must determine whether it has subject matter jurisdiction before
proceeding to evaluate the merits of a plaintiff’s cause of action. See Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94-102 (1998).
B. Article III Standing
Under Article III of the Constitution, federal courts may only exercise
jurisdiction over actual cases or controversies. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992); see also W.R. Huff Asset Mgmt. Co., LLC v. Deloitte &
Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008). “One element of the case-orcontroversy requirement is that plaintiffs must establish that they have standing to
sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (internal quotations
and citations omitted). This “irreducible constitutional minimum of standing
contains three elements.” Lujan, 504 U.S. at 560. First, the plaintiff must have

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suffered an “injury in fact”—that is, “an invasion of a legally protected interest
which is (a) concrete and particularized . . . and (b) actual or imminent, not
conjectural or hypothetical.” Id. at 560 (citations and alterations omitted). Despite
those requirements, the Second Circuit has held that “[i]njury in fact is a low
threshold, which . . . ‘need not be capable of sustaining a valid cause of action.’” See
Ross v. Bank of America, N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008) (quoting
Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006)). Second, there
must be a “causal connection between the injury and the conduct complained of.”
Lujan, 504 U.S. at 560-61 (citations omitted). Third, and finally, it must be “likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Id. at 561 (quotations and citations omitted). The party asserting
jurisdiction bears the burden of clearly alleging facts that demonstrate standing.
See Ross, 524 F.3d at 222 (citation omitted).
C. Rule 12(b)(6) Standard
At the motion to dismiss stage, a court must construe the complaint liberally,
accepting all factual allegations in the complaint as true and drawing all reasonable
inferences in favor of the non-moving party. Gregory v. Daly, 243 F.3d 687, 691 (2d
Cir. 2001), as amended (Apr. 20, 2001). A complaint survives a motion to dismiss
under Rule 12(b)(6) if it “contain[s] 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court

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to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The complaint must allege “more than a sheer possibility that a
defendant has acted unlawfully” and more than “facts that are merely consistent
with a defendant’s liability.” Id. (internal quotation marks omitted). Application of
this standard is “context-specific,” and requires the reviewing court to “draw on its
judicial experience and common sense.” Id. at 679. The Court is not “bound to
accept as true a legal conclusion couched as a factual allegation.” Id. at 678
(internal quotation omitted).
D. GBL § 349
To state a claim under GBL § 349, a plaintiff must sufficiently allege: “(1) the
act or practice was consumer-oriented; (2) the act or practice was misleading in a
material respect; and (3) the plaintiff was injured as a result.” Spagnola v. Chubb
Corp., 574 F.3d 64, 74 (2d Cir. 2009) (citation omitted); see also Oswego Laborers’
Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25 (N.Y.
1995). Although the statute does not require proof of justifiable reliance or intent to
defraud, the plaintiff must demonstrate that “a material deceptive act or practice
caused actual, although not necessarily pecuniary, harm.” Small v. Lorillard
Tobacco Co., Inc., 94 N.Y.2d 43, 55-56 (N.Y. 1999) (citation omitted).
Courts have routinely held that pecuniary loss arising directly from the
purchase of the defendant’s product—e.g., the loss of the purchase price itself—does
not constitute an “actual injury” for purposes of GBL § 349. See, e.g., id.; see also
Baron v. Pfizer, Inc., 840 N.Y.S.2d 445, 448 (N.Y. App. Div. 2007); Donahue v.

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Ferolito, Vultaggio & Sons, 786 N.Y.S.2d 153, 154 (N.Y. App. Div. 2004). In
essence, there must be a distinction between the deceptive act or practice
underlying the transaction and the resulting injury. For instance, a plaintiff might
allege that “the price of the product was inflated as a result of defendant’s deception
or that use of the product adversely affected plaintiff’s health.” Baron, 840 N.Y.2d
at 448. Simply asserting that consumers are “prevented . . . from making free and
informed choices” or that consumers “would not have purchased” an item “absent a
manufacturer’s deceptive commercial practice[]” is not enough. Small, 94 N.Y.2d at
56.
III.

DISCUSSION
The crux of defendants’ argument is that Borenkoff has failed to plead an

“injury” sufficient to confer Art. III standing or to state a claim under GBL § 349.
While this Court ultimately believes that Borenkoff has Art. III standing (although
it is a close call), the Court agrees that she has field to state a claim. Accordingly,
the FAC must be dismissed.
A. Borenkoff Has Art. III Standing
Defendants’ argument that Borenkoff lacks Art. III standing is non-frivolous.
Art. III requires, inter alia, that the plaintiff has suffered an “injury in fact” that is
“concrete and particularized,” “actual or imminent,” and “fairly traceable to the
challenged action.” See Lujan, 504 U.S. at 560. The plaintiff must “clearly and
specifically set forth facts sufficient to satisfy” this requirement, and “[a] federal
court is powerless to create its own jurisdiction by embellishing otherwise deficient

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allegations of standing.” See Whitmore v. Arkansas, 495 U.S. 149, 156 (1990)
(citation omitted).
Here, Borenkoff only “clearly and specifically” alleges one injury: that she
wouldn’t have purchased defendants’ food items if she had known they were fried
using beef tallow. (See FAC ¶¶ 3, 18, 25, 33, 37-39, 42.) That is, in essence, an
allegation of pure economic injury—Borenkoff specifically states that she “suffered
damages in an amount equal to the amount [she] paid to BWW.” (FAC ¶ 38.) But
numerous courts have raised doubts as to whether that type of alleged economic
injury is cognizable where, as here, plaintiff fails to allege that the item was
defective in any way, or that it was worth objectively less than what she paid. See,
e.g., Koronthaly v. L’Oreal USA, Inc., 374 Fed. Appx. 257, 259 (3d Cir. 2010)
(plaintiff failed to allege a concrete injury absent any allegation that she received a
product that failed to work or was worth objectively less than what one might
expect); see also Rivera v. Wyeth-Ayerst Labs., 382 F.3d 315, 319-21 (5th Cir. 2002).
Borenkoff paid for french fries and mozzarella sticks, and that is ultimately
what she received. Although Borenkoff now claims that she had an expectation
that the items she ordered were prepared using non-beef cooking oil (in part based
on the alleged “industry standard”), she does not even attempt to allege that the
beef tallow harmed her, that the items were “defective” as a result, or that they
were worth objectively less than items cooked using non-beef oil. To be sure,
Borenkoff alleges at various points that she paid a “premium” for the beef tallowfried items, and that “[t]he cost of the items [she] purchased was effected by

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BWW[‘s] material misrepresentations and omissions,” but it is unclear from the
FAC exactly how the cost of the items was effected, or why she believes she paid a
premium (e.g., because the beef tallow costs less than non-beef oil). (See FAC ¶¶
25-26.)
For the reasons stated above, the Court has serious reservations as to the
adequacy of Borenkoff’s complaint for purposes of Art. III standing. That said, the
Second Circuit has held that “[i]njury in fact is a low threshold, which . . . ‘need not
be capable of sustaining a valid cause of action.’” See Ross, 524 F.3d at 222 (quoting
Denney, 443 F.3d at 264). Ultimately, Borenkoff sufficiently alleges that she would
not have purchased defendants’ food items if she knew they were fried using beef
tallow. There is some “concrete and particularized” injury in paying for one item
and receiving another, even if you ultimately receive the “benefit of your bargain”
from a purely objective economic standpoint. For that reason, the Court concludes
that Borenkoff has sufficiently plead Art. III standing here.
B. Plaintiff Has Failed to State a Claim
Although Borenkoff’s alleged injury is sufficient to confer Art. III standing,
the Court concludes that it is insufficient to state a claim under GBL § 349. To
state a claim under GBL § 349, plaintiff must allege, inter alia, that she was
“injured” as a result of the misleading act or practice. See, e.g., Spagnola, 574 F.3d
at 74. Here, the FAC explicitly alleges that plaintiff “suffered damages in an
amount equal to the amount [she] paid to BWW.” (FAC ¶ 38.) Although the FAC
also vaguely asserts that plaintiff paid a “premium” for the beef tallow-fried items

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(see, e.g., FAC ¶ 25), Borenkoff does not allege how the use of beef tallow affects the
objective economic value of the food items she received. Accordingly, Borenkoff’s
invocation of the word “premium” is nothing more than a “legal conclusion couched
as a factual allegation,” and that allegation is insufficient to state a claim for relief
that is “plausible on its face.” 2 Iqbal, 566 U.S. at 678 (internal quotation omitted).
As a result, Borenkoff’s alleged injury is limited to “the amount [she] paid to
BWW.” (FAC ¶ 38.) But Courts applying New York law have routinely held that
the loss of the purchase price of an item, standing alone, does not constitute an
“actual injury” under GBL § 349. See, e.g., Small, 94 N.Y.2d at 55-56. Because
Borenkoff does not separately allege that she was harmed by the food items she
received, that those items were defective in any way, or that the price of the food
items was inflated as a result of using beef tallow, she has failed to adequately
plead an injury for purposes of GBL § 349. Accordingly, that claim must be
dismissed.
C. Plaintiff’s Unjust Enrichment Claim is Duplicative
Finally, plaintiff’s unjust enrichment claim is duplicative of her GBL § 349
claim, and must be dismissed on that basis. Under New York law, “an unjust
enrichment claim cannot survive where it simply duplicates, or replaces a
conventional contract or tort claim.” Koenig v. Boulder Brands, Inc., 995 F. Supp.
2d 274, 290 (S.D.N.Y. 2014) (quoting Corsello v. Verizon New York, Inc., 18 N.Y.3d

This is not to say that plaintiff could not have sufficiently pled an injury under GBL § 349. If
plaintiff had properly alleged, for example, that non-beef cooking oil is a “premium” ingredient, and
therefore food items fried in non-beef oil are objectively more valuable than those cooked in beef
tallow, she may have sufficiently pled an injury.
2

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777, 790-91 (N.Y. 2012). Further, the Court of Appeals has made clear that “unjust
enrichment is not a catchall cause of action to be used when others fail,” and that
“[i]t is available only in unusual situations when, though the defendant has not
breached a contract nor committed a recognized tort, circumstances create an
equitable obligation running from the defendant to the plaintiff.” Corsello, 18
N.Y.3d at 790.
The essence of Borenkoff’s unjust enrichment claim is that (1) she purchased
defendants’ food items as a result of their material omissions, and (2) defendants’
unjustly retained the revenue from those purchases. Those allegations are entirely
duplicative of Borenkoff’s GBL § 349 claim, and therefore the unjust enrichment
claim must be dismissed under New York law.
In any event, the FAC does not plausibly allege any facts tending to suggest
that it would be “against equity and good conscience” to permit defendants to retain
the purchase price of the food items at issue. See Georgia Malone & Co. v. Rieder,
19 N.Y.3d 511, 516 (2012) (citation omitted). Defendants are not alleged to have
marketed the food items as “vegetarian” or “free from beef tallow,” and though the
FAC makes clear that Borenkoff is frustrated that her expectations (reasonable or
otherwise) were not satisfied, the facts here are not suggestive of any type of
unusual equitable obligation running between the two parties, who engaged in an
arms-length commercial transaction. See Corsello, 18 N.Y.3d at 790. As such, the
Court would separately dismiss the unjust enrichment claim on that basis.

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IV.

CONCLUSION
For the reasons stated above, the Court hereby GRANTS defendants’ motion

to dismiss at ECF No. 24. Plaintiff’s first amended complaint at ECF No. 17 is
DISMISSED.
The Clerk of Court is directed to terminate this action.
SO ORDERED.
Dated:

New York, New York
January 19, 2018

____________________________________
KATHERINE B. FORREST
United States District Judge

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