Kelly v. Cape Cod Potato Chip Co.

81 F. Supp. 3d 754, 2015 U.S. Dist. LEXIS 8988, 2015 WL 363147
CourtDistrict Court, W.D. Missouri
DecidedJanuary 27, 2015
DocketNo. 14-00119-CV-W-DW
StatusPublished
Cited by32 cases

This text of 81 F. Supp. 3d 754 (Kelly v. Cape Cod Potato Chip Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. Cape Cod Potato Chip Co., 81 F. Supp. 3d 754, 2015 U.S. Dist. LEXIS 8988, 2015 WL 363147 (W.D. Mo. 2015).

Opinion

ORDER

DEAN WHIPPLE, District Judge.

Before the Court is the Motion to Dismiss Plaintiffs Class Action Petition (Doc. 7) filed by Defendants Cape Cod Potato Chip Company, Inc. and Snyder’s-Lance, Inc. Plaintiff Tonya Kelly opposes the motion. Defendants move to dismiss Plaintiffs Class Action Petition (the “Petition”) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. They argue that Plaintiff has failed to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). In addition, they assert that the Court lacks subject-matter jurisdiction under Rule 12(b)(1) as to some of the claims because Plaintiff has failed to establish standing. Upon review, the Court concludes that the motion should be granted and the Petition should be dismissed for failure to state a claim on which relief can be granted. The Court also concludes that Plaintiff lacks standing to seek injunctive relief and to assert claims as to products that she did not purchase.

I. Background

Plaintiff filed her Petition in the Circuit Court of Jackson County, Missouri, alleging Defendants violated the Missouri Merchandising Practices Act (“MMPA”), Mo. Rev.Stat. § 407.010 et seq. Thereafter, Defendant Snyder’s-Lance, Inc. removed the case to this court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1453. Plaintiff alleges that Defendants, national producers and marketers of Kettle Cooked Potato Chip brand snack food, have been falsely labeling and marketing sixteen dif[757]*757ferent varieties of Cape Cod Chips (the “Chips”) as “all natural” products that contains “no preservatives,” when the Chips are actually not all natural and contain preservatives. The Petition further alleges that these false and deceptive marketing practices allow Defendants to differentiate the Chips from comparable products and to charge a higher price, or price premium, for the product. Plaintiff seeks relief for herself and on behalf of all consumers who, from November 25, 2008 to the present purchased the Chips in the State of Missouri in the form of actual and punitive damages, interest, restitution, in-junctive and declaratory relief, attorney fees and costs.

II. Applicable Law

In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint is plausible if its “factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). The complaint must contain more than labels and conclusions or a formulaic recitation of the elements of the claim. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. For purposes of a Rule 12(b)(6) motion, the court must accept the allegations of the complaint as true; however, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must prove constitutional standing by showing (1) an injury-in-fact; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Republican Party v. Klobuchar, 381 F.3d 785, 791-92 (8th Cir.2004) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Establishing- an injury-in-fact requires a showing of “an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 791.

III. Analysis

Defendants argue three main bases for dismissal: (1) Plaintiff has failed to state a plausible claim that she has suffered an ascertainable loss of money or property; (2) Plaintiff has failed to plausibly allege that the labeling of the Chips as “natural” is false or deceptive; and (3) Plaintiff lacks standing in two ways: (a) to seek injunc-tive relief, because she has admitted that she would not purchase the chips again; and (b) to assert claims as to the 12 varieties of the Chips that she did not purchase, because she suffered no loss as to those varieties.

To successfully present a claim under the MMPA, a plaintiff must allege that she (1) purchased merchandise from the defendant; (2) for personal, family, or household purposes; and (3) suffered an ascertainable loss of money or property; (4) as a result of defendant’s use of one of the methods, acts or practices declared unlawful by the Act. See Mo.Rev.Stat. § 407.025.1. Those unlawful methods, acts or practices include “any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or adver[758]*758tisement of any merchandise in trade or commerce.” Mo.Rev.Stat. § 407.020.1.

A. Plaintiffs claim of an ascertainable loss under the MMPA

Defendants’ first basis for dismissal is that Plaintiff has failed to plausibly allege that she has suffered an ascertainable loss of money or property. Defendants raise two specific arguments: (a) the Petition improperly assumes that any alleged price premium is solely due to the labeling of the Chips as “natural”; and (b) the Petition alleges no facts to suggest that a price premium exists at all. In support of their first argument, Defendants claim that there could be any number of alternate reasons why consumers pay an alleged premium price for Defendants’ Chips. As examples, Defendants allege that consumers might pay a higher price for their Chips because their Chips taste better, their advertising or packaging is more appealing to consumers, or their Chips get better shelf placement. They further argue that perhaps they charge a higher price because their cost structure requires that they do so in order to earn a profit on the Chips.

Under Missouri law, a plaintiff must show that she “suffered pecuniary loss in order to prevail on [her] MMPA claim.” Grawitch v. Charter Commc’ns., Inc., 750 F.3d 956, 960 (8th Cir.2014). Missouri courts apply the benefit of the bargain rule to determine whether there has been an ascertainable loss. See Sunset Pools v. Schaefer, 869 S.W.2d 883, 886 (Mo.App.E.D.1994). This rule allows a purchaser “to be awarded the difference between the actual value of the property and what its value would have been if it had been as represented.”

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81 F. Supp. 3d 754, 2015 U.S. Dist. LEXIS 8988, 2015 WL 363147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-cape-cod-potato-chip-co-mowd-2015.