Bell v. Greenbrier International, Inc et al

Filing 39

OPINION AND ORDER re: 33 MOTION to Dismiss Plaintiff's Amended Complaint Pursuant to Fed. R. Civ. P.12(b)(1) and Fed. R. Civ. P.12(b)(6). filed by Colonna Brothers, Inc., 32 MOTION to Dismiss Plaintiff's First Amen ded Class Action Complaint. filed by Greenbrier International, Inc. For the foregoing reasons, the Court concludes that Bell fails to "plead sufficient facts to make it plausible that [she] did indeed suffer the sort of injury that would entitle [her] to relief." Lurenz, 2024 WL 2943834, at *4 (internal quotation marks omitted). Accordingly, her claims must be and are dismissed for lack of subject-matter jurisdiction. Moreover, the Court declines to grant Bell leave to amend her Complaint for a second time. Although leave to amend a complaint should be freely given when justice so requires, Fed. R. Civ. P. 15(a)(2), it is "within the sound discretion of the district court to grant or deny leave to amend," A hmed v. GEO USA LLC, No. 14-CV-7486 (JMF), 2015 WL 1408895, at *5 (S.D.N.Y. Mar. 27, 2015) (internal quotation marks omitted). Here, Bell requests leave to amend in the event that the Court finds her pleadings insufficient, see Pl.s Oppn 20, but h er request is pro forma and does not suggest that she is in possession of facts that would cure the problems with her lawsuit. See e.g., Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014). Additionally, the Court already granted Bell leave to amend her original complaint in response to the Defendants' earlier motions to dismiss and explicitly warned that she would "not be given any further opportunity to amend the complaint to address issues raise d by the motion to dismiss." ECF No. 28. The Clerk of Court is directed to terminate ECF Nos. 32 and 33, enter judgment for Defendants consistent with this Opinion and Order, and close the case. SO ORDERED. (Signed by Judge Jesse M. Furman on 11/26/24) (yv) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DONNA BELL,
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Plaintiff,
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-v:
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GREENBRIER INTERNATIONAL, INC. et al.,
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Defendants.
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24-CV-3559 (JMF)
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff Donna Bell brings this putative class action against Defendants Greenbrier
International, Inc., which does business as Dollar Tree (“Dollar Tree”), and Colonna Brothers,
Inc. (“Colonna”), alleging that Supreme Tradition Ground Cinnamon — manufactured by
Colonna and sold by Dollar Tree — “is defective because, undisclosed to consumers, it is
contaminated with lead.” ECF No. 31 (“FAC”), ¶¶ 1, 5-7. Bell brings claims under New York
law, namely for deceptive business practices and false advertising pursuant to Sections 349 and
350 of the General Business Law and for unjust enrichment. Id. ¶¶ 61-92. Defendants each now
move, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to
dismiss Bell’s First Amended Complaint. See ECF Nos. 32 & 33. For the reasons that follow,
Defendants’ motions are GRANTED on the ground that Bell lacks standing.
BACKGROUND
The following facts are, unless otherwise noted, taken from the First Amended Complaint
(“Complaint”) and assumed to be true. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC,
570 F.3d 471, 475 (2d Cir. 2009). That said, the Court may also consider documents
incorporated by reference in, or “integral” to, the Complaint. Shenzhenshi Liangyuankeji

Youxiangongsi v. Antsy Labs LLC, No. 24-CV-1223 (JMF), 2024 WL 4817470, at *2 (S.D.N.Y.
Nov. 18, 2024); see id. (defining a document as “integral to the complaint if the complaint relies
heavily upon its terms and effect” (internal quotation marks omitted)). Where such a document
“contradicts allegations in the complaint, the document, not the allegations, control, and the court
need not accept the allegations in the complaint as true.” Id. (internal quotation marks omitted).
Colonna makes and distributes cheese, spices, and other food items. See FAC ¶ 6. It
distributes Colonna brand spices and provides private label service — meaning it distributes
spices — for other companies, including Dollar Tree. Id. ¶¶ 6-7. Dollar Tree owns the
“Supreme Tradition” name and contracts with Colonna to manufacture and distribute Supreme
Tradition spices. Id. ¶ 7. In early 2024, the U.S. Food and Drug Administration (“FDA”)
conducted a “targeted lead analysis survey” of select ground cinnamon products following an
October 2023 voluntary recall of cinnamon apple puree and applesauce products due to elevated
lead levels linked to the cinnamon in those products. Id. ¶ 22. In conducting the study, the FDA
collected and tested seventy-five samples from different retail locations. Id. ¶ 24.
On March 6, 2024, the FDA issued an “Alert” advising that its testing had revealed that
2.25 ounce jars of Supreme Tradition Ground Cinnamon with specific “lot codes” showed a
possible health risk due to elevated levels of lead. See FDA Alert Concerning Certain Cinnamon
Products Due to Presence of Elevated Levels of Lead, U.S. Food & Drug Administration (Mar.
6, 2024), https://www.fda.gov/food/alerts-advisories-safety-information/fda-alert-concerningcertain-cinnamon-products-due-presence-elevated-levels-lead [https://perma.cc/BS5M-ETZZ]
(“FDA Alert”); see FAC ¶ 25 (discussing the FDA Alert). Specifically, as to Supreme Tradition
Ground Cinnamon, the Alert listed the following seven “lot codes” with their associated “best
by” dates: 09/29/25 09E8; 04/17/25 04E11; 12/19/25 12C2; 04/12/25 04ECB12; 08/24/25 08A;

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04/21/25 04E5; and 09/22/2025 09E20. See FDA Alert. The FDA advised consumers “to throw
away and not to buy” the listed products and recommended that Colonna “voluntarily recall” the
products. Id.; see FAC ¶ 25.
On the same day the FDA issued its Alert, Colonna announced a “voluntary” recall of its
2.25 ounce Supreme Tradition Ground Cinnamon. See ECF No. 33-3 (“Recall Notice”); see
FAC ¶¶ 28-30 & nn.17-18 (discussing the Recall Notice). The company’s announcement noted
that the product “was distributed nationwide through retail stores and mail order” and that the
recall was in response to the FDA’s testing and done at the FDA’s request. See Recall Notice;
see also FAC ¶¶ 29-30. Significantly, the announcement explicitly stated (in bold type) that
“[o]nly the following lost codes (found on the jar above the label – below the cap) were
affected,” and then listed the same seven “lot codes” and “best buy” dates that appeared in the
FDA’s Alert. See Recall Notice. It noted that the FDA had “stat[ed] that the lot codes above
contain elevated levels of lead that the FDA deems a potential health risk” and advised that
consumers who had purchased Supreme Tradition Ground Cinnamon “with the lot codes listed
above” could “discard it or return it . . . for a full refund.” Recall Notice (emphasis in original).
Bell purchased a jar of Supreme Tradition Ground Cinnamon in or around March 2024
— “around the same time” that the FDA issued its Alert — at a Dollar Tree store in the Bronx.
FAC ¶¶ 37-38. The Complaint notes that the Supreme Tradition Ground Cinnamon “affected by
lead contamination include[d] best by dates ranging from 04/2025 to 09/2025,” a range that
“demonstrates a widespread issue with lead contamination, ranging at least for a period of 5
months.” Id. ¶ 39. The jar that Bell purchased had a “best by” date of June 2025 — “within the
range of time known to demonstrate a widespread issue of lead contamination.” Id. She alleges
that she would not have purchased the product (or would have paid significantly less for it) had

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she been aware of the presence of lead. She alleges that this injury is “underscored” by the fact
that alternatives that are not contaminated with lead exist at comparable price points and that she
may be harmed in the future because she wants to purchase the product again but cannot know or
trust that it will be truthfully labelled and safe. Id. ¶ 46.
LEGAL STANDARDS
Defendants’ motions are brought pursuant to Rules 12(b)(1) and 12(b)(6). A Rule
12(b)(1) motion challenges the court’s subject-matter jurisdiction to hear the case. “A case is
properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000). In reviewing a motion to dismiss under Rule 12(b)(1), a court
“must take all facts alleged in the complaint as true and draw all reasonable inferences in favor
of plaintiff, but jurisdiction must be shown affirmatively, and that showing is not made by
drawing from the pleadings inferences favorable to the party asserting it.” Morrison v. Nat’l
Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (cleaned up), aff’d, 561 U.S. 247 (2010).
“The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). A
Rule 12(b)(6) motion, on the other hand, tests the legal sufficiency of a complaint and requires a
court to determine whether the facts alleged in the complaint are sufficient to show that the
plaintiff has a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). When
ruling on a Rule 12(b)(6) motion, a court must accept the factual allegations set forth in the
complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v.
Grubman, 568 F.3d 329, 335 (2d Cir. 2009).

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DISCUSSION
The Court begins, as it must, with Defendants’ motions to dismiss for lack of standing, as
standing is jurisdictional. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 102
(1998). It is well established that “the irreducible constitutional minimum of standing contains
three elements”: (1) injury in fact, (2) causation, and (3) redressability. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992). Injury in fact means “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 (cleaned up). That a suit may be a putative class action, as this one is,
“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 quotation marks omitted).
In this case, Bell asserts a “price-premium” theory of injury in fact, alleging that, had she
been aware of the lead levels in the Supreme Tradition Ground Cinnamon product, “she would
not have purchased the Product or would have paid significantly less for the Product.” FAC
¶ 41; see ECF No. 35 (“Pl.’s Opp’n”), at 8-11. That form of injury “has been broadly accepted
in the Second Circuit.” Lurenz v. Coca-Cola Co., No. 22-CV-10941 (NSR), 2024 WL 2943834,
at *2 (S.D.N.Y. June 10, 2024) (citing cases). Significantly, however, Bell “still ‘must plead
enough facts to make it plausible that [she] did indeed suffer the sort of injury that would entitle
[her] to relief.’” Id. (quoting Maddox v. Bank of New York Mellon Tr. Co., N.A., 19 F.4th 58, 6566 (2d Cir. 2021)). To do so, she must “plausibly allege that she herself purchased [Supreme
Tradition Ground Cinnamon] that contained [an elevated level of] lead.” Kell v. Lily’s Sweets,
LLC, No. 23-CV-147 (VM), 2024 WL 1116651, at *3 (S.D.N.Y. Mar. 13, 2024); see, e.g.,

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Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1030 (8th Cir. 2014) (“In the context of
defective products, it is not enough for a plaintiff to allege that a product line contains a defect or
that a product is at risk for manifesting this defect; rather, the plaintiffs must allege that their
product actually exhibited the alleged defect.”). “Otherwise, [her] claim that [she] purchased a
product worth less than the product for which [she] bargained necessarily fails, and [she is] not
entitled to relief under the benefit-of-the-bargain theory.” Huertas v. Bayer US LLC, — F.4th —
, No. 23-2178, 2024 WL 4703136, at *5 (3d Cir. Nov. 7, 2024).
Here, it is undisputed that Bell does not allege any facts tending to show that the single
jar of cinnamon she purchased had elevated levels of lead. That is, she does not allege that the
jar she purchased was from one of the lots included in the FDA Alert or Defendants’ recall. Cf.
Huertas, 2024 WL 4703136, at *2, 8 (holding that the plaintiffs who had purchased products
from lot numbers specified in a recall had plausibly alleged injury sufficient to support Article III
standing). Nor does she allege that she tested the cinnamon she actually purchased for lead. See,
e.g., Onaka v. Shiseido Americas Corp. (“Onaka II”), No. 21-CV-10665 (PAC), 2024 WL
1177976, at *2 (S.D.N.Y. Mar. 19, 2024) (describing testing of the plaintiff’s own purchases as
“[t]he most direct route” to establish standing under a price-premium theory of injury). Thus, to
establish Article III standing, Bell must plausibly allege that the presence of elevated lead in
Supreme Tradition Ground Cinnamon was “so widespread as to render it plausible” that she
purchased a jar with elevated lead. Onaka v. Shiseido Ams. Corp. (“Onaka I”), No. 21-CV10665 (PAC), 2023 WL 2663877, at *4 (S.D.N.Y. Mar. 28, 2023). Put differently, she must
allege “facts from which the Court could extrapolate that [the FDA’s] isolated testing should
apply broadly to Defendant's Products, regardless of when they were purchased.” Id. at 5.

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Bell’s efforts to do so fall short. She alleges “a widespread issue of lead contamination,
ranging at least for a period of 5 months,” and that the jar of Supreme Tradition Ground
Cinnamon she purchased “was . . . manufactured within the range of time known to demonstrate
a widespread issue of lead contamination.” FAC ¶ 39. But the facts on which she relies do not
support the weight that she puts on them. That is, the FDA Alert establishes only that seven
specific lots of 2.25 oz Supreme Tradition Ground Cinnamon, with “best by” dates ranging from
April 12, 2025, to September 29, 2025, were found to have elevated lead levels. See FDA Alert.
That does not establish that all or most Supreme Tradition Ground Cinnamon contained elevated
lead levels. It does not even establish that all or most Supreme Tradition Ground Cinnamon
manufactured during a particular time contained elevated lead levels. After all, the First
Amended Complaint does not allege the relationship between the date of manufacture and the
“best buy” date; it does not allege whether Supreme Tradition Ground Cinnamon was
manufactured at one or more than one plant; and it does not allege whether the causes of the
elevated lead levels were pervasive or idiosyncratic. On top of all that, the First Amended
Complaint does not allege that the jar of cinnamon that Bell purchased was actually
manufactured in the same period and at the same plant as the affected lots. It alleges only that
the “best buy” date on her jar fell within the range of “best buy” dates on the lots tested by the
FDA. Put simply, the “temporal proximity” between the “best buy” dates on the lots found by
the FDA to have elevated lead levels and the “best buy” date on Bell’s jar of cinnamon “cannot
alone support the inference that” there was an elevated lead level in the product Bell “actually
purchased.” Lurenz, 2024 WL 2943834, at *4.
That conclusion is consistent with those reached by other courts in similar circumstances.
See, e.g., Huertas, 2024 WL 4703136, at *8 (finding that plaintiffs lacked standing where the

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only connection between the products they had purchased and products that had been recalled
was “the timeframe” during which they made their purchases); In re Recalled Abbott Infant
Formula Prod. Liab. Litig., 97 F.4th 525, 530 (7th Cir. 2024) (finding that the plaintiffs lacked
standing even where they pleaded “some facts about a persistent problem at” the facility where
their powdered infant formula was manufactured because they “did not allege facts suggesting
that contamination of [the manufacturer’s] products was sufficiently widespread so as to
plausibly affect any given product, including the ones they purchased”); Lurenz, 2024 WL
2943834, at *3 (finding that the plaintiff lacked standing where he “alleges that he tested only a
single sample, and does not allege that the sample was taken from a store he frequented, nor that
he ‘regularly’ made purchases and the presence of PFAS in the Product is the result of a
‘pervasive’ or ‘systematic’ practice”); Kell, 2024 WL 1116651, at *4 (holding that “[i]t would be
impermissible conjecture to extrapolate [Consumer Reports] findings to every Lily’s Extra Dark
Chocolate 70% Cocoa chocolate bar ever sold, or to the specific Products purchased by [the
plaintiff], without some specific factual basis to do so” and where plaintiff “does not plead that
she regularly obtained her chocolate from the same source as Consumer Reports”); Hernandez v.
Wonderful Company LLC, No. 23-CV-1242 (ER), 2023 WL 9022844, at *5 (S.D.N.Y. Dec. 29,
2023) (“Hernandez does not allege any bottle of the Product she purchased actually tested
positive for the presence of any PFAS. While it is true that this need not be fatal, if the
independent testing is reasonably near in time to [Hernandez’s] own purchases, as here, a
plaintiff must still allege facts sufficient to show that the defects pervaded an entire line or
market of products.” (cleaned up)); Onaka II, 2024 WL 1177976, at *2 (observing that temporal
proximity between independent testing and a plaintiff’s purchased products is not enough to
“meaningfully link” the test results to the purchased products, and that a plaintiff must also

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allege that the defect “is so widespread as to render it plausible that [the] [p]laintiff purchased a
mislabeled Product at least once” (cleaned up)).
The Eighth Circuit’s recent decision in Huertas is especially instructive. In October
2021, Bayer recalled millions of dollars’ worth of Lotrimin and Tinactin, spray products used to
treat skin infections such as athlete’s foot and ringworm, after discovering that products dating
back to 2018 were contaminated with benzene. As here, however, the recall covered only certain
products — namely, “unexpired ‘spray products with lot numbers beginning with TN, CV, or
NAA’ that were ‘distributed between September 2018 to September 2021.’” Huertas, 2024 WL
4703136, at *1. All nine plaintiffs in the case had “purchased Lotrimin or Tinactin spray
products during the recall period from September 2018 to September 2021.” Id. at *2. But “only
four of the nine . . . provided lot numbers specified in the recall.” Id. On appeal, the Eighth
Circuit held that these four plaintiffs had plausibly alleged injury given both the recall and the
independent testing. By contrast, however, the court concluded that the five plaintiffs who had
“failed to allege a TN, CV, or NAA lot number” lacked Article III standing. Id. at *8. “Without
any information to tie these Plaintiffs’ products to the recall other than the timeframe during
which they made their purchases, these Plaintiffs' allegations ‘stop[] short of the line between
possibility and plausibility.’” Id. (quoting Twombly, 550 U.S. at 546). Here, Bell is in the same
position as the five plaintiffs held to lack standing in Huertas: She does not provide “any
information” to tie her jar of cinnamon to the recall “other than the timeframe.” Id.
By contrast, the cases on which Bell relies — principally, John v. Whole Foods Market
Group, Inc., 858 F.3d 732 (2d Cir. 2017), and Levy v. Hu Prods. LLC, No. 23-CV-1381 (AT),
2024 WL 897495 (S.D.N.Y. Mar. 1, 2024) — are distinguishable. In John, the Second Circuit
concluded — drawing all inferences in favor of the plaintiff — that standing had been plausibly

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alleged where the plaintiff had “made monthly purchases of Whole Foods pre-packaged cheese
and cupcakes” and cited a “press release announcement that 89 percent of Whole Foods’ prepackaged products tested . . . were mislabeled, and . . . that the mislabeling was ‘systematic’ and
routine[].’” 858 F.3d at 736. Relying on John, Levy found that standing had been plausibly
alleged where the plaintiff had “purchased the Products ‘almost on a weekly basis’ from New
York stores” — the same area from which the tested samples had been purchased — “in the
relevant time period.” 2024 WL 897495, at *3. At most, therefore, John and Levy “permit[] a
court to infer that the plaintiff purchased a specific product with a defect that had been plausibly
reported by third-party tests to be widespread, systematic, routine, or uniform.” Kell, 2024 WL
1116651, at *5. They do not support standing where, as here, test results cannot “be reasonably
extrapolated to the plaintiff’s individual purchase.” Id. at *5 & n.5 (citing cases).
CONCLUSION
For the foregoing reasons, the Court concludes that Bell fails to “plead sufficient facts to
make it plausible that [she] did indeed suffer the sort of injury that would entitle [her] to relief.”
Lurenz, 2024 WL 2943834, at *4 (internal quotation marks omitted). Accordingly, her claims
must be and are dismissed for lack of subject-matter jurisdiction. Moreover, the Court declines
to grant Bell leave to amend her Complaint for a second time. Although leave to amend a
complaint should be freely given “when justice so requires,” Fed. R. Civ. P. 15(a)(2), it is
“within the sound discretion of the district court to grant or deny leave to amend,” Ahmed v.
GEO USA LLC, No. 14-CV-7486 (JMF), 2015 WL 1408895, at *5 (S.D.N.Y. Mar. 27, 2015)
(internal quotation marks omitted). Here, Bell requests leave to amend in the event that the
Court finds her pleadings insufficient, see Pl.’s Opp’n 20, but her request is pro forma and does
not suggest that she is in possession of facts that would cure the problems with her lawsuit. See,

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e.g., Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014).
Additionally, the Court already granted Bell leave to amend her original complaint in response to
the Defendants’ earlier motions to dismiss and explicitly warned that she would “not be given
any further opportunity to amend the complaint to address issues raised by the motion to
dismiss.” ECF No. 28.
The Clerk of Court is directed to terminate ECF Nos. 32 and 33, enter judgment for
Defendants consistent with this Opinion and Order, and close the case.
SO ORDERED.
Dated: November 26, 2024
New York, New York

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JESSE M. FURMAN
United States District Judge

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