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Becerra v. Dr Pepper/Seven UP, Inc.

United States District Court, N.D. California

March 30, 2018



          William H. Orrick United States District Judge.


         Plaintiff Shana Becerra alleges that she is a consumer of the soft drink product Diet Dr Pepper. She believed that Diet Dr Pepper would assist in weight loss or healthy weight management due to the use of the term “diet” in the name of the product and on its label, but has since learned that studies and articles suggest that artificial sweeteners, including those used in Diet Dr Pepper, may instead cause weight gain. She brings this putative class action on behalf of herself and a California class of similarly-situated consumers for damages and equitable relief, including an injunction to stop defendant Dr Pepper/Seven Up, Inc. (“Dr Pepper”) from marketing its Diet Dr Pepper product as “diet.” While Dr Pepper moves to transfer this action to the United States District Court for the Eastern District of Texas pursuant to 28 U.S.C. § 1404(a), the case belongs here--it has a California plaintiff who was injured in California and chose this venue. Dr Pepper also moves to dismiss plaintiff's Second Amended Complaint (“SAC”) in its entirety, and I agree with its contention that it is not plausible that a reasonable consumer would believe that drinking Diet Dr Pepper would assist in weight loss, beyond the fact that it has no calories. Accordingly, I DENY Dr Pepper's motion to transfer venue but GRANT its motion to dismiss with leave to amend.


         Dr Pepper is a Delaware corporation with its principal place of business in Plano, Texas. SAC ¶ 7. It first introduced Diet Dr Pepper, a soft drink product, in 1962. SAC ¶ 11. It “uses the term ‘diet' to market Diet Dr[] Pepper because the product is sweetened with a non-caloric artificial sweetener, aspartame, rather than sugar.” Id. ¶ 14. Plaintiff alleges that “[a]lthough aspartame does not contain calories, scientific research demonstrates that it, like other nonnutritive sweeteners, is likely to cause weight gain.” Id. ¶ 17. She cites a number of studies and articles discussing aspartame's effects on the body and their findings in her SAC.

         Plaintiff is a resident of Santa Rosa, California who has struggled with obesity since childhood. She has been a regular purchaser of Diet Dr Pepper for over thirteen years. SAC ¶¶ 46-47. She purchased the product believing that its prominent use of the term “diet” on its label and in its advertising indicated “that it would contribute to healthy weight management, and, due to its lack of calories, would not cause her to gain weight.” Id. ¶ 47. She alleges that she would not have purchased the product at the price she paid, or perhaps at all, had defendant not marketed the product as “diet.” Id. ¶ 48.

         Plaintiff brings suit on behalf of herself and a California class alleging false and misleading advertising, in violation of California's False Advertising Law (“FAL”), Consumers Legal Remedies Act (“CLRA”), and Unfair Competition Law (“UCL”), as well as breach of both express and implied warranty.[1] Defendant moves to transfer venue to its home state of Texas and to dismiss the action in its entirety.


         I. Motion to Transfer

         Granting a transfer of venue pursuant to 28 U.S.C. § 1404(a) requires two findings. First, the district court must determine that the transferee court is one “where the action might have been brought.” Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985) (internal quotation marks omitted). Second, as part of completing an “individualized, case-by-case consideration of convenience and fairness, ” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000), the district court must find “that the convenience of parties and witnesses in the interest of justice favor[s] transfer.” Hatch, 758 F.2d at 414 (internal quotation marks omitted). Importantly, the Ninth Circuit has held that a “defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

         As part of its convenience analysis, the court must weigh a variety of “private and public interest factors affecting the convenience of the forum.” Decker Coal, 805 F.2d at 843. Courts in this district consider the following factors: (i) plaintiff's choice of forum; (ii) convenience of the parties; (iii) convenience of the witnesses; (iv) ease of access to the evidence; (v) familiarity of each forum with the applicable law; (vi) feasibility of consolidation with other claims; (vii) any local interest in the controversy; and (vii) the relative court congestion and time to trial in each forum. See, e.g., Lax v. Toyota Motor Corp., 65 F.Supp.3d 772, 776 (N.D. Cal. 2014); Barnes & Noble, Inc. v. LSI Corp., 823 F.Supp.2d 980, 993 (N.D. Cal. 2011); Vu v. Ortho-McNeil Pharm., Inc., 602 F.Supp.2d 1151, 1156 (N.D. Cal. 2009).

         II. Motion to Dismiss

         Under Federal Rule of Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics, ” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

         In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

         Claims sounding in fraud or mistake are subject to the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires that such claims “state with particularity the circumstances constituting fraud or mistake, ” Fed.R.Civ.P. 9(b), including “the who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks and citation omitted). “The plaintiff must set forth what is false or misleading about a statement, and why it is false.” Id. The allegations of fraud “must be 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.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007).

         If the court dismisses a complaint, it “should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making this determination, the court should consider factors such as “the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the ...

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