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Grabowski v. Dunkin' Brands, Inc.

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

December 7, 2017

DUNKIN' BRANDS, INC., Defendant.


          SAMUEL DER-YEGHIAYAN, District Judge

         This 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 part.


         Plaintiff 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 claims.


         In 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).


         I. ICFA Claim

         Dunkin 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).

         Dunkin 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.

         Dunkin 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.

         Nor 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.

         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.

         Dunkin 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 ...

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