United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND,
DENYING REQUEST TO STAY, AND DENYING AS MOOT REQUEST TO
STRIKE RE: DKT. NOS. 21, 22, 29
H. KOH, UNITED STATES DISTRICT JUDGE
the Court is Defendant Panera LLC's motion to dismiss, or
in the alternative, to stay the instant case or strike
portions of Plaintiff's complaint. ECF No. 21. Having
considered the submissions of the parties, the relevant law,
and the record in this case, the Court GRANTS Defendant's
motion to dismiss with leave to amend, DENIES Defendant's
request to stay the instant case, and DENIES as moot
Defendant's request to strike portions of Plaintiff's
Brianna Tabler is a citizen of Santa Clara County,
California. ECF No. 1 (“Compl.”) ¶ 64.
Defendant Panera LLC is a limited liability company that was
formed under the laws of England and that maintains a
domestic headquarters in New York City. Id. ¶
67. Defendant manufactures, markets, and distributes
“bread products, ” such as Defendant's Whole
Grain Bagel (the “Products”), in retail outlets
in California. Id. ¶¶ 5, 67, 68.
alleges that Defendant falsely and deceptively labels and
markets the Products as “clean” or “100%
clean.” Id. ¶ 10. According to Plaintiff,
the claim that the Products are “clean” features
prominently in Defendant's advertising and marketing
materials. Id. ¶ 15. Plaintiff asserts that
this claim is “ubiquitous at the point of sale of the
Products-on bags, signs, and labels throughout Panera's
physical locations.” Id. For example,
Plaintiff indicates that signs and placards at
Defendant's retail outlets display statements such as,
“Food should be clean. No artificial colors,
preservatives, sweeteners, flavors, or anything else you
wouldn't want to serve your family.” Id.
¶ 16. Plaintiff provides several images of
advertisements that Plaintiff deems
Plaintiff asserts that Defendant's bags display
statements such as, "100% clean food," encircled by
the statement, "No artificial flavors, sweeteners,
preservatives / No colors from artificial sources."
Id. ¶ 17. Once again, Plaintiff includes an
image of an advertisement on a bag that Plaintiff deems
to Plaintiff, Defendant also "uses a number of other
representations to portray an image of 'clean,'
chemical-free food, such as the earthy green and brown color
schemes throughout its stores, webpages, and on its
logo." Id. ¶ 18.
these statements, Plaintiff alleges that the Products contain
the residue of glyphosate, a synthetic biocide. Id.
¶ 21. Glyphosate is an artificial chemical derived from
the amino acid glycine. Id. ¶¶ 23, 25.
Glyphosate was invented by the agrochemical and agricultural
biotechnology corporation Monsanto, which marketed the
biocide under the trade name "Roundup."
Id. ¶ 22.
to Plaintiff, the fact that the Products contain glyphosate
residue renders Defendant's statements that the Products
are “clean” or “100% clean”
misrepresentations. Id. ¶ 28. Indeed, Plaintiff
asserts that Defendant's statements indicate to
reasonable consumers that the Products “do not contain
residue of non-food items such as synthetic chemicals used
during the ingredients' growing, harvest, or
processing.” Id. ¶ 19. Plaintiff claims
that Defendant does not disclose that glyphosate residue is
present in the Products on Defendant's website,
packaging, signage, or in a biannual “Responsibility
Report” that Defendant disseminates to provide
information about the Products. Id. ¶¶ 29,
alleges that Defendant is aware that the Products contain
glyphosate residue and that Defendant is also aware of the
source of the glyphosate residue in the production process.
Id. ¶¶ 39, 40. Plaintiff asserts that
Defendant purposefully fails to disclose this information in
order to charge a premium from consumers, and in order to
ensure that consumers do not cease purchasing the Products
and switch to one of Defendant's competitors.
Id. ¶¶ 46, 47.
purchased Defendant's Whole Grain Bagel, as well as other
unspecified Products, at unspecified times from three
different retail outlets located in California. Id.
¶ 65. Plaintiff alleges that in deciding to make these
purchases, Plaintiff “saw, relied upon, and reasonably
believed” Defendant's “representations that
the Products were ‘100% clean' or
‘clean.'” Id. ¶ 66.
March 29, 2019, Plaintiff filed the instant putative class
action complaint against Defendant and two related entities.
Id. ¶ 1. The complaint alleges causes of action
under: (1) California's Consumers Legal Remedies Act
(“CLRA”), Cal. Civ. Code §§ 1750-1785;
(2) California's False Advertisement Law
(“FAL”), Cal. Bus. & Prof. Code § 17500
et seq.; and (3) California's Unfair Competition
Law (“UCL”), Cal. Bus. & Prof. Code
§§ 17200-17210. Id. ¶¶ 82-112.
On May 15, 2019, Plaintiff filed a notice of voluntary
dismissal of the two related entities. ECF No. 5. Thus,
Defendant is the only remaining defendant in the instant
10, 2019, Defendant filed the instant motion to dismiss, or
in the alternative, to stay the instant case or strike
portions of Plaintiff's complaint. ECF No. 21
(“Mot.”). On August 12, 2019, Plaintiff filed an
opposition, ECF No. 23 (“Opp.”), and on September
9, 2019, Defendant filed a reply, ECF No. 28
10, 2019, Defendant filed a request for judicial notice in
support of Defendant's motion to dismiss, or in the
alternative, to stay Plaintiff's complaint or strike
portions thereof. ECF No. 22. On September 9, 2019, Defendant
filed a second request for judicial notice in support of
Defendant's reply. ECF No. 29. On September 17, 2019,
Plaintiff opposed Defendant's two requests for judicial
notice. ECF No. 30. Finally, on October 18, 2019, Plaintiff
filed a statement of recent decision. ECF No. 33.
Motion to Dismiss Under Federal Rule of Civil Procedure
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” A complaint that fails to meet this standard
may be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6). The U.S. Supreme Court has held that Rule 8(a)
requires a plaintiff to plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “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. (internal quotation
marks omitted). For purposes of ruling on a Rule 12(b)(6)
motion, the Court “accept[s] factual allegations in the
complaint as true and construe[s] the pleadings in the light
most favorable to the nonmoving party.” Manzarek v.
St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008).
Court, however, need not “assume the truth of legal
conclusions merely because they are cast in the form of
factual allegations.” Fayer v. Vaughn, 649
F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (internal
quotation marks omitted). Mere “conclusory allegations
of law and unwarranted inferences are insufficient to defeat
a motion to dismiss.” Adams v. Johnson, 355
F.3d 1179, 1183 (9th Cir. 2004).
Motion to Dismiss Under Federal Rule of Civil Procedure
sounding in fraud are subject to the heightened pleading
requirements of Federal Rule of Civil Procedure 9(b).
Bly-Magee v. California, 236 F.3d 1014, 1018 (9th
Cir. 2001). Under the federal rules, a plaintiff alleging
fraud “must state with particularity the circumstances
constituting fraud.” Fed.R.Civ.P. 9(b). To satisfy this
standard, the allegations 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.” Semegen v. Weidner, 780
F.2d 727, 731 (9th Cir. 1985). Thus, claims sounding in fraud
must allege “an account of the time, place, and
specific content of the false representations as well as the
identities of the parties to the misrepresentations.”
Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.
2007). In other words, “[a]verments of fraud must be
accompanied by ‘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) (citation omitted). The plaintiff must also plead facts
explaining why the statement was false when it was made.
See In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541,
1549 (9th Cir. 1994) (en banc), superseded by statute on
other grounds as stated in Marksman Partners, L.P. v. Chantal
Pharm. Corp., 927 F.Supp. 1297 (C.D. Cal. 1996).
an entire complaint . . . is grounded in fraud and its
allegations fail to satisfy the heightened pleading
requirements of Rule 9(b), a district court may dismiss the
complaint . . . .” Vess, 317 F.3d at 1107. A
motion to dismiss a complaint “under Rule 9(b) for
failure to plead with particularity is the functional
equivalent of a motion to dismiss under Rule 12(b)(6) for
failure to state a claim.” Id.
Leave to Amend
Court determines that a complaint should be dismissed, the
Court must then decide whether to grant leave to amend. Under
Rule 15(a) of the Federal Rules of Civil Procedure, leave to
amend “shall be freely given when justice so requires,
” bearing in mind “the underlying purpose of Rule
15 to facilitate decisions on the merits, rather than on the
pleadings or technicalities.” Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations
and internal quotation marks omitted). When dismissing a
complaint for failure to state a claim, “a district
court 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.” Id. at 1130 (internal quotation marks
omitted). Accordingly, leave to amend generally shall be
denied only if allowing amendment would unduly prejudice the
opposing party, cause undue delay, or be futile, or if the
moving party has acted in bad faith. Leadsinger, Inc. v.
BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).
Defendant's motion to dismiss, or in the alternative, to
stay the instant case or strike portions of Plaintiff's
complaint, Defendant asserts that dismissal of
Plaintiff's complaint is appropriate for four independent
reasons: (1) no reasonable consumer would understand
Defendant's alleged statements to mean that the Products
are free of glyphosate residue; (2) the complaint does not
plead reliance with sufficient specificity to meet the
heightened pleading standard of Federal Rule of Civil
Procedure 9(b); (3) Plaintiff's claims are preempted by
the Federal Food, Drug, and Cosmetic Act (“FDCA”)
as amended by the Nutrition Labeling and Education Act
(“NLEA”), 21 U.S.C. §§ 343-1(a)(2),
(5); and (4) Plaintiff's claims interfere with the
primary jurisdiction of the Food and Drug Administration
(“FDA”) and the Environmental Protection Agency
(“EPA”), the two federal agencies tasked with
determining the safety of glyphosate for human consumption.
Mot. at 9-22.
also argues that, under the doctrine of primary jurisdiction,
the Court should stay the instant case pending an upcoming
decision by the EPA concerning the safety of glyphosate for
human consumption. Id. at 21. Finally, “in the
alternative” to dismissal, Defendant requests that the
Court strike Plaintiff's request for injunctive relief,
Plaintiff's individual and class allegations to the
extent the allegations concern Products that Plaintiff did
not purchase, and ...