United States District Court, N.D. Illinois, Eastern Division
THERA LAMBERT and AMY CONNOR, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
DOLLAR GENERAL CORPORATION, Defendant.
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE.
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.
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).
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.)
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.)
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.)
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
dollargeneral.com 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.
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.
Count I: Breach of Express Warranty
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).
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,