United States District Court, N.D. Illinois, Eastern Division
JENNIFER M. PARROT, individually and on behalf of all others similarly situated, Plaintiffs,
FAMILY DOLLAR, INC., Defendant.
MEMORANDUM OPINION AND ORDER
JORGE ALONSO United States District Judge.
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  is granted.
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.)
“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.)
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.)
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.
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)).
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.
Breach of Express and Implied Warranty (Counts I and
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
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 ...