Bardsley v. Nonni's Foods LLC

Filing 42

OPINION & ORDER re: 33 MOTION to Dismiss . filed by Nonni's Foods LLC. For the foregoing reasons, the Court DENIES Defendant's Renewed Motion to Dismiss. Defendant is hereby directed to file an Answer to Plaintiff's First Amended Complaint on or before June 8, 2023. The Clerk of Court is kindly directed to terminate the motion at ECF No. 33. (Signed by Judge Nelson Stephen Roman on 5/18/2023) (rro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LISA BARDSLEY, individually and on behalf of all
others similarly situated,
-against-

Plaintiff,

5/18/2023

No. 20 Civ. 2979 (NSR)
OPINION & ORDER

NONNI’S FOODS LLC,
Defendant.
NELSON S. ROMÁN, United States District Judge:
This putative class action alleges that Defendant Nonni’s Foods LLC (“Defendant”)
misrepresented to consumers the extent to which its “Limone Biscotti” from its Nonni’s brand
(“the Product”) is flavored only or predominantly from lemons. (ECF No. 17, at 1–9.) Plaintiff
Lisa Bardsley (“Plaintiff”), individually and on behalf of others similarly situated, brings this
action against Defendant asserting claims for violations of New York’s General Business Law
(“GBL”) §§ 349 and 350. (Id. at 9–10.) Presently pending before the Court is Defendant’s
Renewed Motion to Dismiss Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil
Procedure (“FRCP”) 12(b)(1) (the “Renewed Motion”), for lack of subject matter jurisdiction.
(ECF No. 33.) For the following reasons, the Court DENIES the Renewed Motion.
BACKGROUND
I. Factual Background
The following facts are derived from the Amended Complaint (“Am. Compl.”) (ECF No.
17); they are taken as true and construed in the light most favorable to Plaintiff for the purposes of
this Renewed Motion.

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Defendant manufactures, distributes, markets, labels, and sells singular long, crisp, twicebaked Italian cookies (i.e., biscotti) purporting to be flavored mainly by lemon, as depicted in the
image below:

(Am. Compl. ¶¶ 1, 3.) The label also states that the Product’s ingredients include:
Ingredients: WHEAT FLOUR (WHEAT FLOUR, MALTED BARLEY FLOUR,
SUGAR, WHITE CONFECTIONERY SUGAR COATING (SUGAR, PALM
KERNEL OIL, WHOLE MILK POWDER, REDUCED MINERAL WHEY
POWDER, NONFAT MILK POWDER, SOY LECITHIN [AN EMULSIFIER],
SALT, AND VANILLA), EGGS, SALTED BUTTER (SWEET CREAM, SALT)
NATURAL
FLAVOR,
BAKING
POWDER
(SODIUM
ACID
PYROPHOSPHATE, BAKING SODA, CORN STARCH, MONOCALCIUM
PHOSPHATE), SALT
(Id. ¶ 12.)
Plaintiff alleges that the Product’s label is misleading because the Product is neither
exclusively nor predominantly flavored by lemons. (Id. ¶¶ 10–11, 13–27.) Specifically, she claims
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that the Product’s ingredients list includes a “natural flavor,” which means that the lemon flavor
is not derived exclusively from lemons. (Id. ¶ 13.) She alleges that this ingredient contains a de
minimis amount of lemon oil and that the lemon taste it provides is mainly from lemon oil
extenders as well as enhancers from non-lemon sources. (Id. ¶¶ 14, 20.) Plaintiff claims that, under
federal regulations, Defendant’s Product is misleading because it fails to disclose that the source
of the lemon taste is from non-lemon sources in addition to “real” lemons. (Id. ¶¶ 23–26.)
Plaintiff further alleges that laboratory testing of the Product reveals that “[t]hough [it
contains] citral, the main flavor compound in lemons, through the isomers neral and geranial, it
lacks other compounds essential to a lemons taste.” (Id. ¶ 31.) Accordingly, she claims that “the
Product’s flavoring lacks the complexity and taste that consumers expect because the added lemon
oil extenders (‘Other Natural Flavor’) mainly provide citrus notes, instead of the balanced flavor
of lemons.” (Id. ¶ 34.)
Plaintiff alleges that Defendant’s omission and failure to disclose the foregoing facts is
deceptive and misleading to consumers who bought the Product to eat a lemon-flavored biscotti
that contains flavoring mainly from lemons. (Id. ¶ 36.) She avers that Defendant knows consumers
“are willing to pay higher prices for the real thing because flavor from a characterizing ingredient
involves minimal and less processing— it is more natural.” (Id. ¶¶ 6, 35.) Thus, Plaintiff claims
that Defendant’s branding and packaging of the Product is designed to, and does, deceive, mislead,
and defraud. (Id. ¶ 38.) She also alleges that Defendant sold more of the Product, and at higher
prices, than it would have done in the absence of this misconduct, resulting in additional profits
for Defendant at the expense of consumers. (Id. ¶ 39.) Indeed, Plaintiff claims that Defendant sold
the Product at a premium price, approximately no less than $3.98 per box of 8, excluding tax, as
compared to similar products that were represented in a non-misleading way. (Id. ¶ 42.)

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Plaintiff alleges that she purchased the Product on at least one occasion, including in or
around October 2019 at the Hannaford Supermarket in New Windsor, New York 12553. (Id. ¶ 54.)
She claims that she is one individual among a class of consumers who purchased the Product for
its intended use and relied on the front label’s representations to expect a lemon taste derived
exclusively and/or predominantly from real lemons rather than artificial lemon flavorings. (Id. ¶
55.) Additionally, Plaintiff avers that she would not have paid as high of a price for the Product if
not for Defendant’s false advertising. (Id. ¶¶ 57–59.)
II. Procedural Background
On April 13, 2020, Plaintiff filed the original operative class action complaint (Compl.,
ECF No. 1.) Subsequently, on October 2, 2021, Defendant filed a letter seeking leave to file a
motion to dismiss, which also stated the grounds on which Defendant would move for dismissal.
(ECF No. 13.) Plaintiff then requested an extension of time to file an amended complaint that
would address the deficiencies set forth in Defendant’s letter and obviate the need for a motion to
dismiss, which the Court granted. (ECF Nos. 15 and 16.) On December 1, 2020, Plaintiff filed her
Amended Complaint (“FAC”) on behalf of all purchasers of the Product who reside in New York,
asserting claims for: (1) violation of New York General Business Law §§ 349 and 350; (2) breach
of express warranty; (3) breach of implied warranty of merchantability; (4) violation of the
Magnuson Moss Warranty Act; (5) negligent misrepresentation; (6) fraud; and (7) unjust
enrichment. (ECF No. 17.) Plaintiff seeks both monetary damages and injunctive relief requiring
that Defendant correct the Product’s allegedly misleading label. (Id.)
On December 23, 2021, Defendant again sought leave to file a motion to dismiss (the
“Initial Motion”), which the Court granted. (ECF Nos. 20 and 22.) Then, on March 23, 2021, the
parties filed their respective briefing on the Initial Motion: Defendant its Notice of Motion (ECF
No. 23), Memorandum in Support (ECF No. 24), and rRply (ECF No. 25); and Plaintiff her
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Response in Opposition (ECF No. 26). On March 16, 2022, the Court granted in part and denied
in part Defendant’s Initial Motion. (ECF No. 27.) Specifically, the Court granted Defendant’s
Initial Motion as to each of Plaintiff’s claims, apart from her claims for violation of New York
General Business Law §§ 349 and 350. (Id.)
Defendant subsequently submitted the instant Renewed Motion to Dismiss (the “Motion”),
seeking dismissal of Plaintiff’s remaining claims on the basis that the Court lacked subject matter
jurisdiction over them. (ECF No. 33.) On June 6, 2022, the parties filed their respective briefing
on the Motion: Defendant its Notice of Motion (ECF No. 33), Memorandum in Support (ECF No.
34), and Reply (ECF No. 36); and Plaintiff her Response in Opposition (ECF No. 35).
LEGAL STANDARD
I. Federal Rule of Civil Procedure 12(b)(1)
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). The plaintiff bears the burden of establishing the
existence of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
Where, as here, the jurisdictional challenges are raised at the pleading stage, the district
court accepts as true all factual allegations in the complaint and draws all reasonable inferences in
the plaintiff’s favor. Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008). It is “presume[d] that
general [fact] allegations embrace those specific facts that are necessary to support the
claim.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990) (alterations added). The court also
may consider affidavits and other evidence outside the pleadings to resolve the jurisdictional issue,
but it may not rely on conclusory or hearsay statements contained in affidavits. J.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968 (2005). Indeed, courts “must”
consult factual submissions “if resolution of a proffered factual issue may result in the dismissal
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of the complaint for want of jurisdiction.” Robinson v. Gov’t of Malaysia, 269 F.3d 133, 140 n. 6
(2d Cir. 2001).
DISCUSSION
I.

Subject Matter Jurisdiction
In the Amended Complaint, Plaintiff claims that this Court has subject matter jurisdiction

over her state law claims based on the Class Action Fairness Act (“CAFA”), 28 U.S.C. §
1332(d)(2). (Am. Compl. ¶ 43.) “CAFA amended the federal diversity jurisdiction statute to confer
federal jurisdiction over class actions where: (1) the proposed class contains at least 100 members
(the ‘numerosity’ requirement); (2) minimal diversity exists between the parties, (i.e., where ‘any
member of a class of plaintiffs is a citizen of a State different from any defendant’); and (3) the
aggregate amount in controversy exceeds $5,000,000.” Purdue Pharma L.P. v. Kentucky, 704 F.3d
208, 213 (2d Cir. 2013) (quoting 28 U.S.C. § 1332(d)(2)-(6)).
As the Court noted in its Opinion on Defendant’s Initial Motion (ECF No. 27), Plaintiff’s
FAC raises both individual and class action claims. Although the Court held that Plaintiff’s
individual claims failed because they did not meet the statutory requirements for subject matter
jurisdiction, it concluded that Defendant was unable to show to a legal certainty that Plaintiff and
the putative class could not recover the aggregate amount of controversy required under CAFA
(i.e., $5 million) (the “Threshold Requirement”) for the Court to have subject matter jurisdiction
over Plaintiff’s class action claims. (Id.); see Schwartz v. Hitrons Solutions, Inc., 397 F. Supp. 3d
357, 364 (S.D.N.Y. 2019) (Plaintiff “brings both individual and class action claims, which must
meet the requirements of 28 U.S.C. [§] 1332(a) . . . or 28 U.S.C. [§] 1332(d)[.]”). Specifically, the
Court concluded that Defendant required greater support than a two-page affidavit from its Vice
President of Sales to demonstrate that Plaintiff and the putative class could not recover the
Threshold Requirement, and it thereby proceeded to address the merits of Plaintiff’s class action
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claims. Defendant now argues that it has provided sufficient documentary evidence to show to a
legal certainty that Plaintiff and the putative class cannot satisfy the Threshold Requirement. (ECF
Nos. 34 and 35.) The Court, however, disagrees— notwithstanding the additional documentation
provided, Defendant has failed to demonstrate that Plaintiff and the putative class cannot satisfy
the Threshold Requirement.
A.

Subject Matter Jurisdiction Requirements for Federal Jurisdiction Over Class Actions
Under CAFA
As noted above, CAFA confers federal jurisdiction over class actions where: (1) the

proposed class contains at least 100 members (the ‘numerosity’ requirement); (2) minimal
diversity exists between the parties, (i.e., where ‘any member of a class of plaintiffs is a citizen of
a State different from any defendant’); and (3) the aggregate amount in controversy exceeds
$5,000,000.” Purdue Pharma L.P., 704 F.3d at 213 (quoting 28 U.S.C. § 1332(d)(2)-(6)). Here,
Defendant argues that Plaintiff fails to satisfy the Threshold Requirement. (ECF No. 34, at 9-11.)
“Under CAFA, as under the traditional rule, the party asserting subject matter jurisdiction
has the burden of proving it.” Galeno, 472 F.3d at 59. Plaintiff thereby bears the burden of
“proving that it appears to a reasonable probability that the claim is in excess of the statutory
jurisdictional amount.” Scherer, 347 F.3d at 397 (citation omitted); see also Mehlenbacher v. Akzo
Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000) (noting that the “reasonable probability” burden
is identical for class action claims). The “reasonable probability” burden is minimal at the pleading
stage because “a rebuttable presumption [exists] that the face of the complaint is a good faith
representation of the actual amount in controversy[.]” Scherer, 347 F.3d at 397 (citation omitted).
However, the presumption “is available only if the face of the complaint alleges facts plausibly
suggesting the existence of claims aggregating over the jurisdictional minimum amount in
controversy.” Wood v. Maguire Auto. LLC, No. 09 Civ. 0640, 2011 WL 4478485, at *2 (N.D.N.Y.
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Sept. 26, 2011). Conclusory allegations that the Threshold Requirement is satisfied are
insufficient. See John Wiley & Sons, Inc. v. Glass, No. 10 Civ. 598, 2010 WL 1848226, at *3
(S.D.N.Y. May 7, 2010); see also Valente v. Garrison From Harrison LLC, No. 15 Civ. 6522,
2016 WL 126375, at *2 (E.D.N.Y. Jan. 11, 2016) (“[B]oilerplate pleadings do not suffice to
establish that [an] action involves an amount in controversy adequate to support federal diversity
jurisdiction.”).
Defendant can overcome this rebuttable presumption if it demonstrates to “a legal certainty
that . . . [P]laintiff could not recover the amount alleged or that the damages alleged were feigned
to satisfy jurisdictional minimums.” Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214,
221 (2d Cir. 2006). “The legal impossibility of recovery must be so certain as virtually to negate
the plaintiff’s good faith in asserting the claim.” Scherer, 347 F.3d at 397.
Additionally, Defendant may offer documentary evidence outside of the pleadings to
overcome this presumption. Although at the motion to dismiss stage the Court must evaluate the
jurisdictional facts pertaining to the aggregate amount in controversy based on the pleadings and
“construe all ambiguities and draw all inferences” in Plaintiff’s favor, a court “may look outside
the pleadings to other evidence on the record” when appropriate. United Food & Commercial
Workers Union Local 919, AFL-CIO v. CenterMark Props. Meriden Square Inc., 30 F.3d 298, 305
(2d Cir. 1994). For instance, and most relevant here, courts may consider materials such as
affidavits, documents, and testimony to determine whether jurisdiction exists. See Anglo-Iberia
Underwriting Mgmt. Co. v. P.T. Jamsostek (Persero), 600 F.3d 171, 175 (2d Cir. 2010); APWU v.
Potter, 343 F.3d 619, 627 (2d Cir. 2003). And in close cases, any “doubts are resolved against
[jurisdiction] out of respect for the limited jurisdiction of the federal courts and the rights of

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states.” In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liability Litig., 488 F.3d 112, 124 (2d
Cir. 2007) (internal quotation marks omitted).
Lastly, federal courts treat the three categories of relief Plaintiff seeks differently for
purposes of calculating the aggregate amount in controversy. The first category is the actual and
statutory damages sought by a plaintiff: courts may consider all alleged actual and statutory
damages when determining whether Plaintiff satisfies the Threshold Requirement. Schwartz, 397
F. Supp. 3d at 366 (citations omitted). The second category is attorney’s fees, which a plaintiff
may use to satisfy the Threshold Requirement only “if they are recoverable as a matter of right
pursuant to statute or contract.” (Id.) And the third category is the object of the litigation: with
respect to a request for injunctive relief, a plaintiff may use the value of the object of the litigation
to meet the Threshold Requirement. See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,
347 (1977). In the Second Circuit, courts value the object of the litigation from the standpoint of
the plaintiff— “the value of the action’s intended benefit or the value of the right being protected
or the injury being averted constitutes the amount in controversy when damages are not
requested.” Kheel v. Port of N.Y. Auth., 457 F.2d 46, 49 (2d Cir. 1972) (internal quotation marks
omitted).
B.

Defendant Has Not Shown to a Legal Certainty that Plaintiff and the Putative Class
Cannot Satisfy the Threshold Requirement
Here, Plaintiff attempts to satisfy the Threshold Requirement via the first category of relief

described above— actual and statutory damages. (ECF No. 35, at 3-14.) Plaintiff argues that, under
GBL § 350-e(3), it is entitled to $550 for each deceptive act (per unit), which means that it is
entitled to at least $9,038,700.00 in statutory damages. (ECF No. 35, at 11.) Specifically, Plaintiff
claims that Defendant’s sales documentation indicates that Defendant sold 2,739 cases of their
biscotti and that there were at least 6 boxes of biscotti in each case (i.e., 6 boxes multiplied by
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2,739 cases, multiplied by the statutory damages of $550 per unit, equals $9,038,700). (Id.)
Defendant, however, claims that Plaintiff cannot satisfy the Threshold Requirement because GBL
§§ 349 and 350 only permit Plaintiff to recover an amount not greater than three times the actual
damages (ECF No. 36, at 2-3.) Accordingly, Defendant argues that because total sales of their
product amounted to only $97, 825, even if Plaintiff and her class were awarded the statutory
maximum of three times this amount, that greater number (i.e., $294,000) remains substantially
less than $5 million. (Id.)
A review of the relevant language of GBL §§ 349(h) and 350-e(3) indicates that Plaintiff
and her class can recover an amount greater than three times their actual damages, contrary to
Defendant’s argument. GBL §349(h), for instance, states that Plaintiff' and her class’s damages
shall be equal to “his actual damages or fifty dollars, whichever is greater,” and that ”[t]he Court
“may, in its discretion, increase the award of damages to an amount not to exceed three times the
actual damages up to one thousand dollars,” if a defendant violates the section willfully or
knowingly. GBL § 349(h). Likewise, GBL § 350-e(3) provides that Plaintiff and her class’s
damages shall be equal to his “actual damages or five hundred dollars, whichever is greater” and
that “[t]he Court “may, in its discretion, increase the award of damages to an amount not to exceed
three times the actual damages, up to ten thousand dollars,” if a defendant violates the section
willfully or knowingly. GBL §2 350-e(3).
Defendant provides no legal support for its flawed interpretation that GBL §§ 349(h) and
350-e(3) restrict a statutory award of damages to triple the actual damages. Under the usual, logical
reading of these statutes, although a court may in its discretion increase the award of damages to
three times the actual damages for a willful or knowing violation of either statute, a plaintiff may
be entitled under the statute to $50 (for a violation of GBL § 349(h)) or $500 (for a violation of

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GBL § 350e(3), if these numbers are greater than the actual damages. Indeed, courts in this District
have, in earlier cases, determined whether a class action plaintiff alleging violations of GBL §§
349(h) and 350-e(3) satisfied the Threshold Requirement by multiplying the number of units of
the product at issue sold in New York by the statutory award of $550, even where triple the actual
damages amounted to less than $5 million. See Cosgrove v. Oregon Chai, Inc., 520 F. Supp. 3d
562, 572–73 (S.D.N.Y. 2021) (finding that the $5 million threshold was met where the total
sales/actual damages amounted to only $226,237, but the total possible damages, inclusive of
statutory damages under GBL §§ 349(h) and 350-e(3), were $28,867,500); see also Famular v.
Whirlpool Corp., No. 16 CV 944 (VB), 2019 WL 1254882, at *11 (S.D.N.Y. Mar. 19, 2019)
(noting that the plaintiff met the $5 million threshold because: (1) statutory damages are
permissible in class actions alleging GBL §§ 349 and 350 violations brought in federal court, even
though such damages are barred in class action in state court; and (2) the number of units of the
product at issue sold in New York multiplied by $550 equaled over $8 million). The pertinent
question here is, then, whether enough units of the Product were sold in New York for Plaintiff
and her class to satisfy the Threshold Requirement via an award of the total possible statutory
damages under GBL §§ 349(h) and 350-e(3).
Although Defendant has provided documentation demonstrating that the total sales of the
Product in New York were $97,825.08, it does not directly indicate how many units (i.e., boxes)
of the Product were sold in New York. (ECF No. 36, at 1-3.) Nevertheless, Plaintiff provides a
reasonable estimate of the total number of boxes sold in New York through an analysis of the data
that Defendant does provide— 16,434 boxes. 1 Like other courts in this District, then, the Court

As Plaintiff notes, Defendant’s sales documentation appears to indicate that Defendant sold 2,739 cases of their
biscotti to New York customers, and that there were at least 6 boxes of biscotti in each case; thus, it seems entirely
plausible that Plaintiff can satisfy the Threshold Requirement when one accounts for the total possible number of
statutory damages (6 boxes multiplied by 2,739 cases, multiplied by the statutory damages of $550 per unit, equals

1

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may estimate that the total available damages under GBL §§ 349(h) and 350-e(3) is equal to the
number of total boxes sold multiplied by the statutory damages: 16,434 boxes multiplied by $550
(i.e., $50 per box under GBL § 349(h) and $500 per box under GBL § 350-e(3)) equals $9,038,700.
(ECF No. 35, at 10-11); (ECF Nos. 29-1 and 29-2.). This number, as Plaintiff rightly argues, is
almost double the Threshold Requirement. Consequently, Defendant has not shown to a legal
certainty that Plaintiff cannot satisfy the Threshold Requirement.
The Court, therefore, finds that Defendant has not overcome the presumption that Plaintiff
has made a good faith representation of the actual amount in controversy, as Defendant failed to
show that “the legal impossibility of recovery [is] so certain as virtually to negate [Plaintiff’s] good
faith in asserting the claim.” Scherer, 347 F.3d at 397. Accordingly, Defendant’s Renewed Motion
is denied.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s Renewed Motion to Dismiss.
Defendant is hereby directed to file an Answer to Plaintiff’s First Amended Complaint on or before
June 8, 2023.
The Clerk of Court is kindly directed to terminate the motion at ECF No. 33.
Dated: May 18, 2023
White Plains, NY

$9,038,700). (ECF No. 35, at 11); (ECF Nos. 29-1 and 29-2.) Notably, Defendant does not dispute Plaintiff’s
estimate, and instead relies on its flawed reading of the GBL statutes to argue that Plaintiff is not able to recover an
amount more than triple its actual damages. (ECF No. 36.)

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