Pels v. Keurig Dr. Pepper, Inc.

          ORDER RE: DEFENDANT'S MOTION TO DISMISS RE: DKT. NO. 24

          SUSAN ILLSTON UNITED STATES DISTRICT JUDGE

         On 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.

         BACKGROUND

         Defendant Keurig owns a variety of beverage families, including Peñafiel water, which is advertised and labeled as “mineral spring water, ” the product at issue in this case.

         On June 25, 2019 plaintiff John Pels filed an amended^[1] class-action complaint^[2] 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.

         On June 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.

         LEGAL STANDARD

         I. Rule 12(b)(1)

         Federal 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.”).

         When 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 omitted).

         II. Rule 12(b)(6)

         A 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 Cir. 1987).

         DISCUSSION

         Defendant 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 ...