United States District Court, S.D. California
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANT'S MOTION TO DISMISS [DOC. 20] WITH LEAVE TO
M. James Lorenz United States District Judge.
before the Court is Defendant's motion to dismiss the
first amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiffs filed an opposition and
Defendant replied. The Court decides the matter on the papers
submitted and without oral argument. See Civ. L. R.
7.1 (d)(1). For the reasons stated below, the Court DENIES in
part and GRANTS in part Defendant's motion. Plaintiffs
are granted leave to amend.
Patrick Kline and Yamil Caraballo (“Plaintiffs”)
are residents of California and New York, respectively.
(Compl. ¶¶ 12-13.) Plaintiffs filed this putative
class action alleging false advertising under California
state law along with other California and New York state
consumer protection claims. Iovate Health Sciences U.S.A.,
Inc. (“Iovate” or “Defendant”) is a
Delaware corporation that manufactures a variety of protein
powder products. (Id. ¶ 14.)
allege violations of state and federal laws that prohibit
nonfunctional slack-fill in packaging. Under federal law,
“[s]lack-fill is the difference between the actual
capacity of a container and the volume of product contained
therein.” 21 C.F.R. § 100.100(a).
“Nonfunctional slack-fill is the empty space in a
package that is filled to less than its capacity for reasons
other than” specified in the statute. Id. A
package containing nonfunctional slack-fill is misleading if
consumers are unable to fully view the contents. Id.
A food is misbranded “if its container is so made,
formed, or filled as to be misleading.” Id.
§ 100.100. Under California's slack-fill statute, no
container should be constructed or filled “as to
facilitate the perpetration of deception or fraud.”
Cal. Bus. & Prof. Code § 12606(a). A container is
“misleading if it contains nonfunctional slack fill,
” which is “empty space in a package that is
filled to substantially less than its capacity for reasons
other than” those specified in the statute. Cal. Bus.
& Prof. Code § 12606(b).
to the complaint, Iovate intentionally packages its products
in opaque containers comprised of more than 40% empty space
to mislead consumers. (Compl. ¶ 1.) If Plaintiffs had
known about the slack-fill at the time of purchase, they
would not have bought the products. (Id. ¶ 6.)
Plaintiffs claim there is no functional reason for the
slack-fill contained in Iovate's products. (Id.
¶ 28.) They contend the empty space is nonfunctional
slack-fill in violation of both C.F.R. §100.100 and Cal.
Bus. & Prof. Code §12606.
assert five causes of action: (1) violation of
California's False Advertising Law (“FAL”),
Cal. Bus. & Prof. Code § 17500 et seq.; (2)
violation of the California Consumers Legal Remedies Act
(“CLRA”), Cal. Civ. Code § 1750 et seq.; (3)
violation of California's Unfair Competition Law
(“UCL”), Cal. Bus. & Prof. Code § 17200
et seq.; (4) violation of New York Deceptive Trade Practices
Act (“DTPA”), New York Gen. Bus. Law § 349;
and (5) negligent misrepresentation. The Court has
jurisdiction pursuant to 28 U.S.C. § 1332(a). Defendant
filed a motion to dismiss pursuant to Federal Rule of Civil
motion under Rule 12(b)(6) tests the sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). Dismissal is warranted where the complaint lacks
a cognizable legal theory. Shroyer v. New Cingular
Wireless Serv., Inc., 622 F.3d 1035, 1041 (9th Cir.
2010) (internal quotation marks and citation omitted).
Alternatively, a complaint may be dismissed where it presents
a cognizable legal theory, yet fails to plead essential facts
under that theory. Robertson v. Dean Witter Reynolds,
Inc., 749 F.2d 530, 534 (9th Cir. 1984).
reviewing a Rule 12(b)(6) motion, the Court must assume the
truth of all factual allegations and construe them most
favorably to the nonmoving party. Huynh v. Chase
Manhattan Bank, 465 F.3d 992, 997, 999 n.3 (9th Cir.
2006). Even if doubtful in fact, factual allegations are
assumed to be true. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). “A well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote
and unlikely.” Id. at 556 (internal quotation
marks and citation omitted). On the other hand, legal
conclusions need not be taken as true merely because they are
couched as factual allegations. Id. at 55; see
also Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
the Court does not “require heightened fact pleading of
specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570. Nevertheless, a plaintiff's obligation to
provide the ‘grounds' of his ‘entitlement to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. at 555 (quoting Papasan
v. Allain, 478 U.S. 265, 286 (1986)). Instead, the
allegations “must be enough to raise a right to relief
above the speculative level.” Id. Thus,
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570).
whether a complaint states a plausible claim for relief will
… be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. at 678. “The plausibility
standard is not akin to a ‘probability requirement,
' but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556).
support of dismissal, Defendant initially argues Plaintiffs
failed to sufficiently allege that the slack-fill contained
in the packaging is nonfunctional, and that the Court cannot
reasonably infer that Defendant systematically and
intentionally packaged its products with nonfunctional
slack-fill. The Court disagrees. Plaintiffs sufficiently
alleged there is no functional reason for including more than
40% slack-fill in the protein product packages.
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