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Wurtzburger v. Kentucky Fried Chicken

United States District Court, S.D. New York

December 13, 2017

ANNA WURTZBURGER on behalf of herself and all others similarly situated, Plaintiffs,


          NELSON S. ROMAN, United States District Judge

         Plaintiff Anna Wuitzburger ("Plaintiff or "Wuitzburger"), on behalf of herself and all those similarly situated, commenced the instant action against Kentucky Fried Chicken[1]("Defendant" or "KFC") seeking monetary damages for alleged violations of New York State statutes.[2] 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.


         Plaintiff, 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 chicken.

         As a 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."[3] 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[4] from Defendant which also made her sick. (Id.)

         In 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. ¶ 12.)


         On a 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.

         When 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.

         I. GENERAL BUSINESS LAW § 349 AND § 350

         New 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., 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).

         A claim 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).

         Defendant 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.

         A. Materially Deceptive or ...

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