Kouyate v. Bai Brands, LLC

Filing 53

OPINION AND ORDER re: 34 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1). filed by Bai Brands, LLC, 42 MOTION to Amend/Correct 1 Complaint . filed by Moussa Kouyate. For these reasons, Bai's motion to dismiss is DENIED, and Kouyate's motion for leave to amend is GRANTED. The Clerk of Court is respectfully directed to terminate the motions at Dkts. 34 and 42. SO ORDERED. (Signed by Judge Arun Subramanian on 3/6/25) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MOUSSA KOUYATE,
Plaintiff,
24-cv-3993 (AS)

-againstBAI BRANDS, LLC,
Defendant.

OPINION AND ORDER

ARUN SUBRAMANIAN, United States District Judge:
I.

Kouyate Has Standing to Bring This Case

Bai Brands moves to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(1).
“A Rule 12(b)(1) motion challenging subject matter jurisdiction may be either facial or factbased.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016). On a facial 12(b)(1)
motion, the Court evaluates jurisdiction “based solely on the allegations” in the pleadings. Id. On
a fact-based 12(b)(1) motion, “the defendant can proffer evidence outside the pleadings to
challenge the plaintiff’s allegations of standing.” Lugo v. City of Troy, 114 F.4th 80, 87 (2d Cir.
2024). If a defendant’s evidence “contradict[s] plausible allegations that are themselves sufficient
to show standing,” then plaintiffs must “come forward with evidence of their own to controvert
that presented by the defendant.” Carter, 822 F.3d at 57. Bai’s challenge is fact-based. It argues
that because Kouyate has no proof that he purchased any Bai product, he can’t show a specific
price premium injury and thus has no standing to bring this case. Kouyate says that Bai’s extrinsic
evidence doesn’t contradict the plausible allegations of standing in the complaint and thus requires
no evidentiary response.
Kouyate is correct. Because he plausibly alleged standing in the complaint, it is Bai’s burden
to come up with evidence that contradicts those allegations in order to initiate a fact-based
jurisdictional challenge. The complaint states that Kouyate “regularly purchased [Bai beverages]
for the last several years . . . approximately every 2-3 weeks.” Dkt. 1 ¶ 45. When making his
purchases, Kouyate “was exposed to, read, and relied upon Bai’s labeling claim, ‘No Artificial
Sweeteners.’” Id. ¶ 46. He “would not have purchased the Bai Waters, or would not have been
willing to pay the price he paid, if he knew that the ‘No Artificial Sweeteners’ labeling claim was
false and misleading.” Id. ¶ 48. Bai and Kouyate agree that nothing more is required to adequately
plead the injury-in-fact requirement of Article III standing. See Dkt. 35 at 1 (“The [c]omplaint
alleges [Kouyate] has standing because he suffered injury in the form of a ‘price premium’ when
he purchased Bai’s flavored water products.”); see also In re Colum. Coll. Rankings Action, 2024
WL 1312511, at *5 (S.D.N.Y. Mar. 26, 2024) (“A plaintiff can show an economic injury-in-fact
by alleging ‘an overpayment or “price premium,” whereby a plaintiff pays more than she would

have but for the deceptive practice.’” (citation omitted)). Bai’s evidence doesn’t contradict these
plausible allegations. It points to Kouyate’s “discovery responses,” in which he “cannot establish
how much he paid for the products at any particular store on any particular date” and “has no
record at all that he purchased any of the Bai Products.” Dkt. 35 at 5–6. Unlike in Lenzi v. L.L.
Bean, Inc., 2023 WL 8237484 (W.D.N.Y. Nov. 28, 2023), where the defendant had proof that the
plaintiff never actually purchased the product (despite her claim that she did), see id. at *2–3, here
Bai’s evidence doesn’t call any of Kouyate’s allegations into question. Kouyate may not have kept
every receipt or made detailed notes about how much he paid for each bottle of Bai, but that doesn’t
mean that he didn’t make the purchases. All this shows is that Kouyate wasn’t acting with an eye
toward future litigation when he bought Bai drinks. Because Bai’s evidence doesn’t contradict
Kouyate’s allegations, Kouyate doesn’t need to do anything more here than point to his pleadings.
Bai’s two other cited cases, Weiner v. Snapple Beverage Corp., 2011 WL 196930 (S.D.N.Y. Jan.
21, 2011), and Colpitts v. Growers, 2023 WL 2752161 (S.D.N.Y. Mar. 31, 2023), were both
summary judgment decisions. That might be a sign to Bai as to how to proceed, as Kouyate might
have difficulty later proving his case. But the motion to dismiss is DENIED.
II.

Kouyate May Amend His Complaint

Shortly after Bai filed its Rule 12(b)(1) motion to dismiss, Kouyate moved for leave to amend
his complaint. He seeks to substitute Lana Zinger as the named plaintiff in this case because he
does not “want his face and voice recorded,” which he understands is a requirement of continuing
with this case. Dkt. 43 at 1–2. Bai objects to amendment, arguing principally that Kouyate’s
proposed amendment is impermissible because it tries to fix a jurisdictional flaw and additionally
that the Court should not exercise its discretion to allow amendment.
Bai’s jurisdiction-based arguments against amendment are moot given the Court’s denial of its
Rule 12(b)(1) motion to dismiss. As to Bai’s other arguments, Federal Rule of Civil Procedure
15(a)(2) states that courts “should freely give leave [to amend] when justice so requires.” “A
district court has discretion to deny leave for good reason, including futility, bad faith, undue delay,
or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,
200 (2d Cir. 2007) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). But where “a scheduling
order governs amendments to the complaint, the lenient standard under Rule 15(a) . . . must be
balanced against the requirement under Rule 16(b) that the Court’s scheduling order ‘shall not be
modified except upon a showing of good cause.’” Holmes v. Grubman, 568 F.3d 329, 334–35 (2d
Cir. 2009) (citations omitted). The “good cause” analysis “turns on the ‘diligence of the moving
party.’” Id. at 335 (citation omitted).
First, Kouyate acted diligently in seeking to substitute a new named plaintiff in his place, so
there is good cause for allowing the amendment despite deadlines in the Court’s scheduling order.
Kouyate’s attorneys discovered mid-January that he was unwilling to be recorded during his
deposition, and they immediately alerted Bai and initiated discussions about potential paths
forward. Dkt. 44 ¶¶ 3–5. There is no indication that counsel were aware of Kouyate’s privacy
concerns before this point, especially as Kouyate provided his availability for a deposition. Nor
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does the Court see good reason to deny leave to amend. On futility and bad faith, Bai’s arguments
are based on the Court’s purported lack of subject matter jurisdiction over this case, which the
Court resolved on the motion to dismiss. On undue delay, Bai argues that Kouyate’s attorneys
should have known earlier about his refusal to be recorded. But allowing amendment here would
not substantially affect the schedule of the case, especially given the Court’s extension of the case
timeline at Dkt. 52. See Schvimmer v. Off. of Ct. Admin., 857 F. App’x 668, 672 (2d Cir. 2021)
(“[M]ost delays warranting denial of leave to amend are several years in length . . . .”). And on
undue prejudice, Bai relies on the need to do additional discovery. But again, the Court has already
extended case deadlines, and Bai may request additional extensions if there are compelling reasons
to do so. Kouyate may thus amend his complaint.
CONCLUSION
For these reasons, Bai’s motion to dismiss is DENIED, and Kouyate’s motion for leave to
amend is GRANTED. The Clerk of Court is respectfully directed to terminate the motions at Dkts.
34 and 42.
SO ORDERED.
Dated: March 6, 2025
New York, New York

ARUN SUBRAMANIAN
United States District Judge

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