1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CRYSTAL RODRIGUEZ, NEGEEN Case No.:23-cv-00057-DMS-AHG MIRREGHABIE, and CHRISTOPHER 12 JENNEN, on behalf of themselves, all ORDER DENYING DEFENDANT’S others similarly situated, and the general MOTION FOR 13 public, RECONSIDERATION
14 Plaintiffs, v. 15
16 MONDELĒZ GLOBAL LLC, 17 Defendant.
18 19 Pending before the Court is Defendant Mondelez Global LLC’s (“Defendant” or 20 “MDLZ”) motion for reconsideration of the Court’s prior order granting in part and 21 denying in part Defendant’s motion to dismiss. (ECF No. 30.) Plaintiffs filed a response 22 in opposition (ECF No. 33), and Defendant filed a reply (ECF No. 37.) For the reasons 23 discussed below, the Court denies Defendant’s motion for reconsideration. 24 I. BACKGROUND 25 In this putative class action, Plaintiffs allege that Defendant MDLZ deceptively 26 marketed and sold dark chocolate bars containing unsafe levels of lead and cadmium. 27 MDLZ markets and sells dark chocolate products under a variety of brand names, including 28 Green & Black’s Organic Dark Chocolate 70% Cacao (“G&B 70%”) and Hu Organic 1 Simple Dark Chocolate 70% Cacao (“Hu 70%”) (“Products”). (Id.) Plaintiffs alleged that 2 MDLZ made misleading representations in advertising and marketing the Products and that 3 these misleading representations caused them to purchase the Products believing they were 4 safe, although they contained unsafe amounts of lead and cadmium. 5 In their FAC, Plaintiffs allege violations of California’s Unfair Competition Law 6 (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., False Advertising Law (“FAL”), id. § 7 17500 et seq., Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq., 8 breach of express warranties, breach of implied warranty of merchantability, and unjust 9 enrichment. On May 10, 2023, Defendant filed a motion to dismiss, which the Court 10 granted in part and denied in part. The Court granted Defendant’s motion to dismiss in 11 relation to Plaintiffs’ fraudulent omissions theory and misrepresentation claims based on 12 Defendant’s websites. However, the Court found Plaintiffs sufficiently alleged claims for 13 misrepresentation based on Defendant’s Product labeling. In its present motion, Defendant 14 asks the Court to reconsider its prior order and dismiss all claims with prejudice. 15 II. LEGAL STANDARD 16 A motion for reconsideration may be brought under Rule 54(b) which provides that 17 any order which does not terminate the case is subject to revision at any time before the 18 entry of judgment. See Fed. R. Civ. P. 54(b). “Reconsideration is appropriate if the district 19 court (1) is presented with newly discovered evidence; (2) clear error or the initial decision 20 was manifestly unjust; or (3) if there is an intervening change in controlling law.” Sch. 21 Dist. No. 1J, Multnomah Cnty., Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see 22 also Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011). 23 The Court has discretion in granting or denying a motion for reconsideration. 24 Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 25 26 27 1 The Court dismissed without prejudice Plaintiffs’ claims based on the G&B 85% products for lack of Article III standing. Thus, the Court only considers Plaintiffs’ claims based on G&B 70% products and 28 1 1041, 1046 (9th Cir. 2003). A motion for reconsideration should not be granted absent 2 highly unusual circumstances. 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th 3 Cir. 1999). A motion for reconsideration “may not be used to raise arguments or present 4 evidence for the first time when they could reasonably have been raised earlier in the 5 litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 6 880 (9th Cir. 2009) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 7 Cir. 2000)). 8 III. DISCUSSION 9 Defendant’s motion for reconsideration advances two arguments: (1) the Order is 10 based on a misunderstanding of the Products’ labels; and (2) if the Court considers “in 11 context” the statements that “actually appear” on the labels, no reasonable consumer would 12 interpret the labels to mean that the Products are free from unsafe levels of toxic heavy 13 metals. (Def.’s Mot. for Reconsideration (“Def.’s Mot.”), at 1, ECF No. 30.) Each 14 argument is addressed in turn. 15 A. The Order is not Based on a Misunderstanding of the Product Labels. 16 Defendant argues that the Order is based on a misunderstanding of the Product labels 17 because Plaintiffs’ characterizations of the labels in the FAC “do not appear on the Product 18 labels.” (Id.) Specifically, Defendant asserts that the Court mistakenly accepted Plaintiffs’ 19 allegations that the following italicized statements appear on the Hu 70% label: “(1) the 20 product contains only ‘SIMPLE’ ingredients; (2) consumption of the product is ‘the way 21 humans ate before industry ruined food’; (3) a prominent feature of the phrase ‘Get Back 22 to Human’; and (4) that the product is comprised of only ‘ultra simple ingredients.”’ (Id. 23 at 6) (quoting Order Granting in Part and Denying in Part Def.’s Mot. to Dismiss, 24 (“Order”), at 20-21, ECF No. 23.) Similarly, Defendant argues that the Court mistakenly 25 accepted Plaintiffs’ allegations that the italicized statements “the bar is made only with ‘the 26 finest’ cacao beans and other premium, fine ingredients” appear on the G&B 70% label, 27 when they do not. (Id.) The Court did no such thing. 28 1 Defendant mischaracterizes the Order, selectively quotes from it, and worse, omits 2 material portions. The Court neither intimated nor held that the italicized statements 3 referenced above appear on the Product labels. In fact, the Order states: “MDLZ does not 4 specifically challenge any other statement mentioned in the FAC. Therefore, the Court 5 considers no statements other than ‘GET BACK TO HUMAN,’ ‘SIMPLE DARK 6 CHOCOLATE,’ and ‘made with fine Trinitario cacao beans.’” (Order at 20, n. 4.) Those 7 statements—“Get Back to Human,” “Simple Dark Chocolate,” and “made with fine 8 Trinitario cacao beans”—indisputably appear on the Product labels in question. (Def’s. 9 Mot. at 7-8.) 10 Defendant’s argument misconstrues the Order by cherry picking portions of the 11 Order out of context and omitting key portions of the Order altogether, like the second 12 sentence in footnote 4, above. To be clear, the Court did not consider any statements other 13 than those depicted on the Product labels and challenged by Defendant in its motion to 14 dismiss. Accordingly, the Order is not based on a misunderstanding of Product labeling. 15 Defendant’s argument is rejected as meritless. 16 B. Viewed in Context, a Reasonable Consumer Could be Misled by the 17 Products’ Labels. 18 Defendant further argues that the Court must reconsider its prior Order because 19 “once this Court places the statements that actually appear on the labels ‘in context,’ it is 20 clear that a reasonable consumer could not interpret them to mean that the Products ‘do not 21 contain unsafe levels of toxic heavy metals.’” (Def.’s Mot.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CRYSTAL RODRIGUEZ, NEGEEN Case No.:23-cv-00057-DMS-AHG MIRREGHABIE, and CHRISTOPHER 12 JENNEN, on behalf of themselves, all ORDER DENYING DEFENDANT’S others similarly situated, and the general MOTION FOR 13 public, RECONSIDERATION
14 Plaintiffs, v. 15
16 MONDELĒZ GLOBAL LLC, 17 Defendant.
18 19 Pending before the Court is Defendant Mondelez Global LLC’s (“Defendant” or 20 “MDLZ”) motion for reconsideration of the Court’s prior order granting in part and 21 denying in part Defendant’s motion to dismiss. (ECF No. 30.) Plaintiffs filed a response 22 in opposition (ECF No. 33), and Defendant filed a reply (ECF No. 37.) For the reasons 23 discussed below, the Court denies Defendant’s motion for reconsideration. 24 I. BACKGROUND 25 In this putative class action, Plaintiffs allege that Defendant MDLZ deceptively 26 marketed and sold dark chocolate bars containing unsafe levels of lead and cadmium. 27 MDLZ markets and sells dark chocolate products under a variety of brand names, including 28 Green & Black’s Organic Dark Chocolate 70% Cacao (“G&B 70%”) and Hu Organic 1 Simple Dark Chocolate 70% Cacao (“Hu 70%”) (“Products”). (Id.) Plaintiffs alleged that 2 MDLZ made misleading representations in advertising and marketing the Products and that 3 these misleading representations caused them to purchase the Products believing they were 4 safe, although they contained unsafe amounts of lead and cadmium. 5 In their FAC, Plaintiffs allege violations of California’s Unfair Competition Law 6 (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., False Advertising Law (“FAL”), id. § 7 17500 et seq., Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq., 8 breach of express warranties, breach of implied warranty of merchantability, and unjust 9 enrichment. On May 10, 2023, Defendant filed a motion to dismiss, which the Court 10 granted in part and denied in part. The Court granted Defendant’s motion to dismiss in 11 relation to Plaintiffs’ fraudulent omissions theory and misrepresentation claims based on 12 Defendant’s websites. However, the Court found Plaintiffs sufficiently alleged claims for 13 misrepresentation based on Defendant’s Product labeling. In its present motion, Defendant 14 asks the Court to reconsider its prior order and dismiss all claims with prejudice. 15 II. LEGAL STANDARD 16 A motion for reconsideration may be brought under Rule 54(b) which provides that 17 any order which does not terminate the case is subject to revision at any time before the 18 entry of judgment. See Fed. R. Civ. P. 54(b). “Reconsideration is appropriate if the district 19 court (1) is presented with newly discovered evidence; (2) clear error or the initial decision 20 was manifestly unjust; or (3) if there is an intervening change in controlling law.” Sch. 21 Dist. No. 1J, Multnomah Cnty., Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see 22 also Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011). 23 The Court has discretion in granting or denying a motion for reconsideration. 24 Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 25 26 27 1 The Court dismissed without prejudice Plaintiffs’ claims based on the G&B 85% products for lack of Article III standing. Thus, the Court only considers Plaintiffs’ claims based on G&B 70% products and 28 1 1041, 1046 (9th Cir. 2003). A motion for reconsideration should not be granted absent 2 highly unusual circumstances. 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th 3 Cir. 1999). A motion for reconsideration “may not be used to raise arguments or present 4 evidence for the first time when they could reasonably have been raised earlier in the 5 litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 6 880 (9th Cir. 2009) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 7 Cir. 2000)). 8 III. DISCUSSION 9 Defendant’s motion for reconsideration advances two arguments: (1) the Order is 10 based on a misunderstanding of the Products’ labels; and (2) if the Court considers “in 11 context” the statements that “actually appear” on the labels, no reasonable consumer would 12 interpret the labels to mean that the Products are free from unsafe levels of toxic heavy 13 metals. (Def.’s Mot. for Reconsideration (“Def.’s Mot.”), at 1, ECF No. 30.) Each 14 argument is addressed in turn. 15 A. The Order is not Based on a Misunderstanding of the Product Labels. 16 Defendant argues that the Order is based on a misunderstanding of the Product labels 17 because Plaintiffs’ characterizations of the labels in the FAC “do not appear on the Product 18 labels.” (Id.) Specifically, Defendant asserts that the Court mistakenly accepted Plaintiffs’ 19 allegations that the following italicized statements appear on the Hu 70% label: “(1) the 20 product contains only ‘SIMPLE’ ingredients; (2) consumption of the product is ‘the way 21 humans ate before industry ruined food’; (3) a prominent feature of the phrase ‘Get Back 22 to Human’; and (4) that the product is comprised of only ‘ultra simple ingredients.”’ (Id. 23 at 6) (quoting Order Granting in Part and Denying in Part Def.’s Mot. to Dismiss, 24 (“Order”), at 20-21, ECF No. 23.) Similarly, Defendant argues that the Court mistakenly 25 accepted Plaintiffs’ allegations that the italicized statements “the bar is made only with ‘the 26 finest’ cacao beans and other premium, fine ingredients” appear on the G&B 70% label, 27 when they do not. (Id.) The Court did no such thing. 28 1 Defendant mischaracterizes the Order, selectively quotes from it, and worse, omits 2 material portions. The Court neither intimated nor held that the italicized statements 3 referenced above appear on the Product labels. In fact, the Order states: “MDLZ does not 4 specifically challenge any other statement mentioned in the FAC. Therefore, the Court 5 considers no statements other than ‘GET BACK TO HUMAN,’ ‘SIMPLE DARK 6 CHOCOLATE,’ and ‘made with fine Trinitario cacao beans.’” (Order at 20, n. 4.) Those 7 statements—“Get Back to Human,” “Simple Dark Chocolate,” and “made with fine 8 Trinitario cacao beans”—indisputably appear on the Product labels in question. (Def’s. 9 Mot. at 7-8.) 10 Defendant’s argument misconstrues the Order by cherry picking portions of the 11 Order out of context and omitting key portions of the Order altogether, like the second 12 sentence in footnote 4, above. To be clear, the Court did not consider any statements other 13 than those depicted on the Product labels and challenged by Defendant in its motion to 14 dismiss. Accordingly, the Order is not based on a misunderstanding of Product labeling. 15 Defendant’s argument is rejected as meritless. 16 B. Viewed in Context, a Reasonable Consumer Could be Misled by the 17 Products’ Labels. 18 Defendant further argues that the Court must reconsider its prior Order because 19 “once this Court places the statements that actually appear on the labels ‘in context,’ it is 20 clear that a reasonable consumer could not interpret them to mean that the Products ‘do not 21 contain unsafe levels of toxic heavy metals.’” (Def.’s Mot. at 9.) As discussed, the Court 22 considered only the statements challenged by MDLZ and depicted on the Product labels 23 identified in the FAC. Because the Court considered and rejected the same arguments 24 presented in Defendant’s motion to dismiss, it declines to re-consider those arguments in 25 the present motion. “Reconsideration motions are not intended to give parties a ‘second 26 bite at the apple. “Neither are they devices permitting the unsuccessful party to ‘rehash’ 27 arguments previously interested.” Thibodeau v. ADT Security Servs., No. 16-cv-2680- 28 GPC-AGS, 2018 WL 1791695 at *2 (S.D. Cal. April 16, 2018) (quoting Ausmus v. 1 || Lexington Ins. Co., No. 08-cv-2342 L (LSP), 2009 WL 2058549, at *2 (S.D. Cal. July 15, 2 2009)). 3 IV. CONCLUSION 4 For the foregoing reasons, Defendant’s motion for reconsideration is DENIED. 5 IT IS SO ORDERED. 6 || Dated: March 29, 2024 2» 7 porn Yn - Hon. Dana M. Sabraw, Chief Judge 9 United States District Court
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28