Jason Saidian v. Krispy Kreme Doughnuts, Inc.

NOTICE OF MOTION AND MOTION to Dismiss Case or Stay, and Motion to Strike

C.D. Cal.January 4, 2017

DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WILLIAM L. STERN (CA SBN 96105) WStern@mofo.com CLAUDIA MARIA VETESI (CA SBN 233485) CVetesi@mofo.com LUIS GABRIEL HOYOS (CA SBN 313019) LHoyos@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendant KRISPY KREME DOUGHNUT CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JASON SAIDIAN, individually and on behalf of all others similarly situated, Plaintiff, v. KRISPY KREME DOUGHNUT CORPORATION, Defendant. Case No. 2:16-CV-08338-SVW-AFM NOTICE OF MOTION AND MOTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KRISPY KREME DOUGHNUT CORPORATION’S MOTION TO DISMISS OR STAY COMPLAINT AND MOTION TO STRIKE Hearing Date: February 1, 2017 Time: 1:30 p.m. Judge: Hon. Stephen V. Wilson Ctrm: Courtroom 10A Action filed: January 4, 2017 Trial Date: None Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 1 of 37 Page ID #:176 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE i CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on February 1, 2017 at 1:30 p.m., or as soon thereafter as counsel may be heard, in Courtroom 10A on the 10th Floor in the United States District Court of the State of California, located at First Street Courthouse, 350 W. 1st Street, Los Angeles, California 90012, before the Honorable Stephen V. Wilson, Defendant Krispy Kreme Doughnut Corporation (“KKDC” or “Defendant”) will, and hereby does, move this court to dismiss or stay Plaintiff Jason Saidian’s First Amended Complaint (“FAC”) pursuant to (i) Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, (ii) Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, (iii) Fed. R. Civ. P. 9(b) for failure to plead claims grounded in fraud with sufficient particularity, and (iv) pending Ninth Circuit decisions in two misbranding appeals. Also, pursuant to Fed. R. Civ. P. 12(f), KKDC will ask the court to strike as “immaterial” Plaintiff’s geographically overbroad class definition. This motion is based on this notice of motion and motion, the supporting Memorandum of Points and Authorities, the accompanying declaration of Claudia M. Vetesi, the accompanying Request for Judicial Notice, the pleadings on file in this matter, the Reply that KKDC plans to file, any material of which this Court takes judicial notice, and any further argument the Court might allow. This Motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on December 20, 2016 at 2:00 P.M. PST. Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 2 of 37 Page ID #:177 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE ii CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: January 4, 2017 WILLIAM L. STERN CLAUDIA MARIA VETESI LUIS GABRIEL HOYOS MORRISON & FOERSTER LLP By: Claudia Maria Vetesi Claudia Maria Vetesi Attorneys for Defendant KRISPY KREME DOUGHNUT CORPORATION Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 3 of 37 Page ID #:178 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE iii CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page NOTICE OF MOTION AND MOTION ................................................................... i TABLE OF AUTHORITIES .................................................................................... v MEMORANDUM OF POINTS AND AUTHORITIES .......................................... 1 I. INTRODUCTION AND SUMMARY OF THE ARGUMENT ................... 1 II. BACKGROUND ............................................................................................ 2 A. Factual Background. ............................................................................ 2 B. The Gravamen of the FAC. .................................................................. 3 III. THE LEGAL STANDARD ........................................................................... 3 IV. ARGUMENT ................................................................................................. 4 A. Plaintiff’s State Law Claims are Preempted. ....................................... 4 1. Plaintiff’s State Law Claims are Expressly Preempted. ............ 4 a. The FDCA Has a Broad Express Preemption Provision. ......................................................................... 4 b. The NLEA’s Express Preemption Provision Applies to Restaurants and Retail Food Establishments. ................................................................ 6 2. Plaintiff’s State Law Claims are Impliedly Preempted. ............ 9 B. Plaintiff’s Claims Are Not Plausible. ................................................ 10 C. Plaintiff’s Claims Sounding in Fraud Are Not Plead With the Requisite Particularity. ....................................................................... 12 D. Plaintiff’s Claims Fail for Other, Claim-Specific Reasons. .............. 14 1. Plaintiff Fails to State Any Warranty Claim. .......................... 14 2. Plaintiff’s Unjust Enrichment Claim is Duplicative. ............... 15 E. Plaintiff Lacks Standing to Seek Injunctive Relief. ........................... 17 F. The Court Should Strike Plaintiff’s Geographically Overbroad Class Definition as “Immaterial” Under Fed. R. Civ. P. 12(f). ....................................................................................... 18 G. In the Alternative, the Court Should Stay This Action Pending the Ninth Circuit’s Decisions in Misbranding Appeals. .................... 19 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 4 of 37 Page ID #:179 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE iv CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. A Stay Will Promote the Orderly Course of Justice. .............. 21 2. The Parties Will Suffer Hardship Absent a Stay. .................... 22 3. Plaintiff Will Not Be Injured By a Stay. ................................. 22 V. CONCLUSION ............................................................................................ 22 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 5 of 37 Page ID #:180 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE v CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) CASES Abramson v. Marriott Ownership Resorts, Inc., 155 F. Supp. 3d 1056 (C.D. Cal. 2016) ............................................................... 13 Aghaji v. Bank of Am., N.A., 247 Cal. App. 4th 1110 (2016) ............................................................................ 19 Allen v. ConAgra Foods, Inc., No. 13-cv-01279-HSG (N.D. Cal. Feb. 20, 2015), Dkt. No. 152 ....................... 21 Anderson v. Hain Celestial Grp., Inc., 87 F. Supp. 3d 1226 (N.D. Cal. 2015) ........................................................... 17, 18 Ang v. Bimbo Bakeries USA, Inc., No. 13-cv-01196-HSG, 2016 U.S. Dist. LEXIS 44053 (N.D. Cal. Mar. 31, 2016) .................................. 20 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................ 3, 11 Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 (9th Cir. 2015) ......................................................................... 16, 17 Astiana v. Hain Celestial Grp., Inc., No. 11-cv-6342-PJH, 2015 U.S. Dist. LEXIS 138496 (N.D. Cal. Oct. 9, 2015) ................................... 20 Backus v. Nestle USA, Inc., 167 F. Supp. 3d 1068 (N.D. Cal. 2016) ................................................................. 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................ 3, 11 Beltran v. Avon Prods., Inc., No. SACV 12-02502-CJC(ANx), 2012 WL 12303423 (C.D. Cal. Sept. 20, 2012) .............................................. 4, 14 Birdsong v. Apple, Inc., 590 F.3d 955 (9th Cir. 2009) ............................................................................... 15 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 6 of 37 Page ID #:181 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE vi CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Briseno v. ConAgra Foods, Inc., No. 15-55727, 2017 WL 24618 (9th Cir. Jan. 3, 2017) ...................................... 20 Bruton v. Gerber Prods. Co., 961 F. Supp. 2d 1062 (N.D. Cal. 2013) ................................................................. 8 Buckman Co. v. Pls. Legal Comm., 531 U.S. 341 (2001) ........................................................................................ 9, 10 Bush v. Mondelez Int’l, Inc., No. 16-cv-02460-RS, 2016 WL 7324990 (N.D. Cal. Dec. 16, 2016) ................ 12 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 (9th Cir. 1996) ................................................................................... 3 Carrea v. Dreyer’s Grand Ice Cream, Inc., 475 F. App’x. 113 (9th Cir. 2012) ......................................................................... 6 Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011) (White, J.), aff’d, 475 F. App’x 113 (9th Cir. 2012) ............................................. 5 Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111 (N.D. Cal. 2010) ................................................................. 6 Chavez v. Nestle USA, Inc., No. CV 09-9192-GW(CWx), 2011 WL 10565797 (C.D. Cal. Jan. 10, 2011) .................................................... 14 CMAX, Inc. v. Hall, 300 F.2d 265 (9th Cir. 1962) ......................................................................... 21, 22 Collins v. eMachines, Inc., 202 Cal. App. 4th 249 (2011), as modified (Dec. 28, 2011) ............................... 16 Dana v. Hershey Co., 180 F. Supp. 3d 652 (N.D. Cal. 2016) ................................................................... 8 Davidson v. Kimberly-Clark Corp., 76 F. Supp. 3d 964 (N.D. Cal. 2014) ................................................................... 17 Del Real v. Harris, 966 F. Supp. 2d 1047 (E.D. Cal. 2013) ................................................................. 9 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 7 of 37 Page ID #:182 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE vii CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) ......................................................................... 11, 12 Fagan v. Neutrogena Corp., No. 5:13-CV-01316-SVW-OP (C.D. Cal. July 7, 2016), Dkt. No. 166 ........................................................................................................ 20 Ferrington v. McAfee, Inc., No. 10-CV-01455-LHK, 2010 WL 3910169 (N.D. Cal. Oct. 5, 2010) ....................................................... 10 Figy v. Frito-Lay N. Am., Inc., 67 F. Supp. 3d 1075 (N.D. Cal. 2014) ................................................................. 14 Forouzesh v. Starbucks Corp., No. 16-CV-3830 PA(AGRx), 2016 WL 4443203 (C.D. Cal. Aug. 19, 2016) ............................................... 14-15 Gorenstein v. Ocean Spray Cranberries, Inc., No. CV 09-5925-GAF, 2009 WL 10201128 (C.D. Cal. Dec. 18, 2009) .................................................... 5 Grivas v. Metagenics, Inc., No. SACV 15-01838-CJC (N.D. Cal. Mar. 31, 2016), Dkt. No. 33 ................... 20 Gubala v. CVS Pharmacy, Inc., No. 14 C 9039, 2015 WL 2777627 (N.D. Ill. June 16, 2015) ............................... 6 Gustavson v. Mars, Inc., No. 13-cv-04537-LHK, 2014 WL 6986421 (N.D. Cal. Dec. 10, 2014) .............................................. 21, 22 Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188 (N.D. Cal. 2014) ................................................................. 18 Ham v. Hain Celestial Grp., Inc., No. 3:14-cv-02044-WHO (N.D. Cal. Dec. 12, 2015), Dkt. No. 59 .................... 20 Haskins v. Symantec Corp., 654 F. App’x 338 (9th Cir. 2016) ........................................................................ 14 Herrera v. Estee Lauder Cos., No. SAVC 12-01169-CJC(ANx), 2012 WL 12507876 (C.D. Cal. Sept. 20, 2012) .................................................. 14 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 8 of 37 Page ID #:183 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE viii CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In re Apple & AT & T iPad Unlimited Data Plan Litig., 802 F. Supp. 2d 1070 (N.D. Cal. 2011) ............................................................... 16 In re Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 590 F. Supp. 2d 1282 (C.D. Cal. 2008) ............................................................... 10 In re First Am. Home Buyers Protection Corp. Class Action Litig., 313 F.R.D. 578 (S.D. Cal. 2016) ................................................................... 17, 19 In re Ford Tailgate Litig., No. 11-CV-2953-RS, 2014 WL 1007066 (N.D. Cal. Mar. 12, 2014) ................. 16 In re PepsiCo, Inc. Bottled Water Mktg. & Sales Practices Litig., 588 F. Supp. 2d 527 (S.D.N.Y. 2008) ................................................................... 6 Ivie v. Kraft Foods Global, Inc., No. 5:12-cv-02554-RMW (N.D. Cal. Nov. 16, 2015), Dkt. No. 85 ................... 20 Ivie v. Kraft Foods Global, Inc., No. C-12-02554-RMW, 2013 WL 685372 (N.D. Cal. Feb. 25, 2013) ......................................................... 5 Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726 (N.D. Cal. June 13, 2014) ................................................ 2, 19 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ......................................................................... 3, 13 Khasin v. R.C. Bigelow Inc., No. 3:12-cv-02204-WHO, 2016 WL 4502500 (N.D. Cal. Aug. 29, 2016) .................................................... 17 Koller v. Med Foods, Inc., No. 14-cv-02400-RS, 2015 U.S. Dist. LEXIS 167760 (N.D. Cal. Dec. 14, 2015) ................................ 20 Kosta v. Del Monte Foods, Inc., 308 F.R.D. 217 (N.D. Cal. 2015) ...................................................................... , 19 Kuenzig v. Kraft Foods, Inc., No. 8:11-cv-838-T-24 TGW, 2011 WL 4031141 (M.D. Fla. Sept. 12, 2011) ..................................................... 6 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 9 of 37 Page ID #:184 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE ix CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lam v. Gen. Mills, Inc., 859 F. Supp. 2d 1097 (N.D. Cal. 2012) ................................................................. 5 Landis v. N. Am. Co., 299 U.S. 248 (1936) ...................................................................................... 21, 22 Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003) .............................................................................. 11 Leonhart v. Nature’s Path Foods, Inc., No. 13-cv-00492-BLF, 2015 WL 3548212 (N.D. Cal. June 5, 2015) ........................................................................... 20-21, 22 Levya v. Certified Grocers of Cal., Ltd., 593 F.2d 857 (9th Cir. 1979) ............................................................................... 21 Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) ............................................................................. 22 Loreto v. Procter & Gamble Co., 515 F. App’x 576 (6th Cir. 2013) ........................................................................ 10 Luman v. Theismann, 647 F. App’x 804 (9th Cir. 2016) ........................................................................ 18 Mains v. Whole Foods Mkt., Inc., No. 5:12-cv-05652-EJD, 2016 U.S. Dist. LEXIS 51816 (N.D. Cal. Apr. 18, 2016) ...................................................................................................... 20 Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ......................................................................... 18, 19 Mills v. Giant of Md., LLC, 441 F. Supp. 2d 104 (D.D.C. 2006), aff’d on other grounds, 508 F.3d 11 (D.C. Cir. 2007)............................................................................. 4, 6 Morgan v. Wallaby Yogurt Co., No. 3:13-cv-00296-JD (N.D. Cal. July 8, 2016), Dkt. No. 93 ............................ 20 Nat’l Broiler Council v. Voss, 44 F.3d 740 (9th Cir. 1994) ................................................................................... 9 Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965 (2012) ............................................................................................ 9 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 10 of 37 Page ID #:185 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE x CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nat’l Union Fire Ins. Co of Pittsburgh, PA v. Elec. Arts, Inc., No. 11-04897 JW, 2012 WL 219428 (N.D. Cal. Jan. 24, 2012) ......................... 21 Nemphos v. Nestle Waters N. Am., Inc., 775 F.3d 616 (4th Cir. 2015) ................................................................................. 8 Otto v. Abbott Labs., Inc., No. 5:12-cv-01411-SVW-DTB (C.D. Cal. Jan. 10, 2013), Dkt. No. 35 .......................................................................................................... 16 Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151 (9th Cir. 1996) ............................................................................... 16 Pardini v. Unilever U.S., Inc., No. 13-cv-01675-SC, 2015 WL 1744340 (N.D. Cal. Apr. 15, 2015) ................. 21 Park v. Welch Foods Inc., No. 5:12-cv-06449-PSG, 2015 U.S. Dist. LEXIS 144463 (N.D. Cal. Oct. 22, 2015) ................................. 20 Parker v. J.M. Smucker Co., No. 3:13-cv-0690-SC (N.D. Cal. Dec. 18, 2014), Dkt. No. 74 ........................... 21 Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973 980 (C.D. Cal. 2013) .......................................................... 12 Perez v. Nidek Co., 711 F.3d 1109 (9th Cir. 2013) ......................................................................... 9, 10 Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111 (C.D. Cal. 2010) ................................................................. 6 Pom Wonderful LLC v. Coca Cola Co., 134 S. Ct. 2228 (2014) .......................................................................................... 4 Red v. Kroger Co., No. CV 10-01025 DMG, 2010 WL 4262037 (C.D. Cal. Sept. 2, 2010) ................................................ 4, 5, 6 Riley v. Cordis Corp., 625 F. Supp. 2d 769 (D. Minn. 2009) ................................................................. 10 Romero v. Flowers Bakeries, LLC, No. 14-cv-05189-BLF, 2016 WL 469370 (N.D. Cal. Feb. 8, 2016)............. 12, 20 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 11 of 37 Page ID #:186 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE xi CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Saavedra et al. v. Eli Lily & Co., No. 2:12-cv-9366-SVW-MAN, 2013 WL 6345442 (C.D. Cal. Feb. 26, 2013) ..................................................... 17 Samet v. Kellogg Co., No. 5:12-cv-01891-PSG, 2015 WL 6954989 (N.D. Cal. Nov. 10, 2015) .................................................... 20 Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222 (3d Cir. 1990) ................................................................................ 10 Shepard v. DineEquity, Inc., No. 08-2416-KHV, 2009 WL 8518288 (D. Kan. Sept. 25, 2009) ........................ 6 Stearns v. Select Comfort Retail Corp., No. 08-2746 JF, 2009 WL 1635931 (N.D. Cal. June 5, 2009) ........................... 15 Swearingen v. Amazon Preservation Partners, Inc., No. 13-cv-044202-WHO (N.D. Cal. July 20, 2016), Dkt. No. 76. ..................... 20 Swearingen v. ConAgra Foods, Inc., No. 3:13-cv-05332-SC (N.D. Cal. Jan. 9, 2015), Dkt. No. 36 ............................ 21 Thomas v. Costco Wholesale Corp., No. 12-cv-02908-BLF, 2015 WL 6674696 (N.D. Cal. Nov. 2, 2015) .......................................... 20, 21, 22 Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123 (N.D. Cal. 2010) ............................................................... 18 Torrent v. Yakult U.S.A. Inc., 15-00124-CJC(JCGx), 2015 WL 4335076 (C.D. Cal. July 14, 2015) ..................................................... 19 Turek v. Gen. Mills, Inc., 662 F.3d 423 (7th Cir. 2011) ................................................................................. 8 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................. 13 Victor v. R.C. Bigelow, Inc., No. 13-CV-02976-WHO, 2016 WL 4502528 (N.D. Cal. Aug. 29, 2016) .............................................. 17, 18 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 12 of 37 Page ID #:187 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE xii CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Viggiano v. Hansen Natural Corp., 944 F. Supp. 2d 877 (C.D. Cal. 2013) ................................................................... 7 Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) ............................................................................... 11 Wilson v. Frito-Lay N. Am., Inc., No. 12-CV-1586-SC, 2015 WL 4451424 (N.D. Cal. July 20, 2015) .................. 20 STATUTES & REGULATIONS 21 U.S.C. § 337(a) .................................................................................................................. 9 § 341 et seq. ........................................................................................................... 4 § 343-1(a) .............................................................................................................. 5 § 343-1(a)(4) .......................................................................................................... 1 § 343(q)(1)-(5) ....................................................................................................... 4 Cal. Civ. Code § 1750 et seq. ......................................................................................................... 3 § 17200 et seq. ....................................................................................................... 3 § 17500 et seq. ....................................................................................................... 3 Cal. Com. Code § 2313 .................................................................................................................... 3 § 2314 .............................................................................................................. 3, 15 21 C.F.R. § 101.11(2)(b)(i)(A)-(C) ........................................................................................ 8 § 100.1(c)(4) .......................................................................................................... 5 Food Labeling, Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments, 79 Fed. Reg. 71156 (Dec. 1, 2014) (codified at 21 C.F.R. § 101.11 (2016)) .......................... 6-7 RULES Fed. R. Civ. P. Rule 8(b) .................................................................................................... 1, 10, 12 Rule 9(b) .................................................................................................... 1, 12, 14 Rule 12(f) ............................................................................................................. 18 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 13 of 37 Page ID #:188 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE xiii CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OTHER AUTHORITIES FDA Finalizes Menu and Vending Machine Calorie Labeling Rules, FDA News Release (Nov. 25, 2014), http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ ucm423952.htm ..................................................................................................... 9 Jenna Greene, 2016 in Review: Most Ridiculous Lawsuits, The AmLaw Litigation Daily (Dec. 29, 2016) ...................................................... 1 Krispy Kreme Doughnuts, Chocolate Iced Raspberry Filled Doughnut, http://kkd-nutritional-panels.s3.amazonaws.com/2016_10_13_V2_ AllergenDisclaimerChange_Chocolate%20Iced%20Raspberry%20 Filled.JPG ............................................................................................................ 20 Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 14 of 37 Page ID #:189 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 1 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF THE ARGUMENT It is not every day that a case distinguishes itself as one of the top three “most ridiculous lawsuits” of the year. As the AmLaw Litigation Daily observed, this case “wouldn’t be so dopey except when it gets all indignant about the health benefits doughnut eaters are being denied… Yeah. If only that doughnut you just ate had some real raspberries, you totally wouldn’t get cancer or heart disease.”1 This is a wrongful adjective case. Plaintiff Jason Saidian alleges he bought doughnuts from defendant Krispy Kreme Doughnut Corporation (“KKDC”). He claims he was duped by the in-store display, which describes the filled and glazed doughnuts by their main flavoring characteristics (e.g., “Raspberry,” “Blueberry,” “Maple”), but they not only lack those ingredients, they fail to deliver nutritional benefits, he says, and insists everyone should get his or her money back. The Court should dismiss these claims for seven reasons: First, these claims are expressly preempted by the Federal Food, Drug, and Cosmetic Act’s (“FDCA’s”) broad express preemption provision, 21 U.S.C. § 343- 1(a)(4). This provision prohibits states from imposing additional labeling requirements for food items sold in restaurants and other retail food establishments that are “not identical” to federal requirements. Second, Plaintiff’s claims are impliedly preempted by the FDCA. Third, Plaintiff’s claims are not plausible under Fed. R. Civ. P. 8(b). Fourth, Plaintiff’s claims are not pled with particularity under Fed. R. Civ. P. 9(b). Fifth, Plaintiff’s causes of action do not state a viable claim. Sixth, Plaintiff lacks Article III standing to seek injunctive relief because he 1 See Jenna Greene, 2016 in Review: Most Ridiculous Lawsuits, The AmLaw Litigation Daily (Dec. 29, 2016) (attached hereto as Exhibit 1). Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 15 of 37 Page ID #:190 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 2 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 says he will not purchase these doughnuts again unless they are reformulated. Moreover, he can never be duped again given his knowledge of these products’ ingredients. Seventh, the Court should strike Plaintiff’s nationwide class claims. Mr. Saidian cannot apply California law to the claims of out-of-state residents. Alternatively, the Ninth Circuit has pending two food misbranding appeals in which it may decide the class certification and merits issues that will control this case, Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726 (N.D. Cal. June 13, 2014), and Kosta v. Del Monte Foods, Inc., 308 F.R.D. 217 (N.D. Cal. 2015).2 At least 20 district courts in California have stayed food “misbranding” cases pending these Ninth Circuit decisions. This Court should too. For all the foregoing reasons, the Court should grant KKDC’s motion to dismiss the claims and strike the nationwide class averments or, in the alternative, to stay this lawsuit until the Ninth Circuit decides Jones and Kosta. II. BACKGROUND A. Factual Background. Plaintiff brings a nationwide class action based on Krispy Kreme Doughnut Corporation’s (“KKDC”) alleged false and misleading business practices with regard to the marketing and sale of its “Chocolate Iced Raspberry Filled” doughnuts (“Raspberry Product”), “Maple Iced Glazed” and “Maple Bar” doughnuts (“Maple Products”), and “Glazed Blueberry Cake” doughnuts and doughnut holes (“Blueberry Products”) (collectively referred to as the “Products”). (First Amended Complaint (“FAC”) ¶ 1.) Plaintiff claims that he purchased all of these products in the Krispy Kreme store in Santa Monica, California. Based solely on the 2 Jones and Kosta will address: (i) the extent to which ascertainability, commonality, and predominance affect food misbranding cases such as this; (ii) reliance on and materiality of food labels and whether they can be presumed; and (iii) Article III standing to seek injunctive relief. Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 16 of 37 Page ID #:191 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 3 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 descriptive names of these Products, Plaintiff claims he thought they would contain actual raspberries, maple sugar or syrup, and blueberries, respectively. (FAC ¶ 9.) He also claims on information and belief that these Products in fact do not contain these “Premium Ingredients.” (FAC ¶¶ 27-28.) He claims that “[h]ad plaintiff and other consumers known that the Products did not contain their Premium Ingredients, they would not have purchased the Products or would have paid significantly less for the Products.” (FAC ¶ 9.) B. The Gravamen of the FAC. Plaintiff claims that these statements are deceptive and he seeks to right that wrong through ten state law claims: (i) California’s Consumer Legal Remedies Act (“CLRA”) (Cal. Civ. Code § 1750 et seq.), (ii) California’s Unfair Competition Law (“UCL”) (Cal. Civ. Code § 17200 et seq.), (iii) California’s False Advertising Law (“FAL”) (Cal. Civ. Code § 17500 et seq.), (iv) breach of express warranty (Cal. Com. Code § 2313), (v) breach of implied warranty (Cal. Com. Code § 2314), (vi) fraud, (vii) intentional misrepresentation, (viii) negligent misrepresentation, (ix) breach of contract, and (x) unjust enrichment/restitution. Mr. Saidian prays for declaratory relief, compensatory and punitive damages, restitution, interest, attorney’s fees, costs, and injunctive relief. (FAC, pp. 2-30, “Prayer For Relief.”) III. THE LEGAL STANDARD A court must accept all factual allegations pled in the complaint as true, Cahill v. Liberty Mutual Insurance Co., 80 F.3d 336, 337-38 (9th Cir. 1996), but it need not accept unreasonable inferences or legal conclusions cast in the form of factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (“[B]are assertions…amount[ing] to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim” are not entitled to an assumption of truth (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff’s entire Complaint must be pled with particularity. That is because he alleges that KKDC engaged in a scheme of false advertising (FAC ¶¶ 40-44), Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 17 of 37 Page ID #:192 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 4 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which suggests a “unified course of fraudulent conduct.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1126-27 (9th Cir. 2009); see also Beltran v. Avon Prods., Inc., No. SACV 12-02502-CJC(ANx), 2012 WL 12303423, at *5-6 (C.D. Cal. Sept. 20, 2012) (dismissing UCL, FAL, and CLRA claims because plaintiffs did not plead with particularity). IV. ARGUMENT A. Plaintiff’s State Law Claims are Preempted. 1. Plaintiff’s State Law Claims are Expressly Preempted. a. The FDCA Has a Broad Express Preemption Provision. The Court should dismiss all of plaintiff’s claims because they are expressly preempted. Asking KKDC to disclose its Products’ ingredients at the point of sale would add requirements “not identical” to the FDCA, triggering the statute’s express preemption provision. The FDCA establishes a comprehensive federal scheme of food regulation to ensure that food is safe and labeled in a manner that does not mislead consumers. 21 U.S.C. § 341 et seq. In 1990, Congress enacted the Nutrition Labeling and Education Act (“NLEA”) to amend the FDCA and require uniform food labeling, including a provision requiring restaurants and other retail food establishments to disclose certain information. See 21 U.S.C. § 343(q)(1)-(5); see also Red v. Kroger Co., No. CV 10-01025 DMG (MANx), 2010 WL 4262037, at *3 (C.D. Cal. Sept. 2, 2010).3 The NLEA includes a broad express preemption provision. See Mills v. Giant of Md., LLC, 441 F. Supp. 2d 104, 106-09 (D.D.C. 2006), aff’d on other 3 Congress did not intend this provision to preempt the private enforcement of other federal statutes that complement the FDCA, such as the Lanham Act. See Pom Wonderful LLC v. Coca Cola Co., 134 S. Ct. 2228, 2236-38 (2014) (“This is not a pre-emption case… Pre-emption of some state requirements does not suggest an intent to preclude federal claims”). Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 18 of 37 Page ID #:193 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 5 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 grounds, 508 F.3d 11 (D.C. Cir. 2007). It provides: No state or political subdivision of a state may “directly or indirectly establish ... any requirement for the labeling of food that is not identical to the requirement of section 403(q) [21 U.S.C. § 343(q)]” (emphasis added). 21 U.S.C. § 343-1(a). The terms “requirement” and “identical” in this provision are to be read very broadly to include claims brought by private plaintiffs under state consumer protection statutes such as the CLRA, UCL, and FAL. See Gorenstein v. Ocean Spray Cranberries, Inc., No. CV 09-5925-GAF, 2009 WL 10201128, at *3 (C.D. Cal. Dec. 18, 2009). See also Red, 2010 WL 4262037, at *7 (all requirements “not identical” to federal law are preempted, even if they are “equivalent to or fully consistent with federal law”). Furthermore, FDA regulations issued pursuant to the NLEA foreclose any “[s]tate requirement [that] directly or indirectly imposes obligations or contains provisions concerning the composition or labeling of food” that are “not imposed by or contained in the applicable provision” or “[d]iffer from those specifically imposed by or contained in the applicable provision.” 21 C.F.R. § 100.1(c)(4). Federal courts in California “generally find express preemption under the FDCA when (1) FDA requirements with respect to a particular food label or package are clear, and (2) the product label or package at issue is in compliance with that policy, such that plaintiff necessarily seeks to enforce requirements in excess of what the FDCA, NLEA, and the implementing regulations require.” See Ivie v. Kraft Foods Global, Inc., No. C-12-02554-RMW, 2013 WL 685372 at *8 (N.D. Cal. Feb. 25, 2013) (citing Lam v. Gen. Mills, Inc., 859 F. Supp. 2d 1097, 1102-03 (N.D. Cal. 2012) (finding preemption of California state-law claims under the FDCA express preemption provision)). Thus, a court may impose a labeling requirement based on state law only if it is “identical to” FDA requirements.4 4 A number of federal courts, including the Ninth Circuit, have so held in the food labeling context. See Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10- Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 19 of 37 Page ID #:194 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 6 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. The NLEA’s Express Preemption Provision Applies to Restaurants and Retail Food Establishments. Plaintiff’s claims fall squarely within the NLEA’s express preemption provision, therefore they should be dismissed. See Carrea v. Dreyer’s Grand Ice Cream, Inc., 475 F. App’x. 113, 114-15 (9th Cir. 2012) (holding that when a plaintiff’s claims are subject to NLEA preemption they must be dismissed under Rule 12(b)(6)) . First, the FDA recently issued federal regulations that directly apply to the alleged labeling violations that Plaintiff asserts. See Food Labeling, Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food 01044 JSW, 2011 WL 159380, at *4 (N.D. Cal. Jan. 10, 2011) (White, J.), aff’d, 475 F. App’x 113 (9th Cir. 2012) (holding that claims regarding “0g Trans Fat” statement were preempted by the NLEA); Gubala v. CVS Pharmacy, Inc., No. 14 C 9039, 2015 WL 2777627, at *4 (N.D. Ill. June 16, 2015) (finding plaintiff’s claims preempted because they “would require defendants to label their products in a particular way,” but “[t]he NLEA does not include such a labeling requirement”); Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111, 1119-20 (C.D. Cal. 2010) (Marshall, J.) (finding preemption because otherwise plaintiff “would necessarily impose a state-law obligation for trans fat disclosure that is not required by federal law”); see also Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111, 1121-23 (N.D. Cal. 2010) (Seeborg, J.) (UCL and other state law claims that sought to impose labeling requirements that were not identical to FDA regulations regarding use of the terms “0g Trans Fat” and “good source” of calcium and fiber were expressly preempted); Mills, 441 F. Supp. 2d at 109 (claim that defendant failed to place a lactose intolerance warning on its milk was preempted by FDA regulations); Red, 2010 WL 4262037, at *7 (Gee, J.) (finding preemption of state law claims alleging failure to disclose partially hydrogenated vegetable oil on food labels because plaintiffs “have not identified … a situation in which resolution of Plaintiffs’ claims could result in requirements that are ‘identical to’ FDA regulations”); In re PepsiCo, Inc. Bottled Water Mktg. & Sales Practices Litig., 588 F. Supp. 2d 527, 537 (S.D.N.Y. 2008) (finding FDA’s regulation of labeling requirements for purified water preempted plaintiffs’ state law claims); Shepard v. DineEquity, Inc., No. 08-2416-KHV, 2009 WL 8518288, at *5 (D. Kan. Sept. 25, 2009) (finding preemption of plaintiff’s claims related to nutrition content statements by Applebee’s and Weight Watchers); Kuenzig v. Kraft Foods, Inc., No. 8:11-cv-838-T-24 TGW, 2011 WL 4031141, at *7 (M.D. Fla. Sept. 12, 2011) (finding Food and Safety Inspection Service’s nutrition labeling regulations preempted plaintiff’s state law claims in connection with “percent fat free” claims in defendants’ product labels). Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 20 of 37 Page ID #:195 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 7 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Establishments, 79 Fed. Reg. 71156 (Dec. 1, 2014) (codified at 21 C.F.R. § 101.11 (2016)). These regulations “require restaurants and similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items to provide calorie and other nutrition information for standard menu items, including food on display and self-service food.” Id. Given that KKDC is a retail food establishment with more than 20 locations doing business under the same name (RJN, Ex. A, P. 22-23) and offering for sale substantially the same menu items (RJN, Ex. B), these regulations apply to all of its Products, including the Products that plaintiff alleges infringe California’s consumer protection and false advertising laws. Second, Plaintiff’s claims create additional requirements this court has found to be impermissible under the NLEA’s express preemption provision. See Viggiano v. Hansen Natural Corp., 944 F. Supp. 2d 877, 890 (C.D. Cal. 2013) (“As FDA regulations explicitly authorized [defendant] to label the product as it did, any state law requiring [defendant] to use additional or different labeling would not be identical to FDA regulations and would be preempted”) (emphasis added); Backus v. Nestle USA, Inc., 167 F. Supp. 3d 1068, 1072-73 (N.D. Cal. 2016) (plaintiff’s action was preempted because she sought to implement an immediate ban when FDA had chosen a compliance period of three years). Under these regulations, FDA requires restaurants and other retail food establishments to disclose only (1) the number of calories contained in each standard menu item, (2) a prominent, clear, and conspicuous statement that “2,000 calories a day is used for general nutrition advice, but calorie needs vary,” (3) nutritional information in written form (composed of amounts of total fat, saturated fat, cholesterol, sodium, total carbohydrates, complex carbohydrates, sugars, dietary fiber, and total protein, in that order), and (4) a prominent, clear, and conspicuous statement that this “additional nutritional information [is] available Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 21 of 37 Page ID #:196 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 8 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 upon request.” See 21 C.F.R. 101.11(2)(b)(i)(A)-(C). Contrary to Plaintiff’s thinking, the FDA does not require restaurants to “provide consumers with access to information on what ingredients are contained in the Products at the point of sale.” (FAC ¶ 39.) Such a point-of-sale disclosure requirement clearly would be “in excess of” what the FDCA, NLEA, and their implementing regulations require. Congress’s and FDA’s goal in adding an express preemption provision to the NLEA and its ensuing regulations was to create “uniform national standards” for food labeling. See Bruton v. Gerber Prods. Co., 961 F. Supp. 2d 1062, 1079 (N.D. Cal. 2013). But Plaintiff asks this Court to implement a California-specific requirement that restaurants and other food retail establishments should disclose a list of their products’ ingredients at the point of sale. This contravenes the NLEA’s express preemption’s purpose, which is to create a uniform set of requirements for restaurant chains such as KKDC. See Nemphos v. Nestle Waters N. Am., Inc., 775 F.3d 616, 625 (4th Cir. 2015) (“Nonidentical state requirements, whatever their legal provenance, are preempted. In each of the areas selected for preemption . . . the NLEA sought to ensure a nationally uniform regulatory system, rather than a fifty-state patchwork”); Turek v. Gen. Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011) (“[i]t is easy to see why Congress would not want to allow states to impose disclosure requirements of their own . . . Manufacturers might have to print 50 different labels, driving consumers who buy food products in more than one state crazy”); Dana v. Hershey Co., 180 F. Supp. 3d 652, 664-65 (N.D. Cal. 2016) (“There are countless issues that may be legitimately important to many customers, [but] the courts are not suited to determine which should occupy the limited surface of a chocolate wrapper”). FDA has echoed this public policy concern in the context of food sold in restaurants and similar retail food establishments such as KKDC, stating that “[t]hese federal standards will help avoid situations in which a chain restaurant subject to the federal requirements has to meet different requirements in Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 22 of 37 Page ID #:197 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 9 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 different states.”5 The NLEA empowers state regulators to enforce federal regulations, but it does not grant states the authority to enact their own additional requirements. See Nat’l Broiler Council v. Voss, 44 F.3d 740, 746 (9th Cir. 1994) (per curiam) (holding that federal law preempts California statute prohibiting wholesales of poultry from using the word “fresh” on labels for poultry stored at temperatures below 26 degrees Fahrenheit); see also Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965, 974 (2012) (federal law preempts California statute prohibiting slaughterhouses from processing “nonambulatory” pigs); Del Real v. Harris, 966 F. Supp. 2d 1047, 1067 (E.D. Cal. 2013) (federal law preempts California statute governing the amount of “slack fill” that may be used in frozen prepared foods where federal law would allow such packaging). In short, asking KKDC to disclose its Products’ ingredients at the point of sale would add requirements “not identical” to the FDCA, triggering the statute’s express preemption provision. Plaintiff’s claims are expressly preempted. 2. Plaintiff’s State Law Claims are Impliedly Preempted. There is no private right of action to enforce the FDCA. See Buckman Co. v. Pls. Legal Comm., 531 U.S. 341, 349 n.4 (2001); Perez v. Nidek Co., 711 F.3d 1109, 1119-20 (9th Cir. 2013). “[A]ll such proceedings for the enforcement, or to restrain violations, of [the FDCA] shall be by and in the name of the United States.” 21 U.S.C. § 337(a). Plaintiff’s claim is that KKDC fails to adequately label its doughnuts and disclose their ingredients. (See, e.g., FAC ¶¶ 27-44.) Because the FDCA comprehensively regulates food labeling and safety, Plaintiff’s claims indirectly seek to enforce FDA regulations through state consumer protection statutes. He 5 See FDA Finalizes Menu and Vending Machine Calorie Labeling Rules, FDA News Release (Nov. 25, 2014), http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm423952.htm Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 23 of 37 Page ID #:198 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 10 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cannot do this. A state law claim does not exist where it is “in substance (even if not in form) a claim for violating the FDCA - that is, when the state claim would not exist if the FDCA did not exist.” Riley v. Cordis Corp., 625 F. Supp. 2d 769, 777 (D. Minn. 2009) (citing Buckman, 531 U.S. at 352-53).6 Plaintiff indirectly seeks to enforce FDA regulations through his alleged deception and mislabeling claims. For example, they allege that instead of the “Premium Ingredients,” the Products “contain nutritionally inferior ingredients,” and that they “are made from inferior and potentially harmful ingredients such as corn syrup, Blue #2, and Blue #1.” (FAC ¶ 35.) They also take issue with KKDC’S Nutritional Data and Information Sheet for the allegedly infringing Products. (FAC ¶ 31.) All of these complaints raise labeling issues regulated exclusively by the FDA. B. Plaintiff’s Claims Are Not Plausible. Even if this Court finds Plaintiff’s claims are not preempted, they are nonetheless implausible. Under Rule 8(b), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the 6 See Perez, 711 F.3d at 1120 (claim impliedly preempted where it turned on the meaning of the term “adulterated” under FDCA because that determination “rest[s] within the enforcement authority of FDA, not this Court”); In re Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 590 F. Supp. 2d 1282, 1290-91 (C.D. Cal. 2008) (plaintiffs may not use other laws as a means to assert a private cause of action that is based on violations of the FDCA); Loreto v. Procter & Gamble Co., 515 F. App’x 576, 579 (6th Cir. 2013) (FDA’s regulatory scheme is “thwarted if savvy plaintiffs can label” their claim as a state law cause of action when it “in substance seeks to enforce the FDCA”); Ferrington v. McAfee, Inc., No. 10-CV-01455-LHK, 2010 WL 3910169, at *14-15 (N.D. Cal. Oct. 5, 2010) (a plaintiff may not plead around a statute that indicates exclusive enforcement authority in the government by bringing a claim under the UCL); Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 231 (3d Cir. 1990) (FDA guideline violations are insufficient, as there is no private right of action). Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 24 of 37 Page ID #:199 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 11 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted); see also Twombly, 550 U.S. at 570. Allegedly false statements are actionable only if they are likely to deceive a reasonable consumer. See Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (holding that the California consumer protection statutes are governed by the “reasonable consumer” test); Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003) (The reasonable consumer test requires the plaintiff to show that “a significant portion of the general consuming public, or of the targeted consumers, acting reasonably in the circumstances, could be misled”); Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (same). In this case, Plaintiff first claims he thought that the doughnuts contained actual raspberries, blueberries, and maple syrup or maple sugar just because he saw the words “Raspberry,” “Blueberry,” and “Maple” on the display placards next to the doughnuts. (FAC ¶¶ 21, 27-29.) But KKDC uses these words as a shorthand display to reference their products. Reasonable consumers understand that these are shorthand references and are not intended to describe the ingredients of the doughnuts. Consumers also understand that doughnuts are desserts, and contain flavoring. But Plaintiff insists that consumers would read these placards and assume these doughnuts contain, for example, actual raspberries, blueberries, and maple syrup. Not so. Not only that, Mr. Saidian contends that a reasonable consumer expects that specific ingredients would be included, as opposed to just flavoring, and would have certain health and nutrient benefits, including vitamins, minerals, and antioxidants.7 (FAC ¶¶ 23-25.) But he offers nothing except his say-so. This is 7 In the FAC Plaintiff alleges that he thought the Raspberry Products contain Vitamin C, Vitamin K, Potassium, and dietary fiber, and that they fight against cancer, heart and circulatory disease, and age-related decline. He also claims he thought the Maple Products contained Calcium, Manganese, Potassium, and Magnesium, and that they are a source of beneficial antioxidants that prevent cancer, support the immune system, lower blood pressure, and slow the effects of aging. Finally, he claims he thought the Blueberry Products would limit the Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 25 of 37 Page ID #:200 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 12 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 implausible; no reasonable consumer would expect a doughnut to deliver the same level of antioxidants, for example, as green tea. Finally, Plaintiff argues that most consumers buy the doughnuts relying on the notion that these doughnuts have these ingredients and nutrient benefits. But plaintiff doesn’t even provide a plausible standard: he fails to clarify how he knows that a reasonable consumer would share in, much less rely on, his unfounded belief that these Products should have had the “Premium Ingredients” and their associated health benefits. See Ebner, 838 F.3d at 965 (dismissing UCL, FAL, and CLRA claims because plaintiff “cannot plausibly allege that the omission of supplemental disclosures about product weight rendered [Defendant’s] label ‘false or misleading’ to the reasonable consumer”); Romero v. Flowers Bakeries, LLC, No. 14-cv-05189- BLF, 2016 WL 469370, at *8 (N.D. Cal. Feb. 8, 2016) (plaintiff’s claims were too generalized to provide a basis for reliance, and therefore implausible); Bush v. Mondelez Int’l, Inc., No. 16-cv-02460-RS, 2016 WL 7324990 at *2 (N.D. Cal. Dec. 16, 2016) (same). See also Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973 980 (C.D. Cal. 2013) (dismissing “all natural” claim with prejudice where plaintiff “failed to allege either a plausible objective definition of the term [] or her subjective definition of the term [] that is shared by the reasonable consumer.”). Plaintiff’s claims are implausible and the court should dismiss them with prejudice under Rule 8(b). See Romero, 2016 WL 469370, at *13. C. Plaintiff’s Claims Sounding in Fraud Are Not Plead With the Requisite Particularity. Even if plausible, Plaintiff’s claims fail because they are not pled with sufficient particularity. Rule 9(b) applies a heightened standard that requires a development and severity of certain cancers and vascular diseases, including atherosclerosis, ischemic stroke, and neurodegenerative diseases of aging. (FAC ¶¶ 23-25.) Plaintiff does not allege, however, that KKDC advertised or indicated in any way that the Products would provide any of these health benefits. Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 26 of 37 Page ID #:201 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 13 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 party to state with particularity the circumstances constituting all claims that are based on allegations of a unified course of fraudulent conduct, whether affirmative misrepresentations or omissions. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105-06 (9th Cir. 2003). “Averments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged,” Kearns, 567 F.3d at 1124 (citation omitted), as well as the circumstances indicating fraudulent conduct. See Vess, 317 F.3d at 1106. Most recently, this court held in Abramson v. Marriott Ownership Resorts, Inc., 155 F. Supp. 3d 1056, 1066 (C.D. Cal. 2016) that a claim of unfair conduct must be pled under a heightened pleading standard. Plaintiff’s bare bones complaint does not plead with sufficient particularity the circumstances that led to their reliance on KKDC’s alleged misrepresentations and “fraud.” All that plaintiff can muster is that “[t]he Products sold in-store by Defendant are displayed in a tray behind a glass counter, along with a small placard in front of each tray that provides the name of the donut [doughnut] variety,” and that “the Products appear as if they contain the Premium Ingredients.” (FAC ¶ 39.) He relied solely on these shorthand references to believe the doughnuts had “Premium Ingredients” and nutrients. (FAC ¶ 38.) But he provides no details as to how and why he did that. What exactly did he see? Did he read the display placards for each doughnut he purchased? For each doughnut he purchased, what did he think the doughnut name meant? For example did he think the word “Maple” meant that the Maple Products had maple syrup? Or maple sugar? Or some other derivative maple product? What exactly did he think the Raspberry and Blueberry doughnuts contained? Was it raw fruit? Fruit jelly? Fruit jam? Dried fruit? Furthermore, Defendant and this Court are left to wonder exactly what amount of nutritional or health benefits the Plaintiff thought he was getting from the doughnuts. These conclusory statements are not sufficiently particular under recent Ninth Circuit precedent, which holds that in order to plead reliance with sufficient Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 27 of 37 Page ID #:202 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 14 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 particularity under Rule 9(b), it is the plaintiff’s duty to answer these questions in detail. See Haskins v. Symantec Corp., 654 F. App’x 338, 339 (9th Cir. 2016) (“Because Haskins’s complaint did not allege that she read and relied on a specific misrepresentation by Symantec, she failed to plead her fraud claims with particularity as required by Rule 9(b)”); see also Chavez v. Nestle USA, Inc., No. CV 09-9192-GW(CWx), 2011 WL 10565797, at *8 (C.D. Cal. Jan. 10, 2011) (dismissing fraud-based claims where complaint did not identify “what specific misrepresentations [plaintiffs] allegedly saw, when they viewed them, or how they relied upon them”); cf. Herrera v. Estee Lauder Cos., No. SAVC 12-01169- CJC(ANx), 2012 WL 12507876, at *4 (C.D. Cal. Sept. 20, 2012) (claims fail 9(b) where plaintiff “failed to plead when she saw [challenged statement], and what specific products she purchased in reliance on it.”); Beltran, 2012 WL 12303423, at *4 (website claims failed 9(b) where plaintiff failed to “specify when she visited the website, the specific contents of the misrepresentation, or that she relied on the misrepresentation to make specific purchases”); Figy v. Frito-Lay N. Am., Inc., 67 F. Supp. 3d 1075, 1089 (N.D. Cal. 2014) (“all natural” claims failed Rule 9(b) where plaintiffs did not “plead what they believe ‘All Natural’ to mean, what the offending ingredients are, and what is unnatural about them”). At the very least, the Court should dismiss with prejudice Plaintiff’s claims for failing to provide sufficient particularity under Rule 9(b). D. Plaintiff’s Claims Fail for Other, Claim-Specific Reasons. 1. Plaintiff Fails to State Any Warranty Claim. Plaintiff contends that the names of the Products alone constitute “warranties” that each Product contains the “Premium Ingredients.” (FAC ¶¶ 90, 100.) This contention fails because a product’s name is not a warranty. No Express Warranty. Under California law, a statement or promise that is so general that a reasonable consumer would not rely on it as a statement of fact regarding the product is not an express warranty. See Forouzesh v. Starbucks Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 28 of 37 Page ID #:203 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 15 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Corp., No. 16-CV-3830 PA(AGRx), 2016 WL 4443203 at *4 (C.D. Cal. Aug. 19, 2016) (holding that Starbucks’ representations that its drinks were sold “in cups of various sizes…could [not] support a breach of express warranty claim”). Starbucks’ statements regarding the different sizes of their drinks said nothing about the amount of liquid in the drinks. Here too, the use of the shorthand words “Blueberry,” “Raspberry,” and “Maple” to refer to the doughnuts says nothing about the ingredients or nutritional content of these doughnuts. These adjectives merely describe the general flavor of these Products. As such, they constitute general statements that are not actionable as express warranties because reasonable consumers would not give them this meaning. Because of this, KKDC did not make a promise or affirmation of fact that is sufficiently specific to constitute an actionable express warranty. No Implied Warranty. Plaintiff alleges that KKDC impliedly warranted that the Products would “in fact contain the Premium ingredients.” (FAC ¶ 100.) Plaintiff has not alleged facts (as he must) showing that any of the doughnuts he purchased were inedible or otherwise not fit for consumption, or that those delicious doughnuts did not perform as advertised, or were not of the same quality as those generally accepted in the trade. See, e.g., Cal. Com. Code § 2314; Birdsong v. Apple, Inc., 590 F.3d 955, 958 (9th Cir. 2009) (breach of implied warranty occurs when a product “lacks even the most basic degree of fitness for ordinary use”) (citation omitted); Stearns v. Select Comfort Retail Corp., No. 08- 2746 JF, 2009 WL 1635931, at *8 (N.D. Cal. June 5, 2009) (implied warranty “does not impose a general requirement that goods precisely fulfill the expectation of the buyer”) (citation omitted). 2. Plaintiff’s Unjust Enrichment Claim is Duplicative. Plaintiff’s unjust enrichment claim is duplicative of his legal remedies under the CLRA, UCL, and FAL. All of these causes of action seek the same remedy: repayment of the full purchase price. Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 29 of 37 Page ID #:204 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 16 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Equity requires dismissal of this duplicative legal remedy. See Collins v. eMachines, Inc., 202 Cal. App. 4th 249, 260 (2011), as modified (Dec. 28, 2011) (affirming dismissal of unjust enrichment claim because “plaintiffs’ remedies at law are adequate (counts alleged under the CLRA, the UCL, and common law fraud), [so] a claim for restitution, alleging that [defendant] has been unjustly enriched by its fraud, is unnecessary. This conclusion follows from the general principle of equity that equitable relief (such as restitution) will not be given when the plaintiff’s remedies at law are adequate.”). See also Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1167 (9th Cir. 1996) (“Under California [] law, unjust enrichment is an action in quasi-contract, which does not lie when an enforceable, binding agreement exists defining the rights of the parties.”); Otto v. Abbott Labs., Inc., No. 5:12-cv-01411-SVW-DTB (C.D. Cal. Jan. 10, 2013), Dkt. No. 35 at 11 (Wilson, J.) (“[N]o factual allegations of wrongdoing by Defendant remain. Thus, there is no basis to infer that any actions which inured to the benefit of Defendant were unjust”). Plaintiff seeks remedy under unjust enrichment based on the same facts in his CLRA, UCL, and FAL claims, and other claims. In re Ford Tailgate Litig., No. 11- CV-2953-RS, 2014 WL 1007066 (N.D. Cal. Mar. 12, 2014), is instructive. There, the court dismissed a duplicative unjust enrichment claim, stating that, “[p]laintiffs are, of course, entitled to plead alternative claims.” Id. at *5. “However, ‘where the unjust enrichment claim relies upon the same factual predicates as a plaintiff’s legal causes of action, it is not a true alternative theory of relief but rather is duplicative of those legal causes of action.’” Id. (citations omitted); see also In re Apple & AT & T iPad Unlimited Data Plan Litig., 802 F. Supp. 2d 1070, 1077 (N.D. Cal. 2011) (“plaintiffs can not assert unjust enrichment claims that are merely duplicative of statutory or tort claims”).8 8 Astiana v. Hain Celestial Group, Inc., 783 F.3d 753 (9th Cir. 2015) is not to the contrary. There, the Ninth Circuit held that “in California, there is not a Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 30 of 37 Page ID #:205 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 17 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because in this case all claims are based on the same facts and request the same remedy, Plaintiff’s unjust enrichment claim duplicates his other claims, and should be dismissed with prejudice. E. Plaintiff Lacks Standing to Seek Injunctive Relief. A plaintiff who does not allege his intent to purchase the product in the future lacks standing to seek injunctive relief. See Saavedra et al. v. Eli Lily & Co., No. 2:12-cv-9366-SVW-MAN, 2013 WL 6345442, at *8 (C.D. Cal. Feb. 26, 2013) (Wilson, J.); Khasin v. R.C. Bigelow Inc., No. 3:12-cv-02204-WHO, 2016 WL 4502500, at *6 (N.D. Cal. Aug. 29, 2016); Victor v. R.C. Bigelow, Inc., No. 13-CV- 02976-WHO, 2016 WL 4502528, at *6 (N.D. Cal. Aug. 29, 2016); Davidson v. Kimberly-Clark Corp., 76 F. Supp. 3d 964, 970 (N.D. Cal. 2014). To bring a claim for injunctive relief, Plaintiff must allege they would purchase the product at issue in the lawsuit-not a reformulated version of the product, altered to their liking. See Anderson v. Hain Celestial Grp., Inc., 87 F. Supp. 3d 1226, 1235 (N.D. Cal. 2015) (“As such, [plaintiff] still would not purchase Defendant’s products even if it was ordered to remove the ‘All Natural’ label; the offensive unnatural ingredients would still be there.”). See also In re First Am. Home Buyers Protection Corp. Class Action Litig., 313 F.R.D. 578, 612 (S.D. Cal. 2016) (holding that plaintiffs had no standing to seek injunctive relief in an alleged nationwide class action brought against a provider of home warranty protection plans because they had not indicated they would buy again). Here, Plaintiff claims that “[d]espite being misled, [he] would likely purchase the Products in the future if the Products were reformulated to include” the Premium Ingredients. (FAC ¶ 44 (emphasis in added).) This statement cannot standalone cause of action for ‘unjust enrichment,’ which is synonymous with ‘restitution.’” Id. at 762. The unjust enrichment claim could have been construed as a separate action for quasi-contract. Id. Astiana did not address whether an unjust enrichment claim based on the same facts and requesting the same remedy as CLRA, UCL, and FAL claims, as here, is an “alternative” theory. Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 31 of 37 Page ID #:206 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 18 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support standing for injunctive relief. See Anderson, 87 F. Supp. 3d at 1235. Injunctive relief is also improper because Plaintiff cannot be “deceived” by the Products’ labeling again (as he allegedly was in the Fall of 2015). “To maintain standing, Plaintiffs must show a sufficient likelihood that they will be injured by [defendant] again in a similar way and that the future injury can be redressed by injunctive relief.” Luman v. Theismann, 647 F. App’x 804, 807 (9th Cir. 2016). In this case, there is no danger that Plaintiff will purchase the allegedly infringing Products again because he now knows what their ingredients are. See Victor, 2016 WL 4502528, at *6 (holding that consumer of food items “cannot establish that he is likely to suffer the same injury in the future because . . . there is no danger that they will be misled in the future”) (citation omitted); Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1196 (N.D. Cal. 2014) (“Consumers who were misled by deceptive food labels lack standing for injunctive relief because there is no danger that they will be misled in the future”) (citation omitted). F. The Court Should Strike Plaintiff’s Geographically Overbroad Class Definition as “Immaterial” Under Fed. R. Civ. P. 12(f). Plaintiff’s class-wide allegations fail as well. The Court should strike them. Under Federal Rule of Civil Procedure 12(f), “this Court has authority to strike class allegations prior to discovery if the complaint demonstrates that a class action cannot be maintained.” Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123, 1146 (N.D. Cal. 2010). Such is the case here. Plaintiff’s nationwide class violates Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012). Plaintiff is a California resident. (FAC ¶ 15.) He seeks to assert claims under California’s Unfair Competition law on behalf of “all persons in the United States, who within the relevant statute of limitations periods, purchased any of the Products at a Krispy Kreme store,” a.k.a., a nationwide class of consumers. (FAC ¶ 45.) Under Mazza, however, “each class member’s consumer protection claim should be governed by the consumer protection laws of Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 32 of 37 Page ID #:207 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 19 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the jurisdiction in which the transaction took place.” 666 F.3d at 594. Federal courts in this state have recently struck geographically overbroad and ambiguous class definitions of a similar tenor. See Torrent v. Yakult U.S.A. Inc., SACV 15- 00124-CJC(JCGx), 2015 WL 4335076, at *4 (C.D. Cal. July 14, 2015) (striking a class defined as “[a]ll persons in the state of California who purchased Yakult” because the qualifier “in the state of California” is ambiguous); In re First Am. Home Buyers Protection Corp., 313 F.R.D. at 602 (in an alleged nationwide class action brought against a provider of home warranty protection plans, each purchaser’s consumer protection law claims would be governed by his or her own home state’s laws). California law is to the same effect. Aghaji v. Bank of Am., N.A., 247 Cal. App. 4th 1110 (2016). In Aghaji, the court held that non-California residents cannot sue the California-based servicer of their mortgage loans absent evidence that the alleged servicing errors occurred at the California facilities. Id. at 1120. Plaintiff cannot pursue claims under California law on behalf of consumers who purchased KKDC’s Products in another state. The Court should strike the nationwide class averments. G. In the Alternative, the Court Should Stay This Action Pending the Ninth Circuit’s Decisions in Misbranding Appeals. In the alternative, the Court should stay Plaintiff’s claims pending the Ninth Circuit’s decisions in two misbranding appeals, each of which bears on Plaintiff’s request for class certification as well as the merits of his deception claims: (1) Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726 (N.D. Cal. June 13, 2014) (appeal filed July 15, 2014); and (2) Kosta v. Del Monte Foods, Inc., 308 F.R.D. 217 (N.D. Cal. 2015) (appeal filed October 2, 2015). These appeals address unanswered questions regarding class certification and merits requirements in similar food “misbranding” cases, including the following: (i) if Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 33 of 37 Page ID #:208 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 20 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and how the ascertainability,9 commonality, and predominance requirements of Rule 23 can be met in these cases; (ii) whether reliance on-and materiality of- food labels can be presumed; and (iii) the requirements for injunctive relief standing. The Court must answer each of these questions when considering Plaintiff’s class certification request or the merits of his claims. At least 20 district courts in California have stayed food “misbranding” cases pending these Ninth Circuit decisions.10 This Court should too. 9 In a recent decision, the Ninth Circuit addressed the issue of whether, to obtain class certification, class representatives must demonstrate that there is an “administratively feasible” means of identifying absent class members in a related case. See Briseno v. ConAgra Foods, Inc., No. 15-55727, 2017 WL 24618, at *1 (9th Cir. Jan. 3, 2017). The court held there is no such requirement. Id. Furthermore, the court specifically stated that it did not address ascertainability in its decision. Id. at *2 n.3. For example, the court did not discuss what happens when product labels or ingredients change during the class period. That is the case here with regard to the Chocolate Iced Raspberry Filled Doughnut (http://kkd- nutritional-panels.s3.amazonaws.com/2016_10_13_V2_ AllergenDisclaimerChange_Chocolate%20Iced%20Raspberry%20Filled.JPG). Also, Briseno is silent on the two remaining issues in Jones and Kosta: (ii) reliance and materiality of food labels, and (iii) the requirements for injunctive relief. 10 See, e.g., Fagan v. Neutrogena Corp., No. 5:13-CV-01316-SVW-OP (C.D. Cal. July 7, 2016), Dkt. No. 166 (Wilson, J.); Swearingen v. Amazon Preservation Partners, Inc., No. 13-cv-044202-WHO (N.D. Cal. July 20, 2016), Dkt. No. 76; Morgan v. Wallaby Yogurt Co., No. 3:13-cv-00296-JD (N.D. Cal. July 8, 2016), Dkt. No. 93; Mains v. Whole Foods Mkt., Inc., No. 5:12-cv-05652-EJD, 2016 U.S. Dist. LEXIS 51816 (N.D. Cal. Apr. 18, 2016); Grivas v. Metagenics, Inc., No. SACV 15-01838-CJC (DFMx) (N.D. Cal. Mar. 31, 2016), Dkt. No. 33; Ang v. Bimbo Bakeries USA, Inc., No. 13-cv-01196-HSG, 2016 U.S. Dist. LEXIS 44053 (N.D. Cal. Mar. 31, 2016); Romero v. Flowers Bakeries, LLC, No. 14-cv-05189- BLF, 2016 WL 469370 (N.D. Cal. Feb. 8, 2016); Koller v. Med Foods, Inc., No. 14-cv-02400-RS, 2015 U.S. Dist. LEXIS 167760 (N.D. Cal. Dec. 14, 2015); Ham v. Hain Celestial Grp., Inc., No. 3:14-cv-02044-WHO (N.D. Cal. Dec. 12, 2015), Dkt. No. 59; Ivie v. Kraft Foods Global, Inc., No. 5:12-cv-02554-RMW (N.D. Cal. Nov. 16, 2015), Dkt. No. 85; Samet v. Kellogg Co., No. 5:12-cv-01891-PSG, 2015 WL 6954989 (N.D. Cal. Nov. 10, 2015); Thomas v. Costco Wholesale Corp., No. 12-cv-02908-BLF, 2015 WL 6674696 (N.D. Cal. Nov. 2, 2015); Park v. Welch Foods Inc., No. 5:12-cv-06449-PSG, 2015 U.S. Dist. LEXIS 144463 (N.D. Cal. Oct. 22, 2015); Astiana v. Hain Celestial Grp., Inc., No. 11-cv-6342-PJH, 2015 U.S. Dist. LEXIS 138496 (N.D. Cal. Oct. 9, 2015); Wilson v. Frito-Lay N. Am., Inc., No. 12-CV-1586-SC, 2015 WL 4451424 (N.D. Cal. July 20, 2015); Leonhart Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 34 of 37 Page ID #:209 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 21 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Courts weigh three factors when considering whether a stay is appropriate: (1) the possible damage that may result from granting a stay; (2) the hardship or inequity that a party may suffer if the stay is not granted; and (3) “the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.” See CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (citing Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)) (the “Landis factors”). Each Landis factor weighs in favor of a stay here. 1. A Stay Will Promote the Orderly Course of Justice. Staying this case will promote the orderly course of justice. In ruling on Jones and Kosta, the Ninth Circuit will provide substantial guidance-if not new law-on questions related to any class certification or merits decision. The Ninth Circuit’s decisions in “Jones, Brazil, and Kosta are [therefore] likely to provide substantial guidance on issues material [to] the instant case.” See Thomas, 2015 WL 6674696, at *3. A stay would accordingly “be the most efficient and fairest course . . . [as] there are ‘independent proceedings which bear upon the case.’” Gustavson, 2014 WL 6986421, at *3 (citing Nat’l Union Fire Ins. Co of Pittsburgh, PA v. Elec. Arts, Inc., No. 11-04897 JW, 2012 WL 219428, at *1 (N.D. Cal. Jan. 24, 2012) (quoting Levya v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979))). The third Landis factor applies. v. Nature’s Path Foods, Inc., No. 13-cv-00492-BLF, 2015 WL 3548212 (N.D. Cal. June 5, 2015); Pardini v. Unilever U.S., Inc., No. 13-cv-01675-SC, 2015 WL 1744340 (N.D. Cal. Apr. 15, 2015); Allen v. ConAgra Foods, Inc., No. 13-cv- 01279-HSG (N.D. Cal. Feb. 20, 2015), Dkt. No. 152; Swearingen v. ConAgra Foods, Inc., No. 3:13-cv-05332-SC (N.D. Cal. Jan. 9, 2015), Dkt. No. 36; Parker v. J.M. Smucker Co., No. 3:13-cv-0690-SC (N.D. Cal. Dec. 18, 2014), Dkt. No. 74; Gustavson v. Mars, Inc., No. 13-cv-04537-LHK, 2014 WL 6986421 (N.D. Cal. Dec. 10, 2014). Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 35 of 37 Page ID #:210 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 22 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The Parties Will Suffer Hardship Absent a Stay. Staying this case will also conserve the parties’ resources and enable a more efficient and less expensive resolution of Plaintiff’s claims. If this case goes forward, both parties would expend significant time and resources pursuing class certification and merits discovery. They would also expend considerable resources briefing and arguing class certification and/or summary judgment motions, which may be rendered inapposite by the Ninth Circuit’s ultimate rulings. Avoiding such unnecessary expense weighs in favor of a stay. Cf. Thomas, 2015 WL 6674696, at *3; Leonhart, 2015 WL 3548212, at *3; Gustavson, 2014 WL 6986421, at *3. 3. Plaintiff Will Not Be Injured By a Stay. The final Landis factor also applies: Plaintiff will not be injured by a stay. Plaintiff has not alleged any desire to purchase KKDC’s products unless they are reformulated, nor can he be “duped” again by KKDC’s supposedly false “Raspberry,” “Blueberry,” and “Maple” labels. Accordingly, he cannot be harmed again, and thus will not be injured by a stay. Moreover, to the extent Plaintiff opposes a stay because it would delay any monetary recovery, his argument is unpersuasive. See Gustavson, 2014 WL 6986421, at *3; CMAX, Inc., 300 F.2d at 269; Lockyer v. Mirant Corp., 398 F.3d 1098, 1110-12 (9th Cir. 2005). And a stay would not be indefinite. The Jones and Kosta appeals are fully briefed. A stay pending the Ninth Circuit’s guidance will not harm Plaintiff; it will benefit both the parties and the Court. Because each Landis factor applies, the Court should stay Plaintiff’s claims pending the Ninth Circuit’s decisions in Jones and Kosta. V. CONCLUSION For all the foregoing reasons, KKDC respectfully requests that the Court dismiss the Complaint with prejudice, strike the Plaintiff’s class action averments or, in the alternative, grant the motion to stay pending the Ninth Circuit’s decisions in Jones and Kosta. Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 36 of 37 Page ID #:211 DEF’S MOTION TO DISMISS OR STAY AND MOTION TO STRIKE 23 CASE NO. 2:16-CV-08338-SVW-AFM sf-3724803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: January 4, 2017 WILLIAM L. STERN CLAUDIA MARIA VETESI LUIS GABRIEL HOYOS MORRISON & FOERSTER LLP By: Claudia Maria Vetesi Claudia Maria Vetesi Attorneys for Defendant KRISPY KREME DOUGHNUT CORPORATION Case 2:16-cv-08338-SVW-AFM Document 17 Filed 01/04/17 Page 37 of 37 Page ID #:212 Case 2:16-cv-08338-SVW-AFM Document 17-1 Filed 01/04/17 Page 1 of 5 Page ID #:213 1/3/2017 2016 in Review Most Ridiculous Lawsuits | Litigation Daily http://www.litigationdaily.com/printerfriendly/id=1202775691091 1/4 NOT FOR REPRINT Click to Print or Select 'Print' in your browser menu to print this document. Page printed from: Litigation Daily 2016 in Review: Most Ridiculous Lawsuits Jenna Greene, The Litigation Daily December 29, 2016 Consumer protection lawsuits, while sometimes heroic, can also be uniquely dumb. Which is why suits targeting Starbucks, Krispy Kreme and Advil top my list of the year’s most ridiculous lawsuits. A close second: negligence suits where people try to blame anyone but themselves for terrible events. As in the Chicago police officer who sued the estate of a young man he killed, citing emotional trauma, or Jared Fogle’s ex-wife, who said Subway should have known its former spokesman was a pedophile and warned her before she married him. Also pathetic: the pet sitting service that wanted $1 million in damages after a customer posted a one-star review on Yelp claiming her fish was overfed. Some of these suits are have been dismissed, while others are still limping along and clogging up the court system. Here’s a look back, plus the latest updates. In the spring, Starbucks was hit with four would-be class actions around the country. “A Venti-Size Problem,” I called it. The coffee chain is being sued for allegedly cheating its customers by underfilling their drinks-- as in one-quarter inch below the rim on lattes--and also by putting too much ice in cold drinks. If the menu says 16 ounces, the logic goes, there should be exactly 16 ounces of liquid in the cup by golly, without a bunch of foam or ice taking up space. Never mind that foam is part of a latte and ice is part of iced tea. Represented by Sheppard, Mullin, Richter & Hampton, Starbucks asked that the suits be consolidated as an MDL. In August, the panel said no, noting “factual dissimilarities” between allegations of too much ice versus too much foam. Sure enough, two federal judges have split on the question. In Los Angeles, U.S. District Judge Percy Anderson dismissed the iced drink suit with prejudice, ruling in August that “a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will include both ice and tea and that for a given size cup, some portion of the drink will be ice.” Exhibit 1 Page 24 Case 2:16-cv-08338-SVW-AFM Document 17-1 Filed 01/04/17 Page 2 of 5 Page ID #:214 1/3/2017 2016 in Review Most Ridiculous Lawsuits | Litigation Daily http://www.litigationdaily.com/printerfriendly/id=1202775691091 2/4 Thank you Percy Anderson. But San Francisco federal judge Thelton Henderson refused to dismiss the too-much-foam suit. “The court finds it probable that a significant portion of the latte-consuming public could believe that a ‘Grande’ contains 16 ounces of fluid, measured without milk foam or in its cooled state,” he wrote in June. The case continues, now joined before him with similar suit originally filed in New York. Still to be explained by the plaintiffs: if they were so unhappy with their lattes, why didn’t they just avail themselves of “Starbucks well-known promise and offer to re-make any beverage that a customer did not find satisfactory or meet his or her expectations,” as Starbucks argued in October court papers? Perhaps because you can’t get legal fees if you just ask for a new latte. The suit against Krispy Kreme Doughnuts in Los Angeles federal court doesn’t start off as ridiculous. The plaintiffs allege that the “chocolate iced raspberry filled” and “glazed raspberry filled” pastries don’t contain real raspberries, nor do the “glazed blueberry cake” doughnuts contain actual blueberries. Also, the maple iced pastries allegedly don’t have real maple syrup. Fair enough. But as I noted, The false advertising complaint, filed by Barbara Rohr and Benjamin Heikali of Faruqi & Faruqi, wouldn’t seem so dopey except when it gets all indignant about the health benefits doughnut eaters are being denied. For example, “Raspberries are a rich source of Vitamin C, Vitamin K, Potassium, and dietary fiber. Furthermore, the nutrient profile of raspberries help fight against cancer, heart and circulatory disease, and age-related related decline.” Yeah. If only that doughnut you just ate had some real raspberries, you totally wouldn’t get cancer or heart disease. The suit is pending, with Krispy Kreme represented by William Stern and Claudia Maria Vetesi of Morrison and Foerster. Advil maker Pfizer Inc. got hit with a would-be class action in New York that alleged consumers were deceived into thinking Advil bottles would be filled to the brim with pills. The suit was dismissed in October. “This Lawsuit Gives Me a Headache,” I wrote. For packaging to be misleading, you have to show that people are actually likely to be misled. And every Advil label clearly states the number of pills in the bottle. “[I]t is impossible to view the products without also reading the total number of pills contained in each package,” wrote Senior U.S. District Judge Sterling Johnson Jr.. “It defies logic to accept that the reasonable consumer would not rely upon the stated pill count.” Beyond the realm of reasonable consumers are people who seem determined to blame others for the decisions they made. One disturbing example is a still-pending lawsuit filed by Chicago police officer Robert Rialmo for “extreme emotional trauma.” He’s suing the estate of Quintonio LeGrier, the 19-year-old black man whom Rialmo shot and killed on Dec. 26, 2015. Exhibit 1 Page 25 Case 2:16-cv-08338-SVW-AFM Document 17-1 Filed 01/04/17 Page 3 of 5 Page ID #:215 1/3/2017 2016 in Review Most Ridiculous Lawsuits | Litigation Daily http://www.litigationdaily.com/printerfriendly/id=1202775691091 3/4 From my Daily Dicta column in February: According to Rialmo, LeGrier “forced” him to end his life, and to kill 55-year-old bystander Bettie Jones by accident as well. Now he’s seeking $10 million-plus in a counterclaim to a wrongful death suit that LeGrier’s family filed against him and the city of Chicago. Because Rialmo has “pain and suffering and physical and emotional trauma, all of which are permanent.” Also permanent: being dead. As outlined in the complaint, it does sound like the officer can make an argument that the shooting was justified. He alleges that LeGrier was swinging a bat at him, and that he shot him in self-defense-which can and should be considered in the wrongful death suits by LeGrier's and Jones’ families. And yes, of course, the counterclaim is strategically targeted to undermine the suits and explain why Rialmo fired. Still, it takes a special kind of audacity to make Rialmo out as the real victim. According to the Chicago Tribune, Rialmo has gone on to sue the city of Chicago for “allegedly failing to properly train him to de-escalate and defuse potentially violent situations involving mentally troubled individuals rather than resort to lethal force.” Another misplaced lawsuit comes from the ex-wife of disgraced former Subway pitchman Jared Fogle, who argues that the privately held chain had reason to suspect Fogle was a pedophile and should have warned her. Which would definitely be true if Subway was her best girlfriend. But as her husband’s employer? From my column in October: Yes, Subway has a lot to answer for about the way it handled information concerning Fogle’s sexual interest in children. The victims and the franchise owners? It’s easy to see how they might have legitimate claims that Subway wrongly concealed information about Fogle’s predilections. But Fogle’s ex-wife Katie McLaughlin? Who lived with him and slept next to him at night and had two children with him? Did she seriously expect a Subway exec to pull her aside before the wedding and say, “You know, he seems like he might be a pervert”? Yes, apparently she did. The suit remains pending in Indiana state court. On a happier note, a Texas judge in August tossed a libel suit against a couple who gave a pet sitting service a one-star review on Yelp. They complained that Prestigious Pets overfed their beta fish. Judge Jim Jordan of the 160th District in Dallas County awarded the defendants legal fees and imposed sanctions to deter future suits. I gave him five stars. If Prestigious Pets was smart, it would have done what many other businesses do--reply to a negative review with a vague statement of regret and leave it at that. Anyone reading Exhibit 1 Page 26 Case 2:16-cv-08338-SVW-AFM Document 17-1 Filed 01/04/17 Page 4 of 5 Page ID #:216 1/3/2017 2016 in Review Most Ridiculous Lawsuits | Litigation Daily http://www.litigationdaily.com/printerfriendly/id=1202775691091 4/4 Duchouquette’s missive (which included the words “We have a camera on the bowl”) would have drawn their own conclusions. Instead, it became a free speech cause célèbre, forcing me to side whole-heartedly with people who have a fish cam. Contact Jenna Greene at jgreene@alm.com. On Twitter @jgreenejenna. Copyright 2017. ALM Media Properties, LLC. All rights reserved. Exhibit 1 Page 27 Case 2:16-cv-08338-SVW-AFM Document 17-1 Filed 01/04/17 Page 5 of 5 Page ID #:217 [PROPOSED] ORDER GRANTING KKDC’S MOT. TO DISMISS OR STAY COMPLAINT CASE NO. 2:16-CV-08338-SVW-AFM sf-3727499 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WILLIAM L. STERN (CA SBN 96105) WStern@mofo.com CLAUDIA MARIA VETESI (CA SBN 233485) CVetesi@mofo.com LUIS GABRIEL HOYOS (CA SBN 313019) LHoyos@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendant KRISPY KREME DOUGHNUT CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JASON SAIDIAN, individually and on behalf of all others similarly situated, Plaintiff, v. KRISPY KREME DOUGHNUT CORPORATION, Defendant. Case No. 2:16-CV-08338-SVW-AFM [PROPOSED] ORDER GRANTING DEFENDANT KRISPY KREME DOUGHNUT CORPORATION’S MOTION TO DISMISS OR STAY COMPLAINT AND MOTION TO STRIKE Hearing Date: February 1, 2017 Time: 1:30 p.m. Judge: Hon. Stephen V. Wilson Ctrm: Courtroom 10A Action filed: January 4, 2017 Trial Date: None Case 2:16-cv-08338-SVW-AFM Document 17-2 Filed 01/04/17 Page 1 of 2 Page ID #:218 [PROPOSED] ORDER GRANTING KKDC’S MOT. TO DISMISS OR STAY COMPLAINT 1 CASE NO. 2:16-CV-08338-SVW-AFM sf-3727499 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On January 4, 2017, Defendant Krispy Kreme Doughnut Corporation. (“KKDC” or “Defendant”) filed a motion to dismiss or stay Plaintiff Jason Saidian’s (“Plaintiff’s”) Class Action First Amended Complaint for Violation of California’s Unfair Competition Law, Business & Professions Code section 17200 et seq. (“Complaint”) pursuant to: (i) Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, (ii) Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, (iii) Fed. R. Civ. P. 9(b) for failure to plead claims grounded in fraud with sufficient particularity, and (iv) pending Ninth Circuit’s decisions in two misbranding appeals. KKDC also moved to strike Plaintiff’s class definition as “immaterial” pursuant to Fed. R. Civ. P. 12(f). The motion came on for hearing on February 1, 2017. Based on the supporting and opposing papers, the exhibits attached to KKDC’s Request for Judicial Notice (also filed on January 4, 2017), other related documents filed with the Court in connection with this motion (including the Declaration of Claudia M. Vetesi, filed on January 4, 2017), and the papers and records on file in this action, Defendant’s Motion to Dismiss or Stay and Motion to Strike Plaintiff’s Complaint is GRANTED. IT IS SO ORDERED. Dated: , 2017 HONORABLE STEPHEN V. WILSON United States District Court Judge Case 2:16-cv-08338-SVW-AFM Document 17-2 Filed 01/04/17 Page 2 of 2 Page ID #:219