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Parrott v. Family Dollar, Inc.

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

September 20, 2019

JENNIFER PARROTT, Plaintiff,
v.
FAMILY DOLLAR, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          HON. JORGE ALONSO UNITED STATES DISTRICT JUDGE

         Dissatisfied with the contents of the gel she purchased from defendant Family Dollar, Inc., plaintiff Jennifer Parrott (“Parrott”)[1] filed this suit. In her second-amended complaint, Parrott asserts that defendant breached express (Count I) and implied (Count II) warranties and violated the Illinois Consumer Fraud and Deceptive Trade Practices Act.[2] Defendant moves to dismiss. For the reasons set forth below, the Court grants the motion.

         I. BACKGROUND

         The following facts are from plaintiff’s second-amended complaint, and the Court takes them as true.

         Years ago (plaintiff is able to pinpoint the time frame to either the year 2015 or the year 2016), plaintiff purchased from defendant a plastic bottle of gel labeled “Tropic Sun Aloe Vera Gel.” On the front label, below the words “Aloe Vera Gel[, ]” the label says “Made with 100% Pure Aloe[.]” A label on the back of the bottle lists ingredients. “Aloe Barbadensis Leaf Juice” is listed as the third ingredient, behind water and glycerin. The label on the back of the bottle also states that it is “made from fresh Aloe Vera leaves.”

         Plaintiff claims that her attorney commissioned a test “on a bottle of the same Product as Plaintiff purchased” (2d. Am. Complt. ¶ 24) and learned that it did not contain Aloe Vera or Aloe Barbadensis Leaf Juice. Specifically, plaintiff alleges that acemannan, which plaintiff alleges is “a signature Aloe Vera chemical component that indicates the presence of Aloe, was not detected in the sample of Defendant’s product.” (2d. Am. Complt. ¶ 19).

         Plaintiff alleges that defendant “knew or should have known the Product actually contains no detectable amount of aloe.” (2d. Am. Complt. ¶ 31).[3] Specifically, plaintiff alleges defendants “knew the Product’s actual product category, ” knew how it was labeled and knew what it contained. (2d. Am. Complt. ¶¶ 26, 27, 29). Plaintiff alleges that defendant requires products to be tested prior to sale and that this testing should have clued defendant in to the alleged fact that the product did not contain aloe.

         Although the product caused plaintiff no physical injury, she says she suffered monetary injury, because she would not have purchased the product “had she known [it] did not contain aloe.” (2d. Am. Complt. ¶ 7). Plaintiff alleges she was damaged in the amount she paid for the product.

         II. STANDARD ON A MOTION TO DISMISS

         The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide detailed factual allegations, but mere conclusions and a “formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. To survive a motion to dismiss, a claim must be plausible. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Allegations that are as consistent with lawful conduct as they are with unlawful conduct are not sufficient; rather, plaintiffs must include allegations that “nudg[e] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         In considering a motion to dismiss, the Court accepts as true the factual allegations in the complaint and draws permissible inferences in favor of the plaintiff. Boucher v. Finance Syst. of Green Bay, Inc., 880 F.3d 362, 365 (7th Cir. 2018). Conclusory allegations “are not entitled to be assumed true, ” nor are legal conclusions. Iqbal, 556 U.S. at 680 & 681 (noting that a “legal conclusion” was “not entitled to the assumption of truth[;]” and rejecting, as conclusory, allegations that “‘petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement”). The notice-pleading rule “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-679.

         Pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, the “circumstances constituting fraud” must be alleged with particularity. Fed.R.Civ.P. 9(b).

         III. DISCUSSION

         A. Actual knowledge ...


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