Lima v. Post Consumer Brands, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ANITA S. LIMA and SUSAN *

WRUBLEWSKI, individually and on behalf of *

others similarly situated, *

*

Plaintiffs, *

* Civil Action No. 1:18-cv-12100-ADB

v. *

*

POST CONSUMER BRANDS, LLC, *

*

Defendant. *

MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION FOR RECONSIDERATION

BURROUGHS, D.J.

Anita S. Lima and Susan Wrublewski (“Plaintiffs”) brought a putative class action

against Defendant Post Consumer Brands, LLC (“Post”), alleging that Post’s advertising and

packaging of its Honey Bunches of Oats cereal was deceptive. [ECF No. 25 (“Amended

Complaint” or “Am. Compl.”) ¶¶ 20–39, 57–103]. Plaintiffs claimed that Post violated state

consumer protection laws and unjustly enriched itself by creating the false impression that

Honey Bunches of Oats was primarily sweetened with honey. [Id.]. The Court dismissed the

Amended Complaint for failure to state a claim. [ECF No. 45]. Presently before the Court is

Plaintiffs’ motion for reconsideration. [ECF No. 47]. For the reasons discussed herein, the

motion for reconsideration is DENIED.

I. BACKGROUND

A. Factual Background

The following short recitation of facts is drawn from the Amended Complaint. [ECF No.

25]. A more complete version of the facts is provided in the Court’s August 13, 2019, Order

(“Order”). See Lima v. Post Consumer Brands, LLC, No. 18-cv-12100, 2019 WL 3802885, at

*1–4 (D. Mass. Aug. 13, 2019); [ECF No. 45]. Post manufactures and sells several different

varieties of cereal under the registered trademark “Honey Bunches of Oats.” U.S. Patent &

Trademark Office, Honey Bunches of Oats, Registration No. 1575358,

http://tmsearch.uspto.gov/. Plaintiffs alleged that they purchased Honey Bunches of Oats with

Almonds under the mistaken belief that honey was the cereal’s exclusive or primary sweetener.

[Am. Compl. ¶¶ 40–45]. Plaintiffs did not look at the ingredient list, which disclosed that honey

is the cereal’s fifth most prominent sweetener, and instead relied on “several television

commercials” and Post’s “branding and packaging” that “emphasized the presence of honey.”

[Id. ¶¶ 28, 42, 44]. Plaintiffs claimed that Post’s packaging and marketing led them to expect

that honey was a much more prominent ingredient. [Id. ¶¶ 41, 44].

B. Procedural Background

On October 5, 2018, Plaintiffs filed this lawsuit. [ECF No. 1]. They amended their

complaint on February 8, 2019. [Am. Compl.]. The Amended Complaint sought relief on behalf

of five putative classes of consumers who had purchased some variety of Honey Bunches of

Oats. [Id. ¶¶ 46–50]. Plaintiffs asserted seven counts, including violations of state consumer

protection laws and unjust enrichment. [Id. ¶¶ 57–103].

On February 22, 2019, Post filed a motion to dismiss. [ECF No. 29]. Plaintiffs timely

opposed on April 5, 2019. [ECF No. 35]. Post replied on April 17, 2019. [ECF No. 39].

Plaintiffs filed a sur-reply on May 3, 2019. [ECF No. 42]. This Court granted the motion to

dismiss on August 13, 2019. [ECF No. 45].

Plaintiffs filed their motion for reconsideration on September 9, 2019. [ECF No. 47].

Post responded on September 23, 2019. [ECF No. 49].

II. DISCUSSION

A. Legal Standard

Because “[t]he Federal Rules of Civil Procedure do not specifically provide for the filing

of motions for reconsideration,” such motions are usually decided pursuant to either Federal Rule

of Civil Procedure 59(e) or Federal Rule of Civil Procedure 60(b). See Cent. Produce El Jibarito

v. Luna Commercial Corp., 880 F. Supp. 2d 282, 284 (D.P.R. 2012) (citation omitted). In the

First Circuit, “a motion which ask[s] the court to modify its earlier disposition of a case because

of an allegedly erroneous legal result is brought under Fed. R. Civ. P. 59(e).” Appeal of Sun

Pipe Line Co., 831 F.2d 22, 24 (1st Cir. 1987). Though Plaintiffs do not identify the basis for

their motion for reconsideration, they claim that the Court “committed manifest errors of law.”

[ECF No. 47 at 2, 6]. The Court therefore understands the motion as being brought under Rule

59(e).

Granting a motion for reconsideration under Rule 59(e) “is an extraordinary remedy

which should be used sparingly.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006)

(quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 1995)).

“A court . . . may grant a motion for reconsideration where the movant shows a manifest error of

law or newly discovered evidence.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81–82 (1st

Cir. 2008) (quotation marks omitted). “[S]imple disagreement with the court’s decision is not a

basis for reconsideration.” Ofori v. Ruby Tuesday, Inc., 205 Fed. App’x 851, 852–53 (1st Cir.

2006). “The repetition of previous arguments is not sufficient to prevail on a Rule 59(e)

motion.” United States v. $23,000 in U.S. Currency, 356 F.3d 157, 165 n.9 (1st Cir. 2004).

B. Analysis

Plaintiffs seek reconsideration of the Court’s August 13, 2019, Order granting Post’s

motion to dismiss and claim that the Court committed errors of law in its dismissal of both

Plaintiffs’ consumer protection and unjust enrichment claims. [ECF No. 47]. With regard to

Plaintiffs’ consumer protection claims (Counts I, IV, and VI), Plaintiffs make three arguments.

First, they claim that the Court erred in finding that they failed to “explain why they concluded

that the word honey and the associated imagery necessarily meant that honey was the primary

sweetener, rather than referring to the flavor of the cereal.” [Id. at 2 (quoting ECF No. 45 at

12)]. According to Plaintiffs, because honey is a sweetener, they do not have to plead why they

perceived it as a sweetener rather than a flavor. [Id.]. Second, Plaintiffs claim that, in light of

recent First Circuit precedent, the issue of whether Plaintiffs were reasonable to think that honey

was the predominant sweetener should be left to the jury. [Id. at 3]. Third, Plaintiffs argue that

whether Post’s packaging was ambiguous is a determination of law that should not be made at

the motion to dismiss stage. [Id. at 5].

As to their express warranty claims (Counts II, V, and VII), Plaintiffs claim that the Court

erred in finding that Post’s packaging did not create an express warranty because the Court

allegedly failed to consider that an express warranty can be created through the packaging’s

words and images, including the honey dipper dripping with honey and the bee in flight at issue

in this case. [Id. at 6]. Finally, Plaintiffs ask that the Court reconsider its denial of their request

for leave to amend. [Id. at 7–8].

1. Plaintiffs’ Consumer Protection Claims

Plaintiffs allege that the Court erred in dismissing their claims that Post violated various

consumer protection laws (Counts I, IV, and VI). First, Plaintiffs argue that the Court wrongly

considered whether a reasonable consumer would find that Post’s packaging unambiguously

advertised that its cereal was predominantly sweetened with honey, as that is a factual

determination that should have been left to a jury. [Id. at 3–4]. Plaintiffs raised the same

argument when opposing Post’s motion to dismiss, though without the benefit of recent First

Circuit law. [ECF No. 35 at 19–20].

Plaintiffs predominantly rely on the First Circuit’s decision Dumont v. Reily Foods Co.,

934 F.3d 35 (1st Cir. 2019). The Court previously distinguished Plaintiffs’ claims from Dumont

in its Order. [ECF No. 45 at 12 n.5]. Though the panel in that case found that the question of

whether a label was misleading was best left to a jury, both the majority and dissent

acknowledged that “the boundaries of what may qualify for consideration as a . . . violation is a

question of law.” Dumont, 934 F.3d at 40 (quoting Chervin v. Travelers Ins. Co., 858 N.E.2d

746, 759 (2006)); id. at 44 (Lynch, J., dissenting); see also Baker v. Goldman, Sachs & Co., 771

F.3d 37, 49 (1st Cir. 2014) (“[W]hether a particular set of acts, in their factual setting, is unfair or

deceptive is a question of fact, but whether that conduct rises to the level of a . . . violation is a

question of law.” (internal citations and quotation marks omitted)).

In this case, the Court did not consider the factual matter of whether Plaintiffs were

misled by Post’s packaging and marketing, which is a jury issue. The Court appropriately

considered, however, “whether the complaint’s allegations ma[d]e it plausible that, on a full

factual record, a factfinder could reasonably regard the label as having the capacity to mislead.”

Dumont, 934 F.3d at 40. The Court analyzed whether the packaging could be understood as

misleading both under 21 C.F.R. § 101.22, which provides requirements for identifying food’s

“primary recognizable flavors(s),” and 21 C.F.R. § 101.18, which provides guidance on

misbranding of food, such as when packaging references an ingredient that the food does not

contain. Because Honey Bunches of Oats contains honey, the Court found that, under those

relevant regulations, the packaging was not objectively misleading as a matter of law. [ECF No.

45 at 10–16].

Similarly, Plaintiffs argue that the Court should not have determined whether Post’s

branding and marketing unambiguously conveyed the message that honey was the primary

sweetener, and should have instead relied on “Plaintiffs’ allegation that Post’s labeling conveyed

the unambiguous message that honey was the primary sweetener.” [ECF No. 47 at 5 (emphasis

in original)]. Here, the Court did not consider factual questions, but rather made legal

determinations concerning the sufficiency of Plaintiffs’ pleading. [ECF No. 45 at 10–16].

Whether the Plaintiffs were misled by the allegedly ambiguous packaging is a question of fact.

Whether that packaging was ambiguous is a question of law. Though “whether the label had the

capacity to mislead customers, acting reasonably under the circumstances” is “one of fact,” the

Court must still define the boundaries and determine “the point at which a juror could reasonably

find only one way.” Dumont, 934 F.3d at 40–41. The Court determined that, because Honey

Bunches of Oats does actually contain honey, its use of imaging and branding was permissible

under the regulations discussed above, so long as the packaging did not make any misleading

reference to the amount of honey or use of honey as a sweetener. [ECF No. 45 at 14–16].

Therefore, Plaintiffs would need to demonstrate why a reasonable consumer could be led to

believe that Honey Bunches of Oats not only contained honey, but used honey as the primary

sweetener.

Finally, Plaintiffs argue that, consistent with Dumont, they should not have the burden of

pleading why they concluded that honey was a sweetener, as opposed to a flavor. [ECF No. 47

at 2–3]. Dumont, however, is distinguishable. In that case, the panel considered a claim that it

was misleading to advertise coffee as “hazelnut crème” when the coffee did not contain

hazelnuts and was not properly labeled as being naturally or artificially flavored. Dumont, 934

F.3d at 40–41. The majority found that a reasonable consumer could have been led to believe

that the coffee contained hazelnuts. Id. Therefore, under Dumont, if Honey Bunches of Oats did

not actually contain honey, the Court would be required to find that Post’s packaging and

marketing were misleading.

The majority in Dumont was explicit, however, in explaining that it found “no unfair cost

in recognizing a state-law claim . . . can only be lodged against manufacturers that fail to adhere

to the rules and safe harbors that have been created by the FDA and that help form consumers’

expectations in reading labels.” Id. at 41. In this case, Plaintiffs have not claimed that Post’s

packaging violated FDA regulations. [ECF No. 45 at 12 n.5]. Because honey is a characterizing

flavor and the cereal actually includes honey as an ingredient, it was permissible for Post to use

the images of honey and bees. If the cereal did not contain honey, then Post would be required

to include sufficient cautionary language explaining that it was naturally or artificially flavored.

Because the cereal does contain honey, however, the burden is on Plaintiffs to plead why Post’s

packaging and marketing would lead a consumer to believe that the cereal was not only honey

flavored and contained honey, but also that honey was the primary sweetener. See In re Quaker

Oats Maple & Brown Sugar Instant Oatmeal Litig., No. 16-cv-1442, 2017 WL 4676585, at *5

(C.D. Cal. Oct. 10, 2017) (analyzing the complaint to determine whether plaintiffs had alleged

that “maple & brown sugar” was a flavor or a sweetener). As the Court explained in its Order,

the Plaintiffs have failed to plead why they believed honey was a sweetener and not only a

flavor. Plaintiffs request for reconsideration of its dismissed consumer protection claims is

therefore DENIED.

2. Plaintiffs’ Express Warranty Claims

Plaintiffs next argue that the Court erred in dismissing their express warranty claims

(Counts II, V, and VII) because, through the combination of words and images on the packaging,

“a jury could well find that th[e] branding and labeling promised the specific result that the

cereal was sweetened predominantly with honey . . . .” [ECF No. 47 at 6]. Plaintiffs’ argument

relies on the assumption that the Court’s Order dismissing the claim interpreted the Uniform

Commercial Code as not including reference to images or any description of the goods. [Id. at

6].

The Court’s analysis depended on no such assumption. The Court was explicit in its

analysis of “the use of the Honey Bunches of Oats brand name [and] the imagery on the

packaging” to determine whether Post made an express warranty. [ECF No. 45 at 22]; see also

[id. (noting that “express warranties may be created by an ‘affirmation of fact or promise,’ a

‘description of the goods,’ or a ‘sample or model which is part of the basis of the bargain”) (first

quoting Mass. Gen. Laws ch. 106 § 2-313(1)(b) and then quoting Minn. Stat. § 336.2-

313(1)(b))]. Plaintiffs have failed to demonstrate that the Court’s analysis depended on a

misinterpretation of law. Their motion to reconsider their express warranty claims is therefore

DENIED.

3. Plaintiff’s Request for Leave to Replead

Finally, Plaintiffs ask that the Court give leave to amend. This would be Plaintiffs’

second opportunity to amend, as the Court has already allowed Plaintiffs to amend the complaint

once. [ECF No. 25]; see also [ECF No. 45 at 23 (“Because the complaint has already been

amended once and the Court concludes that further amendment would be futile, the dismissal is

with prejudice.”)].

Following the Court’s Order, Plaintiffs commissioned a survey of roughly 400 consumers

regarding the Court’s decision. [ECF No. 47 at 7]. Plaintiffs included a picture of the packaging

at issue in this case and asked those surveyed what they believed the primary sweetener to be.

Apparently 68% of those surveyed believed that honey was the primary sweetener, while 79.5%

believed that honey was one of the product’s main three ingredients. [Id. at 7–8]. Plaintiffs

request leave to file an amended complaint that would include these survey results. [Id.].

Plaintiffs did not attach the survey for the Court’s review. Likewise, Plaintiffs failed to attach a

copy of the proposed second amended complaint to their motion. See Norris v. Global Tel Link

Corp., No. 16-cv-11323, 2016 WL 4574639, at *5 (D. Mass. Sept. 1, 2016) (citing Upshaw v.

Andrade, No. 10-cv-11517, 2011 WL 3652822, at *2 (D. Mass. Aug. 10, 2011), report and

recommendation adopted by 2011 WL 3654408 (D. Mass. Aug. 17, 2011)) (denying plaintiff’s

motion to amend when plaintiff failed to attach a copy of the proposed amended complaint).

Generally, under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should

freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “If, however, a

motion to amend is filed after the entry of judgment, the district court lacks authority to consider

the motion under rule 15(a) unless and until the judgment is set aside.” Fisher v. Kadant, Inc.,

589 F.3d 505, 508 (1st Cir. 2009) (emphasis in original) (citing Palmer, 465 F.3d at 30); see also

Acevedo-Villalobos v. Hernández, 22 F.3d 384, 389 (1st Cir. 2006) (“Unless postjudgment relief

is granted, the district court lacks power to grant a motion to amend the complaint under Rule

15(a).”). Plaintiffs argue that the motion to amend was not filed after the entry of judgment,

because they requested leave to amend in their opposition to Post’s motion to dismiss. [ECF No.

47 at 7]; see [ECF No. 35].

In Fisher v. Kadant, Inc., 589 F.3d 505 (1st Cir. 2009), the First Circuit considered a

motion to amend that was included in the last line of the plaintiffs’ opposition to motions to

dismiss. 589 F.3d at 507. Specifically, the plaintiffs asked that, “If and to the extent that [the

district court] [found] the Complaint deficient in any respect, Plaintiffs request[ed] leave to

amend to plead additional facts to cure any deficiency.” Id. The First Circuit held that “a

passing request for contingent leave to file an amended complaint, made in an opposition to a

motion to dismiss, is insufficient, in and of itself, to bring a post-judgment motion for

reconsideration within the orbit of Rule 15(a).” Id. at 510.

Like the plaintiffs in Fisher, the issue before the Court is whether the Plaintiffs preserved

their motion to amend by requesting the Court’s leave in the last line of their opposition. In their

opposition, Plaintiffs asked that “if the Court believes any aspect of Post’s motion should be

granted for a reason that has not previously been subject of amendment, Plaintiffs request leave

to amend.” [ECF No. 35 at 32]. Such pleading is clearly insufficient under Fisher. 589 F.3d at

508–09. Because the Court declines to reconsider its dismissal of the complaint, it lacks

authority to consider Plaintiffs’ motion under 15(a). Further, the First Circuit has “explicitly

condemned a ‘wait and see’ approach to pleading, whereby plaintiffs ‘having the needed

information, deliberately wait in the wings . . . with another amendment to a complaint should

the court hold the first amended complaint was insufficient.” Kader v. Sarepta Therapeutics,

Inc., 887 F.3d 48, 61 (1st Cir. 2018) (quoting ACA Fin. Guaranty Corp. v. Advest, Inc., 512 F.3d

46, 57 (1st Cir. 2008)). The Court is therefore without authority to consider a second amended

complaint.

III. CONCLUSION

Accordingly, Plaintiffs’ motion for reconsideration [ECF No. 47] is DENIED.

SO ORDERED.

October 2, 2019 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE