United States District Court, S.D. Illinois
SHANNAH BURTON, Individually and on behalf of All others similarly situated, Plaintiff,
HODGSON MILL, INC., Defendant.
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge
matter is now before the Court on Defendant's Motion to
Dismiss the First Amended Complaint (Doc. 4). Plaintiff's
ultimate contention is that the Defendant violated the
Illinois Consumer Fraud and Deceptive Practices Act
(“ICFA”), 815 ILCS § 505, by labeling a
pancake mix as ‘all natural' despite the fact that
it contained synthetic agents such as monocalcium phosphate
(a leavening agent) and genetically modified ingredients,
such as corn meal (Doc. 1-1 at 139). The matter came before the
Court after Defendant removed it from Illinois state court on
the basis of the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1332(d) and Fed. R.
Civ. Pro. Rule 23. In the notice of removal, Defendant noted
that the named Plaintiff (Shannah Burton) and Defendant
(Hodgson Mills) were both citizens of Illinois, but that the
proposed Nationwide class created minimal diversity for
removal purposes (Doc. 1 at 1-2). Plaintiff did not challenge
the removal. Defendants then filed a Motion to Dismiss (Docs.
3, 4), to which Plaintiff timely responded (Doc. 14). Each
side filed supplemental authority (Docs. 17, 18, 20, 22). The
Plaintiff has also moved to file a Second Amended Complaint,
which the Defendant opposes (Docs. 26, 31). The matter is now
before the Court for resolution of the pending motions.
Complaint was originally filed in St. Clair County, Illinois,
in February of 2016 (Doc. 1-1 at 3-12), and was subsequently
amended on August 17, 2016 (Doc. 1-1 at p. 136). The original
complaint alleged that Defendant violated the Illinois
Consumer Fraud Act (“ICFA”), 815 ILCS § 505
(Doc. 1-1 at 9-11), and alleged accompanying unjust
enrichment (Doc. 1-1 at 11-12). The First Amended Complaint
added a count for breach of express warranty (Doc. 1-1 at
147-148). On September 23, 2016 the Defendant removed the
case to this court on the basis of CAFA (Doc. 1). Plaintiff
did not oppose said removal. Simultaneous to removal, the
Defendant filed a Motion to Dismiss before this Court and a
supporting memorandum (Docs. 3, 4).
seeks dismissal on numerous grounds. First, Defendant
contends that the Plaintiff lacks standing to make claims for
products she did not personally purchase (Doc. 4 at 1-3).
Defendant argues that Plaintiff's claims fail because no
reasonable consumer would have been deceived by the product
packaging bearing the “all natural” labeling.
Specifically, Defendant argues that there is no fixed
definition or standard for a product to bear an “all
natural” label, so such a label is subjective and
cannot form the basis for an affirmative misrepresentation.
The lack of a formal definition from the Food and Drug
Administration weakens Plaintiff's claim that the
presence of any artificial color, flavor, or substance was
unfair. Defendant further argues that it would be
unreasonable as a matter of law to find that a synthetic
leavening agent precluded the use of the label “all
natural.” (Doc. 4 at 3-9).
Defendant argues that the presence of a complete ingredients
list on the packaging defeats any claim of labeling
misrepresentation (Doc. 4 at 9-12). Fourth, Defendant argues
that the product guarantee-offering a refund if a customer is
not satisfied-defeats Plaintiff's claim (Doc. 4 at
12-13). Fifth, Defendant argues that its conduct was not
unfair under the ICFA because it did not violate public
policy, or otherwise place consumers under duress with no
viable alternative (Doc. 4 at 13-14). Sixth, Defendant argues
that Plaintiff's unjust enrichment claim must be
dismissed because it does not constitute a freestanding cause
of action absent the other fraud allegations (Doc. 4 at 14).
Seventh, Defendant contends that the breach of express
warranty claim fails because Defendant did not provide the
requisite pre-suit notice and Defendant was not on notice of
the alleged defect (Doc. 4 at 14-15). Eighth, Defendant
argues that Plaintiff lacks standing to bring any claim
related to goods purchased outside of Illinois (Doc 4 at
15-16). Ninth, Defendant argues that Plaintiff's claims
face a number of statute of limitations problems (Doc. 4 at
16-17). Tenth, Defendant argues that Plaintiff has no
standing to seek injunctive relief since she is unlikely to
suffer future harm (Doc. 4 at 17). Eleventh, Defendant
contends that Plaintiff's claims must be dismissed for
failing to provide sufficient particularity as required by
Fed.R.Civ.P. Rule 9(b) (Doc. 4 at 17-19). And, finally,
twelfth, Defendant argues that this Court should stay the
case under the doctrine of primary jurisdiction to await word
from the FDA about a more specific definition of the term
“all natural” (Doc. 4 at 19-20).
responded to each ground for dismissal in turn (Doc. 14).
First, Plaintiff alleges that ICFA does not require reliance,
so there is no standing issue as to products she did not
purchase (Doc. 14 at 1-3). Additionally, she argues that the
products she did not purchase contain the identical packaging
‘misrepresentation' that is the subject of her
claim against the pancake mix (Id.).
she argues that she defined ‘natural' in making her
claim, that she interpreted the term as reasonable consumers
would, and that reasonable consumers would not expect to find
synthetic materials in a product labeled ‘natural'
(Doc. 14 at 3-4). Or, alternatively, the interpretation of
the term natural and consumer perception of that term is
inappropriate for resolution at the motion to dismiss stage
(Doc. 14 at 4-7).
and fourth, Plaintiff argues that presence of an ingredient
list or a guarantee on the packaging does not exonerate
Defendant for making a false representation via the
‘natural' labeling because consumers should not be
required to look to the list, they might miss the presence of
non-natural substances on the list, and the guarantee does
nothing to alter or fix the falsity of the
‘natural' label on the front of the box (Doc. 14 at
Plaintiff argues that her claim does satisfy ICFA under the
alternative interpretation that the practice injured the
consumer, rather than the requirement that the consumer had
no reasonable alternative (Doc. 14 at -12).
because her other claims should survive, her unjust
enrichment claim may also survive (Doc., 14 at 12).
no pre-suit notice was required for her warranty claim
because the Defendant was aware of the falsity of the label
based on prior warnings from consumers (Doc. 14 at 12-13).
as to the nationwide claims, Plaintiff argues that it is too
early to determine the propriety of this issue (Doc. 14 at
13). Likewise, ninth, Plaintiff argues it is too early to
determine the statute of limitations issues (Doc. 14 at 14).
Plaintiff argues that she has standing to seek injunctive
relief because if she were unable to do so, consumers would
have no method to seek recourse ...