United States District Court, N.D. California
ORDER RE: DEFENDANT'S MOTION TO DISMISS RE: DKT.
ILLSTON UNITED STATES DISTRICT JUDGE
October 17, 2019, the Court heard argument on the motion by
defendant Keurig Dr. Pepper, Inc. (“Keurig”) to
dismiss this action with prejudice. Based on the papers
submitted and arguments made, the Court hereby GRANTS the
motion to dismiss, with leave to amend.
Keurig owns a variety of beverage families, including
Peñafiel water, which is advertised and labeled as
“mineral spring water, ” the product at issue in
25, 2019 plaintiff John Pels filed an amended class-action
complaint seeking to represent “all United
States consumers who purchased any Peñafiel beverage
that exceeded permitted arsenic levels within the applicable
statute(s) of limitations.” Dkt. No. 11 ¶ 29. The
complaint defines “permitted arsenic levels” as
no more than 10 ppb (the current FDA standard for bottled
water). Id. ¶ 19. Plaintiff alleges
Peñafiel water has contained more than 10 ppb arsenic
since at least 2009, when New Jersey regulators found arsenic
levels exceeding FDA limits in Peñafiel water. Dkt.
No. 11 ¶¶ 3, 21. In addition, the FDA issued import
alerts for Peñafiel water in 2015 and again in 2018
because of improper arsenic levels. Id. ¶ 22.
The complaint also highlights an April 2019
ConsumerReports.com article in which sampled Peñafiel
water contained 17 ppb arsenic. Id.
21, 2019, Keurig issued a press release announcing the
withdrawal of Peñafiel water “due to violative
levels of arsenic.” Dk.t No. 11 ¶ 25. Prior to
issuing the statement, Keurig hired an independent laboratory
to test Peñafiel water for arsenic. Id. The
lab concluded Peñafiel water exceeded the FDA standard
of 10 ppb. Id. The June 2019 announcement also
stated Keurig recently installed “enhanced filtration
systems” at the facilities producing Peñafiel
water and the product now meets FDA standards for arsenic.
Id. Keurig also offered all consumers who bought
Peñafiel water a full refund for the Peñafiel
water still in their possession. Id.
Rule of Civil Procedure 12(b)(1) allows a party to challenge
a federal court's jurisdiction over the subject matter of
the complaint. If the plaintiff lacks standing under Article
III of the U.S. Constitution, then the court lacks subject
matter jurisdiction, and the case must be dismissed.
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 101-02 (1998). The party invoking federal
jurisdiction, here the plaintiff, bears the burden of
establishing subject matter jurisdiction. See Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994) (internal citations omitted). A complaint will be
dismissed if, looking at the complaint as a whole, it lacks
federal jurisdiction either “facially” or
“factually.” Thornhill Publ'g Co., Inc.
v. General Tel. & Elecs. Corp., 594 F.2d 730, 733
(9th Cir. 1979); Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004) (“A Rule 12(b)(1)
jurisdictional attack may be facial or factual.”).
the complaint is challenged for lack of subject matter
jurisdiction on its face, all material allegations in the
complaint will be taken as true and construed in the light
most favorable to the plaintiff. NL Indus. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In deciding a
Rule 12(b)(1) motion which mounts a factual attack on
jurisdiction, “no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.
Moreover, the plaintiff will have the burden of proof that
jurisdiction does in fact exist.” Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3d Cir. 1977). “In resolving a Rule 12(b)(1) factual
attack on jurisdiction, the district court may review
evidence beyond the complaint without converting the motion
to dismiss into a motion for summary judgment.” In
re Digimarc Corp. Derivative Litigation, 549 F.3d 1223,
1236 (9th Cir. 2008) (citation and internal brackets
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” Fed. R. Civ. Pro. 8(a)(2), and a complaint that fails
to do so is subject to dismissal pursuant to Rule 12(b)(6).
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). This “facial
plausibility” standard requires the plaintiff to allege
facts that amount to “more than a sheer possibility
that a Defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662 (2009). While courts do not require
“heightened fact pleading of specifics, ” the
plaintiff must allege facts sufficient to “raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 544, 555. “A pleading
that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action
will not do.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Id. In reviewing a Rule 12(b)(6) motion, courts must
accept as true all facts alleged in the complaint, drawing
all reasonable inferences in plaintiff's favor. See
Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th
moves to dismiss the complaint on several grounds, including
(1) that plaintiff lacks Article III standing and (2) that
plaintiff fails to state a claim on which relief can be
granted. The Court finds that the amended complaint does not
sufficiently allege facts to establish standing to bring this