United States District Court, E.D. New York
KRISTEN MANTIKAS, KRISTIN BURNS, and LINDA CASTLE, individually and on behalf of all others similarly situated, Plaintiffs,
KELLOGG COMPANY, Defendant.
OPINION AND ORDER
J. FEUERSTEIN UNITED STATES DISTRICT JUDGE.
Kristen Mantikas, Kristin Burns, and Linda Castle
(collectively, “Plaintiffs”) commenced this
action against Defendant Kellogg Company
(“Defendant” or “Kellogg”),
individually and on behalf of all others similarly situated,
seeking monetary and injunctive relief for, inter
alia, Defendant's alleged violation of: (i) N.Y.
Gen. Bus. Law §§ 349 and 350; (ii) Cal. Bus. &
Prof. Code §§ 17200 and 17500; and (iii) Cal. Civ.
Code § 1750. See Docket Entry
(“DE”) . Presently before the Court is
Defendant's motion to dismiss Plaintiffs' Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), which
Plaintiffs oppose. DE . For the reasons set forth herein,
Defendant's motion to dismiss is granted in its entirety.
otherwise noted, the following facts are drawn from the
Complaint and are accepted as true for purposes of the
Kellogg is a Delaware corporation with a principal place of
business located at One Kellogg Square, Battle Creek,
Michigan. Compl., DE , ¶¶ 36-37. Kellogg
manufactures, markets, and sells “Cheez-It Whole
Grain” crackers (the “Crackers” or the
“Product”) in major retail stores nationwide.
Id. at ¶ 1. Kellogg promotes the Crackers as
“whole grain” crackers, and the box in which the
Crackers are sold states, inter alia, either
“WHOLE GRAIN” or “MADE WITH WHOLE
GRAIN” and either “MADE WITH 5g OF WHOLE GRAIN
PER SERVING” or “MADE WITH 8g OF WHOLE GRAIN PER
SERVING.” Id. at ¶¶ 2, 50. Two (2)
examples of the Crackers' packaging are seen below:
at ¶ 50; see also Declaration of Kenneth Lee in
Support of Defendant's Motion to Dismiss Class Action
Complaint (“Lee Decl.”), DE [17-2], Ex. A.
According to Plaintiffs, “‘[w]hole grains'
are grains that include the entire grain seed-its endosperm,
bran, and germ.” Compl. ¶ 43. In contrast,
“‘[n]on-whole grains or ‘refined
grains' have been processed to remove their bran and
germ, thereby removing the dietary fiber and most other
nutrients.” Id. at ¶ 44. According to
Plaintiffs, “[consumers, cognizant of the healthfulness
of whole grains relative to non-whole grains, are
increasingly purchasing whole grain products.”
Id. at ¶ 47. Plaintiffs allege that
“Kellogg's ‘WHOLE GRAIN' representation .
. . is false and misleading, because the primary ingredient
in Cheez-It Whole Grain crackers is enriched white
flour.” Id. at ¶ 3.
Mantikas is a resident of New York who purchased the Crackers
approximately one (1) time per week from Stop and Shop and
Target stores located in Glen Cove, New York. Id. at
¶¶ 10-11. Plaintiffs Burns and Church are residents
of California. Id. at ¶¶ 18, 28. Burns
purchased the Crackers approximately one (1) time per week
for several years from Safeway stores in San Jose,
California, and Church purchased the Crackers a total of
three (3) times from Ralph's Market in Torrance,
California. Id. at ¶¶ 19, 29. Plaintiffs
each purchased boxes of the Crackers that “contained
the representation that they were ‘WHOLE GRAIN' on
the front” in “large” and
“conspicuous” font. Id. at ¶¶
12, 21, 30. Plaintiffs relied upon “the ‘WHOLE
GRAIN' representation in making [their] purchase
decisions, and would not have purchased the products had
[they] known they were not, in fact, predominantly whole
grain.” Id. at ¶¶ 13, 22, 31.
According to Plaintiffs, they “paid for ‘WHOLE
GRAIN' Cheez-It crackers, but . . . received products
that were not predominantly whole grain.” Id.
at ¶¶ 14, 23, 32. Plaintiffs allege that the
crackers they received “were worth less than the
crackers for which [they] paid, ” and that they were
“injured in fact and lost money as a result of
Defendant's improper conduct.” Id. at
¶¶ 16, 26, 34. Plaintiffs further allege that they
can no longer “purchase the products because [they]
cannot be confident that the labeling of the product is, and
will be, truthful and non-misleading.” Id. at
¶¶ 17, 27, 35.
of a May 19, 2016 Class Action Complaint, Plaintiffs
commenced this purported class action against Kellogg,
seeking both monetary and injunctive relief. DE .
Plaintiffs allege, inter alia, that they “read
and relied on Kellogg's false and misleading labeling in
purchasing Cheez-It Whole Grain crackers, including the
representation that the crackers were ‘WHOLE
GRAIN.'” Compl. ¶ 57. According to Plaintiffs,
“Kellogg deliberately capitalizes on foreseeable
consumer misconceptions about Cheez-It Whole Grain crackers
in its marketing and sales scheme, ” and has therefore
“reaped, and continues to reap, increased sales and
profits.” Id. at ¶¶ 63, 65. Mantikas
asserts causes of action arising under N.Y. Gen. Bus. Law
§§ 349 and 350, both individually and on behalf of
a proposed subclass including all “persons residing in
New York who have purchased Cheez-It Whole Grain crackers for
their own use . . . since May 19, 2010.” Id.
at ¶ 68, 90-104. Burns and Castle assert causes of
action arising under Cal. Bus. & Prof. Code §§
17200 and 17500 and Cal. Civ. Code § 1750, both
individually and on behalf of a proposed subclass including
all “persons residing in California who have purchased
Cheez-It Whole Grain crackers for their own use . . . since
May 19, 2012.” Id. at ¶¶ 69, 105-40.
All Plaintiffs also assert a claim for unjust enrichment
under Michigan law, both individually and on behalf of
“[a]ll persons residing in the United States and its
territories who have purchased Cheez-It Whole Grain crackers
for their own use (which includes feeding their families),
and not for resale, since May 19, 2010.” Id.
at ¶¶ 66-67, 82-89.
October 7, 2016, Defendant filed the instant motion to
dismiss Plaintiffs' Complaint pursuant to Fed.R.Civ.P.
12(b)(6). DE . With respect to Plaintiffs' claims
arising under New York's and California's consumer
protection laws,  Kellogg argues, inter alia, that
because “Plaintiffs do not dispute that whole grains
are indeed one of the ingredients in Cheez-It”
crackers, Plaintiffs “have failed to plausibly show
that a reasonable consumer would likely be deceived by the
Cheez-It packaging.” See Memorandum of Law in
Support of Defendant's Motion to Dismiss Class Action
Complaint (“Def.'s Mem.”), DE [17-1], at 1.
Defendant further argues that “Plaintiffs' state
[consumer protection] law claims must also be dismissed
because they are preempted under federal law.”
Id. at 10-13. With respect to Plaintiffs' claim
for unjust enrichment under Michigan law, Defendant argues
that: (i) as residents of New York and California, Plaintiffs
lack standing to assert a claim arising under Michigan law;
(ii) Plaintiffs' allegations fail to state a plausible
claim for unjust enrichment; and (iii) Plaintiffs'
attempt to apply Michigan law to a nationwide class is
improper. Id. at 13-16. In opposition to the instant
motion, Plaintiffs argue, inter alia, that
“[a] reasonable consumer would rely on the large-print
representations on the front of the box as an accurate
description of its contents, ” and that
“Defendant intends to convey that the grain in Cheez-It
Whole Grain is from whole grain and not refined grain and,
consequently, a healthy and nutritious product.”
See Plaintiffs' Memorandum of Law in Opposition
to Defendant's Motion to Dismiss Class Action Complaint
(“Pls.' Opp'n”), DE [17-3], at 1.
order to survive a motion to dismiss pursuant to Rule
12(b)(6), a complaint must contain “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, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 1974 (2007)). A claim is considered
plausible on its face “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, 556 U.S. at 678, 129 S.Ct.
at 1949. In deciding a motion to dismiss, “a court must
‘accept all allegations in the complaint as true and
draw all inferences in the non-moving party's
favor.'” U.S. ex rel. Siegel v. Roche
Diagnostics Corp., 988 ...