United States District Court, S.D. New York
SKYLAR CUNNINGHAM, individually on behalf of herself and all others similarly situated, Plaintiff,
PRET A MANGER (USA) LTD., Defendant.
MEMORANDUM AND ORDER
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.)
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.)
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.
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.
interim, the Court denies Pret's motion to dismiss
pending the completion of jurisdictional discovery.
Skylar Cunningham ("Plaintiff) brings this action
against Pret for its allegedly deceptive marketing
techniques. (SAC ¶ 2.)
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.)
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.)
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.)
Subject Matter Jurisdiction
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
purposes of this Memorandum and Order, the sole issue for
discussion is whether jurisdiction attaches under CAFA, which
is the only basis on which ...