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Cunningham v. Pret A Manger (USA) Ltd.

United States District Court, S.D. New York

January 10, 2020

SKYLAR CUNNINGHAM, individually on behalf of herself and all others similarly situated, Plaintiff,
v.
PRET A MANGER (USA) LTD., Defendant.

          MEMORANDUM AND ORDER

          McMahon, C.J.

         Plaintiff Skylar Cunningham ("Plaintiff') brings this action against Defendant Pret a Manger (USA) Limited ("Defendant" or "Pret") for deceptively marketing and labeling its products as "natural" when many of them contain soya, a genetically modified organism ("GMO"), and other synthetic ingredients. (Second Amended Complaint ("SAC") ¶ 2.) Plaintiff filed this action on March 15, 2019. (Dkt. No. 1.)

         Plaintiff filed an Amended Complaint ("FAC") on April 17, 2019. (Dkt. No. 7.) On July 8, 2019 Defendant moved to dismiss the FAC. (Dkt. No. 18.) In lieu of a response, Plaintiff filed the SAC on August 12, 2019. (Dkt. No. 27.) The SAC seeks various monetary and punitive damages, injunctive relief, and specifically requests that Pret "(1) cease advertising or stating the Products as Natural; and (2) inform consumers that the Products contain GMOs and other synthetic ingredients in advertising for the Products." (SAC ¶ 37.)

         Pret moved to dismiss or to alternatively stay the SAC on September 12, 2019, (Dkt. No. 29), for lack of subject matter jurisdiction and failure to state a claim. Fed.R.Civ.P. 12(b)(1) & (6), In the alternative, Defendant has asked this Court to stay this case until the FDA releases its findings on the "natural" label on food.

         The Court deems that Plaintiff has met CAFA's threshold jurisdictiona! requirements. However, because it is unclear whether the Court has subject matter jurisdiction under CAFA's jurisdictional carve outs, the Court orders the parties to engage in limited jurisdictional discovery for the purpose of determining whether two-thirds or more of the putative class members are New York citizens.

         In the interim, the Court denies Pret's motion to dismiss pending the completion of jurisdictional discovery.

         I. Factual Background

         Plaintiff Skylar Cunningham ("Plaintiff) brings this action against Pret for its allegedly deceptive marketing techniques. (SAC ¶ 2.)

         Plaintiff brings this action for violations of New York General Business Law §§ 349 and 350, the consumer protection statutes of all 50 states, and Magnuson-Moss Warranty Act, breach of express warranty, implied warranty of merchantability, implied warranty of fitness for a particular purpose, and unjust enrichment. (Id. ¶ 4.)

         Plaintiff is a citizen of New York State. (Id. ¶ 41.) Plaintiff notes that "many Class Members reside in the Southern District of New York, and throughout the State of New York." (Id. ¶ 40.) Within the SAC, Plaintiff requests certification of a New York subclass. (Id. ¶ 47.)

         Pret is a citizen of both the United Kingdom - where it is headquartered - and New York - where its head office is located. (Id.) Pret operates 87 locations across the United States with 57 of those locations in New York. (Declaration of Greg Thorp ("Thorp Decl."), Dkt. No. 31, ¶ 3.) The remaining 30 locations are located across Washington D.C., Illinois, Massachusetts, New Jersey, and Pennsylvania. (Id. ¶ 3.) From 2013-2018 at least 72% of U.S. sales of the products outlined in the SAC took place in New York. (Thorp Decl. ¶ 4). From 2013-2018 at least 72% of total transactions in the U.S. took place in New York. (Id. ¶ 5.) (emphasis added).

         II. Subject Matter Jurisdiction

         Pret urges that there are a number of deficiencies in Plaintiffs SAC: (1) Pret argues that Plaintiff has failed to meet Article Ill's standing requirements because she has not alleged an adequate injury; (2) Plaintiff cannot establish class standing; (3) Plaintiff cannot establish standing to sue for injunctive relief; (4) Plaintiff cannot establish jurisdiction under the Class Action Fairness Act ("CAFA"); and (5) Plaintiff has failed to establish jurisdiction under the Magnuson-Moss Warranty Act ("MMWA").

         For the purposes of this Memorandum and Order, the sole issue for discussion is whether jurisdiction attaches under CAFA, which is the only basis on which ...


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