United States District Court, N.D. Illinois, Eastern Division
DER-YEGHIAYAN, District Judge
matter is before the court on Defendant Dunkin' Brands,
Inc.'s (Dunkin) motion to dismiss. For the reasons stated
below, the motion to dismiss is granted in part and denied in
Bartosz Grabowski (Grabowski) claims that consumers have been
deceived by Dunkin into believing that some of its products
contain real blueberries. Dunkin allegedly offers products
for sale and placards with the names of the products
containing the word “blueberry.” Such products,
however, allegedly contain no actual blueberries and instead
contain fake blueberries or blueberry pieces that mimic the
color and shape of blueberries. Such products are also
allegedly offered for sale side by side with products that do
actually contain blueberries. Grabowski allegedly purchased a
Blueberry Glazed donut (Donut) incorrectly believing that it
contained real blueberries. Grabowski includes in his
complaint a claim alleging a violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act (ICFA),
815 ILCS 505/1 et seq. (Count I), a common law fraud
claim (Count II), an intentional misrepresentation claim
(Count III), a negligent misrepresentation claim (Count IV),
a breach of contract claim (Count V), and an unjust
enrichment claim (Count VI). Dunkin moves to dismiss all
ruling on a motion to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court
must draw all reasonable inferences that favor the plaintiff,
construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all
well-pleaded facts and allegations in the complaint.
Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d
609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the
complaint that “plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a
‘speculative level'” and “if they do
not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496
F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d
at 622 (stating that “[t]o survive a motion to dismiss,
the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face, ” and that “[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged”)(quoting Ashcroft v. Iqbal, 556 U.S.
662 (2009))(internal quotations omitted).
argues that Grabowski has failed to plead sufficient facts to
state a valid ICFA claim. A plaintiff bringing an ICFA claim
must establish: “(1) a deceptive act or practice by the
defendant; (2) the defendant intended that the plaintiff rely
on the deception; (3) the deception occurred in the course of
conduct involving trade or commerce; (4) the plaintiff
suffered actual damage; and (5) the damage was proximately
caused by the deception.” Geschke v. Air Force
Ass'n, 425 F.3d 337, 345 (7th Cir. 2005).
argues that a reasonable consumer would assume the word
“blueberry” to mean only “blueberry
flavored.” Dunkin asks the court to apply a
“common sense standard” as to what a reasonable
consumer would understand. (Reply 3). Based on the pleadings,
a reasonable consumer could in fact conclude that a product
identified with the word “blueberry” contained
blueberries. Contrary to Dunkin's arguments, common sense
does not dictate that a reasonable consumer would conclude
under all circumstances only that the use of the term
“blueberry” in the product name meant that the
product was a blueberry flavored product. The pleadings
allege that Dunkin itself uses the word
“blueberry” to indicate to consumers that some of
its products contain actual blueberries.
also contends that no reasonable consumer would assume that
the use of the word “blueberry” was intended to
represent that the product had any health benefits such as
those obtained from antioxidants found in blueberries.
Grabowski does make reference in his complaint to the health
benefits found in blueberries. (Compl. Par. 13). However,
whether or not Grabowski was concerned with the health
benefits of blueberries, a claim of deception can rest on the
fact that Grabowski claims he wanted a product with
blueberries in it and he was allegedly deceived into
believing that the Donut had real blueberries in it.
does Grabowski's claim of deception rest upon the mere
use of the word “blueberry.” Grabowski further
alleges that the Donut in question contained fake
blueberries, made in the same color and shape as real
blueberries. (Compl. Par. 2). In addition, Grabowski alleges
that products that do contain real blueberries are sold side
by side with products that contain the fake blueberries,
which could further add to consumer confusion. Such
allegations add further detail to support the alleged
deception by Dunkin.
cites to In re 100% Grated Parmesan Cheese Mktg. &
Sales Practices Litig., 2017 WL 3642076, at *2 (N.D.
Ill. 2017) in support of its motion to dismiss.
Parmesan, however, did not involve facts that are
comparable to the instant action. In Parmesan, the
plaintiffs were complaining about prominent written
statements on product containers indicating that the products
contained only grated parmesan cheese. Id. at *1. At
issue before the court was the prominence of certain written
information on the product containers such as the list of
ingredients, and whether the information was presented in a
manner that would cause consumer confusion. Id. at
*5-6. In the instant action, Grabowski has not based his
claims on the prominence of any written statement at the
point of sale or on any product container. Grabowski in fact
alleges that no ingredient list is available at the point of
sale. (Compl. Par. 22). The court in Parmesan
addressed a situation where “certain aspects of a
product's packaging are misleading in isolation . .
.” Id. at *5. This case however, does not
involve product packaging much less a focus on one aspect of
a product packaging in isolation.
also cites Parmesan for the premise that the court
can resolve the ICFA claim at the motion to dismiss stage.
The court in Parmesan stated that “[a]lthough
a marketing practice's deceptiveness is often a question
of fact inappropriate for resolution at the pleading stage, .
. . the primary evidence in a false advertising case is the
advertising itself” and in certain instances the issue
could be resolved as a matter of law at the pleadings stage.
Id. (internal quotations omitted)(quoting
Williams v. Gerber Prods. Co., 552 F.3d 934, 938
(9th Cir. 2008)). However, in the instant action, the claim
does not involve product packaging and involves more than a
label on a product container that can be depicted in an
exhibit. The circumstances surrounding Dunkin's product
display, including facts such ...