United States District Court, N.D. Illinois
KATELYN KINN AND MATTHEW PRICE, on behalf of themselves and all others similarly situated, Plaintiffs,
THE QUAKER OATS COMPANY, Defendant.
J. Ives FOX, SWIBEL, LEVIN & CARROLL LLP Andrew S.
Tulumello (pro hac vice) Jason R. Meltzer (pro hac vice)
GIBSON, DUNN & CRUTCHER LLP Attorneys for Defendant
Quaker Oats Company.
HONORABLE MAGISTRATE SIDNEY I. SCHENKIER JUDGE.
DEFENDANT QUAKER OATS COMPANY'S MOTION FOR ENTRY
CHARLES R. NORGLE, SR. HONORABLE JUDGE.
to Federal Rule of Civil Procedure 58(d), Defendant Quaker
Oats Co. (“Quaker”) hereby requests that the
Court direct the Clerk to enter judgment in this case. The
Court has already closed this case, ECF No. 31, but has not
formally entered judgment in favor of Quaker. See
Fed. R. Civ. P. 58(a).
case is one of a number of cases asserting identical claims
based on Quaker's use of terms like “natural”
and “heart healthy” on its product labeling.
Those actions have all been transferred to this district.
Five cases were consolidated into a single action and two
others, including this action, were stayed pending resolution
of the consolidated action because they are substantially
identical to the consolidated action. The Court granted
Quaker's motion to dismiss the consolidated action with
prejudice because the plaintiffs' claims were preempted
and failed as a matter of law. As other courts found in
ordering transfer to this district, and as this Court found
in its order on reassignment, this action is substantially
identical to the now-dismissed consolidated action.
Accordingly, one week after dismissing the consolidated
action, the Court entered minute orders closing this case and
the other stayed case. Quaker now requests that the Court
complete the clerical task of entering judgment in this case.
April 29, 2016, and May 3, 2016, five plaintiffs filed nearly
identical complaints proposing nationwide classes based on
the alleged presence of trace amounts of glyphosate in Quaker
Oats products. Those actions were transferred to this Court
and consolidated in Gibson v. Quaker Oats Co., No.
16-cv-4853. See Daly v. Quaker Oats Co., No.
16-cv-7383, ECF Nos. 1, 12 (N.D. Ill.) (Daly
complaint and order granting transfer); Cooper v. Quaker
Oats Co., No 16-cv-7217, ECF Nos. 1, 16 (N.D. Ill.)
(Cooper complaint and order granting transfer);
Jaffee v. Quaker Oats Co., No 16-cv-7134, ECF Nos.
1, 12 (N.D. Ill.) (Jaffee complaint and order
granting transfer); Gibson, No. 16-cv-4853, ECF No.
1 (N.D. Ill.) (Gibson complaint); see also
Wheeler v. Quaker Oats Co., No 16-cv-5776, ECF No. 1, 19
(N.D. Ill.) (Wheeler complaint and voluntary
action was the sixth suit filed raising identical
claims. Kinn v. Quaker Oats Co., No
16-cv-1262, ECF Nos. 1-1 (W.D. Wash.) (original complaint).
Plaintiffs originally filed this case in the Superior Court
of the State of Washington, King County. Kinn v. Quaker
Oats Co., No. 16-cv-10833, ECF No. 1, 1-1 (N.D. Ill.)
(notice of removal and first complaint). Quaker removed this
action to the United States District Court for the Western
District of Washington and subsequently moved to transfer the
action to this District. Id., ECF Nos. 1, 10, 17.
Finding “undoubtedly, substantial similarities and
overlap” “both as to the parties and the
issues” between this case and the earlier-filed
consolidated action Gibson v. Quaker Oats Co., No.
16-cv-4853 (N.D. Ill.), the Washington district court granted
Quaker's motion and transferred this case to the Northern
District of Illinois. Kinn, No. 16-cv-10833, ECF No.
22 (W.D. Wash. Nov. 3, 2016).
this case was transferred, Quaker moved to reassign this
action to this Court and to stay proceedings pending
resolution of Quaker's motion to dismiss in
Gibson. Quaker argued that this action satisfied all
of the conditions required for a finding of relatedness under
Rule 40.4(b) because this case and the consolidated cases
were “pending in this Court, ” the factual and
legal overlap described above demonstrated that “the
handling of [these] cases by the same judge is likely to
result in a substantial saving of judicial time and effort,
” and “the cases are susceptible of disposition
in a single proceeding.” Gibson, No.
16-cv-4853, ECF No. 39 at 2-3 (N.D. Ill. Nov. 30, 2016)
(quoting LCvR. 40.4(b)(3)). The Court granted the motion,
relating the cases and staying proceedings in this case
pending the Court's consideration of Quaker's motion
to dismiss in the Consolidated Cases. Gibson, No.
16-cv-4853, ECF No. 41 (N.D. Ill.Dec. 1, 2016).
Court acknowledged in its ruling on reassignment, Plaintiffs
in this action assert the same purported injury resulting
from the same labels on Quaker's products as the
Gibson plaintiffs. See Mot. to Transfer or
Stay, Kinn, No. 16-cv-10833, ECF No. 10 at 3 (W.D.
Wash. Aug. 23, 2016) (cataloguing similarities in
complaints); see also Gibson, No. 16-cv-4853, ECF
No. 28 (N.D. Ill. Aug. 11, 2016) (“Consolidated
Compl.”). Plaintiffs in both actions proposed
nationwide class certification. Mot. to Transfer or Stay,
Kinn, No. 16-cv-10833, ECF No. 10 (W.D. Wash. Aug.
23, 2016). The Kinn complaint, in many
places, copied word-for-word from the complaints of the cases
consolidated in Gibson. Id. at 3. Like the
consolidated plaintiffs, Plaintiffs here alleged that: (1)
the same products-Old Fashioned Quaker Oats and Quick
1-Minute Quaker Oats; (2) contained the same labels including
the term “natural”; (3) which purportedly were
deceived “and/or [were] likely to deceive reasonable
consumers”; (4) because “quantitative
testing” purportedly “revealed that Quaker Oats
contain glyphosate.” Compare Kinn First Compl.
¶¶ 4, 5, 66, 79, 99; and Kinn Am. Compl.
¶¶ 9, 52, 53, 67, 93, with Consolidated
Compl. ¶¶ 4, 5, 72, 85. Plaintiffs asserted that
Quaker is liable under the same theories as in the
Gibson complaint including unjust enrichment, breach
of warranty, negligent misrepresentation, and violation of
state consumer protection laws. Compare Kinn Am.
Compl. ¶¶ 128-158, with Consolidated
Compl. ¶¶ 140-254. Plaintiffs seek the same
relief-injunctive relief, restitution, disgorgement, damages,
and attorneys' fees-as the Gibson plaintiffs.
Compare Kinn Am. Compl. 38-39, with
Consolidated Compl. 52-53. Even in Plaintiffs' Amended
Complaint, they still failed to state any claims not already
considered and rejected by this Court in Gibson.
See Reply Supp. Mot. to Transfer, Kinn, No.
16-cv-10833, ECF No. 17 (W.D. Wash. Sept. 16, 2016). To the
contrary, the only addition in the Amended Complaint,
Plaintiffs' assertion that the application of glyphosate
to pre-harvest oats is prohibited by state and federal law,
was also added to the consolidated complaint dismissed by
this Court in Gibson. See Consolidated
Compl. ¶¶ 13, 83, 91.
August 14, 2017, the Court dismissed the consolidated
complaint in Gibson with prejudice. Gibson,
No. 16-cv-4853, ECF Nos. 58, 59, 60 (N.D. Ill. Aug. 14, 2017)
(order granting Mot. to Dismiss, Mem. Op. on Mot. to Dismiss,
and Judgment). The Court held that the consolidated
plaintiffs lacked standing to assert claims based on products
that they did not purchase. It further held that the
remaining claims were preempted by the comprehensive federal
regulatory scheme established by the Food, Drug, and Cosmetic
Act, and by the actions of the Food and Drug Administration
in defining use of the term “natural.” The Court
also held that, because preemption by Congress meant that
“Plaintiffs cannot challenge Quaker Oats labeling under
state or common law, ” dismissal with prejudice was
warranted because the Plaintiffs could not cure the fatal
defects in their complaint. Gibson, No. 16-cv-4853,
ECF No. 59 at 8 (N.D. Ill. Aug. 14, 2017) (Mem. Op. on Mot.
to Dismiss). Plaintiffs' claims also failed for other
reasons, including that Plaintiffs' claims were
implausible as a matter of law. See Mot. to Dismiss,
Gibson, No. 16-cv-4853, ECF No. 35 at 3 (N.D. Ill.
Sept. 26, 2016) (“Gibson Mot. to
days later, the Court closed this case (and the related
Panitch action), referencing the Court's opinion
and order dismissing the complaint in Gibson.
Closure was appropriate because Plaintiffs' claims are
meritless for the reasons described in Quaker's motion to
dismiss and in this Court's opinion and order dismissing
the related action. Gibson v. Quaker Oats Co., No.
16-cv-4853, 2017 WL 3508724 (N.D. Ill. Aug. 14, 2017);
Gibson Mot. to Dismiss; Mem. Supp. Mot. to Dismiss,
Gibson, No. 16-cv-4853, ECF No. 36 (N.D. Ill. Sept.
26, 2016) (“Gibson Mem. Supp. Mot. to
Gibson dismissal, standing alone, warrants entry of
judgment in this action because the claims in this action are
identical to those in Gibson. In addition to the
grounds for dismissal discussed in this Court's opinion
in Gibson, Plaintiffs fail to state a claim for the
failure-to-warn claims are duplicative of those asserted in
Gibson and are mer-itless for the same reasons: (1)
Plaintiffs lack standing, not having suffered any concrete
injury from the trace amounts of glyphosate alleged to be
present in Quaker products, (2) Plaintiffs' claims are
preempted by federal legislation and regulations expressly
deeming safe and permitting trace levels of glyphosate, and
(3) Plaintiffs have not alleged the omission of any material
fact in Quaker's public representations. The
Gibson plaintiffs failed to state a claim for the
same reasons. See Gibson Mot. to Dismiss at 2;
Gibson Mem. Supp. Mot. to Dismiss at 10-18.
just as in Gibson, Plaintiffs' claims relating
to Quaker's use of “heart healthy” are
preempted by federal regulations. See 21 C.F.R.
§ 101.81; Food Labeling: Health Claims; Soluble Fiber
From Whole Oats & Risk of Coronary Heart Disease, 62 Fed.
Reg. 15, 343 (Mar. 31, 1997); see also Gibson Mot.
to Dismiss at 2; Gibson Mem. Supp. Mot. to Dismiss
at 19-20. Plaintiffs also fail to state a claim relating to
Quaker's use of “natural.” These claims seek
to impose retroactive punishment on Quaker for its reliance
on long-standing federal policy regarding the use of
“natural” in food labeling. See Christopher
v. SmithKline Beecham Corp., 132 S.Ct. 2156, 2167
(2012); Wilson v. Frito-Lay N. Am., Inc., 961
F.Supp.2d 1134, 1147 (N.D. Cal. 2013). Nor have Plaintiffs
plausibly alleged that reasonable consumers share their
interpretation of “natural” as indicating a
product is free of trace amounts of any pesticide down to the
molecular level. See Gibson, Mem. Supp. Mot. to
Dismiss at 20-23; In re: Gen. Mills Glyphosate
Litig., No. 16-2869, 2017 WL 2983877 at *5 (D. Minn.
July 12, 2017) (“It is implausible that a reasonable
consumer would believe that a product labelled as having one
ingredient-oats-that is ‘100% Natural' could not
contain a trace amount of ...