United States District Court, C.D. California
ORDER GRANTING MOTION TO DISMISS CASE 
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
Trader Joe's Company and Trader Joe's East Inc.
(collectively, “Trader Joe's”) move to
dismiss Plaintiffs' First Amended Complaint on several
bases. (ECF No. 40.) For the reasons discussed below, the
Court GRANTS Defendants' Motion.
Sarah Magier resides in New York and purchased Trader
Joe's tuna in New York City through 2013. (First Am. Compl.
(“FAC”) ¶ 9, ECF No. 38.) Magier purchased
the tuna after reading the can's label, which she alleges
represented that the can contained an adequate amount of tuna
for a five ounce can. (Id.) Magier contends that the
label's representations substantially influenced her
decision to purchase the tuna. (Id.) Further, Magier
claims that she would not have purchased the tuna if she knew
the cans were underweight and/or underfilled. (Id.)
Atzimba Reyes resides in California, and she purchased Trader
Joe's tuna in Davis, California, through
2014. (Id. ¶ 10.) Similarly to
Magier, Reyes also contends that the alleged representations
on the can's label substantially influenced her to
purchase the product. (Id.) In addition, Reyes
claims that she would not have purchased the Trader Joe's
tuna if she knew the cans were substantially underfilled
and/or underweight. (Id.)
determined that the Trader Joe's tuna cans were
underfilled and underweight by commissioning testing with the
U.S. National Oceanic and Atmospheric Administration
(“NOAA”) on December 1, 2015. (See Id.
¶¶ 2-7.) NOAA tested several varieties of Trader
Joe's tuna according to the FDA's standards for
canned tuna, pursuant to 21 C.F.R. § 161.190. This
statute determines the standard fill of tuna within a
container based on its pressed cake weight. See 21
C.F.R. § 161.190(c). The NOAA tests based on this method
determined that several varieties of Trader Joe's tuna
fell 19.2%, 24.8%, 24.8%, 11.1%, 9.9%, and 13.9% below the
minimum standard of fill for pressed cake tuna. (See
FAC ¶¶ 2-7.) Accordingly, Plaintiffs bring the
following claims: breach of express warranty, breach of
implied warranty of merchantability, unjust enrichment,
negligent misrepresentation, and fraud. (See generally
id.) In addition, Plaintiff Magier brings claims on
behalf of herself and the New York subclass for violation of
New York General Business Law §§ 349, 350.
(Id. ¶ 8.) Plaintiff Reyes also brings claims
on behalf of herself and the California subclass for
violation of California's Consumer Legal Remedies Act
(“CLRA”), Unfair Competition Law
(“UCL”), and False Advertising Law
Joe's now moves to dismiss Plaintiffs' complaint. It
argues that it did not make any false or misleading
representations and that Plaintiffs were not injured because
they received what they thought they were purchasing-cans of
tuna weighing five ounces. (Mot. 1.) Trader Joe's
contends that because the crux of Plaintiffs' complaint
rests on failing to meet the pressed cake weight standard,
there is no false representation since the pressed cake
weight is not represented anywhere on the tuna can labels.
(Id.) Trader Joe's tuna can labels only specify
the drained weight and net weight. (Id.) Moreover,
Trader Joe's notes that the drained and net weights on
its tuna can labels were accurate (and the amount of tuna
sometimes exceeded these numbers). (Id.
(“Indeed, the very testing relied on by Plaintiffs
demonstrates that, on average, the tested products contain
tuna in excess of the ‘net weight' and
‘drained weight' represented on the
labels.”); see also Trader Joe's Canned
Tuna Labels, Ex. 11, ECF No. 40-6; Results of Unofficial NOAA
Tests in Dec. 2015, Ex. 12, ECF No. 40-6.) Trader Joe's
further argues that the pressed weight standard in 21 C.F.R.
§ 161.190-promulgated in 1957-is outdated and actively
being considered for revision by the FDA, as evidenced by:
(1) the FDA's stated intent to rule on a Citizens'
Petition to amend the standard of fill to a tuna can's
drained weight; and (2) the FDA's issuance and extension
of a temporary marketing permit (“TMP”) to major
tuna processors to market tuna under the drained weight
standard. (Mot. 4-5; see also Trader Joe's Req.
to Participate in TMP for Canned Tuna (TJ's Req.”),
Ex. 10, ECF No. 40-6.) Trader Joe's criticizes the
continued use of the pressed cake weight standard under 21
C.F.R. § 161.190, stating that it was designed for
three-piece tuna cans of the past, can only be measured by
properly trained individuals, and is only still applied in
the United States, while the drained-weight standard is
accepted internationally. (Mot. at 4-5.) The major tuna
processors' TMP was issued and extended indefinitely,
while Trader Joes' application for a TMP is still pending
before the FDA. (TJ's Req.; Temporary Permit for Market
Testing, Ex. 14, ECF No. 40-6.)
motion to dismiss under either Rule 12(c) or 12(b)(6) is
proper where the plaintiff fails to allege a cognizable legal
theory or where there is an absence of sufficient facts
alleged under a cognizable legal theory. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also
Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d
1035, 1041 (9th Cir. 2010). That is, the complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted).
of fraud require a heightened particularity in pleading.
See Fed. R. Civ. P. 9(b). Federal Rule of Civil
Procedure 9(b) establishes that an allegation of “fraud
or mistake must state with particularity the circumstances
constituting fraud.” The “circumstances”
required by Rule 9(b) are the “who, what, when, when,
where, and how” of the fraudulent activity.
Cafasso, ex rel. U.S. v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). In addition,
the allegation “must set forth what is false or
misleading about a statement, and why it is false.”
Id. This heightened pleading standard ensures that
“allegations of fraud are specific enough to give
defendants notice of the particular misconduct which is
alleged to constitute the fraud charged so that they can
defend against the charge and not just deny that they have
done anything wrong.” Semegen v. Weidner, 780
F.2d 727, 731 (9th Cir. 1985).
a court should freely give leave to amend a complaint that
has been dismissed, even if not requested by the party.
See Fed. R. Civ. P. 15(a); Lopez v. Smith,
203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). However, a
court may deny leave to amend when it “determines that
the allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiency.”
Schreiber Distrib. Co. v. Serv-Well Furniture Co.,
806 F.2d 1393, 1401 (9th Cir. 1986).
Joe's moves to dismiss Plaintiffs' FAC on several
different grounds: (1) Implied Preemption; (2) Conflict
Preemption; (3) the Doctrine of Primary Jurisdiction; and (4)
a failure to state a viable claim. (See generally
Mot.) Because the Court finds that Plaintiffs' claims are
impliedly preempted, it focuses its ...