Hamilton v. General Mills, Inc. et al

Motion to Dismiss for Lack of Jurisdiction , Motion to Strike Class Allegations and Motion to Dismiss. Oral Argument requested.

D. Or.September 15, 2016

DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 Julia E. Markley, OSB No. 000791 JMarkley@perkinscoie.com Joanna T. Perini-Abbott, OSB No. 141394 JPeriniAbbott@perkinscoie.com PERKINS COIE LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Telephone: 503.727.2000 Facsimile: 503.727.2222 Charles C. Sipos (admitted pro hac vice) CSipos@perkinscoie.com PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Attorneys for Defendants General Mills, Inc. and General Mills Sales, Inc. UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION CHRISTOPHER HAMILTON, individually and on behalf of all others similarly situated, Plaintiff, v. GENERAL MILLS, INC. GENERAL MILLS SALES, INC., Defendants. No. 6:16-cv-382-MC DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1), MOTION TO STRIKE CLASS ALLEGATIONS PURSUANT TO FRCP 12(f) AND 23(d)(1)(D), AND MOTION TO DISMISS PURSUANT TO 12(b)(6) Request for Oral Argument (LR 7-1(d)(2)) Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 1 of 24 TABLE OF CONTENTS Page i- DEFENDANTS’ MOTION TO DISMISS AND STRIKE Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 I. INTRODUCTION ............................................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................................ 2 A. The General Mills Recall and Refund Program and Plaintiff’s Allegations of Harm .................................................................................................................. 2 B. This Court’s Dismissal Order and the FAC’s Lack of New Substantive Allegations ............................................................................................................. 4 1. The Court dismissed the prior Complaint because Mr. Hamilton had not pled any legally recoverable injury ............................................... 4 2. The FAC does not address those issues that the Court held were defective in the prior Complaint ................................................................ 6 III. LEGAL STANDARDS GOVERNING THIS MOTION .................................................. 7 A. Motion to Dismiss Under Rule 12(b)(1) ................................................................ 7 B. Motion to Dismiss Under Rule 12(b)(6) ................................................................ 7 IV. ARGUMENT ..................................................................................................................... 8 A. The FAC Should Be Dismissed for Lack of Subject Matter Jurisdiction .............. 8 1. General Mills’ refund program renders Plaintiff’s FAC moot .................. 8 2. Plaintiff lacks Article III standing and standing under the UTPA ........... 12 B. The FAC Should Be Dismissed for Failure to State a Claim Under the UTPA ................................................................................................................... 13 C. Plaintiff Fails to State Claims Under Consumer Protection Laws of Other States .................................................................................................................... 16 D. The Court Should Strike the FAC’s Class Allegations, if Necessary .................. 16 E. The FAC Should Be Dismissed With Prejudice .................................................. 17 V. CONCLUSION ................................................................................................................ 17 Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 2 of 24 TABLE OF AUTHORITIES Page ii- DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 CASES Abano v. Owen Loan Servicing, LLC, 2015 WL 5971547 (C.D. Cal. Oct. 13, 2015) ..........................................................................11 Allen v. City of Beverly Hills, 911 F.2d 367 (9th Cir. 1990) ...................................................................................................15 Amirhamzeh v. Chase Bank USA, N.A., 2014 WL 641705 (C.D. Cal. Feb. 7, 2014)......................................................................8, 9, 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................................8, 16 Banares v. Wells Fargo Bank, N.A., No. C-13-4896 EMC, 2014 WL 985532 (N.D. Cal. Mar. 7, 2014) .........................11, 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .........................................................................................................7, 8, 16 Bey v. SolarWorld Industries America, Inc., 904 F. Supp. 2d 1096 (D. Or. 2012) ..........................................................................................7 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .............................................................................................................14 Colquitt v. Manufacturers and Traders Trust Co., 144 F. Supp. 3d 1219 (D. Or. 2015) ..................................................................................14, 15 Cousins v. Lockyer, 568 F.3d 1063 (9th Cir. 2009) .................................................................................................11 Cty. of Los Angeles v. Davis, 440 U.S. 625 (1979) ...................................................................................................................8 Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990 (9th Cir. 2014) .....................................................................................................8 Elizabeth v. Aetna Life Ins. Co., 2015 WL 799417 (N.D. Cal. Feb. 23, 2015) ...........................................................................15 Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 3 of 24 TABLE OF AUTHORITIES (continued) Page iii- DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 Fleshman v. Wells Fargo Bank, N.A., 27 F. Supp. 3d 1127 (D. Or. 2014) ..........................................................................................14 Foman v. Davis, 371 U.S. 178 (1962) .................................................................................................................16 Foster v. Carson, 347 F.3d 742 (9th Cir. 2003) ...................................................................................................12 GCB Commc’ns v. U.S. S. Commc’ns Inc., 650 F.3d 1257 (9th Cir. 2011) ...................................................................................................8 Green v. United States, 630 F.3d 1245 (9th Cir. 2011) ...................................................................................................7 Guttmann v. Nissin Foods (U.S.A.) Co., Inc., 2015 WL 4881073 (N.D. Cal. Aug. 14, 2015) ..........................................................................3 Hadley v. Chrysler Group LLC, 2014 WL 988962 (E.D. Mich. Mar. 13, 2014), aff’d 624 F. App’x. 374 (6th Cir. 2015) .................................................................................................................................10 In re Read-Rite Corp., 335 F.3d 843 (9th Cir. 2003) ...................................................................................................17 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) .....................................................................................................8 Metzler Inv. v. Corinthian Colleges, Inc., 540 F.3d 1049 (9th Cir. 2008) .................................................................................................17 Pearson v. Phillip Morris, Inc., 358 Or. 88 (2015) ...............................................................................................................12, 13 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) ...................................................................................................7 Rosales-Martinez v. Palmer, 753 F.3d 890 (9th Cir. 2014) ...................................................................................................11 Salameh v. Tarsadia Hotel, 726 F.3d 1124 (9th Cir. 2013) .................................................................................................17 Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 4 of 24 TABLE OF AUTHORITIES (continued) Page iv- DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 Scharfstein v. BP West Coast Products, LLC, 2015 WL 1255571 (Or. Cir. Mar. 11, 2015) ............................................................................15 Steckman v. Hart Brewing, Inc., 143 F.3d 1293 (9th Cir. 1998) ...........................................................................................11, 12 Tosh-Surryhne v. Abbott Labs. Inc., 2011 WL 4500880 (E.D. Cal. Sept. 27, 2011) .....................................................................9, 10 Vavak v. Abbott Labs., Inc., 2011 WL 10550065 (C.D. Cal. June 17, 2011) ...................................................................9, 10 Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208 (10th Cir. 2012) ...........................................................................................9, 10 Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) .....................................................................................................7 STATUTES ORS 646.605(10) ...........................................................................................................................14 ORS 646.638 ..................................................................................................................................13 ORS 646.638(1) .......................................................................................................................12, 14 ORS 646.638(8)(a)(1) ....................................................................................................................13 RULES Fed. R. Civ. P. 8(a) ..........................................................................................................................7 Fed. R. Civ. P. 12 ...............................................................................................................11, 15, 16 Fed. R. Civ. P. 12(b)(1)....................................................................................................................7 Fed. R. Civ. P. 12(b)(6)................................................................................................................7, 8 Fed. R. Civ. P. 12(h)(3)....................................................................................................................7 Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 5 of 24 v- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 LOCAL RULE 7-1 CERTIFICATION Pursuant to Local Rule 7-1(a), undersigned counsel for Defendants General Mills, Inc. and General Mills Sales, Inc. (“General Mills”) certifies that he conferred by telephone, in good faith, with counsel for Plaintiff to resolve the dispute and has been unable to do so. MOTION General Mills respectfully moves this Court for an order dismissing, with prejudice, Plaintiff’s First Amended Complaint (“FAC”) pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) or, alternatively, striking the Complaint’s class allegations pursuant to Fed. R. Civ. P. 12(f) and 23(d)(1)(D). The grounds for this motion are: (1) the controversy is moot because General Mills has already provided, in the form of full refunds for affected Cheerios products, relief for the damages legally available to and sought by Plaintiff; (2) Plaintiff’s FAC fails to meet the requirements of Oregon statutory law to recover either an “ascertainable loss” or statutory damages; (3); the FAC on its face does not meet multiple class requirements; and (4) the FAC does not properly allege violation of any other State’s consumer protection statutes, or even purport to do so. General Mills’ motion is based on the accompanying Memorandum and the concurrently filed Declaration of Jeff Hagen, and all pleadings and papers on file in this matter, and upon such other matters as may be presented to the Court. Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 6 of 24 1- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 MEMORANDUM I. INTRODUCTION This Court’s “doubts” about whether Plaintiff Christopher Hamilton could successfully amend were not only justified, they were prophetic: Mr. Hamilton’s First Amended Complaint (“FAC”) is, if anything, even more defective than the Complaint this Court already dismissed. Mr. Hamilton’s prior Complaint failed because for any Yellow Box Cheerios or Honey Nut Cheerios inadvertently containing gluten, General Mills had already offered full refunds to Mr. Hamilton and the putative class he purports to represent. See July 27, 2016, Dismissal Order (“Order”) (Dkt. No. 39) at 6-10. His case was thus dismissed as moot under Article III, and as deficient on the merits because Mr. Hamilton had suffered no “ascertainable loss” under the Oregon Uniform Trade Practices Act (“UTPA”). Id. The Court granted leave to amend the UTPA claim, but explained Mr. Hamilton’s lawsuit could only survive with: (1) facts to show he had suffered an “ascertainable loss” that General Mills’ refund program did not address, or (2) that General Mills engaged in “reckless or knowing” conduct sufficient to support UTPA statutory damages. Order at 10, 13. The FAC ignores the Court’s directives on both points, instead offering allegations that are irrelevant, or that are redundant of facts already deemed insufficient. First, the FAC contains no new allegations to show that Mr. Hamilton suffered any “ascertainable loss” that the refund program does not fully compensate. As before, beyond the purchase price of the Cheerios themselves, the FAC does not identify any recoverable damage whatsoever. The only new allegation even remotely related to this issue is the FAC’s conclusory assertion that Mr. Hamilton’s own “online…research” efforts to learn about the availability of refunds were “not successful.” FAC ¶ 50.1 But this allegation is completely irrelevant to whether General Mills’ refund program fully compensates Mr. Hamilton (it does). It also lacks all facial 1 For clarity, all citations to the FAC are to the redlined version submitted as an Exhibit at Docket No. 40-1 (Aug. 15, 2016). Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 7 of 24 2- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 plausibility because it is contradicted by other allegations in the FAC that identify the availability of those refunds and plainly list General Mills’ 1-800 number for consumers to get them. Second, the FAC does not plead any facts to show that General Mills engaged in “reckless or knowing” misconduct. The FAC merely offers the redundant allegation that General Mills was not performing finished product testing at the time of the inadvertent contamination. See FAC ¶¶ 31, 43. But this exact same allegation was in the prior Complaint, and it was already dispensed with as insufficient to meet the “reckless or knowing” standard. Order at 12. Making the same defective allegation twice does not make it any more persuasive. In fact, a robust body of precedent rejects efforts to “amend” by recycling the same deficient allegations from prior complaints. This Court was right to “harbor doubts” about Mr. Hamilton’s ability to plausibly amend. Order at 10. Under well-established Ninth Circuit law, the allegations in the FAC fail, should now be dismissed with prejudice, and the case should be closed. II. FACTUAL BACKGROUND A. The General Mills Recall and Refund Program and Plaintiff’s Allegations of Harm. Because Plaintiff failed to meaningfully amend, the facts in the FAC are effectively unchanged from the prior Complaint. Beginning in July 2015, General Mills began to produce certain of its Cheerios cereals without gluten, including Yellow Box Cheerios and Honey Nut Cheerios. FAC ¶ 2. These products were labeled “Gluten Free,” for the relatively small proportion of consumers who are gluten intolerant or who have Celiac disease. Id. ¶ 30; id. ¶ 17-18. On certain dates in July 2015, General Mills’ processing facility in Lodi, California lost rail service, and the gluten-free oat flour used in gluten-free Cheerios and Honey Nut Cheerios was off-loaded from rail cars and transferred to trucks. See General Mills’ Request for Judicial Notice (“RJN”) (Docket No. 20) Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 8 of 24 3- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 (Apr. 27, 2016) Ex. 3. 2 This isolated incident resulted in wheat flour being inadvertently introduced into the gluten-free oat flour system at Lodi, which was then introduced into some gluten-free Cheerios and Honey Nut Cheerios. Id. The incident affected a small amount of Cheerios production from Lodi in July; products manufactured on specific dates and from specific lots were identified as the affected product. FAC ¶ 39. On October 5, 2015, General Mills voluntarily recalled the affected cereals. FAC ¶¶ 37- 38; Declaration of Jeff Hagen (“Hagen Decl.”) ¶ 2.3 Any consumer who purchased gluten-free Cheerios and Honey Nut Cheerios bearing certain “Better If Used By” code dates can receive a full refund or replacement by simply contacting General Mills. See RJN Ex. 4. General Mills’ website prominently features information about the recall, and also has a dedicated 1-800 number for requests for refunds. Hagen Decl. ¶ 3; RJN Ex. 3. Consumers can also contact General Mills through its established 1-800 Consumer Services contact line for cereal (which is listed on Cheerios’ packaging), any of the other General Mills 800 numbers, US Mail, email through Contact Us forms on Cheerios and General Mills websites, and through social media sites. Hagen Decl. ¶ 3. General Mills issued a press release to media outlets nationwide about the recall. Id. Exs. 2, 4. The FDA also publicized the recall and General Mills’ associated refund and replacement program. Id. Exs. 1, 2. 2 This Court granted General Mills’ previously submitted RJN as to all six Exhibits offered. See Order at 4-6. Exhibits 1-5 of the RJN were judicially admissible as materials incorporated by reference in the Plaintiff’s Complaint. Id. at 5. These same Exhibits 1-5 remain incorporated in the FAC. See FAC ¶ 34 n. 12 (RJN Exs. 1, 2); FAC ¶ 33 n. 11 (RJN Ex. 3); FAC ¶ 41 n. 15 (RJN Ex. 4); FAC ¶¶ 37-44 (RJN Ex. 5). Exhibit 6 of the RJN, a compendium of news articles regarding the recall, was deemed admissible “to illustrate the information in the public realm at the time of the recall.” Order at 6. In light of the Court’s prior ruling, these same Exhibits remain admissible and General Mills therefore refers to them for purposes of its renewed Motion to Dismiss. See Guttmann v. Nissin Foods (U.S.A.) Co., Inc., 2015 WL 4881073, at *2 (N.D. Cal. Aug. 14, 2015) (referring to materials in previously granted request for judicial notice on renewed motion to dismiss). 3 The facts established in the original Hagen Declaration remain unchanged, and General Mills submits a newly executed Hagen Declaration for purposes of re-affirming those facts and confirming the ongoing availability of refunds. See Hagen Decl. ¶ 1. Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 9 of 24 4- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 Consumers contacting General Mills about the affected product can obtain a one-for-one replacement of, or refund for, any affected Cheerios cereal they purchased. Hagen Decl. ¶ 4. Consumers can obtain replacement or refund for up to eight boxes of Cheerios without providing General Mills with the affected product or its packaging, receipts, or any other evidence of purchase. Id. ¶ 5. For refunds or replacements beyond eight boxes, General Mills requests only the UPC code and “Better if Used By” panel from the affected Cheerios the consumer purchased. Id. General Mills’ refund and replacement program goes so far as to allow consumers to obtain this same relief for any Cheerios cereal that they purchased labeled “Gluten Free,” even if that product was not part of the limited production of Cheerios cereal affected by the recall. Id. ¶ 6. Refunds remain available to consumers to this day. Id. ¶ 7. B. This Court’s Dismissal Order and the FAC’s Lack of New Substantive Allegations. 1. The Court dismissed the prior Complaint because Mr. Hamilton had not pled any legally recoverable injury. Hamilton’s prior Complaint claimed he suffered damage in the form of purchases of Cheerios and Honey Nut Cheerios affected by the recall, totaling $15.98. Complaint ¶ 44. The Complaint identified no other harm Hamilton suffered beyond these purchases. Id.; see also id ¶¶ 45, 55(f) (citing purchases as basis for damage). The Complaint asserted claims for: (1) violation of the UTPA; (2) quantum meruit; and (3) a placeholder allegation invoking consumer protection laws of various other States, operative only if a nationwide class were certified. See id. ¶¶ 60-122. As to General Mills’ conduct, the Complaint alleged that the incident leading to the gluten contamination of affected lots was “inadvertent.” Id. ¶ 39. The Complaint further alleged that “At the time of production, General Mills did not conduct daily testing of finished products for gluten. Therefore, it failed to detect the gluten-tainted oat supply that breached the Lodi facility.” Id. ¶ 41. As this Court observed, however, the FDA does not require such testing. See Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 10 of 24 5- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 Order at 11 (noting FDA does not require finished product testing for compliance with gluten labeling rule). The Court dismissed Mr. Hamilton’s Complaint for lack of Article III standing and on mootness grounds. Order at 10. The Court explained that in light of the availability of refunds to Mr. Hamilton and the putative class, he had suffered no “ascertainable loss” under the UTPA. Id. at 9-10 (“Hamilton’s loss of $15.98 is mooted by General Mills’ refund program, he does not have standing to sue because he has not cognizably alleged any other concrete and particularized injury.”). Although the Court said it “harbor[ed] doubts” that Mr. Hamilton could allege any “ascertainable loss” beyond purchase price damages, the UTPA claim was nonetheless dismissed without prejudice. Id. The Court also dismissed, without prejudice, Plaintiff’s claim for statutory damages under the UTPA on the merits, because Plaintiff had not pled facts to satisfy the “reckless or knowing” standard required to seek such damages. Id. at 12-13. In doing so, the Court rejected the Complaint’s allegations regarding the lack of finished product testing at the time of the Lodi incident as insufficient to meet the “reckless or knowing” standard. Id. at 12 (“Hamilton does not allege recklessness or knowledge with regard to the contamination expect perhaps for General Mills’ lack of testing on finished products, which the FDA does not require.”). Finally, the Court dismissed Mr. Hamilton’s claim for injunctive relief with prejudice, based on the failure to allege any threat of future harm. The Court considered the Complaint’s allegation regarding finished product testing in this context also, and rejected this, too. Id. at 11 (“The FDA does not require manufacturers to test its finished products for gluten. Moreover, Hamilton has stated no factual allegations suggesting that the contamination leading to the recall was anything more than an isolated incident.”).4 4 The Court dismissed the quantum meruit claim with prejudice in light of Plaintiff’s concession that the only remedy for that cause of action is restitution, which General Mills had already offered to provide. Order at 13. The Court denied as moot the remaining issues in General Mills’ motion to dismiss, which included a request to strike the Complaint’s class Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 11 of 24 6- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 2. The FAC does not address those issues that the Court held were defective in the prior Complaint. Hamilton was thus given leave to amend his UTPA claim on two narrow issues: (1) pleading an “ascertainable loss” beyond Cheerios’ purchase price, and (2) pleading facts to satisfy the “reckless or knowing” standard for UTPA statutory damages. Id. at 10, 13. As to pleading an “ascertainable loss” beyond his Cheerios purchases, the FAC is identical to the Complaint: it claims as damages Plaintiff’s Cheerios purchases. Compare FAC ¶¶ 47-48 with Complaint ¶¶ 44-45 (both pleadings identifying the same damages). Indeed, several of the FAC’s “new” allegations re-affirm purchase price as the purported damages at issue. See FAC ¶ 6 (describing harm as inducing consumers “to purchase” allegedly Mislabeled Cheerios); id. ¶ 45 (same); id ¶ 51 (alleging that the “purchase” itself was the harm suffered). There are no other “losses” identified in the FAC. The FAC also contains Plaintiff’s admission that he knew about the recall. Id ¶ 50. Despite this, the FAC further alleges that Plaintiff “researched [online] whether…a refund for the purchased Mislabeled Cheerios” was available, and “was not successful obtaining a refund.” Id. ¶ 50. Yet, Mr. Hamilton’s FAC simultaneously incorporates multiple online announcements from General Mills that specifically identify the availability of refunds and provide consumers with a 1-800 number to contact General Mills and receive those refunds. See FAC ¶ 33 n.11 (RJN Ex. 3) (Cheerios’ website explaining consumers may “contact General Mills for a replacement or full refund,” and providing 1-800-775-8370 contact number); id. ¶ 41 n.15 (RJN Ex. 4) (General Mills’ website announcing recall stating “Consumers requesting refunds or calling with further questions should contact General Mills Consumer Services at 1-800-775- 8370.”); id. ¶ 34 n.12 (RJN Exs. 1, 2) (General Mills’ press release announcing recall and providing same 1-800-775-8370 contact number). allegations, and a request to dismiss the Complaint’s placeholder causes of action brought under other States’ laws. Id. at 14. Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 12 of 24 7- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 As to whether General Mills conduct was “knowing or reckless,” the FAC merely re- alleges that General Mills “did not conduct daily testing of finished products for gluten” at the time of the Lodi incident. FAC ¶ 33. This is identical to the prior Complaint’s allegation that testing was not performed at this time. FAC ¶ 43 (retaining prior Complaint’s allegation that “At that time of production, General Mills did not conduct daily testing of finished products for gluten.”).5 III. LEGAL STANDARDS GOVERNING THIS MOTION A. Motion to Dismiss Under Rule 12(b)(1). “If the court determines . . . that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); Bey v. SolarWorld Industries America, Inc., 904 F. Supp. 2d 1096, 1099 (D. Or. 2012). The plaintiff bears the burden of establishing that the court has jurisdiction. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). In deciding a Rule 12(b)(1) motion, the court may consider materials beyond the pleadings when a defendant makes a factual challenge to subject matter jurisdiction. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Evidence that goes to the court’s subject matter jurisdiction may be submitted and considered when deciding a Rule 12(b)(1) motion. See Green v. United States, 630 F.3d 1245, 1248 n.3 (9th Cir. 2011) (on a Rule 12(b)(1) motion, “proof of jurisdictional facts may be supplied by affidavit, declaration, or any other evidence properly before the court, in addition to the pleadings challenged by the motion.”). B. Motion to Dismiss Under Rule 12(b)(6). Rule 8(a) requires a plaintiff to plead each claim with sufficient specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). A complaint that falls short of this 5 The FAC also withdrew Plaintiff’s request for punitive damages. See FAC, Prayer for Relief ¶ D. The FAC’s remaining amendments were either ministerial, see e.g. FAC ¶¶ 34, 54, or boilerplate statements summarizing the UTPA cause of action, see FAC ¶¶ 70-71. Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 13 of 24 8- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 standard may be dismissed. Fed. R. Civ. P. 12(b)(6). A claim “has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556. A complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts,” and “must plausibly suggest an entitlement to relief, such that it is not unfair to . . . the opposing party.” Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (citation omitted). When deciding a motion to dismiss under Rule 12(b)(6), courts may consider material submitted as part of the complaint or relied upon in the complaint, and material subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). IV. ARGUMENT A. The FAC Should Be Dismissed for Lack of Subject Matter Jurisdiction. 1. General Mills’ refund program renders Plaintiff’s FAC moot. The FAC should be dismissed for the exact same reason the Complaint was dismissed: Mr. Hamilton has alleged no cognizable injury beyond the purchase price of Cheerios, which is rendered moot by General Mills’ full refund offer. A case is “moot” under Article III where “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Mootness, and an accompanying lack of subject matter jurisdiction, occurs where “an opposing party has agreed to everything the other party has demanded.” GCB Commc’ns v. U.S. S. Commc’ns Inc., 650 F.3d 1257, 1267 (9th Cir. 2011). Mootness thus applies when the opposing party has already offered the plaintiff the refund he seeks. See Amirhamzeh v. Chase Bank USA, N.A., 2014 WL 641705, at *7 (C.D. Cal. Feb. 7, 2014) (dismissing consumer claims where plaintiff received pre-litigation full refund). Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 14 of 24 9- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 As this Court recognized in its Order, this mootness doctrine applies with particular force in recall cases when defendants have offered the plaintiff a refund for the allegedly defective product, and no other damages are claimed or available. See Order at 6 (“In Tosh-Surryhne v. Abbot Labs., Inc., the court found in a very similar recall that the defendant’s offer of restitution for its recalled products mooted the plaintiff’s claims and stripped the court of jurisdiction.” (citing Tosh-Surryhne v. Abbott Labs. Inc., 2011 WL 4500880, at *5 (E.D. Cal. Sept. 27, 2011))). This Court’s decision is in accord with other courts that have recognized and applied the same principle. See Vavak v. Abbott Labs., Inc., 2011 WL 10550065, at *3 (C.D. Cal. June 17, 2011) (“Because Abbott offered a full refund to consumers who purchased infant formula from the affected lots, Plaintiff’s request for restitution of the monies spent on the product is moot.”) internal citation omitted; Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1214-15 (10th Cir. 2012) (dismissing claims related to allegedly defective automobile on mootness grounds because of already-instituted recall program overseen by NHTSA). Judge Mueller’s decision in Tosh-Surryhne remains highly instructive. In Tosh-Surryhne, the court granted defendant’s motion to dismiss on mootness grounds, explaining that the recall and refund program provided the plaintiff with full and adequate relief and therefore deprived the court of subject matter jurisdiction over the claim. Id. at *4-5. The court reasoned that the defendant’s full offer of restitution was dispositive: The court finds that the defendant has made a full offer of restitution to plaintiff for the recalled containers of Similac plaintiff alleges she purchased, even as to those for which she provides no evidence. This offer moots plaintiff’s claims and strips this court of jurisdiction. Id. at *5; accord Vavak, 2011 WL 10550065, at *3 (offer of refund for recalled product rendered case moot); Amirhamzeh, 2014 WL 641705, at *7 (same). As before, General Mills’ recall program allows Mr. Hamilton to receive a full refund for his product purchases. Hagen Decl. ¶¶ 2-7; see also RJN Exs. 1-5. That relief remains available Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 15 of 24 10- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 to all consumers. Id. The FAC does not identify “any other concrete and particularized injury” that Mr. Hamilton suffered beyond these purchases, which is what this Court said he must do to avoid a second dismissal on mootness grounds. Order at 10. Accordingly, the Complaint should be dismissed as moot given General Mills’ recall and accompanying offer of refunds. See id.; Winzler, 681 F.3d at 1214-15; Amirhamzeh, 2014 WL 641705, at *7; Tosh-Surryhne, 2011 WL 4500880, at *3; Vavak, 2011 WL 10550065, at *5.. In place of the required “concrete and particularized injury,” the FAC instead alleges that Mr. Hamilton’s own online research efforts to learn about refunds were “not successful.” FAC ¶ 50. This allegation is both legally irrelevant and facially implausible. First, Mr. Hamilton’s supposed inability to contact General Mills and ask for a refund is completely irrelevant to whether or not he suffered “any other concrete or particularized injury,” Order at 9, beyond the purchase price for Cheerios cereal. Paragraph ¶ 50 of the FAC does not allege any injury Mr. Hamilton suffered as a result of General Mills’ conduct beyond his purchases. To the contrary, by invoking the refund remedy this new allegation actually reaffirms that a refund is the only thing he is legally entitled to. Plaintiff cannot avoid dismissal merely by claimed incompetence in contacting General Mills. The availability of the refund itself, and the simultaneous admission that this is the only relief he can receive, is sufficient to moot the controversy. Tosh-Surryhne, 2011 WL 4500880, at **4-5 (explaining controversy moot even where refunds required some proof of purchase); see also Order at 9 (applicability of mootness depends on availability of “General Mills’ recall/refund offer” (emphasis added)). There is no requirement that the defendant must hand-deliver refunds in order for mootness to attach. See Hadley v. Chrysler Group LLC, 2014 WL 988962, at *5 (E.D. Mich. Mar. 13, 2014), aff’d 624 F. App’x. 374 (6th Cir. 2015) (dismissing complaint on mootness grounds for defective vehicles based only on offer to repair, even where plaintiff’s own repair had not been scheduled) (“[Defendant] was ready to make the necessary repairs and instructed owners to contact their Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 16 of 24 11- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 dealer ‘right away to schedule a service appointment’….[so accordingly there is] nothing left for this Court to order [defendant] to do with respect to Plaintiffs.”). Second, even if it were legally relevant (and it is not), the allegation that Mr. Hamilton’s online research efforts were “not successful” is utterly implausible in light of the FAC’s other allegations referencing online materials that identify the availability of refunds and that specify General Mills’ 1-800 number for consumers to call and get those refunds. Compare FAC ¶ 50 (attempt to learn about refund “not successful”) with FAC ¶ 33 n.11 (RJN Ex. 3) (Cheerios’ website explaining consumers may “contact General Mills for a replacement or full refund,” and providing 1-800-775-8370 contact number); id. ¶ 41 n.15 (RJN Ex. 4) (General Mills’ website announcing recall stating “Consumers requesting refunds or calling with further questions should contact General Mills Consumer Services at 1-800-775-8370.”); id. ¶ 34 n.12 (RJN Exs. 1, 2) (General Mills’ press release announcing recall and providing same 1-800-775-8370 contact number).6 Factual allegations are deemed implausible and may be disregarded for purposes of Rule 12, where they are plainly contradicted by other materials incorporated into the complaint. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998)) (deeming “implausible” a complaint’s allegation contradicted by documents referenced in the complaint); see also Abano v. Owen Loan Servicing, LLC, 2015 WL 5971547, at *5 (C.D. Cal. Oct. 13, 2015); Banares v. Wells Fargo Bank, 2014 WL 985532, at *6 (N.D. Cal. Mar. 7, 2014) (citing Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009)). This rule applies here. The FAC’s allegations that Mr. Hamilton was unsuccessful in learning about the availability of refunds is completely contradicted by other allegations in the FAC that specify the availability of refunds and explain how to get them. So, even if that allegation had any legal bearing on the scope of Plaintiff’s 6 As noted in its prior Order finding these materials subject to judicial notice, the Court “may consider the full text of [these] exhibits, rather than their mere characterization within the pleadings.” Order at 6 (citing Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014)). Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 17 of 24 12- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 injury, it still could not be credited. Steckman, 143 F.3d at 1296; Banares, 2014 WL 985532, at *6. The FAC remains moot. 2. Plaintiff lacks Article III standing and standing under the UTPA. The FAC likewise fails to establish any Article III injury-in-fact, or any injury sufficient for statutory standing under the UTPA for the same reason the FAC is moot: Plaintiff’s only claimed damages are for Cheerios purchases that General Mills has offered to refund. Order at 10 (“I find that Hamilton’s complaint fails to establish any injury-in-fact that General Mills’ refund program does not moot.”). First, Plaintiff continues to lack Article III standing because he has suffered no injury that the refund program does not remedy. Since he had the opportunity to obtain a full refund for the cereal boxes purchased, Plaintiff no longer has “a possibility [of] obtain[ing] relief” and his claims must be dismissed for lack of standing. Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (citation omitted); Order at 9 (“Hamilton does not allege that he suffered any injury as a result of [General Mills’] alleged wrongdoings except a $15.98 purchase to which he is entitled to a refund.”) (dismissing for lack of Article III standing). Plaintiff also lacks the necessary statutory standing to bring claims under the UTPA, because he has suffered no “ascertainable loss” under that statute, beyond the mooted claim for a refund. “The nature of the ‘ascertainable loss’; that the private plaintiff must prove distinguishes a UTPA claim from any other claims or remedies that a plaintiff might pursue through other actions.” Pearson v. Phillip Morris, Inc., 358 Or. 88, 116 (2015). “Unlike general economic damages in a civil action, the loss required for a UTPA claim must be specifically of ‘money or property, real or personal.’” Id. (citing ORS 646.638(1)). The FAC continues to plead the price of the Cheerios Mr. Hamilton purchased as the only form of damage available or suffered. FAC ¶¶ 47-48. Accordingly, this Court’s prior holding dismissing the UTPA claim for lack of statutory standing remains dispositive. See Order at 9-10 (“Here, Hamilton does not allege any Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 18 of 24 13- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 injury other than his reliance on General Mills’ ‘misrepresentation’ to purchase the cereal. And because Hamilton’s loss of $15.98 is mooted by General Mills’ refund program, he does not have standing to sue because he has not cognizably alleged any other concrete and particularized injury.”) (dismissing for lack of UTPA statutory standing). The FAC does not even attempt to cure these defects. Instead, the FAC repeatedly re- reaffirms-in both its new allegations and those held over from the prior Complaint-that the only concrete injury or “ascertainable loss” Mr. Hamilton suffered is tied to the purchase price of the Cheerios themselves. FAC ¶¶ 47, 48, 50, 51, 59 (all paragraphs referencing Plaintiff’s “purchase” as the basis for his claimed damages). Accordingly, under the clear dictates of this Court’s prior Order, he has no standing and the FAC must be dismissed. B. The FAC Should Be Dismissed for Failure to State a Claim Under the UTPA. The Plaintiff also fails to state a claim for any form of damages recoverable under the UTPA, which is an independent basis for dismissal of the FAC. First, as to any “ascertainable loss,” his UTPA claim fails because his “losses” have been fully remedied by General Mills’ refund program, and because the FAC has no facts to support the “willful” conduct that the UTPA requires. See ORS 646.638. Second, as to statutory damages, the FAC does not contain any facts to meet the “reckless or knowing” standard required in this case. See ORS 646.638(8)(a)(1) (statutory damages may be recovered in putative class action only if plaintiffs establish “an ascertainable loss of money or property as a result of a reckless or knowing” misconduct) emphasis added. To state a claim for relief under ORS 646.638, Plaintiff must plead that he “suffer[ed] an ascertainable loss of money or property.” ORS 646.638. The ascertainable loss must be a “result of” the unlawful trade practice. Pearson, 358 Or. at 117. But as discussed in Section IV.A, above, the FAC does not plead any “ascertainable loss” of money that is the result of any unlawful trade practice. General Mills has offered to fully compensate Plaintiff for the $15.98 that he spent to Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 19 of 24 14- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 purchase the four boxes of Cheerios mislabeled as gluten-free. Hagen Decl. ¶ 3-4. Plaintiff’s failure to avail himself of that offer-despite the FAC repeatedly recognizing the refund is only a 1-800 phone call away (FAC ¶ 33 n.11 (RJN Ex. 3); id. ¶ 41 n.15 (RJN Ex. 4); id. ¶ 34 n.12 (RJN Exs. 1, 2))-renders any accompanying loss of money attributable to Mr. Hamilton’s conduct, not that of General Mills. Order at 9-10; see also Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1151 (2013) (self-inflicted injuries are insufficient to confer standing). Similarly, the FAC does not allege facts to show that General Mills’ conduct was “willful,” which is necessary to recover any “ascertainable loss” under the UTPA. ORS 646.638(1) (damages only recoverable under UTPA for “willful” violation of the statute). Claims brought under the UTPA that do not plead “willful” misconduct require dismissal. See, e.g., Fleshman v. Wells Fargo Bank, N.A., 27 F. Supp. 3d 1127, 1141 (D. Or. 2014) (“Plaintiffs fail to allege, in their UTPA claim, that Defendant’s conduct was willful.”) (dismissing UTPA claim). “A willful violation occurs when the person committing the violation knew or should have known that the conduct of the person was a violation.” ORS 646.605(10). Accordingly, when allegations in the plaintiff’s complaint about the defendant’s conduct are inconsistent with a finding of willfulness, the standard is not met. See Colquitt v. Manufacturers and Traders Trust Co., 144 F. Supp. 3d 1219, 1232 (D. Or. 2015) (rejecting as “unpersuasive” plaintiff’s argument that the court should “infer” willfulness where inconsistent with other allegations regarding defendant’s conduct alleged in the complaint). Here, the FAC is entirely inconsistent with the notion that General Mills conduct was “willful.” The FAC expressly acknowledges the “inadvertent” nature of the contamination, which was an isolated incident resulting from downed rail lines. FAC ¶ 41. The Court’s Order accurately captured these allegations as showing an “discreet, manufacturing mishap” that was nothing more than a one-time “mistake.” Order at 9, 12. There are simply no new or different facts in the FAC that General Mills “knew or should have known” its Cheerios would be Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 20 of 24 15- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 contaminated sufficient to support an inference of willfulness. So, the UTPA claim fails for this reason as well. Colquitt, 144 F. Supp. 3d at 1232. Plaintiff’s claim for statutory damages under the UTPA fails for similar reasons. To recover UTPA statutory damages, the FAC must plead “reckless or knowing” misconduct by General Mills. This “reckless or knowing” standard is an even higher bar than “willful” under the UTPA. See Scharfstein v. BP West Coast Products, LLC, 2015 WL 1255571, *7 (Or. Cir. Mar. 11, 2015) (describing burden under “reckless or knowing” standard as “much higher” than burden under “willful” standard). Having failed to satisfy the “willful” standard, the FAC necessarily fails to satisfy the “much higher” standard of “reckless or knowing” misconduct. Id. Moreover, the only fact alleged in the FAC purporting to support a finding of “reckless or knowing” conduct is one that the Court has already rejected as insufficient to meet that standard. Paragraph 33 of the FAC alleges that General Mills’ “did not conduct daily testing of finished products for gluten” at the time of the Lodi contamination. Yet, the prior Complaint contained the exact same allegation. FAC ¶ 43. And this Court specifically rejected it as insufficient to satisfy the “reckless or knowing” standard. Order at 12 (“Yet, Hamilton does not allege recklessness or knowledge with regard to the contamination except perhaps for General Mills’ lack of testing on finished products, which the FDA does not require.”). Merely recycling the same defective allegations in an amended pleading is not enough to carry a claim past Rule 12. Allen v. City of Beverly Hills, 911 F.2d 367, 373-74 (9th Cir. 1990) (holding that district court did not abuse its discretion in dismissing second amended complaint without leave to amend because the district court’s discretion is particularly broad where plaintiff has previously amended complaint and plaintiff presented no new facts, only “new theories” with no satisfactory explanation for his failure to fully develop his contentions originally); see also Elizabeth v. Aetna Life Ins. Co., 2015 WL 799417, at *4 (N.D. Cal. Feb. 23, 2015) (dismissing complaint with prejudice where amended complaint “simply re-pled failed arguments without Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 21 of 24 16- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 new supporting facts” (citing Foman v. Davis, 371 U.S. 178, 182 (1962))). The UTPA claim should be dismissed, with prejudice. C. Plaintiff Fails to State Claims Under Consumer Protection Laws of Other States. The FAC continues to contain bare recitals of the consumer protection statutes of every state in the United States (with the exception of Alabama and Iowa). FAC ¶¶ 72-122. By the FAC’s own terms, however, the FAC does not currently invoke these statues as the basis for any of Mr. Hamilton’s claims; these claims are not even operative absent some later ruling on choice of law during class certification or otherwise. FAC ¶ 73 (“As the choice of law question cannot be conclusively addressed at this point in the litigation, Plaintiff states the following alternative causes of action under the laws of the states of residence of Class members, if it is later determined by the Court that the choice of law rules require the application of these state laws.”). So, even according to the FAC itself these causes of action have not been pled as live claims, and can be dismissed for that reason.7 D. The Court Should Strike the FAC’s Class Allegations, if Necessary. As explained above, see Section IV.A-B., infra, there are simply no allegations to support carrying this case beyond the pleadings; complete dismissal of the FAC with prejudice is the appropriate result here. Nonetheless, in an abundance of caution and to avoid waiver of that issue at the Rule 12 stage, General Mills re-asserts and incorporates by reference arguments in its prior Motion to Dismiss that allow this Court to strike Plaintiff’s class allegations. See Motion to Dismiss (Dkt. No. 18) at 14-19. There are no new facts alleged in the FAC that have any material bearing on General Mills’ prior arguments on this issue. So, to the extent the FAC is not simply 7 Similarly, the conclusory invocation of the bare legal elements of other State’s statutes is insufficient to state a claim under Iqbal. Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 556) (“plead[] factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). Simply quoting a statute and providing a conclusory statement that General Mills violated that statute is precisely the type of “labels and conclusions” that do not suffice to state a claim under the pleading standard. Id. at 678. Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 22 of 24 17- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 dismissed, the class allegations should be stricken for the same reasons as those set forth in the prior Motion. E. The FAC Should Be Dismissed With Prejudice. This Court’s Order gave Plaintiff clear direction about the defects in his Complaint, told him what he would have to plead to correct them, and gave him the chance to do it. Order at 10, 13. Yet, the FAC’s defects persist. In these circumstances, the Ninth Circuit has clearly held that dismissal with prejudice is appropriate, and that is precisely what should happen to the FAC here. See, e.g., Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (affirming district court’s dismissal of class action complaint without leave to amend where plaintiffs had “ample opportunity” to properly plead a case and failed to do so); Metzler Inv. v. Corinthian Colleges, Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (affirming dismissal with prejudice and noting that discretion to dismiss with prejudice is “particularly broad where plaintiff has previously amended the complaint” (quoting In re Read-Rite Corp., 335 F.3d 843, 845 (9th Cir. 2003)). V. CONCLUSION The Court has given Plaintiff a full and fair opportunity to plead his claims. He has failed, largely because there is no harm here that the Court needs to address in light of General Mills’ recall and refund program. The FAC should be dismissed with prejudice. DATED: September 15, 2016 PERKINS COIE LLP By s/ Charles C. Sipos Charles C. Sipos, (admitted pro hac vice) CSipos@perkinscoie.com 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Julia E. Markley, OSB No. 000791 JMarkley@perkinscoie.com Joanna T. Perini-Abbott, OSB No. 141394 JPeriniAbbott@perkinscoie.com 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 23 of 24 18- MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS AND STRIKE 14577-0107/LEGAL132610003. 3 Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222 Telephone: 503.727.2000 Facsimile: 503.727.2222 Attorneys for Defendants General Mills, Inc. and General Mills Sales, Inc. Case 6:16-cv-00382-MC Document 47 Filed 09/15/16 Page 24 of 24