Wurtzburger v. Kentucky Fried Chicken
Filing
18
OPINION AND ORDER re: 13 MOTION to Dismiss . filed by Kentucky Fried Chicken. For the reasons stated above, Defendant's motion to dismiss the Complaint is GRANTED in its entirety. The Clerk of the Court is respectfully directed to terminate the motion (Doc. No. 13) and to terminate the case. This constitutes the Court's Opinion and Order. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 12/13/2017) (rj)
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11 uGCUMENT
11 ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ANNA WURTZBURGER on behalf of
herself and all others similarly situated,
Plaintiff(s),
l 6-cv-08186 (NSR)
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KENTUCKY FRIED CHICKEN,
Defendant.
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NELSON S. ROMAN, United States District Judge
Plaintiff Anna Wmtzburger ("Plaintiff' or "Wmtzburger"), on behalf of herself and all
those similarly situated, commenced the instant action against Kentucky Fried Chicken 1
("Defendant" or "KFC") seeking monetary damages for alleged violations of New York State
statutes. 2
Plaintiff asseits causes of action against Defendant sounding in deceptive
adveitisements and practices in violation of General Business Law §§ 349 ("GBL § 349"), 350
("GBL § 350"), and 21 C.F.R. § 100.100 . Defendant now moves, pursuant to Federal Rule of
Civil Procedure 12(b)(6), to dismiss Plaintiffs complaint ("Complaint") for failure to state a
claim upon which relief may be granted. Defendant asserts that Plaintiffs claims are meritless,
that its labels and advertisements are not materially misleading as a matter of law, and that
Plaintiff fails to adequately allege causation and injury. For the following reasons, Defendant's
motion to dismiss the complaint is GRANTED.
1
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Defendant indicates that its proper name is KFC, not Kentucky Fried Chicken as referred to by
Plaintiff in the Complaint. (Defendant's Mem. of Law in Supp. of Mot. to Dismiss at 1, n.1.)
2
It is well established that an amended complaint generally supersedes the original complaint.
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Thus, the operative
complaint is the Amended Complaint (Docket No. 9) filed on February 15, 2017.
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PLAINTIFF'S COMPLAINT
Plaintiff, a New York State resident, alleges that Defendant engages in a national and
local advertising campaign that misleads consumers into believing that Defendant's food
packaging-buckets of chicken-are filled to the rim. (See e.g., Campi.
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8, 13.) Defendant
KFC is a corporation organized under the laws of the State of Delaware (Defendant's R. 7.1
Corp. Disc. Statement 1), which operates national fast food restaurants specializing in fried
chicken.
Plaintiff asserts three causes of action stemming from the same core set of facts.
Plaintiff alleges that from June 2016 tin·ough August 2016, she made multiple food purchases at
Defendant's Hopewell Junction restaurant located in Dutchess County, New York, which
included a $20.00 "fill-up" bucket meal of chicken that was advertised as consisting of "an eight
piece bucket of chicken."
(Campi.~~
making the purchase. (Id.
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3, 12, 13.) Plaintiff relied upon Defendant's commercial in
11.) Defendant's adve1tisement was purpmtedly misleading because
it "stated that the meal could feed your whole family," (Id.
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8) and "defendant should have used
a smaller bucket for the amount of chicken [(eight pieces)] that was in it" (Id.
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14) because the
advertisement displayed a bucket overflowing with chicken.
As a result of the false and misleading advertisement, Plaintiff was injured in that "[h ]er
stomach was upset with acid reflux and her gall bladder was removed and she had pain in her
stomach and later found out the [KFC] chickens were injected with hormones." 3 This happened
to Plaintiff every time she ate the chicken which occurred "[o]nce per week in June, 2016 [and]
July, 2016." (Id. ~ 12.) In August 2016, she purchased a pot pie 4 from Defendant which also
3
Plaintiff does not allege that Defendant made any false or misleading representation regarding
the injection of hormones into the chickens, only that after eating the chicken she later learned
that KFC purportedly injects its chicken.
4
Plaintiff makes no allegation of false or misleading representation concerning KFC's pot pie.
2
made her sick. (Id.)
In essence, Plaintiff alleges that Defendant's advertisement prompted her to purchase
chicken and a pot pie from June 2016 through August 2016 and that she paid $20.00 for an eight
piece chicken meal which was packaged in a bucket that was larger than necessary. (See Comp!.
if 14.) Fmther, unlike the advertisement, the chicken was not overflowing in
its container. (Id.
if
8.) Had Defendant used a smaller bucket, she alleges, the eight piece chicken meal would have
more closely resembled the bucket of chicken as depicted in the advertisement. (See id.
if
16.)
Alternatively, Plaintiff suggests, despite purchasing an eight piece chicken meal, that Defendant
should have filled the bucket up to the rim so she would have received more
the eight pieces she bargained for. (See id.
if 13, 15.)
chicken~more
than
As to the alleged injuries, Plaintiff does not
reference any monetary damages but indicates she suffered personal injuries as a result of eating
Defendant's food. (Id.
if 12.)
MOTION TO DISMISS STANDARDS
On a motion to dismiss for "failure to state a claim upon which relief can be granted,"
Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the complaint "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 At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "Although for the purposes of a
motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is]
'not bound to accept as true a legal conclusion couched as a factual allegation."' Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations." Id. at 679.
When there are well-pleaded factual allegations in the complaint, "a court should assume
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their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
A claim is facially plausible when the factual content pleaded allows a court "to draw the
reasonable inference that the defendant is liable for the misconduct alleged."
Id. at 678.
Ultimately, determining whether a complaint states a facially plausible claim upon which relief
may be granted must be "a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at 679.
I. GENERAL BUSINESS LAW § 349 AND § 350
New York law proscribes "[d]eceptive acts or practices in the conduct of any business,
trade or commerce or in the furnishing of any service in th[e] state." GBL § 349(a). To state a
claim pursuant to GBL§ 349, a plaintiff must allege: (1) that the defendant's acts were consumer
oriented; (2) that the acts or practices are "deceptive or misleading in a material way,"; and
(3) that the plaintiff has been injured as a result. Oswego Laborers' Local 214 Pension Fund v.
J\farine Midland Bank, NA., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995);
accord Spagnola v. Chubb Cmp., 574 F.3d 64, 74 (2d Cir. 2009); City of New York v. SmokesSpirits.com, Inc., 12 N.Y.3d 616, 621, 883 N.Y.S.2d 772, 911 N.E.2d 834 (2009); Goshen v.
111111. Life Ins. Co. o/N.Y., 98 N.Y.2d 314, 324, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002).
A claim of false advertising under GBL § 350 must meet all of the same elements as a
claim under GBL § 349. Goshen, 98 N.Y.2d at 324 n.1; See also Kommer v. Bayer Consumer
Health, 252 F. Supp. 3d 304, 310 n.2 (S.D.N.Y. 2017). Bare recitation of the elements of a cause
of action under GBL §§ 349 and 350, meaning mere conclusory statements, is insufficient to rise
to the level ofa plausible claim. See Roth v. CitiMortgage Inc., 12-CV-2446 (SJF) (WDW), 2013
WL 5205775, at* 12 (E.D.N.Y. Sept. 11, 2013), afj'd, 756 F.3d 178 (2d Cir. 2014).
Defendant contends that the Complaint fails to asse1t a plausible claim because the
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allegations are based on mere conclusory statements, and the allegations do not meet the
requisite showing for the second and third elements of each GBL claim. Specifically, Defendant
asserts Plaintiff failed to properly allege causation and injury. Lastly, Defendant asserts the
advertisements were not misleading as a matter of law.
A. Materially Deceptive or Misleading Practices
The New York Court of Appeals established an objective standard for determining
whether acts or practices are materially deceptive or misleading "to a reasonable consumer
acting reasonably under the circumstances." Oswego, 85 N. Y.2d at 26.
Courts "view each
allegedly misleading statement in light of its context on the product label or advertisement as a
whole." Delgado v. Ocwen Loan Servicing, LLC, 13-CV-4427 (NGG) (RML), 2014 WL
4773991, at *8 (E.D.N.Y. Sept. 24, 2014) (citation and quotation marks omitted). "The entire
mosaic" is "viewed rather than each tile separately." Time Warner Cable, Inc. v. DIRECTV, Inc.,
2007 WL 1138879, at *4 (S.D.N.Y. Apr. 16, 2007) (citation omitted). The "issue may be a
question oflaw or of fact as individual cases require." Delgado, 2014 WL 4773991, at *8 (citing
Oswego, 85 N.Y.2d at 26 (1995)).
Drawing all reasonable inferences in Plaintiff's favor, the Complaint fails to allege a
plausible claim upon which relief may be granted. The Complaint asserts that the food packaging
(the bucket) was deceptive because Plaintiff believed she would receive more chicken. Such a
contention, however, is inconsistent with Plaintiff's other allegations and lacks reason. Plaintiff
affirmatively states she purchased an eight piece chicken meal. (Comp!.
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3.) She does not claim
she received less than eight pieces. To the contrary, the alleged deceptive act is that she expected
KFC to deliver a bucket of chicken filled to the rim, in excess of the number of pieces she
purchased, because the bucket could accommodate more than the eight pieces. Such a practice-
s
the use of a larger than necessary bucket-is not materially deceptive or misleading "to a
reasonable consumer acting reasonably under the circumstances," Oswego, 85 N.Y.2d at 26,
especially when the consumer ordered, purchased, and received the precise number of items
requested. Nor is it misleading, as defined by statute, that Defendant could have or should have
used a smaller bucket for the amount of food packaged or provided. In a similar case, this Comt
found that the use of nearly identical boxes to package spaghetti pasta made from various grains
and of various weights cannot be deemed misleading under GBL § 349 where the manufacturer
clearly and unambiguously provides notice (e.g., a disclaimer) of the contents of the package to
the consumer. Stewart v. Riviani Foods, Inc., 16-CV-6157 (NSR), 2017 WL 4045952, at *IO
(S.D.N.Y. Sept. 11, 2017).
Similarly, Plaintiffs contention that KFC's use of the phrase "the meal could feed your
whole family" is misleading, is without merit. Such an assertion is wholly conclusory. Plaintiff
fails to indicate how the phrase is deceptive or misleading other than to deem it so ..
B. Causation and Injury
In addition to alleging the practice and advertising are materially misleading, Plaintiff
also must properly allege actual injury caused by Defendant's conduct. Defendant asserts that
Plaintiff fails to plead a causal connection between the alleged misleading practice or
statement(s), and the injuries purportedly suffered. To properly allege causation, a plaintiff must
state in her complaint that she was aware of the practice or heard the misleading statements of
which she complains before she came into possession of the products she purchased.
See
Rapcinsky v. Skinnygirl Cocktails, L.L.C., l l-CV-6546 (JPO), 2013 WL 93636, at *6 n.3
(S.D.N.Y. Jan. 9, 2013) (citing Gale v. Int'! Bus. Machs. Corp., 9 A.D.3d 446, 447, 781
N.Y.S.2d 45 (2d Dept. 2004)). If Plaintiff did not see the advertisement or was aware of the
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practice beforehand, she could not have been injured by them. See Douyon v. NY. Med. Health
Care, P.C., 894 F. Supp. 2d 245, 263 (E.D.N.Y. 2012) (citing Gale, 9 A.D.3d at 447).
Here, Plaintiff describes the allegedly misleading advertising and practice, then alleges
that Defendant's conduct caused her to suffer injuries. The reasonable inference to be drawn
from these allegations, see Iqbal, 556 U.S. at 678, is that Plaintiff saw Defendant's
advertisement, became aware of the Defendant's packaging practice, and was deceived into
purchasing the products in question. Accordingly, causation is sufficiently pied.
With respect to allegations of injury suffered, the Complaint appears to suggest that had
Plaintiff not seen the adve11isement, relied on its content, purchased and eaten the chicken, along
with the pot pie, she would not have suffered any personal injury. To recover under GBL §§ 349
and 350, Plaintiffs must allege and prove "actual injury," although not necessarily pecuniary
harm. Stu/man v. Chem. Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000);
Oswego, 85 N.Y. at 26; Smith v. Chase Manhattan Bank, USA, NA., 293 A.D.2d 598, 599, 741
N.Y.S.2d 100 (2nd Dept. 2002). "[T]he gravamen of the complaint must be consumer injury or
harm to the public interest." City of New York v. Cyco.Net, Inc., 383 F. Supp. 2d 526, 563
(S.D.N.Y. 2005) (quoting Azby Brokerage, Inc. v. Allstate Ins. Co., 681 F. Supp. 1084, 1089 n.6
(S.D.N.Y.1988)); see also Feinberg v. Federated Dep't Stores, Inc., 832 N.Y.S.2d 760, 15 Misc.
3d 299 (N.Y. Sup. Ct. 2007). Injuries such as paying a premium for the misleading product or
setting an inflated price tag as a result of the defendant's deception, have been deemed
recoverable under the statutes. See Ackerman v. Coca-Cola Co., 09-CV-0395 (JG), 2010 WL
2925955, at *23 (E.D.N.Y. July 21, 2010) (citing Jernow v. Wendy's Int'! Inc., 07-CV-3971
(LTS) (THK), 2007 WL 4116241, at *3 (S.D.N.Y. Nov. 15, 2007).
Here Plaintiff merely alleges personal injuries, acid reflux, and nothing more. Such
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allegations are insufficient and fall short of the injury sought to be addressed by the statutes.
Accordingly, Plaintiff has failed to adequately assert a claim under GBL §§ 349 and 350.
C. 21 C.F.R. § 100.100
The federal Food, Drug, and Cosmetic Act ("FDCA") and its implementing regulations,
e.g., 21 C.F.R. § 100. l 00, created the federal framework governing branding on containers.
Bimont Unilever US., Inc., 14-CV-7749 (JPO), 2015 WL 5256988, at
* 4 (S.D.N.Y.
Sept. 9,
2015); Bautista v. CytoSport, 223 F. Supp. 3d 182, 186 (S.D.N.Y. 2016); Izquierdo v. Mondelez,
16-CV-04697 (CM), 2016 WL 6459832, at *3 (S.D.N.Y. October 26, 2016).
Under the
regulation, a food is misbranded "[i]f its container is so made, formed, or filled as to be
misleading." 21 C.F.R. § 100.100. A container is misleading if its contents cannot be fully
viewed and it contains "nonfunctional slack-fill." Id. The regulation defines "slack-fill" as "the
difference between the actual capacity of a container and the volume of product contained
therein." 21 C.F.R. § I 00. IOO(a). The regulation specifically proscribes non-functional slack-fill.
Slack-fill is non-functional if it is not used for an enumerated purpose. 21 C.F.R. § 100. IOO(a)
(1)-(6).
Although there is no private right of action under the FDCA, Izquierdo, 2016 WL
6459832, at *3, New York law provides remedies and a private right of action for misbranding
food under GBL § 349, which has been interpreted to encompass claims of excessive slack-fill.
Id; Bautista, 223 F. Supp. 3d at 189. Unlike 21C.F.R.§100.100, the GBL does not contain safe
harbors for functional slack-fill. However, the GBL makes it a "complete defense that the act or
practice is . . . subject to and complies with the rules and regulations of, and the statutes
administered by, ... any official ... agency of the United States as such rules, regulations or
statutes m·e interpreted by ... the federal comts." GBL § 349(d). "Therefore, if slack-fill passes
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muster under federal law, there is no state-law violation." Buatista, 223 F. Supp. 3d at 189.
Plaintiff claims that KFC violated the prohibition against non-functional slack-filling.
(Campi.
'if'if 20, 52.) Drawing all reasonable inferences in Plaintiffs favor, the Complaint fails to
allege a plausible claim upon which relief may be granted. The Complaint simply asse1ts that the
bucket of chicken Plaintiff purchased could hold more chicken than the eight-pieces Plaintiff
bargained for. Such an allegation is insufficient to state a claim for non-functional slack-filling.
Plaintiff never provides factual suppmt for the proposition that KFC used non-functional, and
therefore misleading, slack-filling in their buckets. At a minimum, Plaintiff needed to allege facts
that KFC used slack-filling in a manner outside of the enumerated permissible uses under 21
C.F.R. § 100. IOO(a) (1}-(6). Plaintiff failed to provide such support, and as a result fails to state
a claim upon which relief may be granted.
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CONCLUSION
For the reasons stated above, Defendant's motion to dismiss the Complaint is GRANTED
in its entirety. 5 The Clerk of Couit is respectfully directed to terminate the motion (Doc. No. 13)
and to terminate the case. This constitutes the Comt's Opinion and Order.
Dated: December 13 2017
1
White Plains, New York
5
SO ORDERED:
To the extent Plaintiff intended to assert a common law claim sounding in negligent food
preparation, food poisoning, she fails to indicate in what manner Defendant was negligent in the
preparation of the food such that it caused her to have "acid reflux" or caused the removal of her
gall bladder. Acid reflux is a common condition that features a burning pain, known as
heartburn, in the lower chest area. See Michael F. Picco, M.D., Acid Reflux and GERD: The
same thing?, Mayo Clinic (December 8, 2017), https://www.mayoclinic.org/diseasesconditions/heartburn/expert-answers/hemtburn-gerd/faq-20057894. It typically occurs when
stomach acid flows back up into the food pipe. Id.
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