United States District Court, N.D. California
ROBERT E. FIGY, individually and on behalf of all others similarly situated, Plaintiff,
AMY'S KITCHEN, INC, Defendant
For Robert E. Figy, individually and on behalf of all others similarly situated, Plaintiff: Ben F. Pierce Gore, LEAD ATTORNEY, Pratt & Associates, San Jose, CA; D'Juana Parks, PRO HAC VICE, John Keith Hyde, Provost Umphrey Law Firm, Beaumont, TX.
For Amy's Kitchen, Inc., Defendant: Dale Joseph Giali, Michael Langer Resch, LEAD ATTORNEYS, Andrea M Weiss, Mayer Brown LLP, Los Angeles, CA.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED CLASS ACTION COMPLAINT
SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE.
Now before the Court is a motion by defendant Amy's Kitchen, Inc. (" Amy's Kitchen" ) to dismiss plaintiff's first amended class action complaint. Docket No. 48. The motion is scheduled for a hearing on April 25, 2014. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument, and hereby VACATES the hearing. For the reasons set forth below, the Court GRANTS defendant's motion to dismiss and DISMISSES the action WITHOUT PREJUDICE pursuant to the doctrine of primary jurisdiction.
This is a consumer class action. Defendant Amy's Kitchen markets and sells a number of products listing " evaporated cane juice" or " organic evaporated cane juice" (" ECJ" ) as an ingredient on the product's labeling. Docket No. 44, First Amended Complaint (" FAC" ) ¶ ¶ 2, 5 (Table 1). Plaintiff alleges that using the term ECJ violates Food and Drug Administration (" FDA" ) regulations which require food labels to reflect the common or usual name of an ingredient. FAC ¶ ¶ 5, 24, 44, 48 (citing 21 C.F.R. § § 101.3, 101.4, 102.5, 131.200, 184.1854, 1.21, 120.1, 168.130.). Plaintiff alleges that the common or usual name for ECJ is actually " sugar," and that defendant uses the term ECJ instead of the term " sugar" to make its products appear healthier to consumers. FAC ¶ ¶ 17, 41. Plaintiff further alleges that defendant's failure to comply with these FDA regulations violates California's Sherman Law (" Sherman Law" ), California Health and Safety Code § 109875 et seq. Id. ¶ ¶ 8-10, 37-38, 61-65.
Based upon those alleged violations, plaintiff filed a class action complaint against Amy's Kitchen on August 16, 2013. Docket No. 1, Compl. On November 25, 2013, the Court granted defendant's motion to dismiss the complaint with leave to amend. Docket No. 38. On December 13, 2013, plaintiff filed the FAC, asserting causes of action under the following California consumer protection statutes: (1) the Unfair Competition Law (" UCL" ) for unlawful business practices; (2) the UCL for unfair business practices; (3) the UCL for fraudulent business practices; (4) the
False Advertising Law (" FAL" ) for misleading and deceptive advertising; (5) the FAL for untrue advertising; and (6) the Consumer Legal Remedies Act (" CLRA" ) for unlawful sale of misbranded products and misrepresentations regarding those products. See FAC. Plaintiff also alleges causes of action for: (7) breach of express warranty; (8) breach of implied warranty; (9) negligent misrepresentation; (10) negligence; (11) unjust enrichment; (12) recovery in assumpsit; and (13) declaratory relief. Id. By the present motion, defendant moves to dismiss plaintiff's FAC. Docket No. 48, Motion to Dismiss.
Among other grounds, Amy's Kitchen moves to dismiss the FAC based upon the doctrine of primary jurisdiction. Amy's Kitchen argues that, because food labeling is within the special competence of the FDA, and the FDA has not finalized its position on the term ECJ, the Court should apply the doctrine of primary jurisdiction, defer to the agency, and dismiss the action without prejudice. Docket No. 48, Motion to Dismiss at 13-19. In response, plaintiff contends that the doctrine of primary jurisdiction does not apply in these circumstances because the FDA has " unwaveringly maintained since at least 2000 that the use of ECJ on food ingredient lists is illegal." Docket No. 50, Pl's Opp. at 11.
I. Legal Standard
" The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency." Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). " [T]he doctrine is a 'prudential' one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch." Id. Although no fixed formula exists for applying the doctrine, the Ninth Circuit has traditionally examined the following factors: " '(1) [a] need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration.'" Clark, 523 F.3d at 1115; see also Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1051 (9th Cir. 2000) (in determining whether to apply the doctrine of primary ...