Kumar v. Panera Bread Company

Filing 67

OPINION AND ORDER granting in part and denying part 57 Panera's Motion to Dismiss. OPINION AND ORDER denies 58 Panera's Motion for Reconsideration. "Panera may file a new motion for summary judgment by Friday, October 25, 2024. Kumar's response to Panera's motion for summary judgment is due Friday, November 22, 2024. Panera may file a reply, if any, by Friday, December 6, 2024." (Signed by Magistrate Judge Andrew M Edison) Parties notified. (rrc3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SELVA KUMAR,
Plaintiff.
V.
PANERA BREAD COMPANY,
Defendant.

September 24, 2024
Nathan Ochsner, Clerk

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§ CIVIL ACTION NO. 4:21-cv-03779
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OPINION AND ORDER
Defendant Panera Bread Company (“Panera”) has two motions pending
before me. The first is Panera’s Motion to Dismiss the claims brought against it by
Plaintiff Selva Kumar (“Kumar”). See Dkt. 57. The second is a Motion for
Reconsideration of Panera’s Motion for Summary Judgment. See Dkt. 58. For the
reasons explained below, I DENY IN PART and GRANT IN PART Panera’s
Motion to Dismiss, and DENY Panera’s Motion for Reconsideration.
BACKGROUND
On April 6, 2023, I issued an Opinion and Order dismissing Kumar’s
negligence, gross negligence, intentional infliction of emotional distress, and Texas
Deceptive Trade Practices Act (“DTPA”) claims against Panera for failure to state
a claim. See Dkt. 39. Kumar, proceeding without an attorney, appealed that
decision to the Fifth Circuit, which affirmed in part, vacated in part, and remanded.
Specifically, the Fifth Circuit affirmed my dismissal of Kumar’s negligence and
gross negligence claims, and found that Kumar had abandoned his intentional
infliction of emotional distress claim against Panera. See Kumar v. Panera Bread
Co., No. 23-20178, 2024 WL 1216562, at *4 (5th Cir. Mar. 21, 2024). The Fifth
Circuit vacated, however, my dismissal of Kumar’s DTPA claim, remanding the
case with instructions that Kumar “should be permitted to have his new attorney
come in and amend his DTPA claim.” Id.

For more than three months after the Fifth Circuit issued its decision—
including a one-month extension—Kumar was unable to secure new counsel. See
Dkt. 54 at 2–3 (affording Kumar an additional month to secure new counsel after
Kumar waited more than seven weeks to reach out to the two attorneys who
previously agreed to represent him in this matter). Kumar remains pro se.
On June 24, 2024, Kumar timely filed his second amended complaint, in
which he purports to bring five claims: (1) “negligence misrepresentation of
services in violation of DTPA”; (2) “false, misleading, or deceptive acts or practices
in violation of DTPA”; (3) “breach of warranty”; (4) “misrepresentation (on
ingredients)”; and (5) “misrepresentation (on preparation methods).” Dkt. 55 at
9–19 (removed capitalization). Panera has moved to dismiss all of Kumar’s claims,
arguing that 1) Kumar fails to state a DTPA claim and 2) the Fifth Circuit’s March
21, 2024 decision forecloses all other claims. See Dkt. 57.
PANERA’S MOTION TO DISMISS
A.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant is entitled to

dismissal when the plaintiff fails to state a claim upon which relief may be granted.
To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.” 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 to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“[A] formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679.
In reviewing a Rule 12(b)(6) motion, I must accept all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff. See Alexander v.
AmeriPro Funding, Inc., 848 F.3d 698, 701 (5th Cir. 2017). Legal conclusions,
however, are not entitled to the same presumption of truth. Iqbal, 556 U.S. at 680.
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Although pro se plaintiffs are held “to a more lenient standard than lawyers when
analyzing complaints, . . . pro se plaintiffs must still plead factual allegations that
raise the right to relief above the speculative level.” Chhim v. Univ. of Tex. at
Austin, 836 F.3d 467, 469 (5th Cir. 2016).
B.

KUMAR STATES A DTPA CLAIM.
The DTPA provides, in relevant part:
A consumer may maintain an action where any of the following
constitute a producing cause of economic damages or damages for
mental anguish:
(1) the use or employment by any person of a false, misleading,
or deceptive act or practice that is . . . (A) specifically
enumerated in [§ 17.46(b)] . . . and (B) relied on by a consumer
to the consumer’s detriment;
(2) breach of an express or implied warranty; [or]
(3) any unconscionable action or course of action by any
person.

TEX. BUS. & COM. CODE ANN. § 17.50(a). Construing Kumar’s pleading liberally,
Kumar purports to bring a claim under each of these three subsections. Panera,
however, addresses only the first subsection covering false, misleading, or
deceptive acts. I will address Kumar’s possible claims under each of these
subsections in turn.
1.

Kumar States a DTPA Claim for False, Misleading, or
Deceptive Acts.

Kumar claims that Panera “falsely and fraudulently misled [him] by the
statements of its employees regarding the meal ingredients and freshness of
[Panera’s] products” in violation of the DTPA. Dkt. 55 at 13. Such a claim has three
elements: “(1) the plaintiff is a consumer; (2) the defendant engaged in false,
misleading, or deceptive acts; and (3) these acts constituted a producing cause of
the consumer’s damages.” In re Frazin, 732 F.3d 313, 323 (5th Cir. 2013)
(quotation omitted). Panera contends that Kumar’s DTPA claim for false,
misleading, or deceptive acts fails as to the second and third elements. I disagree.

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a.

Kumar alleges a violation of § 17.46(b)(5).

As for the second element, Kumar alleges that “on January 23, 2021, at
4:00:57 PM with Order Number 206021 at Panera Bread Cafe #202501 . . . located
at 13704 Northwest Fwy, Houston, TX 77040,” Panera, “through [its] associate
Ashley, represented to [Kumar] that the broccoli cheddar soup did not contain
chicken broth or meat and that it was made fresh daily.” Dkt. 55 at 6, 10. Kumar
contends that representation was false. See id. Through these allegations, Kumar
has alleged, in relevant part, that Panera is guilty of “representing that goods . . .
have . . . characteristics, ingredients, uses, benefits, or quantities which they do not
have.” TEX. BUS. & COM. CODE ANN. § 17.46(b)(5). Kumar has alleged who (Ashley)
made the allegedly false representation, what the allegedly false representation
was (that the soup is free of meat and made fresh), when the representation was
made (January 23, 2021 at 4:00:57 PM), and where the representation was made
(Cafe #202501). This is enough at the pleading stage to satisfy the second element
of a DTPA claim.
It is also enough to satisfy Rule 9(b)’s requirement that fraud be pleaded
“with particularity.” FED. R. CIV. P. 9(b). “It is well-established that claims alleging
violations of the DTPA are subject to the requirements of Rule 9(b).” Berry v.
Indianapolis Life Ins. Co., 608 F. Supp. 2d 785, 800 (N.D. Tex. 2009) (cleaned
up). “At a minimum, Rule 9(b) requires allegations of the particulars of time, place,
and contents of the false representations, as well as the identity of the person
making the misrepresentation and what he obtained thereby.” Tel–Phonic Servs.,
Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992) (emphasis added). Kumar
has alleged all of the above.
b.

Kumar alleges detrimental reliance.

Panera next contends that “Kumar never explained his ‘detrimental reliance’
on any specific act or omission of Panera, and he failed to plead sufficient facts that
any DTPA violation by Panera was a ‘producing cause’ of his damages.” Dkt. 57 at
14. Yet, “liberally construing” Kumar’s complaint, as I must, “he does plead the
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third element of a DTPA claim: that Panera’s actions caused his alleged injury.”
Kumar, 2024 WL 1216562, at *4. According to Kumar, Panera’s employee, Ashley,
falsely represented to Kumar that Panera’s broccoli cheddar soup was free of meat.
See Dkt. 55 at 6. Kumar relied on that statement in purchasing the soup. See id. at
26. After learning that the soup he consumed contained meat, Kumar “struggled
to sleep well” and “experienced sleep disturbances, increased alcohol consumption
due to mental anguish, and symptoms such as headaches, fever, and vomiting for
several days.” Id. at 7. This is enough at the pleading stage to satisfy the third prong
of a DTPA claim. See Danny Darby Real Estate, Inc. v. Jacobs, 760 S.W.2d 711,
716 (Tex. App.—Dallas 1988, writ denied) (“[A]bsent [Panera]’s incorrect
representations that [its broccoli cheddar soup was free of meat and made fresh
daily, Kumar] would not have . . . purchase[d] the [soup].”).
***
Panera’s Motion to Dismiss is denied as to Kumar’s DTPA claim because, at
a minimum, Kumar has stated a claim under § 17.50(a)(1) for Panera’s alleged
violation of § 17.46(b)(5). But Kumar has also stated a claim under § 17.50(a)(2).
2.

Kumar States a Claim for Breach of Warranty Under the
DTPA and the Uniform Commercial Code (“UCC”).

In his second amended complaint, Kumar asserts a breach of warranty claim
against Panera. See Dkt. 55 at 16–17. To state a breach of warranty claim under the
DTPA, Kumar must allege: “(1) consumer status, (2) existence of the warranty, (3)
breach of the warranty, and (4) the breach was a producing cause of damages.”
Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 56 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) (cleaned up). “Yet, the DTPA does not define or create any
warranties. . . . Warranties actionable under the DTPA, both express and implied,
must first be recognized by common law or created by statute.” U.S. Tire-Tech, Inc.
v. Boeran, B.V., 110 S.W.3d 194, 197 (Tex. App.—Houston [1st Dist.] 2003, pet.
denied) (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 438 (Tex. 1995)).

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Texas has adopted the UCC, which provides that “[a]ny affirmation of fact
or promise made by the seller to the buyer which relates to the goods 1 and becomes
part of the basis of the bargain creates an express warranty that the goods shall
conform to the affirmation or promise.” TEX. BUS. & COM. CODE ANN. § 2.313(a)(1).
The elements of a cause of action for breach of express warranty
are (1) the defendant-seller made an express affirmation of fact or
promise relating to the goods; (2) that affirmation or promise became
part of the bargain; (3) the plaintiff relied upon that affirmation or
promise; (4) the goods did not comply with the affirmation or
promise; (5) the plaintiff was damaged by the noncompliance; and (6)
the failure of the product to comply was the proximate cause of the
plaintiff’s injury.
Omni USA, Inc. v. Parker-Hannifin Corp., 964 F. Supp. 2d 805, 814 (S.D. Tex.
2013). These elements mirror the requirements to state a DTPA claim for breach
of warranty.
Here, Ashley’s alleged assurance that the soup did not contain meat had “the
specificity of an affirmation of fact upon which a warranty could be predicated.”
Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 463 (Tex. App.—Dallas 1990), writ
denied, 800 S.W.2d 853 (Tex. 1991). Kumar allegedly relied on Ashley’s assurance
that the soup was meat-free in purchasing the soup. Contrary to that warranty, the
soup did contain meat, and Kumar suffered “physical allergic reactions, emotional
distress, and mental anguish” as a result of having inadvertently consumed meat
after relying on Ashley’s assurances. Dkt. 55 at 17. This is enough, at the pleading
stage, to state a claim for breach of warranty under the DTPA and the UCC. 2 Kumar
cannot, however, state a claim for unconscionable actions.
“The subject of the transaction, [Panera]’s food, falls under the UCC’s broad definition
of goods.” McMahon v. Chipotle Mexican Grill, Inc., No. 2:20-cv-1448, 2024 WL
1932319, at *3 (W.D. Pa. May 1, 2024) (citing the Pennsylvania UCC’s definition of
“goods,” 13 PA. STAT. & CONS. STAT. ANN. § 2105(a), which is identical to the Texas UCC
definition, TEX. BUS. & COM. CODE ANN. § 2.105(a)).
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“Texas law does not permit double recovery.” Parkway Co., 901 S.W.2d at 441. The
DTPA affords Kumar “greater recovery” than the UCC would. Id. Thus, as discussed
below, Kumar’s ability to state a claim for breach of warranty under the UCC is relevant
only to Kumar’s claim for mental anguish damages under the DTPA.
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3.

Kumar Fails to State a DTPA Claim for Unconscionable
Actions.

Because Kumar mentions “unconscionable conduct” several times in his
complaint, I will examine whether he can state a DTPA claim for unconscionable
conduct under § 17.50(a)(3). The DTPA defines an unconscionable action as “an
act or practice which, to a consumer’s detriment, takes advantage of the lack of
knowledge, ability, experience, or capacity of the consumer to a grossly unfair
degree.” TEX. BUS. & COM. CODE § 17.45(5). “The term ‘gross’ should be given its
ordinary meaning, and therefore, the resulting unfairness must be glaringly
noticeable, flagrant, complete and unmitigated.” Lon Smith & Assocs., Inc. v. Key,
527 S.W.3d 604, 623 (Tex. App.—Fort Worth 2017, pet. denied) (quotation
omitted). “Case law uniformly holds . . . [that] the unconscionable-act-or-courseof-action element of a DTPA section 17.50 unconscionability claim requires proof
of each consumer’s knowledge, ability, experience, or capacity.” Id. at 624. With
this standard in mind, I turn to Kumar’s allegations.
Kumar alleges that he is an “Associate Consultant (IT/Finance Project
Manager) for fortune 500 corporate clients.” Dkt. 55 at 3. Kumar also alleges that
“[w]ithin [a] few hours, . . . [he] learned that the soup contains meat ingredients.”
Id. at 6. Kumar attaches to his complaint screenshots of Panera’s website, which
show that a “Detailed Ingredients” list reflects that the soup contains chicken and
chicken byproducts. Id. at 32. It is difficult to fathom how a cashier at Panera “took
advantage” of a working professional with the ability to access the internet and
view an ingredient list. Yet, Kumar alleges that Panera “engaged in an
unconscionable action or course of action that took advantage of the lack of
knowledge, ability, experience, or capacity to a grossly unfair degree.” Dkt. 55 at
11, 13. But this is all that Kumar says as far as unconscionability is concerned. Such
a conclusory statement is precisely the type of allegation that should be
disregarded when evaluating pleadings—even pleadings by a pro se litigant. See

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Chhim, 836 F.3d at 469. Thus, Kumar has not stated a DTPA claim against Panera
for unconscionable actions.
C.

THE LAW-OF-THE-CASE DOCTRINE FORECLOSES KUMAR’S TORT
CLAIMS, BUT NOT MENTAL ANGUISH DAMAGES.
Panera next argues that “Kumar’s other claims fail under the law-of-the-case

doctrine and the Fifth Circuit’s mandate.” Dkt. 57 at 15 (capitalization removed).
Panera is correct that Kumar’s negligence, gross negligence, and intentional
infliction of emotional distress claims are barred by the law-of-the-case doctrine.
The Fifth Circuit expressly affirmed my dismissal of Kumar’s negligence and gross
negligence claims. See Kumar, 2024 WL 1216562, at *3 (“Accordingly, we conclude
that the district court did not err in dismissing Kumar’s claims for simple and gross
negligence.”). As for Kumar’s intentional infliction of emotional distress claim, the
Fifth Circuit found that Kumar “expressly abandon[ed]” that claim. Id. at *4.
Further litigation of such claims is indeed barred by the law-of-the-case doctrine.
See Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (“[A]n issue
of law decided on appeal may not be reexamined by the district court on remand.”
(cleaned up)). Accordingly, Kumar can no longer prosecute these tort claims, and
Panera’s Motion to Dismiss is granted to the extent that Kumar attempts to
reassert them.
On appeal, the Fifth Circuit observed that “Kumar may seek to pursue other
types of ‘emotional distress’ claims, such as negligent infliction of emotional
distress.” Kumar, 2024 WL 1216562, at *4. The Texas Supreme Court, however,
has held that negligent infliction of emotional distress is not a standalone claim;
rather, “mental anguish damages should be compensated only in connection with
defendant’s breach of some other duty imposed by law.” Boyles v. Kerr, 855
S.W.2d 593, 596 (Tex. 1993). This holding mirror’s the DTPA’s allowance for
recovery of actual damages “without regard to whether the conduct of the
defendant was committed intentionally” where “a claimant is granted the right to
bring a cause of action . . . by another law.” TEX. BUS. & COMM. CODE ANN.
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§ 17.50(h). Thus, the question becomes whether Kumar has alleged Panera’s
breach of some other legal duty.
As discussed above, Kumar has alleged Panera’s breach of an express
warranty under the UCC. Because Kumar would be granted the right to bring a
cause of action for breach of warranty under the UCC, Kumar may recover mental
anguish damages on his DTPA claim without regard to whether Panera’s conduct
was intentional. See TEX. BUS. & COMM. CODE ANN. § 17.50(h); see also Akin v.
Bally Total Fitness Corp., No. 10-05-00280-CV, 2007 WL 475406, at *4 (Tex.
App.—Waco Feb. 14, 2007, pet. abated) (holding that the DTPA did not bar
plaintiff’s claim for mental anguish damages where plaintiff pleaded damages
resulting from the breach of an implied warranty). What remains to be seen,
however, is whether Kumar can muster proof of his of DTPA claims and alleged
damages. 3 The issue of proof brings me to Panera’s Motion for Reconsideration.
PANERA’S MOTION FOR RECONSIDERATION
I previously denied Panera’s Motion for Summary Judgment (Dkt. 25) as
moot when I granted Panera’s Motion to Dismiss (Dkt. 20). See Dkt. 39. Panera
asks me to reconsider its Motion for Summary Judgment because “Kumar cannot
raise a genuine or material fact issue on essential elements of his alleged DTPA
violation.” Dkt. 58 at 2. Although Panera makes this argument in reference only to
Kumar’s DTPA claim, it applies with equal force to any claim Kumar could bring.
“Kumar responded [to Panera’s first motion for summary judgment] without
attaching a single exhibit.” Id. Because Kumar offered no evidence
whatsoever, any claim would fail.
“[A]n award of mental anguish damages will survive a legal sufficiency challenge when
the plaintiffs have introduced direct evidence of the nature, duration, and severity of their
mental anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine.”
Parkway Co., 901 S.W.2d at 444. Texas courts “apply traditional no-evidence standards
to determine whether the record reveals any evidence of a high degree of mental pain and
distress that is more than mere worry, anxiety, vexation, embarrassment, or anger to
support any award of damages. Direct evidence may be in the form of the parties’ own
testimony, that of third parties, or that of experts.” Houston Livestock Show & Rodeo,
Inc. v. Hamrick, 125 S.W.3d 555, 579 (Tex. App.—Austin 2003, no pet.) (cleaned up).
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I understand why Panera wants me to reconsider its Motion for Summary
Judgment—the lack of any evidence from Kumar makes it an automatic grant. But
Kumar is proceeding pro se, and “federal courts, [the Fifth Circuit] included, have
a traditional disposition of leniency toward pro se litigants.” Davis v. Fernandez,
798 F.3d 290, 293 (5th Cir. 2015) (quotation omitted). Thus, I must consider the
possibility that Kumar simply did not understand what was required to create a
fact issue and survive what was, essentially, Panera’s “no evidence” motion for
summary judgment. In recognition of this possibility, I will recap what is required
to defeat a motion for summary judgment.
At the motion to dismiss stage, I am required to accept Kumar’s factual
allegations as true. See Alexander, 848 F.3d at 701. But while Kumar’s “welldrafted pleadings appropriately allege” DTPA claims, “[u]nsworn pleadings are not
. . . competent summary judgment evidence.” Dorsett v. Bd. of Trs. for State Colls.
& Univs., 940 F.2d 121, 124 (5th Cir. 1991). On summary judgment, even pro se
litigants must come forward with more than an unsworn complaint to create a
genuine issue of material fact. See Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.
1980) (“Although pro se litigants are not held to the same standards of compliance
with formal or technical pleading rules applied to attorneys, we have never allowed
such litigants to oppose summary judgments by the use of unsworn materials.”);
Smith v. FTS USA/Unitek Glob. Serv., 676 F. App’x. 264, 266 (5th Cir. 2017)
(affirming district court’s grant of summary judgment to defendants where the
plaintiff “failed to support his allegations with any evidence in the record, relying
instead on his unsworn pleadings and materials”); Solo Serve Corp. v. Westowne
Assocs., 929 F.2d 160, 164 (5th Cir. 1991) (holding that “only evidence—not
argument, not facts in the complaint—will satisfy [the non-movant’s summary
judgment] burden”).
Because Kumar relied entirely on his unsworn pleadings in his summary
judgment response, he failed to create a genuine dispute as to any fact. Curiously,
Kumar submitted a notarized affidavit with his summary judgment response. See
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Dkt. 30-1. Yet, Kumar failed to attest to any relevant facts in that affidavit. See id.
Rather, Kumar detailed trouble with his previous counsel, and his difficulty in
finding new counsel. Even so, “the circumstances of this case [reveal] no foul play,
inexcusable neglect, or other valid basis to exclude from consideration the
testimony [that Kumar might provide],” knowing now what is required to create a
dispute of genuine fact. Davis, 798 F.3d at 294. The Fifth Circuit has held “that it
would be an abuse of discretion to refuse to consider [such testimony].” Id.
Accordingly, I will give Kumar a final opportunity—through new summary
judgment briefing—to submit evidence that creates a genuine dispute of material
fact as to one or more of his claims.
CONCLUSION
For the reasons discussed above, Panera’s Motion to Dismiss (Dkt. 57) is
DENIED as to Kumar’s DTPA claims, but GRANTED in all other respects.
Panera’s Motion for Reconsideration of its Motion for Summary Judgment
(Dkt. 58) is DENIED. Panera may file a new motion for summary judgment by
Friday, October 25, 2024. Kumar’s response to Panera’s motion for summary
judgment is due Friday, November 22, 2024. Panera may file a reply, if any, by
Friday, December 6, 2024.
SIGNED this ___ day of September 2024.

______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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