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Lambert v. Dollar General Corp.

United States District Court, N.D. Illinois, Eastern Division

June 16, 2017

THERA LAMBERT and AMY CONNOR, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,



         Before the Court is Defendant Dollar General Corporation's Motion to Dismiss Plaintiffs' Amended Complaint for Failure to State a Claim [ECF No. 45]. For the reasons stated herein, the Court grants Defendant's Motion in part. Counts II and III are dismissed without prejudice.

         I. BACKGROUND

         The following facts derive from Plaintiffs' Amended Complaint and are, for purposes of this motion, accepted as true, with all inferences drawn in their favor. See, e.g., Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2015).

         Defendant Dollar General Corporation (“Dollar General”) manufactures and sells DG Body Soothing Aloe Gel (the “Gel” or “Aloe Gel”), a cosmetic product allegedly marketed to cool and moisturize the skin. (ECF No. 30 (“Am. Compl.”) ¶¶ 2, 30.) The front packaging of the Gel displays an aloe leaf and, in two bullet points, states that it both “cools” and “moisturizes.” According to packaging on the back, the Gel “lets you quickly soak your skin in after-sun cooling relief” and is “made with Aloe Vera, which cools and moisturizes the skin.” Listed as the fifth ingredient is “aloe barbadensis leaf extract.” (Am. Compl. ¶¶ 19-20.) Aloe barbadensis is the scientific name for one species of the aloe vera plant. (Id. ¶ 13.)

         Plaintiffs Thera Lambert and Amy Connor (“Plaintiffs”), both Illinois residents, allege that they purchased the Gel at brick-and-mortar Dollar General stores “[d]uring 2015 and 2016” and “in June or July of 2016, ” respectively. (Am. Compl. ¶¶ 7-8.) Both did so after reading the product's label and believing that it contained aloe vera, which they valued for its commonly understood skin healing and sunburn-relief qualities. (Ibid.) Plaintiffs, through counsel, submitted the Gel for testing. The results indicate an absence of acemannan, glucose, malic acid, and whole leaf markers, which Plaintiffs allege are key chemical hallmarks of aloe vera according to the American Herbal Pharmacopeia (the “AHP”) and the International Aloe Science Council (the “IASC”). (Id. ¶¶ 20-21.)

         Based on the test results, Plaintiffs claim that Dollar General's marketing of the Gel as “Aloe Gel” containing “aloe barbadensis leaf extract” and “made with aloe vera” (hereinafter also referred to as “the challenged statements”) is thus false, deceptive, and misleading cosmetic labeling under the Food Drug and Cosmetic Act, 21 U.S.C. § 362, and its implementing regulations, 21 C.F.R. § 701. (Am. Compl. ¶¶ 31-34.) Plaintiffs maintain that they would not have purchased the Gel but for the challenged statements. (Id. ¶¶ 23-24.)

         Two weeks after sending a pre-suit demand notice to Dollar General (Am. Compl. ¶¶ 55, 65), Plaintiffs filed their initial Complaint. (ECF No. 1 (“Compl.”).) Their Amended Complaint now recites counts for breach of express warranty, breach of the implied warranty of merchantability, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (the “ICFA”). Plaintiffs seek redress for themselves and a class of similarly situated individuals defined to include “[a]ll persons in the State of Illinois who, within four (4) years of the filing of this Complaint, purchased the Product from Dollar General or for personal use and not for resale.” (Am. Compl. ¶ 37.) Dollar General now moves to dismiss all counts of the Amended Complaint, arguing that Plaintiffs fail to state claims on which relief can be granted.


         To survive a Rule 12(b)(6) motion to dismiss, a complaint “must state a claim that is plausible on its face.” Adams, 742 F.3d at 728 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim enjoys “facial plausibility when the plaintiff pleads sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.” Adams, 742 F.3d at 728 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A plaintiff must allege that all elements of his claim are satisfied, but cannot survive a Rule 12(b)(6) motion to dismiss by alleging only legal conclusions. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir. 2010). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         III. ANALYSIS

         A. Count I: Breach of Express Warranty

         An express warranty arises where (1) the seller makes an affirmation of fact or promise (2) that relates to the goods and (3) becomes part of the basis of the bargain between the parties. See, Royal Bus. Mach., Inc. v. Lorraine Corp., 633 F.2d 34, 41 (7th Cir. 1980). The decisive test for whether “a given representation is a warranty . . . is whether the seller asserts a fact of which the buyer is ignorant or merely states an opinion or judgment on a matter which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment.” Id. at 41. In the first case there is a warranty, but in the second there is not. Weiss v. Rockwell Mfg. Co., 293 N.E.2d 375, 381 ( Ill. App. 1973).

         To state a claim for breach of an express warranty under Illinois law, the complaint must allege (1) the terms of the warranty; (2) a breach or failure of the warranty; (3) a demand upon the defendant to perform under the terms of the warranty; (4) a failure by the defendant to do so; (5) compliance with the terms of the warranty by the plaintiff; and (6) damages measured by the terms of the warranty. See, e.g., Ibarrola v. Kind LLC, No. 13 C 50377, ...

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