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In re Trader Joe's Tuna Litigation

United States District Court, C.D. California

June 2, 2017

In re Trader Joe's Tuna Litigation

          ORDER GRANTING MOTION TO DISMISS CASE [40]

          OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Defendants 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.

         II. FACTUAL BACKGROUND

         Plaintiff Sarah Magier resides in New York and purchased Trader Joe's tuna in New York City through 2013.[1] (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.)

         Plaintiff Atzimba Reyes resides in California, and she purchased Trader Joe's tuna in Davis, California, through 2014.[2] (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.)

         Plaintiffs 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 (“FAL”). (Id.)

         Trader 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[3] 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.)

         III. LEGAL STANDARD

         A 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).

         Accusations 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).

         Generally, 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).

         IV. DISCUSSION

         Trader 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 ...


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