United States District Court, E.D. New York
TAMIKA DANIEL, on behalf of herself and others similarly situated, Plaintiff,
MONDELEZ INTERNATIONAL, INC., Defendant.
MEMORANDUM & ORDER
K. BRODIE, UNITED STATES DISTRICT JUDGE.
Tamika Daniel commenced a putative class action on behalf of
herself and all others similarly situated against Defendant
Mondelēz International Inc. (Compl., Docket Entry No.
1.) Plaintiff alleges that “non-functional
slack-fill” (“excessive empty space”) in
Defendant's Swedish Fish brand candy product (the
“Product”) misrepresents the amount of food,
(id. ¶¶ 2-4), which violates sections 349
and 350 of New York's General Business Law
(“GBL”) and constitutes common law fraud under
New York state law, (id. ¶¶ 58, 66, 72,
82). Plaintiff seeks monetary damages, injunctive relief, and
attorneys' fees. (Id. ¶¶ 64, 71, 80,
87.) Defendant moves to dismiss the Complaint pursuant to
Rules 12(b)(6) and 9(b) of the Federal Rules of Civil
Procedure. (Def. Mot. to Dismiss (“Def. Mot.”),
Docket Entry No. 22; Def. Mem. in Supp. of Def. Mot.
(“Def. Mem.”), Docket Entry No. 22-1.) For the
reasons discussed below, the Court grants Defendant's
motion to dismiss in its entirety. The Court grants Plaintiff
leave to amend only her statutory claims and finds that she
lacks standing to pursue injunctive relief.
facts alleged in the Complaint are assumed to be true for the
purpose of deciding Defendant's motion. Plaintiff is a
citizen of the state of New York and resides in Kings County.
(Compl. ¶ 19.) Defendant is a corporation organized
under the laws of Virginia with its headquarters in
Illinois. (Id. ¶ 21.) Plaintiff
alleges that Defendant misleadingly “label[s],
packag[es], and advertis[es]” its Product which is
“regularly sold at convenience stores, grocery stores,
and supermarkets.” (Id. ¶¶ 1, 22.)
to Plaintiff, the Product is “packaged in a transparent
plastic pouch inside a non-transparent thin cardboard
box” standing “almost exactly [six] inches
tall.” (Id. ¶¶ 4-5.) Plaintiff
asserts that the size of the box misleads purchasers by
“mak[ing] it appear as though [consumers] are buying
more than what is actually being sold.” (Id.
¶ 4.) While conceding that some “slack-fill,
” (the empty space within the Product's packaging),
may be justified, Plaintiff alleges that the current amount
“exceeds” what is necessary. (Id. ¶
6.) By way of comparison, Plaintiff alleges that Trolli®
Sour Brite Crawlers minis and Dots®, other gummy candies,
are packaged in similar sized boxes with significantly less
slack-fill. (Id. ¶¶ 6-9.) Relying on these
comparisons, Plaintiff contends that the Product contains
misleading slack-fill as defined by the Federal Food Drug
& Cosmetic Act (“FDCA”) Section 403(d) (21
U.S.C. 343(d)), the Code of Federal Regulations Title 21 part
100, et seq., and parallel state laws. (Id.
¶¶ 2, 32-33.)
purchased two boxes of the Product relying on the size of the
containers. (Id. ¶ 19.) Plaintiff first
purchased the Product on Long Island, New York in 2016.
(Id.) Despite noticing the slack-fill, Plaintiff
assumed that that particular box “had been inadequately
filled by accident.” (Id.) Plaintiff only
“realized that the slack-fill was there by
design” after purchasing another box on December 8,
2016, at the Atlantic Center Target Store in Brooklyn, New
York for $1.08. (Id.) Having purchased the Product
“on the reasonable assumption that [the] box was filled
to functional capacity, ” Plaintiff was disappointed by
the extent of slack-fill, and “would not have paid
[$1.08] had she known that the box was more than half empty
or had the box been proportioned to its actual
contents.” (Id. ¶ 20.)
includes in the Complaint photographs of the Product's
packaging as well as that of the alleged comparator candies.
(See Id. ¶¶ 4, 6, 8.) Defendant proffers
additional photographs and details regarding the
Product's packaging and that of the comparator
candies.(See Sandra Hanian Decl. in Supp.
of Def. Mot. (“Hanian Decl.”) ¶ 3, Docket
Entry No. 22-2.) Defendant's photographs include a
snapshot of the Product's nutritional label listing
various facts such as the serving size (seven pieces) and
number of servings (two). (Id. ¶ 3(b).)
Defendant also states that the candy boxes “indicate
that [the Product] is manufactured by Mondelez Global
LLC” while Trolli® Sour Brite Crawlers minis and
Dots® are manufactured by Ferrara Candy Company and
Tootsi Roll Industries, LLC respectively. (Id.
¶ 4.) Plaintiff does not dispute the authenticity of the
photographs and references in the Defendant's declaration
and also relies extensively on the Product's packaging
and that of the alleged comparators.
Standards of review i. Rule 12(b)(6)
reviewing a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a court must construe the
complaint liberally, “accepting all factual allegations
in the complaint as true and drawing all reasonable
inferences in the plaintiff's favor.” Concord
Assocs., L.P. v. Entm't Prop. Trust, 817 F.3d 46, 52
(2d Cir. 2016) (quoting Chambers v. Time Warner
Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also
Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015)
(quoting Jaghory v. N.Y. State Dep't of Educ.,
131 F.3d 326, 329 (2d Cir. 1997)). A complaint must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Matson v.
Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009));
see also Pension Ben. Guar. Corp. ex rel. St. Vincent
Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt.
Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all
allegations contained in the complaint are assumed true, this
principle is “inapplicable to legal conclusions”
or “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 678.
9(b) requires that ‘[i]n alleging fraud or mistake, a
party must state with particularity the circumstances
constituting fraud or mistake.'” United States
ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 25 (2d Cir.
2016) (alteration in original) (quoting Fed.R.Civ.P. 9(b)).
“To satisfy this Rule, a complaint alleging fraud must
‘(1) specify the statements that the plaintiff contends
were fraudulent, (2) identify the speaker, (3) state where
and when the statements were made, and (4) explain why the
statements were fraudulent.'” Id. (quoting
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124,
1128 (2d Cir. 1994)). Ultimately, whether a complaint
satisfies Rule 9(b) “depends ‘upon the nature of
the case, the complexity or simplicity of the transaction or
occurrence, the relationship of the parties and the
determination of how much circumstantial detail is necessary
to give notice to the adverse party and enable him to prepare
a responsive pleading.'” United States v. Wells
Fargo Bank, N.A., 972 F.Supp.2d 593, 616 (S.D.N.Y. 2013)
(citation omitted); see United States ex rel. Wood v.
Allergan, Inc., 246 F.Supp.3d 772, 787 (S.D.N.Y. 2017)
(quoting same); Kane ex rel, U.S. v. Healthfirst,
Inc., 120 F.Supp.3d 370, 383 (S.D.N.Y. 2015) (quoting
same); U.S. ex rel. Bilotta v. Novartis Pharm.
Corp., 50 F.Supp.3d 497, 508 (S.D.N.Y. 2014) (quoting
same);; see also Rombach v. Chang, 355 F.3d 164, 171
(discussing the purpose of the particularity requirement and
emphasizing fair notice to the defendant).
Consideration of documents other than the Complaint
considering a motion to dismiss, courts generally are
“limited to facts stated on the face of the complaint,
in documents appended to the complaint or incorporated in the
complaint by reference, and to matters of which judicial
notice may be taken.” Wilson v. Kellogg Co.,
628 F. App'x 59, 60 (2d Cir. 2016) (citation omitted);
see also Nicosia v. Amazon.com, Inc., 834 F.3d 220,
230-31 (2d Cir. 2016) (“A complaint ‘is deemed to
include any written instrument attached to it as an exhibit
or any statements or documents incorporated in it by
reference.'” (citation omitted)). Even
“[w]here a document is not [expressly] incorporated by
reference, the court may nevertheless consider it where the
complaint relies heavily upon its terms and effect, thereby
rendering the document integral to the complaint.”
Nicosia, 834 F.3d at 230-31. To take into account
“materials extraneous to the complaint, ” a
plaintiff must “rely on the terms and effect
of the document in drafting the complaint; mere notice or
possession is not enough.'” Id. (citation
omitted). In addition, “[e]ven where a document is
considered “‘integral' to the complaint,
” “it must be clear on the record that no dispute
exists regarding the authenticity or accuracy of the
document, ” and “[i]t must also be clear that
there exist no material disputed issues of fact regarding the
relevance of the document.” Id. (citations
Court's consideration of Defendant's submissions
regarding the labeling of the box does not convert this
motion to dismiss to a motion for summary judgment.
Defendant's submissions relate only to the packaging of
the Product - the very basis for Plaintiff's claims.
See St. John's Univ., New York v. Bolton, 757
F.Supp.2d 144, 156 (E.D.N.Y. 2010) (“In deciding a
motion to dismiss under Rule 12(b)(6), the court may, at its
discretion, consider matters of which judicial notice may be
taken, as well as documents extrinsic to the complaint where
a plaintiff ‘relies heavily upon [the documents] terms
and effect, [thus] render[ing] the document integral to the
complaint.'” (citing Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002))).
“Where plaintiff has actual notice of all the
information in the movant's papers and has relied upon
these documents in framing the complaint the necessity of
translating a Rule 12(b)(6) motion into one under Rule 56 is
largely dissipated.” Cortec Indus., Inc. v. Sum
Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).
Plaintiff does not have standing to pursue injunctive
argues that Plaintiff is not entitled to injunctive relief
because she “fails to allege any intent to purchase
[the Product] in the future, ” thereby failing to
allege a likelihood of continuing or future injury. (Def.
Mem. 25.) Rather than directly refuting Defendant's
argument, Plaintiff advances two novel theories: (1) that she
has “individual standing” and that Article III
“must [be] adjusted” because there will never be
a proper party otherwise under the circumstances; and (2)
that she is “at risk of future harm regarding her
non-pecuniary damages.” (Pl. Opp'n to Def. Mot.
(“Pl. Opp'n”) 24, Docket Entry No. 23.)
plaintiff seeking injunctive relief “must show the
three familiar elements of standing: injury in fact,
causation, and redressability.” Cacchillo v.
Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (citing
Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009)). “[T]o meet the constitutional minimum of
standing” for injunctive relief, a plaintiff
“must carry the burden of establishing that ‘he
has sustained or is immediately in danger of sustaining some
direct injury as the result of the challenged official
conduct.'” Shain v. Ellison, 356 F.3d 211,
215 (2d Cir. 2004) (quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 101-02 (1983)); see also
Nicosia, 834 F.3d at 239 (“Plaintiffs lack
standing to pursue injunctive relief where they are unable to
establish a ‘real or immediate threat' of
injury.” (first citing Lyons, 461 U.S. at
111-12; and then citing Shain, 356 F.3d at 215-16));
Pungitore v. Barbera, 506 F. App'x. 40, 41 (2d
Cir. 2012) (“[W]hen seeking prospective injunctive
relief, the plaintiff must prove the likelihood of
future or continuing harm.”). The
alleged injury “must be ‘concrete and
particularized' and ‘actual or imminent, not
conjectural or hypothetical.'” Knife Rights,
Inc. v. Vance, 802 F.3d 377, 383 (2d Cir. 2015) (quoting
Susan B. Anthony List v. Driehaus, 573 U.S. ---,
---, 134 S.Ct. 2334, 2341 (2014)); Am. Civil Liberties
Union v. Clapper, 785 F.3d 787, 800 (2d Cir. 2015)
(“The Supreme Court has ‘repeatedly reiterated
that “threatened injury must be certainly
impending to constitute injury in fact, ” and that
“[a]llegations of possible future
injury” are not sufficient.'” (alteration in
original) (quoting Clapper v. Amnesty Int'l USA,
568 U.S. 398 (2013))).
plaintiff “cannot rely on past injury to satisfy the
injury requirement but must show a likelihood that he . . .
will be injured in the future.” Shain, 356
F.3d at 215; see also Nicosia, 834 F.3d at 239
(stating that past injuries do not confer standing to seek
injunctive relief); Pungitore, 506 F. App'x. at
42 (stating that, while past wrongs may be “evidence
bearing on whether there is a real and immediate threat of
repeated injury, ' such evidence ‘does not in
itself show a present case or controversy regarding
injunctive relief . . . if unaccompanied by any continuing,
present adverse effects'” (quoting Lyons,
461 U.S. at 102)). “In establishing a certainly
impending future injury, . . . the plaintiff must establish
how he or she will be injured prospectively and that the
injury would be prevented by the equitable relief
sought.” Marcavage v. City of New York, 689
F.3d 98, 103 (2d Cir. 2012) (collecting cases). “[A]t
the pleading stage, standing allegations need not be crafted
with precise detail, nor must the plaintiff prove his
allegations of injury.” Baur v. Veneman, 352
F.3d 625, 631 (2d Cir. 2003) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992)).
light of these principles, Plaintiff's arguments are
meritless. Essentially, Plaintiff's first argument is an
attempt to artfully plead around the constitutional
requirements for third-party standing, including as discussed
in this Court's decision in Greene v. Gerber Products
Co., 262 F.Supp.3d 38, 55-56 (E.D.N.Y. 2017). As in
Greene, Plaintiff seeks to assert standing on behalf
of individuals who are not yet aware of the alleged
misrepresentation. Greene, 262 F.Supp.3d at 56. The
Court acknowledges the persuasive value of Plaintiff's
argument that, without third-party standing, consumers could
not enjoin false or deceptive advertising because “(1)
if they were unaware of the falsity of the advertising and
therefore at risk of future injury, they would not bring
suit, and (2) once they become aware that a product is
falsely or deceptively advertised, they cannot plausibly
allege that they would re-purchase the product.”
Id. Nevertheless, as explained in Greene,
third-party standing is generally limited to situations where
“constitutional rights are at risk” and
“the relationship between a class representative and
would-be consumers ‘is not the type of close
relationship courts have recognized as creating a
‘prudential exception' to the third-party standing
rules.'” Id.; see also Kommer v. Bayer
Consumer Health, a division of Bayer AG, 710 F.
App'x 43, 44 (2d Cir. 2018) (“[A]ssuming his past
purchases . . . resulted in [an] injury . . ., [plaintiff]
has not shown that he is likely to be subjected to further
[injurious] sales of that sort because he fail[s] to allege
that he intends to [purchase the offending product] in the
future . . . Accordingly, he has no standing under Article
III.”); Albert v. Blue Diamond Growers, 151
F.Supp.3d 412, 418 (S.D.N.Y. 2015) (“Although
Ackerman [v. Coca-Cola Co., No. 09-CV-0395,
2010 WL 2925955, at *15 n.23 (E.D.N.Y. July 21, 2010)] and
other cases from the Eastern District of New York may suggest
that future injury is not required in the consumer protection
context, this Court declines to follow these cases because
binding Supreme Court and Second Circuit precedent dictates
future “non-pecuniary damages, ” Plaintiff
proffers two injuries recognized by district courts within
the Ninth Circuit: that absent an injunction, a
“plaintiff-consumer will 1) no longer be able to
confidently rely on the defendant's representations, and
2) refrain from purchasing products in the future even if
they in fact conform to her expectations.” Duran v.
Creek, No. 15-CV-05497, 2016 WL 1191685, at *7 (N.D.
Cal. Mar. 28, 2016) (citations omitted); Ries v. Arizona
Beverages USA LLC, 287 F.R.D. 523, 533 (N.D. Cal. 2012);
but see Victor v. R.C. Bigelow, Inc., 708 F.
App'x 333, 334 (9th Cir. Dec. 20, 2017) (holding that
plaintiffs lacked Article III standing where they
“[would] not consider buying even properly labeled
[product] until they receive an injunction”). However,
Plaintiff fails to provide any binding or even persuasive
authority from this Circuit or New York state courts. In
addition, although non-pecuniary harm such as emotional
distress is cognizable under section 349 of the GBL, the type
of injury alleged by Plaintiff does not appear to rise to the
level of harms already recognized. See, e.g., Bose v.
Interclick, Inc., No. 10-CV-9183, 2011 WL 4343517, at *9
(S.D.N.Y. Aug. 17, 2011) (finding that “courts have
recognized . . . privacy violations” to be
actionable injuries under section 349) (emphasis added);
Wood v. Capital One Servs., LLC, 718 F.Supp.2d 286,
292 (N.D.N.Y. 2010) (finding pleading requirements for injury
satisfied where plaintiff alleged he suffered from
“humiliation, anger, anxiety, emotional distress, fear,
frustration and embarrassment”); Midland Funding,
LLC v. Giraldo, 961 N.Y.S.2d 743, 749 (Dist. Ct. 2013)
(listing plaintiff's alleged non-pecuniary injuries
including “[s]leep deprivation; anxiety; nervousness;
fear; worry; fright; shock; strain to her marriage;
humiliation and intimidation”). Plaintiff's
annoyance at being unable to confidently purchase
Defendant's Product does not rise to the type of
non-pecuniary injury recognized under New York law.
New York statutory claims under GBL sections 349 and
section 349 prohibits “[d]eceptive acts or practices in
the conduct of any business, trade or commerce or in the
furnishing of any service in this state.” N.Y. Gen.
Bus. Law § 349. GBL section 350 prohibits “[f]alse
advertising in the conduct of any business, trade or commerce
or in the furnishing of any service in this state.”
N.Y. Gen. Bus. Law § 350.
assert a claim under either section, “a plaintiff must
allege that a defendant has engaged in (1) consumer-oriented
conduct that is (2) materially misleading and that (3) [the]
plaintiff suffered injury as a result of the allegedly
deceptive act or practice.” Orlander v. Staples,
Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch
v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944
(2013)); see Maurizio v. Goldsmith, 230 F.3d 518,
521 (2d Cir. 2000) (citing the elements for a prima facie
case under section 349).
under GBL sections 349 and 350 are not subject to the
pleading-with-particularity requirements of Rule 9(b).
Greene, 262 F.Supp.3d at 67; Schwartzco Enters.
LLC v. TMH Mgmt., LLC, 60 F.Supp.3d 331, 359 (E.D.N.Y.
2014) (quoting Pelman ex rel. Pelman v. McDonald's
Corp., 396 F.3d 508, 511 (2d Cir. 2005)); see also
Leonard v. Abbott Labs., Inc., No. 10-CV-4676, 2012 WL
764199, at *19 (E.D.N.Y. Mar. 5, 2012) (considering case law
and discerning a categorical rule that New York GBL section
349 claims, “regardless of whether they ‘sound in
fraud, ' or are premised on specific misrepresentations
rather than an ‘advertising scheme, ' are not
subject to the heightened pleading requirement of Rule
9(b)”). With an exception not relevant here,
“[t]he standard for recovery under . . . [section] 350,
while specific to false advertising, is otherwise identical
to section 349.” Goshen v. Mut. Life Ins. Co. of
N.Y., 98 N.Y.2d 314, 324 n.1 (2002).
Misleading slack-fill under the FDCA and parallel state
first asserts that Plaintiff fails to sufficiently allege
that the Product's slack-fill is misleading as defined by
the FDCA and incorporated by the parallel New York state
statutes. (Def. Mem. 9-14.); see also N.Y.
Agric. & Mkts. Law § 201(4) (deeming food to be
misbranded “[i]f its container is so made, formed,
colored or filled as to be misleading”); 1 NYCRR §
259.1(a)(2) (adopting federal definitions and standards for
food packaging and labeling).
the FDCA, “[s]lack-fill is the difference between the
actual capacity of a container and the volume of product
contained therein.” 21 C.F.R. § 100.100(a).
Recognizing the inevitability and value of slack-fill in many
products, the FDCA only considers
“non-functional” slack-fill to be
misleading when placed in a package where consumers are
unable to fully view the contents. ...