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Parrott v. Family Dollar, Inc.

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

May 8, 2018

JENNIFER M. PARROT, individually and on behalf of all others similarly situated, Plaintiffs,


          HON. JORGE ALONSO United States District Judge.

         Before the Court is defendant's motion to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion [36] is granted.


         Defendant Family Dollar, Inc. (“Family Dollar”) advertises, markets, sells, and distributes Tropic Sun Aloe Vera Gel (the “Product”), which is a cosmetic product. (Am. Compl. ¶¶ 2, 32, ECF No. 33.) The Product's front label displays an illustration of aloe leaves, states that it is “Made with 100% Pure Aloe, ” and states that it “Moisturizes, ” “Soothes, ” and “Cools.” (Id. ¶¶ 16-17.) The Product's back label claims that it is “made from fresh Aloe Vera leaves” and lists “Aloe Barbadensis Leaf Juice” as a predominant ingredient. (Id. ¶ 18.) Aloe Barbadensis is the scientific name of an aloe plant species used in the manufacturing of consumer products. (Id. ¶ 12.)

         In “2015 and/or 2016, ” plaintiff Jennifer Parrot purchased the Product at a Family Dollar store near her home in Illinois. (Id. ¶ 6.) Before purchasing the Product, Ms. Parrot read the label and believed that it contained Aloe Vera. (Id.) She valued the Aloe Vera for its “commonly understood skin-healing and sunburn-relief qualities” when purchasing the Product. (Id.) Afterward, Ms. Parrot's counsel submitted the Product for testing. (Id. ¶ 19.) The results indicated an absence of Acemannan, which is a signature of Aloe Vera. (Id. ¶¶ 19-22, 24.) Ms. Parrot acknowledges that improper manufacturing and storage processes can produce a Product with “little or no Acemannan.” (Id. ¶ 23.)

         Based on the test results, Ms. Parrot claims that marketing a product as being made with “100% Pure Aloe Vera” and “Aloe Barbadensis Leaf Juice, ” when it does not contain Acemannan, is false, deceptive, and misleading cosmetic labeling under the Food Drug and Cosmetic Act, 21 U.S.C. § 362(a) and its implemented regulations, 21 C.F.R. § 701. (Id. ¶¶ 24, 32-36.) Ms. Parrot claims that Family Dollar knew or should have known that it was deceiving its customers and misrepresenting the aloe content in the Product. (Id. ¶ 26.) She says that she would not have bought the Product if she knew it did not contain Aloe Vera. (Id. ¶ 39.)

         In her first amended complaint, Ms. Parrot claims that Family Dollar violated 810 ILCS 5/2-313 by breaching its express warranty (Count I) and violated 810 5/2-315 by breaching its implied warranty of merchantability (Count II). Ms. Parrot also claims Family Dollar violated the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) (Count III), codified as 815 ILCS 515/1, for using unfair or deceptive business practices in the conduct of trade or commerce. She seeks redress for herself and a class of similarly situated individuals. (Id. ¶ 40.) She defines the class as “[a]ll persons in the State of Illinois who, within four (4) years of the filing of this Complaint, purchased the Product for personal use and not for resale.” (Id.) Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim.


         To survive a motion to dismiss pursuant to Rule 12(b)(6), a pleading must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this standard when its factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subject-matter of the case to present a story that holds together.”). For purposes of a motion to dismiss, the Court accepts “as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017). When deciding Rule 12(b)(6) motions, the Court considers “the complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.” Cohen v. Am. Sec. Ins. Co., 735 F.3d 601, 604 (7th Cir. 2013) (citing Geinosky v. City of Chicago, 675 F.3d 743, 745-46 n. 1 (7th Cir. 2012)).

         A plaintiff alleging fraud under the ICFA must “state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). The complaint must state “the identity of the person who made the misrepresentation, the time, place and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff.” Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 668 (7th Cir. 2008). Stated differently, it must provide the “who, what, where, when and how” of the alleged misrepresentations. Bank of Am., Nat. Ass'n, v. Knight, 725 F.3d 815, 818 (7th Cir. 2013). Rule 9(b) does permit “[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally”; that is, allegations of intent or other mental states need only meet the plausibility standard set by Rule 8 and described in Twombly and Iqbal, not Rule 9(b)'s higher particularity standard. See Iqbal, 556 U.S. at 686-87.


         I. Breach of Express and Implied Warranty (Counts I and II)

         Family Dollar moves to dismiss the breach of warranty claims, arguing that Ms. Parrot did not (1) provide Family Dollar with pre-suit notice, (2) make any allegations that Family Dollar failed to provide a warranty in a reasonable manner, and (3) allege that the Product is unfit for its ordinary purpose.

         Parties create an express warranty when a seller makes an “affirmative statement of fact or promise of an express description of the goods.” Anthony v. Country Life Mfg., LLC., 70 Fed.Appx. 379, 383 (7th Cir. 2003) (citing Hasek v. DaimlerChrysler Corp., 745 N.E.2d 627, 634 (2001)). To state a claim for a 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 by the plaintiff; (4) a failure by the defendant to do so; (5) a compliance with the terms of the warranty by the plaintiff; and (6) a measurement of damages by the terms of the warranty. See Ibarrola v. Kind LLC, 83 F.Supp.3d 751, 759-60 (N.D. Ill. 2015) (citing Hasek, 745 N.E.2d at 638). A “buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach” prior to filing suit “or be barred from any remedy . . . .” 810 ILCS 5/2-607(3)(a); see also Connick v. Suzuki Motor Co., 675 N.E.2d 584, 492-95 (Ill. 1996) (stating that “even if a manufacturer is aware of problems with a particular product line, the notice requirement of section 2-607 is satisfied only where the manufacturer is ...

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