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Bishop v. 7-Eleven, Inc.

United States District Court, N.D. California, San Jose Division

April 21, 2014

SCOTT BISHOP, individually and on behalf of all others similarly situated, Plaintiff,
v.
7-ELEVEN, INC., Defendant

Page 1059

[Copyrighted Material Omitted]

Page 1060

[Re: Docket No. 52].

For Scott Bishop, individually and on behalf of all others similarly situated, Plaintiff: Ben F. Pierce Gore, LEAD ATTORNEY, Pratt & Associates, San Jose, CA; David Malcolm McMullan , Jr., Don Barrett, P.A., Lexington, MS.

For 7-Eleven, Inc, Defendant: Angel A. Garganta, LEAD ATTORNEY, Venable LLP, San Francisco, CA; James Frederic Speyer, LEAD ATTORNEY, Arnold & Porter LLP, Los Angeles, CA; Carolyn Ann Pearce, Jonathan L. Koenig, Arnold and Porter LLP, San Francisco, CA.

Page 1061

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

EDWARD J. DAVILA, United States District Judge.

Presently before the Court is Defendant 7-Eleven's (" Defendant" or " 7-Eleven" ) Motion to Dismiss Plaintiff Scott Bishop's (" Plaintiff" or " Bishop" ) Second Amended Complaint (" SAC" ). Plaintiff filed this putative class action against Defendant alleging that several of Defendant's products have been improperly labeled so as to amount to misbranding and deception in violation of several California and federal laws.

Per Civ. L.R. 7-1(b), the motion was taken under submission without oral argument. Having fully reviewed the parties' papers, the Court grants Defendant's Motion to Dismiss for the reasons explained below.

I. BACKGROUND

Plaintiff filed his original Complaint in this case on May 21, 2012. Dkt. No. 1. Plaintiff's First Amended Complaint (" FAC" ) was filed on September 17, 2012. Dkt. No. 17. Defendant filed a Motion to Dismiss, which was granted per this Court's order on August 5, 2013. Dkt. No. 46. The Court dismissed Plaintiff's claims based on violations of the Song-Beverly Consumer Warranty Act and the Magnuson-Moss Warranty Act. Further, the Court concluded that Plaintiff's claims did not meet the Rule 9 pleading standard because Plaintiff did not provide a clear and particular account of the allegedly fraudulent, deceptive, misrepresentative, or otherwise unlawful statements.

Plaintiff filed the SAC on August 20, 2013 on behalf of himself and a putative class of all persons in the United States who have purchased the same product or other of Defendant's similar food products that were allegedly mislabeled. Dkt. No. 47. Defendant filed its Motion to Dismiss on September 24, 2013. Dkt. No. 52.

Plaintiff is a California consumer who, since May 21, 2008, purchased 7-Select Cheddar & Sour Cream Chips. Dkt. No. 47 ¶ ¶ 2-3. Plaintiff argues that the following representations on the packaging of this and other of Defendant's food products were unlawful and/or misleading: (1) " 0g trans fat" and (2) " no cholesterol." Plaintiff argues that the following " substantially similar" products bear the identical unlawful and/or misleading statements and should be included in the " class products" : 7-Select Kettle Style Chips in barbeque, jalapeno, original, salt & vinegar, and sour cream & onion flavors; 7-Select barbeque potato chips; 7-Select big bite hot dog chips; 7-Select original potato chips; and 7-Select sour cream & onion chips. Id. at ¶ 4.

Plaintiff alleges the following causes of actions: violation of California's Unfair Competition Law (" UCL" ), Cal. Bus. & Prof. Code § 17200 et seq., (counts 1-3); violation of the False Advertising Law (" FAL" ), Cal. Bus. & Prof. Code § 17500 et seq., (counts 4-5); and violation of the Consumers Legal Remedies Act (" CLRA" ), Cal. Civ. Code § 1750 et seq., (count 6). Id. ¶ ¶ 109-66.

II. LEGAL STANDARD

A. Rule 8(a)

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to " give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell ...


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