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Burton v. Hodgson Mills, Inc.

United States District Court, S.D. Illinois

April 6, 2017

SHANNAH BURTON, Individually and on behalf of All others similarly situated, Plaintiff,
HODGSON MILL, INC., Defendant.


          Michael J. Reagan United States District Judge

         I. Introduction

         This 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).[1] 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.

         II. Facts

         Plaintiff's 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)[2]. 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).

         Defendant 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).

         Second, 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).

         Third, 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).

         Plaintiff 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.).

         Second, 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).

         Third 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 7-11).

         Fifth, 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).

         Sixth, because her other claims should survive, her unjust enrichment claim may also survive (Doc., 14 at 12).

         Seventh, 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).

         Eighth, 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).

         Tenth, 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 ...

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