Muller v. Blue Diamond Growers

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

BETH PEACOCK MULLER, )

et al., individually and on behalf of )

all others similarly situated, )

)

Plaintiffs, )

)

v. ) No. 4:22 CV 707 RWS

)

BLUE DIAMOND GROWERS, )

et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Plaintiffs Beth Peacock Muller, Thomas Fellin, and Michael Floyed bring this

putative class action against Defendants Blue Diamond Growers and Does 1 through

10 on behalf of themselves and all others similarly situated, alleging that Defendants

have engaged in deceptive marketing of Blue Diamond’s Smokehouse® almonds.

Blue Diamond moves to dismiss Plaintiffs’ amended complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below,

Blue Diamond’s motion will be granted.

BACKGROUND

Blue Diamond markets and sells a line of almonds that are sold in packages

that have “Smokehouse®” prominently displayed on the front. Plaintiffs claim that

Blue Diamond’s Smokehouse® almonds are deceptively marketed to consumers

because they are not smoked in a smokehouse—they are flavored with artificial

liquid smoke. Plaintiffs claim that this is problematic because smoked almonds are

commonly sold and preferred by consumers. Plaintiffs claim that Blue Diamond is

taking advantage of the consumer preference for smoked almonds by falsely

portraying its Smokehouse® almonds as smoked in a smokehouse.

Blue Diamond’s Smokehouse® almonds are sold in plastic bags and metal

canisters of varying shapes and sizes. Regardless of the manner of packaging, the

packages uniformly state “Smokehouse®” on the front. The packages also provide

a list of ingredients on the back. The list of ingredients includes, among other things,

“natural hickory smoke flavor” and “natural flavors.” According to Plaintiffs, the

packages do not clarify that Blue Diamond’s Smokehouse® almonds are not smoked

in a smokehouse. Plaintiffs claim that even the inclusion of “natural hickory smoke

flavor” in the list of ingredients could be misinterpreted as referring to a smoke

flavor produced through a natural smoking process.

Plaintiffs are citizens and residents of Missouri, and they allege that they

purchased Blue Diamond’s Smokehouse® almonds in Missouri primarily for

personal, family, and household purposes. Plaintiffs claim that they believed that

they were purchasing almonds that were smoked in a smokehouse due to the

packaging of Blue Diamond’s Smokehouse® almonds. Plaintiffs also claim that

they would not have purchased Blue Diamond’s Smokehouse® almonds, or would

not have paid as much for them, if they had known that the almonds were not smoked

in a smokehouse. Plaintiffs bring this putative class action against Blue Diamond

and Does 1 through 10,1 alleging that Defendants have engaged in deceptive

marketing. Plaintiffs claim that they were damaged as a result of Defendants’

deceptive marketing in the amount of the difference between the cost that they paid

for Blue Diamond’s Smokehouse® almonds as represented—that is, almonds that

were smoked in a smokehouse—and the actual value of the almonds.

In their amended complaint, Plaintiffs bring four claims: (Count I) breach of

warranty under Missouri law; (Count II) breach of implied contract under Missouri

law; (Count III) unjust enrichment under Missouri law; and (Count IV) violation of

the Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.010 et seq.,

(MMPA) and other consumer-protection statutes. Plaintiffs seek “[an] award of

compensatory damages, restitution, punitive damages, and attorneys’ fees, and such

further relief as the Court deems just, including injunctive relief.” Blue Diamond

moves to dismiss Plaintiffs’ amended complaint pursuant to Rule 12(b)(6).

LEGAL STANDARD

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal

sufficiency of the complaint. In ruling on such a motion, I must accept all factual

1 Plaintiffs allege that the true names and capacities of Does 1 through 10 are not currently known

but that each of them is legally responsible for the alleged acts in this case.

allegations in the complaint as true and view them in the light most favorable to the

plaintiff. Hager v. Arkansas Dep’t. of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).

I may not, however, “presume the truth of legal conclusions couched as factual

allegations.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need not

provide “detailed factual allegations” but must provide “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible on its face when the plaintiff

pleads sufficient facts to allow me to draw “the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. This requires a complaint to

contain enough factual allegations “to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

DISCUSSION

Blue Diamond moves to dismiss Plaintiffs’ amended complaint in its entirety.

Blue Diamond makes several arguments in support of its motion. I will address Blue

Diamond’s arguments as they apply to Plaintiffs’ claims.

A. Breach of Warranty Under Missouri Law (Count I)

In Count I, Plaintiffs allege that Blue Diamond sold its Smokehouse®

almonds in the regular course of its business; that Blue Diamond “made promises

and representations in an express warranty,” namely, that its Smokehouse® almonds

were smoked in a smokehouse; that Blue Diamond’s express warranty became the

basis of the bargain between it and Plaintiffs; that Blue Diamond breached its express

warranty because its Smokehouse® almonds are not smoked in a smokehouse; and

that they mailed Blue Diamond written notices of its breach of warranty. (Doc. 32

at ¶¶ 60, 91–94, 96, 100). Plaintiffs also allege that Blue Diamond “impliedly”

warranted to them that its Smokehouse® almonds were “accurately labeled in

conformance with the law.” (Id. at ¶ 103).

1. Express Warranty

Blue Diamond argues that Plaintiffs’ breach-of-express-warranty claim

should be dismissed because Plaintiffs have not plausibly alleged a misstatement.

Blue Diamond makes largely the same argument with respect to Plaintiffs’ MMPA

claim. I will address the majority of the points raised by Blue Diamond when

discussing Plaintiffs’ MMPA claim. For purposes of Plaintiffs’ breach-of-express-

warranty claim, I will address only two points. The first point is Blue Diamond’s

contention that Plaintiffs cannot rely on a trade name to show an express warranty.

Plaintiffs do not respond this argument in their memorandum in opposition; in fact,

they do not specifically discuss their breach-of-express-warranty claim at all. The

second point is Blue Diamond’s contention that Plaintiffs abandoned their breach-

of-express-warranty claim by failing to respond to its argument regarding their

reliance on its trade name to show an express warranty.

“Courts in the Eighth Circuit have consistently acknowledged that failure to

respond to arguments raised in a motion to dismiss constitutes an abandonment of

that claim or concession to the opposing arguments.” Little v. United States Dep’t

of Def., No. 4:21-CV-1309-JAR, 2022 WL 1302759, at *3 (E.D. Mo. May 2, 2022);

see also Ursery v. Federal Drug Enforcement Admin., No. 4:12CV1911 HEA, 2014

WL 117627, at *2 (E.D. Mo. Jan. 13, 2014) (collecting cases). Here, Plaintiffs have

not responded to Blue Diamond’s argument regarding their reliance on its trade

name. Nor have Plaintiffs even specifically discussed their breach-of-express-

warranty claim. Plaintiffs have therefore at least arguably abandoned their breach-

of-express-warranty claim.2 However, even if Plaintiffs did not abandon their

breach-of-express-warranty claim, the claim will still be dismissed.

Under Missouri law, express warranties by a seller are created by “[a]ny

affirmation of fact or promise made by the seller to the buyer which relates to the

goods and becomes a part of the basis of the bargain” and “[a]ny description of the

goods which is made part of the basis of the bargain.” Mo. Rev. Stat. § 400.2-

313(1)(a) & (b). To state a claim for breach of express warranty, a plaintiff must

plausibly allege that: (1) the defendant sold her goods; (2) the defendant made a

statement of fact about the kind or quality of those goods; (3) the statement of fact

2 Although Plaintiffs did not specifically discuss their breach-of-express-warranty claim, they did

respond to the majority of the points raised by Blue Diamond in discussing their MMPA claim.

was a material factor inducing her to purchase the goods; (4) the goods did not

conform to the statement of fact; (5) the nonconformity injured her; and (6) she

notified the defendant of the nonconformity in a timely manner. Renaissance

Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 122 (Mo. banc 2010).

Although there does not appear to be any binding legal authority on the issue,

some courts have held that a registered trade name, without more, does not create an

express warranty. See Lisowski v. Henry Thayer Co., Inc., 501 F.Supp.3d 316, 329

(W.D. Pa. 2020) (“The minimal case law, addressing the issue of whether a

trademark can create an express warranty, uniformly holds that a trademark cannot

create an express warranty.”); Boyd v. TTI Floorcare N. Am., 230 F.Supp.3d 1266,

1279 (N.D. Ala. 2011) (“[T]he court cannot find any law supporting [plaintiffs’]

contention that a registered trade name, without more, creates an express warranty

as to what the product will do.”). As one court observed, “a product’s trademarked

name is more akin to sales talk and puffery, which are not actionable bases for an

express warranty claim, than to a description of a product, a promise, or an

affirmation of fact.” Boyd, 230 F.Supp.3d at 1278.

I find this reasoning persuasive and find that the Smokehouse® trade name,

without more, does not create an express warranty under Missouri law. The

Smokehouse® trade name is not a “statement of fact” about the kind or quality of

the almonds, and it is not otherwise a “promise” or a “description of” the almonds.

Because Plaintiffs’ breach-of-express-warranty claim is based on the Smokehouse®

trade name, the claim fails. Blue Diamond’s motion will therefore be granted as to

Plaintiffs’ breach-of-express-warranty claim in Count I.

2. Implied Warranty

To the extent Plaintiffs bring a breach-of-implied-warranty claim, Blue

Diamond assumes for purposes of its motion that the claim is based on the implied

warranty of merchantability, and it argues that the claim should be dismissed

because Plaintiffs do not allege that its Smokehouse® almonds were unfit for human

consumption. Blue Diamond also argues that any breach-of-implied-warranty claim

should be dismissed because Plaintiffs have not given fair notice of what their claim

is and the grounds upon which it rests.

Plaintiffs do not directly respond to Blue Diamond’s argument regarding their

breach-of-implied-warranty claim. Instead, Plaintiffs confusingly respond to Blue

Diamond’s arguments regarding their unjust-enrichment claim, their breach-of-

implied-contract claim, and their breach-of-implied-warranty claim simultaneously.

Plaintiffs do not identify the implied warranty that Blue Diamond allegedly

breached, and they do not cite any legal authority to show that they have adequately

pleaded a breach of implied warranty. Plaintiffs simply state: “[T]he implied

warranty/contract claims are based upon the ‘implied duty of good faith and fair

dealing,’ inherent in any contractual undertaking (the purchase of the [p]roduct),

whether or not it is memorialized in writing. … By representing that the almonds

were smokehouse almonds when they are in fact flavored with artificial liquid

smoke, [Blue Diamond] has – in the alternative to breaching express warranties –

also breached that implied duty of good faith and fair dealing.”

To the extent Plaintiffs bring a breach-of-implied-warranty claim based on the

implied duty of good faith and fair dealing, the claim will be construed as a breach-

of-implied-contract claim, and it will be dismissed for the reasons discussed with

respect to Count II. To the extent Plaintiffs bring a breach-of-implied-warranty

claim in Count I, such a claim is not adequately pleaded because Plaintiffs have not

given Blue Diamond fair notice of what the claim is and the grounds upon which it

rests. See Twombly, 550 U.S. at 555 (internal quotation marks omitted) (stating

Rule 8 requires “a short and plain statement of the claim showing that the pleader is

entitled to relief, in order to give the defendant fair notice of what the claim is and

the grounds upon which it rests”). Indeed, it is unclear from Plaintiffs’ amended

complaint that a breach-of-implied-warranty claim is even being raised, and

Plaintiffs have provided very little (if any) explanation in support of such a claim.

See Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (internal quotation

marks omitted) (“A district court … is not required to divine the litigant’s intent and

create claims that are not clearly raised.”). As a result, Blue Diamond’s motion will

also be granted as to Plaintiffs’ breach-of-implied-warranty claim in Count I.

B. Breach of Implied Contract Under Missouri Law (Count II)

In Count II, Plaintiffs allege that an implied contract for the sale of Blue

Diamond’s Smokehouse® almonds existed between them and Blue Diamond. (Doc.

32 at ¶ 107). Plaintiffs also allege that an implied duty of good faith and fair dealing

existed in each such implied contract. (Id. at ¶ 108). According to Plaintiffs, Blue

Diamond violated its implied duty of good faith and fair dealing and, as a result,

breached the implied contract between the parties. (Id. at ¶ 109).

Blue Diamond argues that Plaintiffs’ breach-of-implied-contract claim should

be dismissed because a claim based on the implied duty of good faith and fair dealing

requires the existence of a contract, and no contract existed between the parties. Blue

Diamond argues that no contract existed because, under Missouri law, an implied

contract is not a contract but an obligation to do justice.

Plaintiffs do not provide a substantive response to Blue Diamond’s argument

regarding their breach-of-implied-contract claim. As noted above, Plaintiffs simply

state: “[T]he implied warranty/contract claims are based upon the ‘implied duty of

good faith and fair dealing,’ inherent in any contractual undertaking (the purchase

of the [p]roduct), whether or not it is memorialized in writing. … By representing

that the almonds were smokehouse almonds when they are in fact flavored with

artificial liquid smoke, [Blue Diamond] has – in the alternative to breaching express

warranties – also breached that implied duty of good faith and fair dealing.”

In its reply memorandum, Blue Diamond argues that Plaintiffs abandoned

their breach-of-implied-contract claim by failing to address its argument that a claim

based on the implied duty of good faith and fair dealing requires the existence of a

contract, and no contract existed between the parties.

Having reviewed Plaintiffs’ amended complaint and memorandum in

opposition, I agree with Blue Diamond that Plaintiffs have abandoned their breach-

of-implied-contract claim. Plaintiffs have not provided anything beyond a cursory

assertion that the sale of Blue Diamond’s Smokehouse® almonds created an implied

contract, and they have not provided any citations to legal authority to support their

assertion. Moreover, Plaintiffs have not provided any response to Blue Diamond’s

argument that a claim based on the implied duty of good faith and fair dealing

requires the existence of a contract, and no contract existed between the parties.

Because Plaintiffs have not offered a substantive response to Blue Diamond’s

argument, which is well taken, I find that they have abandoned their breach-of-

implied-contract claim. See Huskey v. Colgate-Palmolive Co., 486 F.Supp.3d 1339,

1349–50 (E.D. Mo. 2020) (dismissing breach-of-implied-contract claim because

plaintiff failed to respond to the same argument raised in this case). Blue Diamond’s

motion will therefore be granted as to Count II.

C. Unjust Enrichment Under Missouri Law (Count III)

In Count III, Plaintiffs allege that they conferred substantial benefits on Blue

Diamond by purchasing its Smokehouse® almonds and that Blue Diamond accepted

and enjoyed those benefits. (Doc. 32 at ¶¶ 112–13). Plaintiffs allege that Blue

Diamond knew or should have known, however, that their payments were rendered

with the expectation that its Smokehouse® almonds would be as represented. (Id.

at ¶ 114). Plaintiffs allege that Blue Diamond wrongfully received profits from their

payments through deliberate misrepresentations or omissions in connection with the

advertising, promotion, and sale of its Smokehouse® almonds. (Id. at ¶ 115).

Plaintiffs allege that it would be inequitable under the circumstances to allow Blue

Diamond to retain the benefits of their payments. (Id. at ¶ 114).

Blue Diamond argues that Plaintiffs’ unjust-enrichment claim should be

dismissed for two reasons. First, Blue Diamond argues that Plaintiffs’ unjust-

enrichment claim should be dismissed because it is based on the same alleged

misconduct as their MMPA claim and, under Missouri law, an unjust-enrichment

claim that is derivative of other claims must be dismissed if the other claims fail.

Second, Blue Diamond argues that Plaintiffs’ unjust-enrichment claim should be

dismissed because Plaintiffs have not adequately alleged that it unjustly retained any

benefit from them because its Smokehouse® almonds were fit for human

consumption and appear to have been consumed without incident.

Plaintiffs argue that they have stated an unjust-enrichment claim because they

have stated a viable MMPA claim and have alleged that Blue Diamond unjustly

retained the amounts that they paid for its Smokehouse® almonds, “minus what

[they] would have paid if they had known the almonds were covered with artificial

liquid smoke.” Plaintiffs argue that the fitness or unfitness of Blue Diamond’s

Smokehouse® almonds for human consumption has little, if anything, to do with

their unjust-enrichment claim because the claim is based on the artificiality of the

almonds’ ingredients and the consequential diminution of the almonds’ real value.

Under Missouri law, “[u]njust enrichment occurs when a person retains [a]

benefit and enjoys the benefit conferred upon him without paying its reasonable

value.” Goldman v. Tapestry, Inc., 501 F.Supp.3d 662, 671 (E.D. Mo. 2020)

(internal quotation marks omitted). To state a claim for unjust enrichment, a plaintiff

must plausibly allege that “(1) a benefit was conferred upon the defendant, (2) at the

expense of the plaintiff, and (3) it would be unjust to allow the defendant to retain

the benefit.” Huskey, 486 F.Supp.3d at 1350.

Plaintiffs’ unjust-enrichment claim fails because they have not plausibly

alleged that it would be unjust to allow Blue Diamond to retain the benefits of their

payments for its Smokehouse® almonds. Plaintiffs essentially allege that it would

be unjust to allow Blue Diamond to retain the benefits of their payments, or at least

the full benefits of their payments, because they were misled into believing that its

Smokehouse® almonds were smoked in a smokehouse. This allegation is based on

the same alleged misconduct as Plaintiffs’ MMPA claim. As discussed below, I find

that Plaintiffs have not stated a MMPA claim because they have not plausibly

alleged a deception. For the same reasons, Plaintiffs have not plausibly alleged that

it would be unjust to allow Blue Diamond to retain the benefits of their payments for

its Smokehouse® almonds. Plaintiffs have therefore failed to state a claim for unjust

enrichment, and Blue Diamond’s motion will be granted as to Count III.

D. Violation of the MMPA (Count IV)

In Count IV, Plaintiffs allege that Blue Diamond’s marketing of its

Smokehouse® almonds constitutes “deception, false pretense, misrepresentation,

unfair practice, or at a minimum, concealment, suppression, or omission of a

material fact” in violation of the MMPA and several other consumer-protection

statutes. (Doc. 32 at ¶ 121). Plaintiffs allege that, as a result of Blue Diamond’s

deceptive marketing, they were misled or deceived into believing that they were

purchasing almonds that used only “natural flavors”—in other words, almonds that

were smoked in a smokehouse. (Id. at ¶ 122).3 Plaintiffs allege further that they

3 While Plaintiffs allege in Count IV that they were misled or deceived into believing that they

were purchasing almonds that used only “natural flavors,” the allegations in their amended

complaint make clear that they are claiming that they were misled or deceived into believing that

they were purchasing almonds that were smoked in a smokehouse. This distinction is important

because almonds that use only natural flavors are not necessarily smoked in a smokehouse, and

almonds that are smoked in a smokehouse do not necessarily use only natural flavors.

suffered an ascertainable loss and that they are entitled to restitution of all funds

improperly obtained by Blue Diamond. (Id. at ¶¶ 123–24).

Blue Diamond argues that Plaintiffs’ MMPA claim should be dismissed

because (1) Plaintiffs lack statutory standing under the MMPA, and (2) Plaintiffs

have not plausibly alleged a deception.

1. Statutory Standing

Blue Diamond argues that Plaintiffs lack statutory standing under the MMPA

because they have not plausibly alleged that they purchased its Smokehouse®

almonds for personal, family, or household purposes. According to Blue Diamond,

the timing of Plaintiffs’ purchases and their retention of counsel indicate that their

purchases were made for litigation. Plaintiffs respond that the MMPA requires only

that the purchases be made “primarily” for personal, family, or household purposes.

Plaintiffs also argue that an inquiry into their intentions in purchasing Blue

Diamond’s Smokehouse® almonds would be inappropriate at this stage because all

factual allegations in their amended complaint must be accepted as true and viewed

in the light most favorable to them.

The MMPA’s private right of action is limited to persons who purchase

merchandise “primarily for personal, family or household purposes.” Mo. Rev. Stat.

§ 407.025.1(1). Here, Plaintiffs allege that they purchased Blue Diamond’s

Smokehouse® almonds “primarily for their personal, family and household use.”

(Doc. 32 at ¶ 80). Though there may be other allegations in Plaintiffs’ amended

complaint that raise doubt as to the truth of this factual allegation, at this stage, the

allegation must be accepted as true and viewed in the light most favorable to

Plaintiffs. See Hager, 735 F.3d at 1013. As a result, Plaintiffs’ MMPA claim will

not be dismissed on the grounds that Plaintiffs lack statutory standing.

2. Deception

Blue Diamond argues that Plaintiffs have not plausibly alleged a deception

because no reasonable consumer seeing “Smokehouse®” on the front of a package

of almonds would believe that the almonds were smoked in “a structure used for

curing food,” which is the dictionary definition of a “smokehouse.” According to

Blue Diamond, a reasonable consumer would simply believe that the package

contains almonds with a smoke flavor. Blue Diamond also argues that the full

context of the packaging makes clear that its Smokehouse® almonds’ smoke flavor

comes from seasoning, not smoking. In support of this argument, Blue Diamond

points to the image on the front of the packaging, which shows that its Smokehouse®

almonds are coated in seasoning, and the ingredient list on the back of the packaging,

which includes “natural hickory smoke flavor.” Blue Diamond also argues that

Plaintiffs cannot rely on a trade name to show a deception.

Plaintiffs argue that the packaging of Blue Diamond’s Smokehouse® almonds

is deceptive for many reasons. First, Plaintiffs state that the term “smokehouse”

refers only to a structure used for curing food and is never used as an adjective to

describe flavor. Second, Plaintiffs state that the packaging of Blue Diamond’s

Smokehouse® almonds violates rules of the Food and Drug Administration (FDA)

because the use of smoke flavoring is not disclosed on the front of the packaging.

Third, Plaintiffs state that smoked almonds are commonly sold and that, in instances

where smoke flavoring is used, Blue Diamond’s competitors disclose that fact on

the front of packaging. Fourth, Plaintiffs state that there is no way to discern from

the packaging of Blue Diamond’s Smokehouse® almonds that the almonds are

seasoned and that, in any event, the presence of seasoning is not inconsistent with

the almonds being smoked. Fifth, Plaintiffs state that an ingredient list on the back

of packaging cannot negate the possibility that a reasonable consumer might be

deceived. And finally, Plaintiffs state that whether a reasonable consumer would be

deceived is often a question of fact.

In its reply memorandum, Blue Diamond argues that Plaintiffs abandoned

their MMPA claim by failing to respond to its argument regarding their reliance on

its trade name to show a deception. Unlike with their breach-of-implied-contract

claim, Plaintiffs provided a substantive response to Blue Diamond’s argument

regarding their MMPA claim, so I do not find that the claim was abandoned. I will

therefore proceed to the merits of Blue Diamond’s argument.

The MMPA prohibits the “act, use or employment by any person of any

deception, false pretense, false promise, misrepresentation, unfair practice or the

concealment, suppression, or omission of any material fact in connection with the

sale or advertisement of any merchandise in trade or commerce.” Mo. Rev. Stat. §

407.020.1. To state a claim under the MMPA, a plaintiff must plausibly allege that

she: (1) purchased merchandise from the defendant; (2) purchased the merchandise

primarily for personal, family, or household purposes; and (3) suffered an

ascertainable loss of money or property as a result of the defendant’s use or

employment of a method, act, or practice declared unlawful under the MMPA. Mo.

Rev. Stat. § 407.025.1. The question of “[w]hether a reasonable consumer would be

deceived by a product label is generally a question of fact that cannot be resolved on

a motion to dismiss.” Browning v. Anheuser-Busch, LLC, 539 F.Supp.3d 965, 971

(W.D. Mo. 2021) (internal quotation marks omitted). However, a court may dismiss

a MMPA claim if it can “conclude as a matter of law that members of the public are

not likely to be deceived by the product packaging.” Kelly v. Cape Cod Potato Chip

Co., 81 F.Supp.3d 754, 761 (W.D. Mo. 2015) (internal quotation marks omitted);

see also Mo. Rev. Stat. § 407.025.1 (stating a court may dismiss a MMPA claim as

a matter of law if the claim “fails to show a likelihood that the method, act, or

practice alleged to be unlawful would mislead a reasonable consumer”). The

relevant inquiry under the MMPA is whether the product packaging’s “overall

appearance” is deceiving. Browning, 539 F.Supp.3d at 972.

Upon review of Plaintiffs’ amended complaint, I find that Plaintiffs have not

plausibly alleged that a reasonable consumer would likely be deceived into believing

that Blue Diamond’s Smokehouse® almonds were smoked in a smokehouse. To

start, the packaging of Blue Diamond’s Smokehouse® almonds does not state

“smoked almonds” or even contain the term “smoked,” and the use of the term

“Smokehouse” is qualified by a trademark symbol. (Doc. 32 at ¶¶ 23–25). The

smoked-almond products cited by Plaintiffs, on the other hand, have packaging that

states “smoked almonds” and does so without a qualifying trademark symbol. (Id.

at ¶ 45). This contrast in packaging distinguishes Blue Diamond’s Smokehouse®

almonds from the smoked-almond products cited by Plaintiffs, and it undermines

Plaintiffs’ claim that a reasonable consumer would likely be deceived into believing

that Blue Diamond’s Smokehouse® almonds were smoked in a smokehouse.

Given that the packaging of Blue Diamond’s Smokehouse® almonds does not

state “smoked almonds” or contain the term “smoked,” Plaintiffs’ claim depends on

a conclusion that a reasonable consumer would likely be deceived by the

Smokehouse® trade name.4 I find that a reasonable consumer would not likely be

4 There are at least three other cases in which a court considered a motion to dismiss a claim that

Blue Diamond’s Smokehouse® almonds were deceptively marketed. The courts in those cases

reached different conclusions. See Colpitts v. Blue Diamond Growers, 527 F.Supp.3d 562

deceived by the Smokehouse® trade name into believing that the almonds were

smoked in a smokehouse. It is plausible that the Smokehouse® trade name would

likely cause a reasonable consumer to believe that he or she was purchasing almonds

with a smoke flavor. Such a belief would be consistent with not only the

Smokehouse® trade name but also the ingredients list on the back of the packaging,

which includes “natural hickory smoke flavor.” (Id. at ¶ 25). However, it is not

plausible that the Smokehouse® trade name would likely cause a reasonable

consumer to believe that he or she was purchasing almonds that were smoked in “a

building where meat or fish is cured by means of dense smoke” or another structure

used “for curing food by means of smoke.” See (id. at ¶ 35).

Because Plaintiffs have not plausibly alleged that a reasonable consumer

would likely be deceived into believing that Blue Diamond’s Smokehouse®

almonds were smoked in a smokehouse, they have failed to state a claim under the

MMPA. Blue Diamond’s motion will therefore be granted as to Count IV, and I

need not address Blue Diamond’s additional arguments regarding Plaintiffs’

standing to seek injunctive relief and Plaintiffs’ standing to bring claims on behalf

of putative class members under other consumer-protection statutes.

Accordingly,

(S.D.NY. 2021) (denying motion to dismiss); Clark v. Blue Diamond Growers, No. 22-cv-1591,

2023 WL 4351464 (N.D. Ill. July 5, 2023) (same); Cummings v. Blue Diamond Growers, No.

1:22-cv-141-AW-HTC, 2023 WL 3487005 (N.D. Fla. May 15, 2023) (granting motion to dismiss).

IT IS HEREBY ORDERED that Defendant Blue Diamond Growers’ motion

to dismiss [36] is GRANTED. The amended complaint of Plaintiffs Beth Peacock

Muller, Thomas Fellin, and Michael Floyed [32] will be DISMISSED.

A separate Judgment in accordance with this Memorandum and Order will be

entered on this same date.

Sone W. SIPPRI

UNITED STATES DISTRICT JUDGE

Dated this 18th day of July 2023.

21