United States District Court, S.D. New York
ANNA WURTZBURGER on behalf of herself and all others similarly situated, Plaintiffs,
KENTUCKY FRIED CHICKEN, Defendant.
OPINION AND ORDER
S. ROMAN, United States District Judge
Anna Wuitzburger ("Plaintiff or
"Wuitzburger"), on behalf of herself and all those
similarly situated, commenced the instant action against
Kentucky Fried Chicken("Defendant" or "KFC")
seeking monetary damages for alleged violations of New York
State statutes. Plaintiff asserts causes of action against
Defendant sounding in deceptive advertisements and practices
in violation of General Business Law §§ 349
("GBL § 349"), 350 ("GBL §
350"), and 21 C.F.R. § 100.100 . Defendant now
moves, pursuant to Federal Rule of Civil Procedure 12(b)(6),
to dismiss Plaintiffs complaint ("Complaint") for
failure to state a claim upon which relief may be granted.
Defendant asserts that Plaintiffs claims are meritless, that
its labels and advertisements are not materially misleading
as a matter of law, and that Plaintiff fails to adequately
allege causation and injury. For the following reasons,
Defendant's motion to dismiss the complaint is GRANTED.
a New York State resident, alleges that Defendant engages in
a national and local advertising campaign that misleads
consumers into believing that Defendant's food
packaging-buckets of chicken-are filled to the rim. (See
e.g., Compl. ¶¶ 8, 13.) Defendant KFC is a
corporation organized under the laws of the State of Delaware
(Defendant's R. 7.1 Corp. Disc. Statement 1), which
operates national fast food restaurants specializing in fried
chicken. Plaintiff asserts three causes of action stemming
from the same core set of facts. Plaintiff alleges that from
June 2016 through August 2016, she made multiple food
purchases at Defendant's Hopewell Junction restaurant
located in Dutchess County, New York, which included a $20.00
"fill-up" bucket meal of chicken that was
advertised as consisting of "an eight piece bucket of
chicken." (Compl. ¶¶ 3, 12, 13.) Plaintiff
relied upon Defendant's commercial in making the
purchase. (Id. ¶ 11.) Defendant's
advertisement was purportedly misleading because it
"stated that the meal could feed your whole family,
" (Id. ¶ 8) and "defendant should
have used a smaller bucket for the amount of chicken [(eight
pieces)] that was in it" (Id. ¶ 14)
because the advertisement displayed a bucket overflowing with
result of the false and misleading advertisement, Plaintiff
was injured in that "[h]er stomach was upset with acid
reflux and her gall bladder was removed and she had pain in
her stomach and later found out the [KFC] chickens were
injected with hormones." This happened to Plaintiff every
time she ate the chicken which occurred "[o]nce per week
in June, 2016 [and] July, 2016." (Id. ¶
12.) In August 2016, she purchased a pot pie from Defendant
which also made her sick. (Id.)
essence, Plaintiff alleges that Defendant's advertisement
prompted her to purchase chicken and a pot pie from June 2016
through August 2016 and that she paid $20.00 for an eight
piece chicken meal which was packaged in a bucket that was
larger than necessary. (See Compl. ¶ 14.)
Further, unlike the advertisement, the chicken was not
overflowing in its container. (Id. ¶ 8.) Had
Defendant used a smaller bucket, she alleges, the eight piece
chicken meal would have more closely resembled the bucket of
chicken as depicted in the advertisement. (See Id.
¶ 16.) Alternatively, Plaintiff suggests, despite
purchasing an eight piece chicken meal, that Defendant should
have filled the bucket up to the rim so she would have
received more chicken-more than the eight pieces she
bargained for. (See Id. ¶ 13, 15.) As to the
alleged injuries, Plaintiff does not reference any monetary
damages but indicates she suffered personal injuries as a
result of eating Defendant's food. (Id. ¶
TO DISMISS STANDARDS
motion to dismiss for "failure to state a claim upon
which relief can be granted, " Fed.R.Civ.P. 12(b)(6),
dismissal is proper unless the complaint "contain[s]
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 (2009) (quoting
Bell Atl. Corp. v. Twombfy, 550 U.S. 544, 570
(2007)); accord Hoyden v. Paterson, 594 F.3d 150,
160 (2d Cir. 2010). "Although for the purposes of a
motion to dismiss [a court] must take all of the factual
allegations in the complaint as true, [it is] 'not bound
to accept as true a legal conclusion couched as a factual
allegation.'" Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). "While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations."
Id. at 679.
there are well-pleaded factual allegations in the complaint,
"a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief." Id. A claim is facially plausible when
the factual content pleaded allows a court "to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 678. Ultimately,
determining whether a complaint states a facially plausible
claim upon which relief may be granted must be "a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Id. at 679.
GENERAL BUSINESS LAW § 349 AND § 350
York law proscribes "[d]eceptive acts or practices in
the conduct of any business, trade or commerce or in the
furnishing of any service in th[e] state." GBL §
349(a). To state a claim pursuant to GBL§ 349, a
plaintiff must allege: (1) that the defendant's acts were
consumer oriented; (2) that the acts or practices are
"deceptive or misleading in a material way, "; and
(3) that the plaintiff has been injured as a result.
Oswego Laborers' Local 214 Pension Fund v. Marine
Midland Bank N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529,
647 N.E.2d 741 (1995); accord Spagnola v. Chubb
Corp., 574 F.3d 64, 74 (2d Cir. 2009); City of New
York v. Smokes-Spirits.com, Inc., 12 N.Y.3d 616, 621,
883 N.Y.S.2d 772, 911 N.E.2d 834 (2009); Goshen v. Mut.
Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324, 746 N.Y.S.2d
858, 774 N.E.2d 1190 (2002).
of false advertising under GBL § 350 must meet all of
the same elements as a claim under GBL § 349.
Goshen, 98 N.Y.2d at 324 n.1; See also Kommer v.
Bayer Consumer Health, 252 F.Supp.3d 304, 310 n.2
(S.D.N.Y. 2017). Bare recitation of the elements of a cause
of action under GBL §§ 349 and 350, meaning mere
conclusory statements, is insufficient to rise to the level
of a plausible claim. See Roth v. CitiMortgage Inc.,
12-CV-2446 (SJF) (WDW), 2013 WL 5205775, at *12 (E.D.N.Y.
Sept. 11, 2013), affd, 756 F.3d 178 (2d Cir. 2014).
contends that the Complaint fails to assert a plausible claim
because the allegations are based on mere conclusory
statements, and the allegations do not meet the requisite
showing for the second and third elements of each GBL claim.
Specifically, Defendant asserts Plaintiff failed to properly
allege causation and injury. Lastly, Defendant asserts the
advertisements were not misleading as a matter of law.
Materially Deceptive or ...