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PELMAN v. MCDONALD'S CORPORATION
January 22, 2003
ASHLEY PELMAN, A CHILD UNDER THE AGE OF 18 YEARS, BY HER MOTHER AND NATURAL GUARDIAN ROBERTA PELMAN, ROBERTA PELMAN, INDIVIDUALLY, JAZLYN BRADLEY, A CHILD UNDER THE AGE OF 18 YEARS, BY HER FATHER AND NATURAL GUARDIAN ISRAEL BRADLEY, AND ISRAEL BRADLEY, INDIVIDUALLY, PLAINTIFFS,
MCDONALD'S CORPORATION, MCDONALD'S RESTAURANTS OF NEW YORK, INC., MCDONALD'S 1865 BRUCKERN BOULEVARD, BRONX, NEW YORK, MCDONALD'S 2630 JEROME AVENUE, BRONX, NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: Bert W. Sweet, United States District Judge
Defendants McDonald's Corporation ("McDonalds Corp."); McDonald's
Restaurants of New York, Inc. ("McDonalds of New York"); McDonald's 1865
Bruckner Boulevard Bronx, New York ("Bruckner Boulevard outlet"); and
McDonald's 2630 Jerome Avenue, Bronx, New York ("Jerome Avenue outlet")
(collectively "McDonalds") have moved pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure to dismiss the complaint of class-action
plaintiffs Ashley Pelman, Roberta Pelman, Jazlen Bradley, and Israel
Bradley. The plaintiffs have cross-moved to remand the case to state
This action presents unique and challenging issues. The plaintiffs have
alleged that the practices of McDonalds in making and selling their
products are deceptive and that this deception has caused the minors who
have consumed McDonalds' products to injure their health by becoming
obese. Questions of personal responsibility, common knowledge and public
health are presented, and the role of society and the courts in
addressing such issues.
The issue of determining the breadth of personal responsibility
underlies much of the law: where should the line be drawn between an
individual's own responsibility to take care of herself, and society's
responsibility to ensure that others shield her? Laws are created in
those situations where individuals are somehow unable to protect
themselves and where society needs to provide a buffer between the
individual and some other entity — whether herself, another
individual or a behemoth corporation that spans the globe. Thus Congress
provided that essentially all packaged foods sold at retail shall be
appropriately labeled and their contents described. The Nutrition Labeling
and Education Act of 1990, Pub.L. 101-535, 104 Stat. 2353 (Nov. 8, 1990)
(the "NLEA"), 21 U.S.C. § 343(q).*fn1 Also as a matter of federal
regulation, all alcoholic beverages must warn pregnant women against
their use. 27 U.S.C. § 215 (forbidding sale of alcohol unless it
bears the following statement: "GOVERNMENT WARNING: (1) According to the
Surgeon General, women should not drink alcoholic beverages during
pregnancy because of the risk of birth defects. . . .");
27 C.F.R. § 16.21. Congress has gone further and made the possession
and consumption of certain products criminal because of their presumed
effect on the health of consumers.*fn2 Other products have created
health hazards and resulted in extensive and expensive class action
litigation. E.g., Amchem Products v. Windsor, 521 U.S. 591 (1997)
(affirming denial of certification of class of potentially millions who
had suffered injuries as a result of exposure to asbestos); In re Diet
Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liability
Litig., 282 F.3d 220, 225 (3d Cir. 2002) (class action of six million who
took diet drugs (Pondimin and Redux) that were later linked to valvular
heart disease); In re Breast Implant Cases, 942 F. Supp. 958, 959-60
(S.D.N.Y. 1996) (discussing possibility of transfer of thousands of cases
alleging injuries from silicone breast implants). Public health is one,
if not the, critical issue in society.
This opinion is guided by the principle that legal consequences should
not attach to the consumption of hamburgers and other fast food fare
unless consumers are unaware of the dangers of eating such food. As
discussed, infra, this guiding principle comports with the law of
products liability under New York law. As Sir Francis Bacon noted, "Nam et
ipsa scientia potestas est,"*fn3 or knowledge is power. Following from
this aphorism, one important principle in assigning legal responsibility
is the common knowledge of consumers. If consumers know (or reasonably
should know) the potential ill health effects
of eating at McDonalds,
they cannot blame McDonalds if they, nonetheless, choose to satiate their
appetite with a surfeit of supersized McDonalds products. On the other
hand, consumers cannot be expected to protect against a danger that was
solely within McDonalds' knowledge. Thus, one necessary element of any
potentially viable claim must be that McDonalds' products involve a danger
that is not within the common knowledge of consumers. As discussed
later, plaintiffs have failed to allege with any specificity that such a
McDonalds has also, rightfully, pointed out that this case, the first
of its kind to progress far enough along to reach the stage of a
dispositive motion, could spawn thousands of similar "McLawsuits" against
restaurants. Even if limited to that ilk of fare dubbed "fast food," the
potential for lawsuits is great:*fn4 Americans now spend more than $110
billion on fast food each year, and on any given day in the United
States, almost one in four adults visits a fast food restaurant. Eric
Schlosser, Fast Food Nation 3 (2002) (hereinafter "Schlosser"). The
potential for lawsuits is even greater given the numbers of persons who
eat food prepared at other restaurants in addition to those serving fast
food. See FDA, Food Labeling; General Requirements for Health Claims for
Food, 58 FR 2478, 2516, 1993 WL 1547 (Jan. 6, 1993) ("Almost half of the
American food dollar is spent on food consumed away from home, and . . .
perhaps as much as 30 percent of the American diet is composed of foods
prepared in food service operations."). In light of these facts, the Court
is cognizant of its duty "to limit the legal consequences of wrongs to a
controlable degree and to protect against crushing exposure to
liability." McCarthy v. Olin Corp., 119 F.3d 148, 157 (2d Cir. 1997)
(quoting Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555,
The interplay of these issues and forces has created public interest in
this action, ranging from reports and letters to the Court to television
satire.*fn5 Obesity, personal liberty and public accountability affect
virtually every American consumer.
In terms of the pending motion by McDonalds to dismiss the complaint,
these principles require the complaint to be dismissed for lack of
specificity, with leave granted to replead within the limits set forth
The plaintiffs commenced suit on August 22, 2002, in the State Supreme
Court of New York, Bronx County. Defendants removed the action to the
Southern District of New York on September 30, 2002, alleging as the
basis of removal that the plaintiffs had fraudulently joined non-diverse
parties in order to defeat diversity jurisdiction pursuant to
28 U.S.C. § 1332.
McDonalds filed the instant motion to dismiss plaintiffs' complaint
(the "Complaint") on October 7, 2002. The plaintiffs cross-moved to
remand and in opposition to the motion on October 25, 2002. Oral argument
on both motions was held on November 20, 2002, and the motions were
considered fully submitted at that time.
As befits a motion to dismiss, the following facts are drawn from the
allegations in the Complaint and do not constitute findings of fact by
Ashley Pelman, a minor, and her mother and natural guardian Roberta
Pelman are residents of the Bronx, New York.
Jazlen Bradley, a minor, and her father and natural guardian Israel
Bradley are residents of New York, New York.
The infant plaintiffs are consumers who have purchased and consumed the
defendants' products and, as a result thereof, have become overweight and
have developed diabetes, coronary heart disease, high blood pressure,
elevated cholesterol intake, and/or other detrimental and adverse health
effects as a result of the defendants' conduct and business practices.
Defendant McDonald's Corp. is a Delaware corporation with its principal
place of business at One McDonald's Plaza, Oak Brook, Illinois. It does
substantial business with outlets in the State of New York, as well as
throughout the fifty states and the world.
Defendant McDonalds of New York is a New York State corporation with a
registered agent office located at 80 State Street, Albany, New York. It
does substantial business with outlets and/or franchises in the State of
McDonalds is the owner, manager, franchisee and operator of defendants
the Bruckner Boulevard and Jerome Avenue outlets. Ashley and Roberta
Pelman purchased and consumed food products at the Bruckner Boulevard
outlet. Jazlen and Israel Bradley purchased and consumed food products at
the Jerome Avenue outlet. All products, ingredients, promotions and
advertisements sold, provided, utilized, advertised and promoted by the
Jerome Avenue and Bruckner Boulevard outlets were authorized by McDonalds
Corp. and McDonalds of New York.
McDonalds Corp. and McDonalds of New York, through its agents,
servants, and/or employees, operate both company-owned outlets and
franchises, and prescribe their ingredients, qualities and quantities of
the food products served, so as to insure that its food products sold in
one state or location is substantially identical to food products sold
elsewhere in the country.
Obesity in Young Persons and its Effects
Today there are nearly twice as many overweight children and almost
three times as many overweight adolescents as there were in 1980. In
1999, an estimated 61 percent of U.S. adults were overweight or obese and
13 percent of children aged 6 to 11 years and 14 percent of adolescents
aged 12 to 19 years were overweight.
In 1980, those figures for children were 7 percent for children aged 6
to 11 years and 5 percent for adolescents aged 12 to 19 years.
Obese individuals have a 50 to 100 percent increased risk of premature
death from all causes. Approximately 300,000 deaths a year in the United
States are currently associated with overweight and obesity. As indicated
in the U.S. Surgeon General's 2001 Report on Overweight and Obesity,
"left unabated, overweight and obesity may soon cause as much preventable
disease and death as cigarette smoking."
Obesity and overweight classification are associated with increased
risk for coronary heart disease; type 2 diabetes; endometrial, colon,
postmenopausal breast and other cancers; and certain musculoskeletal
disorders, such as knee osteoarthritis.
Studies have shown that both modest and large weight gains are
associated with significantly increased risk of diseases. For example, a
weight gain of 11 to 18 pounds increases a person's risk of developing
type 2 diabetes to twice that of individuals who have not gained weight,
while those who gain 44 pounds or more have four times the risk of
coronary heart disease (nonfatal myocardial infarction and death) of 1.25
times in women and 1.6 times in men. A gain of 22 pounds in men and 44
pounds in women result in an increased coronary heart disease risk of 1.75
and 2.65, respectively.
In certain obese women, the risk of developing endometrial cancer is
increased by more than six times. Overweight and obesity are also known
to exacerbate many chronic conditions such as hypertension and elevated
cholesterol and such individuals may also suffer from social
stigmatization, discrimination and poor body image.
In 1995, the total estimated costs attributable to obesity amounted to
an estimated $99 billion. In 2000, the cost of obesity was estimated to
be $117 billion. Most of the costs associated with obesity arise form
type 2 diabetes, coronary heart disease and hypertension.
The plaintiffs allege five causes of action as members of a putative
class action of minors residing in New York State who have purchased and
consumed McDonalds products. Counts I and II are based on deceptive acts
and practices in violation of the Consumer Protection Act, New York Gen.
Bus. Law §§ 349 and 350, and the New York City Administrative Codes,
Chapter 5, 20-700 et seq. Count I alleges that McDonalds failed to
adequately disclose the ingredients and/or health effects of ingesting
certain of their food products with high levels of cholesterol, fat, salt
and sugar; described their food as nutritious; and engaged in marketing
to entice consumers to purchase "value meals" without disclosing the
detrimental health effects thereof. Count II focuses on marketing
techniques geared toward inducing children to purchase and ingest
McDonalds' food products. Count III sounds in negligence, alleging that
McDonalds acted at least negligently in selling food products that are
high in cholesterol, fat, salt and sugar when studies show that such
foods cause obesity and detrimental health effects. Count IV alleges that
McDonalds failed to warn the consumers of McDonalds' products of the
ingredients, quantity, qualities and levels of cholesterol, fat, salt and
sugar content and other ingredients in those products, and that a diet
high in fat, salt, sugar and cholesterol could lead to obesity and health
problems. Finally, Count V also sounds in negligence, alleging that
McDonalds acted negligently in marketing food products that were
physically and psychologically addictive.
I. Diversity Jurisdiction Exists, and the Plaintiffs' Motion to Remand
In order to rule on this motion, this Court must have jurisdiction.
Defendants removed to federal court alleging that diversity jurisdiction
exists pursuant to 28 U.S.C. § 1332.
Section 1332 states, in pertinent part, that:
(a) The district court shall have original jurisdiction
of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between —
(1) Citizens of different States. . . .
28 U.S.C. § 1332. Section 1332 requires complete diversity of
citizenship; therefore no defendant may share citizenship with a
plaintiff. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,
373-74, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978). There is no dispute
that all of the plaintiffs are New York residents and that three of the
defendants — McDonalds of New York, the Bruckner Boulevard outlet,
and the Jerome Avenue outlet — are New York residents. Therefore,
unless the three non-diverse defendants were "fraudulently joined" to
defeat jurisdiction, complete diversity does not exist, and this Court
lacks subject matter jurisdiction over the controversy.
As an initial matter, although this concept is described as "fraudulent
joinder," suggesting that the determinative issue is one of motive,
motive in fact has nothing to do with it. In re Rezulin Prods. Liability
Litig., 133 F. Supp.2d 272, 279 (S.D.N.Y. 2001) ("The only issue is
whether the plaintiff has a legitimate claim against the non-diverse or
in-state defendant — whether, in other words, the plaintiff has a
real or direct interest in the controversy vis-a-vis the non-diverse or
in-state defendant . . . ."). The standard for determining whether a
plaintiff's claim against a defendant is sufficiently substantial to
defeat removal jurisdiction is governed by Pampillonia v. RJR Nabisco,
Inc., 138 F.3d 459, 461 (2d Cir. 1998).
In order to show that a non-diverse defendant was fraudulently joined
to defeat diversity jurisdiction, the defendant must demonstrate, by
clear and convincing evidence, either that there has been outright fraud
committed in the plaintiffs' pleadings, or that there is no reasonable
basis, based on the pleadings, for liability against the non-diverse
defendants in light of the claims alleged. Whitaker v. American
Telecasting, Inc., 261 F.3d 196, 207 (2d Cir. 2001) (quoting
Pampillonia, 138 F.3d at 461). The burden on a removing defendant to meet
this standard is a heavy one, and all reasonable doubts of fact and law
are resolved in favor of the plaintiff. Id. "Nevertheless, the burden is
not impossible of satisfaction." In re Rezulin, 133 F. Supp.2d at 280.
In order to interpret the legal standards stated above, it is necessary
to look to the "realities of the record." Rose v. Giamatti,
721 F. Supp. 906, 915 (S.D.Ohio 1989). The discussion of whether the
plaintiffs have stated a claim against the outlets and McDonalds of New
York necessarily augurs the discussion, infra, of whether the Complaint
should be dismissed. For ease of reading, this section summarizes the
With regard to the claims under the Consumer Protection Act, as
discussed infra, plaintiffs fail to cite any specific advertisements or
public statements that may be considered "deceptive" on the part of any of
the defendants, including the outlets. In addition, while the Complaint
does cite to specific omissions on the part of all defendants —
namely the failure to include nutritional labeling at points of
purchase*fn6 — it does not claim that the outlets had
any particular knowledge in their possession and not in the public's
possession that would require them to post such information. Therefore,
the plaintiffs have not stated a claim against the outlets under the
Consumer Protection Act.
Plaintiffs also cannot state the negligence claims against the
outlets. First, plaintiffs have failed to establish that any of the
defendants have produced a product that was so unhealthy as to be outside
a reasonable's consumer's expectations. A larger problem is raised here
with regard to probable cause than that pointed out later in the
discussion of McDonalds' motion to dismiss. Normally, a products
liability action that is brought against retailers, distributors and
manufacturers is premised on an injury that results from the use of a
single item that was purchased from a particular retailer and
distributor.*fn7 Here, however, the claim is premised on an
over-consumption of products specified and provided by the national
defendant, McDonalds Corp. In order to establish proximate cause, the
injury of over-consumption must somehow be tied to the outlets.
Presumably, that would require, in addition to alleging the facts
discussed infra, some allegation that plaintiffs ate primarily at the
particular outlet. In the absence of such allegations, a claim against the
outlets cannot stand.
The inclusion of McDonalds of New York is more logical than the
inclusion of two of the many McDonalds outlets in New York State.
Plaintiffs nonetheless fail to state a claim for similar reasons
First, with regard to the Consumer Protection Act, there is no
allegation of any specific advertisements or public statements arising
from McDonalds of New York. Further, there is no allegation that
McDonalds of New York had in its possession any particular knowledge that
consumers did not have that would require it to promulgate information
about the nutritional contents of the products. Therefore, the deceptive
practices claim cannot stand against McDonalds of New York.
C. The Outlets and McDonalds of New York Are Akin to Retailers and
Distributors of McDonalds Corp.'s Products
In addition, because the outlets and McDonalds of New York are akin to
retailers and distributors of a manufacturer's products, the negligence
claims cannot attach to the outlets and ...