Krzykwa v. Phusion Projects, LLC

920 F. Supp. 2d 1279, 2012 WL 6965716, 2012 U.S. Dist. LEXIS 186135
CourtDistrict Court, S.D. Florida
DecidedMarch 22, 2012
DocketCase No. 11-62230-CIV
StatusPublished
Cited by3 cases

This text of 920 F. Supp. 2d 1279 (Krzykwa v. Phusion Projects, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krzykwa v. Phusion Projects, LLC, 920 F. Supp. 2d 1279, 2012 WL 6965716, 2012 U.S. Dist. LEXIS 186135 (S.D. Fla. 2012).

Opinion

ORDER ON DEFENDANT’S MOTION TO DISMISS

DONALD M. MIDDLEBROOKS, District Judge.

THIS CAUSE is before the Court upon Defendant Phusion Projects, LLC’s, (“Phusion”) Motion to Dismiss (“Motion”) (DE 15), filed January 20, 2012. I have reviewed the Motion, Plaintiffs Mark Krzykwa’s (“Krzykwa”) and Ethel Thomas’s (“Thomas”) Response (DE 15), Phusion’s Reply (DE 19), Plaintiffs’ Notice of [1280]*1280Supplemental Authority (DE 24), the record in this case, and am otherwise fully advised in the premises.

On January 6, 2012, Plaintiffs filed their First Amended Class Action Complaint, in which they allege during the time Plaintiffs purchased Four Loko (1) Phusion engaged “in unfair methods of competition, unconscionable acts and practices, and unfair and deceptive acts and practices” in violation of Florida’s Deceptive and Unfair Trade Practices Act, see Fla. Stat. §§ 501.201-501.213 (“Count One”), and, as a result of Phusion’s deceptive trade practices, (2) Phusion was unjustly enriched (“Count Two”). (See DE 13 at 17-20).

I. BACKGROUND

Phusion is an alcoholic-beverage company based in Chicago. (See DE 15 at 2). At the time Plaintiffs purchased Four Loko, Phusion sold Four Loko, which is a beverage that contained both alcohol and caffeine. (See DE 13 at ¶ 1). Phusion began selling Four Loko in 2008. (See DE 15 at 2). When it was originally sold, Four Loko was sold in 23.5 ounce cans and contained between 6-12% alcohol by volume, the percentage of alcohol varied by state. (See DE 13 at ¶ 15). Additionally, Four Loko originally contained approximately 135 milligrams of caffeine, which is equivalent to the amount of caffeine contained in an eight-ounce cup of coffee. (See DE 13 at ¶ 16). Plaintiffs allege “the combination of high levels of alcohol and caffeine” present in Four Loko “produce[d] mild-altering [sic] effects that” were not disclosed to the public. (See DE 13 at ¶ 19).

Between May and August 2010, Krzykwa alleges he purchased Four Loko about three times at a price of $2.50 a can. (See DE 13 at ¶ 38). Purportedly, the last time Krzykwa consumed Four Loko, “almost immediately after consuming Four Loko”, he became ill and “suffered loss of memory, and continued to suffer from these conditions for two days after his consumption of Four Loko.” (See DE 13 at ¶ 38). Thomas purportedly purchased Four Loko for approximately $2.00 on October 31, 2010, and, almost immediately after consuming Four Loko, Thomas “became ill, suffered loss of memory, and her illness continued for several days.” (See DE 13 at ¶ 39).

With respect to Count One, Plaintiffs allege they and other class members were “damaged in the amount of the difference between the premium price paid for Four Loko and the price they would have paid had they known that Four Loko was not safe when consumed in that it had harmful effects including, but not limited to, causing sickness, alcohol poisoning, and even death.” (See DE 13 at ¶ 60). As for Count Two, Plaintiffs claim that they and other class members “are entitled to restitution of the excess amount paid for Four Loko, over and above what they would have paid had they known that Four Loko was not safe when consumed in that it had harmful side effects including, but not limited to, causing sickness, alcohol poisoning, and even death.” (See DE 13 at ¶ 70).

On December 9, 2011, Phusion sent Plaintiffs’ counsel a letter, in which Phusion offered “to settle the case by giving Plaintiffs” what they “claim they are owed.” (See DE 15 at 7). Specifically, Phusion offered to give “Plaintiffs a full refund of the purchase price for all cans of Four Loko they purchased, plus an additional amount of $30 for each purchase, and any reasonable attorney’s fees and costs that Plaintiffs have incurred in filing their pending Complaints.” (See DE 15 at 7). As of today, Plaintiffs have not moved to certify the class.

Phusion argues Plaintiffs’ First Amended Class Action Complaint should be dismissed with prejudice because (1) Plain[1281]*1281tiffs’ claims are moot; (2) Plaintiffs’ claims are preempted by the federal Alcoholic Beverage Labeling Act; and (3) the First Amended Class Action Complaint fails to state a claim upon which relief can be granted. Since the doctrine of mootness, if applicable, would dispose of these claims with no need to address the merits of these causes of action, I turn first to Phusion’s use of that defense.

II. DISCUSSION

Article III of the Constitution limits a federal court’s jurisdiction to live “cases” and “controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Due to the fact that the “judiciary is unelected and unrepresentative, the Article III case-or-eontroversy limitation, as embodied in justiciability doctrine, presents an important restriction on the power of the federal courts.” Coral Springs Street Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1327 (11th Cir.2004) (quoting Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir.1998)). “The powerful limitations that Article III places on the federal judiciary — including the mootness doctrine — relate to a centuries-old ‘idea ... about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.’ ” Id. at 1328 (quoting in part Vander Jagt v. O’Neill, 699 F.2d 1166, 1179 (D.C.Cir.1982) (Bork, J., concurring)). Undeniably, if a suit is moot, a plaintiffs claims cannot present an Article III case or controversy; accordingly, the federal courts are deprived of subject matter jurisdiction. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.2001). (per curiam).

As the Supreme Court articulated: the doctrine of “[mjootness has been described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 1069 n. 22, 137 L.Ed.2d 170 (1997) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980)). Accordingly, “[o]nce the defendant offers to satisfy the plaintiffs entire demand, there is no dispute over which to litigate, and a plaintiff who refuses to acknowledge this loses outright, under Fed.R.Civ.P. 12(b)(1), because he has no remaining stake.” Damasco v. Clearwire Corp.,

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Bluebook (online)
920 F. Supp. 2d 1279, 2012 WL 6965716, 2012 U.S. Dist. LEXIS 186135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krzykwa-v-phusion-projects-llc-flsd-2012.