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Waldman v. New Chapter

May 19, 2010

ANNA WALDMAN, PLAINTIFF,
v.
NEW CHAPTER, INC., DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Anna Waldman, on behalf of herself and others similarly situated, filed a putative class action against New Chapter, Inc., alleging that New Chapter misled consumers by listing their "Berry Green" product's weight in grams rather than ounces, and by including too much empty space ("slack fill") in the product's packaging. New Chapter has moved to dismiss. For the following reasons, that motion is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

In 2009, Plaintiff purchased a box of Berry Green, a "Spoonable Whole-Food." Compl. ¶ 12; Pl. Ex. 2.*fn1 Berry Green is sold by net weight. Compl. ¶ 1; Pl. Ex. 2. Berry Green lists only its metric weight (180 grams), not its weight according to the U.S. Customary or "imperial unit" system. Pl. Ex. 2. Berry Green comes in a box that is 65/8 inches tall. Compl. ¶ 12. The box contains a jar that is 55/8 inches tall. Compl. ¶ 15. And the jar itself is only half-filled with the product. Compl. ¶ 16.

Plaintiff claims that "most consumers in the United States" are unfamiliar with the metric system. Compl. ¶¶ 7, 19. But contrary to Plaintiff's claim in her opposition brief, the Complaint does not allege that Plaintiff herself is unfamiliar with the metric system. Plaintiff further contends that the package's size, in relation to the amount of product it contains, misleads the consumer into believing "that the consumer is buying more than is actually contained in the jar." Compl. ¶ 4. To that end, Plaintiff alleges that she did not know when she purchased the product that she was "only purchasing an amount of the product that was less than half the size of the box . . . and/or less than half the size of the jar in which the product was contained." Compl. ¶ 40. And Plaintiff further alleges that "[h]ad defendant adequately disclosed the true amount of the product, plaintiff would not have purchased defendant's product."

This suit followed.

DISCUSSION*fn2

I. Standard Of Review On A Motion To Dismiss

In deciding FED. R. CIV. P. 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles," Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). First, although the Court must accept all allegations as true, and draws all reasonable inferences in the plaintiff's favor this "tenet" is "inapplicable to legal conclusions"; thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Ashcroft); Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Management LLC, 595 F.3d 86, 91 (2d Cir. 2010). Second, only complaints that state a "plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

II. Breach Of Contract Claim

Plaintiff's second cause of action alleges that Defendant's misleading packaging constituted a breach of contract, or a breach of the covenant of good faith and fair dealing. Defendant responds that Plaintiff cannot bring a contract-based claim because Plaintiff lacked privity with Defendant. The Court agrees.

One may not maintain a contract action against a party with whom it lacks privity. See M. Paladino, Inc. v. J. Lucchese & Sons Contracting Corp., 247 A.D.2d 515, 516 (2d Dep't 1998). Under New York law, no privity exists between a manufacturer and a downstream or indirect purchaser. See, generally, 3 N.Y. Jur. 2d Sales § 233 ("implied warranties of merchantability and fitness for a particular purpose do not run from a manufacturer to a remote purchaser, not in privity with the manufacturer"). To that end, New York courts consistently reject contract-based claims brought by indirect purchasers or lessees against manufacturers.*fn3 This general rule has some exceptions. But none of these exceptions apply here. For example, downstream purchasers can bring express warranty claims premised on a manufacturer's "sales literature, product brochures and advertisements." 28 N.Y. PRAC., CONTRACT LAW § 19:4.

But here, Plaintiff does not allege that Defendant ever expressly warranteed that the product's volume approximated that of its package. Likewise, implied warranty claims for personal injury do not require contractual privity. See 28 N.Y. PRAC., CONTRACT LAW § 19:22. But here, Plaintiff alleges only "economic loss," not personal injury. Id.

Because Plaintiff neither pleads facts suggesting that she had privity with Defendant, nor facts indicating that an exception to contractual privity applies, Plaintiff's ...


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