Garland v. The Kroger Co.

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 CHELSEA GARLAND, individually and Case No.: 24cv240-LL-JLB

on behalf of all others similarly situated;

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LEROY JACOBS, individually and on ORDER GRANTING MOTION TO

13 behalf of all others similarly situated,, DISMISS FIRST AMENDED

COMPLAINT PURSUANT TO

14 Plaintiffs,

FEDERAL RULE OF CIVIL

15 v. PROCEDURE 12(b)

16 THE KROGER CO.,

[ECF No. 9]

17 Defendant.

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19 Before the Court is Defendant The Kroger Co.’s (“Kroger”) Motion to Dismiss First

20 Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b). ECF No. 9-1

21 (“Motion” or “Mot.”). Plaintiffs Chelsea Garland and Leroy Jacobs filed an Opposition to

22 the Motion [ECF No. 10 (“Opposition” or “Oppo.”)] and Kroger filed a Reply [ECF

23 No. 11 (“Reply”)].1 The Court finds this matter suitable for determination on the papers

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1 Plaintiffs filed a Notice of Supplemental Authority referencing Whiteside v. Kimberly

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Clark Corp., 108 F.4th 771 (9th Cir. 2024), a relevant Ninth Circuit order issued on

27 July 17, 2024, after Plaintiffs had filed their Opposition on June 18, 2024. ECF No. 13. On

September 27, 2024, Defendant filed an Ex Parte Application for Leave to File Notice of

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1 and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil

2 Local Rule 7.1(d)(1). For the reasons stated below, the Court GRANTS the Motion to

3 Dismiss.

4 I. BACKGROUND

5 Plaintiffs initiated this matter by filing their original complaint on February 5, 2024.

6 ECF No. 1. After Defendant filed a Motion to Dismiss for Failure to State a Claim Pursuant

7 to Federal Rule of Civil Procedure 12(b) [ECF No. 6], but before the Court ruled on it,

8 Plaintiffs filed a First Amended Complaint on May 13, 2024 [ECF No. 7 (“FAC”)]. The

9 following factual allegations are from Plaintiffs’ FAC.

10 In the FAC, Plaintiffs allege four claims in this putative class action: (1) violation of

11 California’s Unfair Competition Law (“UCL”), (2) violation of California’s False

12 Advertising Law (“FAL”), (3) violation of California’s Consumers Legal Remedies Act

13 (“CLRA”), and (4) violation of the Illinois Consumer Fraud and Deceptive Business

14 Practices Act (“ICFA”). FAC ¶¶ 140–74.

15 Plaintiffs seek to represent a California Class of all persons in California who

16 purchased Kroger Blueberry Fruit & Grain Cereal Bars “bearing the labeling identified

17 here in California during the statutes of limitations for each cause of action alleged” and

18 an Illinois Class of all persons in Illinois who purchased Kroger Blueberry Fruit & Grain

19 Cereal Bars “bearing the labeling identified here in Illinois during the statutes of limitations

20 for each cause of action alleged.” Id. ¶ 130.

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23 Supplemental Authority (“Application”) referencing Trammell v. KLN Enterprises, Inc.,

No. 3:23-cv-01884-H-JLB, 2024 WL 4194794 (S.D. Cal. Sept. 12, 2024), a district court

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ruling issued after the conclusion of briefing for this Motion with legal and factual

25 similarities to the instant action, and which discusses Whiteside. ECF No. 14. Counsel for

Defendant attests that Plaintiffs’ counsel indicated that “Plaintiffs do not intend to oppose

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Kroger’s request to file a notice of supplemental authority.” ECF No. 14-1, Declaration of

27 Daniel H. Leigh, ¶ 3. The Court finds good cause to GRANT Defendant’s Application

because Plaintiffs do not oppose, the ruling discusses Whiteside, and it is relevant and

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l Plaintiff Chelsea Garland is a citizen of California and Plaintiff Leroy Jacobs is a

2 || citizen of Illinois. /d. ¥§] 82-83. Garland “purchased the Product between January 2020 and

3 || January 2024” in San Diego County, California “‘and/or other areas.” Jd. §| 107. Jacobs

4 || “purchased the Product between January 2021 and January 2024” in Illinois. /d. □ 108.

5 || Plaintiffs “try to avoid foods with artificial flavors, based on the belief they are potentially

6 ||harmful, not natural and unhealthy.” /d. § 97. Plaintiffs allege that they “read, saw and

7 relied” on statements of “naturally flavored” and “made with real fruit” on the front label

8 ||of Kroger Blueberry Fruit & Grain Cereal Bars (“the Product’) that included pictures of

9 blueberries “bursting from a cereal bar with dark blue filling” and “expected its filling’s

10 || blueberry taste was from blueberries and natural flavors, not artificial flavor.” /d. ¥ 102;

11 also id. § 28. “Plaintiffs relied on the omission of artificial flavoring from the front

12 as it related to the taste of the Product’s filling.” FAC 4 103. Plaintiffs did not expect

13 || the Product’s filling “would use artificial flavoring in the form of the synthetic compound

14 DL-Malic acid to provide its blueberry taste” in addition to blueberries and natural

15 || flavors. Id. | 104.

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7 | ] FLOUR (WHEAT FLOUR, NC, REDUCED IRON, THAME

MONONITRATE, RIBOFLAVIN, FOLIC ACID), CANOLA OIL,

| SOLUBLE CORN FIBER, INVERT SUGAR, WHOLE ROLLED OATS,

8 ~ | ENRICHED FLOUR (WHEAT FLOUR, NIACIN, REDUCED IROR,

» | THAMINE MONONITRATE, RIBOFLAVIN, FOLIC ACID), SUGAR,

~ | FRUCTOSE, MOLASSES, CANOLA OIL (CANOLA OIL, ASCORBIC

» | AGI - APRESERVATIVE, ROSEMARY EXTRACT), VITAMINS AND

9 MINERALS {VTANEN A PALWATATE. CALOWAL CARBONATE

— | MACINAMIDE, REDUCED IRON, ZINC OXIDE, PYRIDOXINE

> | HYDROCHLORIDE, RIBOFLAVIN, THIAMINE HYDROCHLORIDE,

10 = | FOLIC ACD), WHEY POWDER, NATURAL FLAVOR, LEAVENNG

> | (SODIUM ACID PYROPHOSPHATE, SODIUM BICARBONATE,

CORN STARCH, MONOCALCIUIM PHOSPHATE, CALCIUM

11 ? | SULFATE, CELLIAOSE GUM, HONEY, SODIUM BICARBONATE,

> | SALT, GUAR GUM, SOY LECITHIN, SODIUM PROPIONATE -

~ | APRESERVATIVE, WHEAT GLUTEN, LIQUID WHOLE EGGS.

12 - | CONTAINS: WHEAT, MILK, SOY, EGGS.

> | MAY CONTAIN: PEANUTS, ALMONDS, PECANS,

13 ~ | COCONUT, CASHEWS, MACADAMIA NUTS,

I DISTRIBUTED BY THE KROGER CO.

CINCINNATI, OHIO 45202 □

14 | CONTAINS BIOENGINEERED FOOD INGREDIENTS

‘| PRODUCT OF CANADA □□

4 | For More Product information, Scan UPC □□□

15 - | Using Your Kroger App or Call 800-632-6900 2

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21 The Product’s ingredients list on the back label includes “blueberry puree,” “malic

22 acid,” and “natural flavor” among many other ingredients. /d. ¥ 31. “L-Malic Acid occurs

23 ||naturally in blueberries and is responsible for their characterizing fruity, sour, tart and/or

24 sweet taste.” Jd. § 35. “[C]ompanies may replace naturally occurring L-Malic Acid with

25 lower cost and synthetic DL-Malic Acid,” which is an artificial flavoring ingredient.

26 42, 58. “Laboratory analysis of the Product’s filling was performed” and “the

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1 synthetic D-isomer of malic acid was identified, indicating the Product used artificial,

2 DL-Malic Acid and not L-Malic Acid.” Id. ¶¶ 51, 53. The Product sells for about $2.99 for

3 eight bars. Id. ¶ 81.

4 Plaintiffs would not have bought the Product or they would have paid less for it “had

5 they known its fruit filling’s taste was from artificial flavoring instead of only from

6 blueberries and natural flavor.” Id. ¶ 109. Plaintiffs seek injunctive relief, restitution,

7 disgorgement, and compensatory damages. Id. at 24.2

8 II. LEGAL STANDARD

9 A. Rule 12(b)(6) 3

10 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

11 defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

12 generally referred to as a motion to dismiss. The Court evaluates whether a complaint states

13 a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure

14 8(a), which requires a “short and plain statement of the claim showing that the pleader is

15 entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations,’” it does

16 require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

18 550 U.S. 544, 555 (2007)). A “formulaic recitation of the elements of a cause of action” is

19 insufficient. Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it

20 tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (alteration in

21 original) (quoting Twombly, 550 U.S. at 557).

22 In reviewing the plausibility of a complaint, courts “accept factual allegations in the

23 complaint as true and construe the pleadings in the light most favorable to the nonmoving

24 party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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27 2 Citations to page numbers in docketed materials refer to the CM/ECF page number

printed at the top of each page.

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1 Nonetheless, courts do not “accept as true allegations that are merely conclusory,

2 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig.,

3 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors,

4 266 F.3d 979, 988 (9th Cir. 2001)). The Court also need not accept as true allegations that

5 contradict matter properly subject to judicial notice or allegations contradicting the exhibits

6 attached to the complaint. Sprewell, 266 F.3d at 988.

7 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

8 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

9 Twombly, 550 U.S. at 570). A claim is facially plausible when the facts pleaded “allow[]

10 the court to draw the reasonable inference that the defendant is liable for the misconduct

11 alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). That is not to say that

12 the claim must be probable, but there must be “more than a sheer possibility that a

13 defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

14 When a motion to dismiss is granted, “leave to amend should be granted ‘unless the

15 court determines that the allegation of other facts consistent with the challenged pleading

16 could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,

17 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co.,

18 806 F.2d 1393, 1401 (9th Cir. 1986)). The Court may deny leave to amend where an

19 amendment would be futile. Desoto, 957 F.2d at 658 (citation omitted).

20 B. Rule 9(b)

21 The Federal Rules of Civil Procedure state that “[i]n alleging fraud or mistake, a

22 party must state with particularity the circumstances constituting fraud or mistake,” but

23 that “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged

24 generally.” Fed. R. Civ. P. 9(b). “Rule 9(b) ensures that allegations of fraud are specific

25 enough to give defendants notice of the particular misconduct which is alleged to constitute

26 the fraud charged so that they can defend against the charge and not just deny that they

27 have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). “This

28 means the plaintiff must allege ‘the who, what, when, where, and how of the misconduct

1 charged,’ including what is false or misleading about a statement, and why it is false.” Puri

2 v. Khalsa, 674 F. App’x 679, 687 (9th Cir. 2017) (quoting Ebeid ex rel. U.S. v. Lungwitz,

3 616 F.3d 993, 998 (9th Cir. 2010)). “Allegations of fraud based on information and belief

4 may suffice as to matters peculiarly within the opposing party’s knowledge, so long as the

5 allegations are accompanied by a statement of the facts upon which the belief is founded.”

6 Puri, 674 F. App’x at 687; Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (citations

7 omitted).

8 C. Rule 12(b)(2)

9 A defendant may move to dismiss a claim under Rule 12(b)(2) for lack of personal

10 jurisdiction. The plaintiff bears the burden for showing that jurisdiction is appropriate. Love

11 v. Associated Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010) (citation omitted). When

12 a motion to dismiss is based on written materials instead of an evidentiary hearing, “the

13 plaintiff need only make a prima facie showing of jurisdictional facts.” Id. (citation

14 omitted). “Uncontroverted allegations in the complaint must be taken as true, and conflicts

15 over statements contained in affidavits must be resolved in [the plaintiff’s] favor.” Id.

16 There are two types of personal jurisdiction: general jurisdiction and specific

17 jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

18 Individuals are subject to general jurisdiction where they are domiciled, and corporations

19 are subject to general jurisdiction at both their place of incorporation and principal place

20 of business. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (citation omitted). “Specific

21 jurisdiction exists when a case ‘aris[es] out of or relate[s] to the defendant’s contacts with

22 the forum.’” Id. at 1068 (citation omitted).

23 The district court applies the law of the state in which the district court sits when

24 there is no applicable federal statute governing personal jurisdiction, as is the case here.

25 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citations

26 omitted). “Because California's long-arm jurisdictional statute is coextensive with federal

27 due process requirements, the jurisdictional analyses under state law and federal due

28 process are the same.” Id. at 800–01. “For a court to exercise personal jurisdiction over a

1 nonresident defendant, that defendant must have at least ‘minimum contacts’ with the

2 relevant forum such that the exercise of jurisdiction ‘does not offend traditional notions of

3 fair play and substantial justice.’” Id. at 801 (quoting Int’l Shoe Co. v. State of Wash., Off.

4 of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)). “Personal jurisdiction

5 must exist for each claim asserted against a defendant.” Action Embroidery Corp. v.

6 Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) (citation omitted).

7 III. DISCUSSION

8 Defendant moves to dismiss the FAC without leave to amend for exceeding the

9 statutes of limitations, failure to meet the heightened pleading requirements of their fraud-

10 based claims pursuant to Rule 9(b), failure to demonstrate personal jurisdiction over

11 Defendant for the Illinois state law claim, failure to state a claim upon which relief can be

12 granted, and failure to show standing under Article III of the United States Constitution for

13 injunctive relief. ECF No. 9.

14 As a preliminary matter, the Court finds that all of Plaintiffs’ claims are subject to

15 Rule 9(b)’s heightened pleading requirement. At the core of each of Plaintiffs’ claims is

16 the allegation that Defendant engaged in a unified course of fraudulent and misleading

17 conduct by including “naturally flavored” and “made with real fruit” on the Product’s front

18 label when the Product contains artificial flavoring ingredients. FAC ¶¶ 147, 156, 162, 169.

19 Therefore, each claim is grounded in fraud and the pleading of each “claim as a whole must

20 satisfy the particularity requirements of Rule 9(b).” Vess v. Ciba-Geigy Corp. USA,

21 317 F.3d 1097, 1103–04 (9th Cir. 2003); see also Kearns v. Ford Motor Co., 567 F.3d

22 1120, 1125 (9th Cir. 2009) (finding that Rule 9(b)’s heightened pleading standard applies

23 to claims for violations of the CLRA and UCL). As stated above, this requires Plaintiffs to

24 “allege ‘the who, what, when, where, and how of the misconduct charged,’ including what

25 is false or misleading about a statement, and why it is false.” Puri, 674 F. App’x at 687

26 (9th Cir. 2017) (citation omitted).

27 / / /

28 / / /

1 A. Statute of Limitations

2 Defendant argues that Plaintiffs do not plead that they purchased the Product within

3 the relevant limitations period because they each allege an unspecified purchase date with

4 no mention of multiple purchases. Mot. at 15. Plaintiffs contend the claims are timely based

5 on “first discovery” and “continuing violation” exceptions. Oppo. at 24–26.

6 Plaintiff Garland asserts CLRA and FAL claims that are subject to a three-year

7 limitations period and a UCL claim with a four-year limitations period. Cal. Civ. Code

8 § 1783; Cal. Civ. Proc. Code § 338(a), Cal. Bus & Prof. Code § 17208; Brown v. Madison

9 Reed, Inc., 622 F. Supp. 3d 786, 799 (N.D. Cal. 2022), aff’d, No. 22-16415, 2023 WL

10 8613496 (9th Cir. Dec. 13, 2023). Plaintiff Jacobs asserts a claim under the ICFA, which

11 has a three-year limitations period. 815 Ill. Comp. Stat. 505/10a(e); Blankenship v. Pushpin

12 Holdings, LLC, 157 F. Supp. 3d 788, 791 (N.D. Ill. 2016).

13 The Court finds Plaintiffs do not adequately plead that their claims are within the

14 applicable statute of limitations. Garland “purchased the Product between January 2020

15 and January 2024 at Kroger-owned and controlled stores in San Diego County, California

16 and/or other areas.” FAC ¶ 107. Jacobs “purchased the Product between January 2021 and

17 January 2024 at Kroger-owned and controlled stores in Illinois.” Id. ¶ 108. There are no

18 allegations that Plaintiffs made multiple purchases. Thus, the plain meaning is that

19 Plaintiffs bought the Product once sometime within the specified time range. Such vague

20 statements with multi-year ranges of time do not adequately convey when Plaintiffs

21 purchased the Product. See Marshall v. PH Beauty Labs, Inc., No. CV 15-02101 DDP,

22 2015 WL 3407906, at *2 (C.D. Cal. May 27, 2015) (finding first purchase date plus

23 allegations of subsequent purchases “several times thereafter” and use of the product “for

24 a substantial period of time” to be “vague” and “not sufficient to state a plausible claim

25 within the limitations period”). This action was initiated February 5, 2024, so a three-year

26 limitations period began February 5, 2021 and a four-year limitations period began

27 February 5, 2020. If Plaintiffs purchased the product once, it may not be within the

28 limitations period. If Plaintiffs made their “last purchase” in January 2024, as Plaintiffs

1 argue, this is not clear in the FAC. See Oppo at 25. For these same reasons, Plaintiffs’

2 allegations do not adequately plead “when” the misrepresentation occurred pursuant to

3 Rule 9(b).

4 Plaintiffs do not plead that any tolling of the statute of limitations applies. The

5 “discovery rule” is one exception that “postpones accrual of a cause of action until the

6 plaintiff discovers, or has reason to discover, the cause of action.” Grisham v. Philip Morris

7 U.S.A., Inc., 40 Cal. 4th 623, 634 (2007). “In order to invoke this special defense to the

8 statute of limitations, the plaintiff must specifically plead facts which show (1) the time

9 and manner of discovery and (2) the inability to have made earlier discovery despite

10 reasonable diligence.” Saliter v. Pierce Bros. Mortuaries, 81 Cal. App. 3d 292, 297, 146

11 Cal. Rptr. 271, 274 (Ct. App. 1978). However, the FAC contains no allegations of how or

12 when Plaintiffs discovered the alleged fraud, nor the inability to discover the fraud earlier

13 despite reasonable diligence. See Clark v. Hershey Co., No. C 18-06113 WHA, 2019 WL

14 913603, at *7 (N.D. Cal. Feb. 25, 2019) (finding plaintiffs did not sufficiently plead that

15 the delayed discovery rule applied because there were no allegations about how they

16 discovered the alleged unlawful labeling).

17 Another exception that is not sufficiently pleaded is the continuing violation

18 doctrine. “Allegations of a pattern of reasonably frequent and similar acts may, in a given

19 case, justify treating the acts as an indivisible course of conduct actionable in its entirety,

20 notwithstanding that the conduct occurred partially outside and partially inside the

21 limitations period.” Aryeh v. Canon Bus. Sols., Inc., 55 Cal. 4th 1185, 1198 (2013)

22 (citations omitted). However, nothing in the FAC alleges “particularized purchases of

23 products.” See Clark, 2019 WL 913603, at *7.

24 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss the claims for

25 failure to adequately plead they are within the limitations period.

26 B. Rule 12(b)(2) Personal Jurisdiction over Plaintiff Jacobs’ Illinois Claim

27 Defendant argues that this Court lacks personal jurisdiction over Defendant with

28 respect to Plaintiff Jacobs’ ICFA claim. Mot. at 17–18. Plaintiffs oppose, arguing that

1 Defendant has the minimum contacts necessary to be subject to personal jurisdiction and

2 that the Court may assert pendent personal jurisdiction over Defendant. Oppo. at 27.

3 The Court finds Plaintiffs have not shown that this Court has personal jurisdiction

4 for their ICFA claim. Jacobs, a citizen of Illinois, was allegedly misled and suffered

5 damages when he purchased the Product in Illinois at stores owned and controlled by

6 Defendant. Plaintiffs plead that the Court has jurisdiction over Defendant “because it

7 transacts business within California and sells the Product to consumers within California

8 from grocery stores owned and operated by [Defendant] under the names including Ralphs

9 in this State and online to citizens of this State.” FAC ¶ 121. To the extent Defendant has

10 minimum contacts with California, this does not demonstrate specific jurisdiction as to an

11 Illinois state claim arising from a sale of the Product in Illinois to a citizen of Illinois, with

12 harm incurred in Illinois. See Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015)

13 (finding specific jurisdiction “depends on an affiliation between the forum and the

14 underlying controversy, principally, activity or an occurrence that takes place in the forum

15 State and is therefore subject to the State’s regulation” (quoting Goodyear Dunlop Tires

16 Operations, S.A., 564 U.S. at 919)); Action Embroidery Corp., 368 F.3d at 1180 (citation

17 omitted). In a similar situation, the Supreme Court found personal jurisdiction lacking in a

18 mass tort action in California state court as to nonresidents alleging harm from a drug

19 manufacturer, noting “the nonresidents were not prescribed Plavix in California, did not

20 purchase Plavix in California, did not ingest Plavix in California, and were not injured by

21 Plavix in California.” Bristol-Myers Squibb Co. v. Superior Ct. of California, San

22 Francisco Cnty., 582 U.S. 255, 264 (2017). The Court reasoned that “[t]he mere fact that

23 other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly

24 sustained the same injuries as did the nonresidents—does not allow the State to assert

25 specific jurisdiction over the nonresidents’ claims.” Id. at 265.

26 Plaintiff argues that Bristol-Myers is not controlling here because it did not involve

27 a class action in federal court and expressly left open “the question whether the Fifth

28 Amendment imposes the same restrictions on the exercise of personal jurisdiction by a

1 federal court.” Oppo. at 26 (citing Bristol-Myers Squibb Co., 582 U.S. at 269). The Court,

2 however, agrees with the federal courts who have considered the issue and found that

3 Bristol-Myers applies to claims brought by named plaintiffs in class actions pursuant to

4 diversity jurisdiction. See Goldstein v. Gen. Motors LLC, 445 F. Supp. 3d 1000, 1011–12

5 (S.D. Cal. 2020) (collecting cases and stating, “No circuit court has confronted this issue

6 but the overwhelming majority of federal courts that have considered it, in this district and

7 across the county, have held that Bristol-Myers applies to claims brought by named

8 plaintiffs in class actions.”); In re Samsung Galaxy Smartphone Mktg. & Sales Pracs.

9 Litig., No. 16-CV-06391-BLF, 2018 WL 1576457, at *2 (N.D. Cal. Mar. 30, 2018)

10 (“Plaintiffs identify no authority where a court has determined that Bristol-Myers does not

11 apply to a named plaintiff seeking to represent a statewide class of non-forum residents

12 proceeding under non-forum law.”). The same concern for due process in Bristol-Myers

13 for a nonresident defendant facing a non-forum claim by a nonresident in a mass action in

14 state court should apply here in a putative class action before a federal court sitting in

15 diversity with a nonresident asserting a non-forum claim. See Goldstein, 445 F. Supp. 3d

16 at 1012–13 (noting that personal jurisdiction concerns the burden placed on the defendant,

17 which “encompasses the more abstract matter of submitting to the coercive power of a

18 State that may have little legitimate interest in the claims in question,” and finding that

19 California has little interest in the claims of nonresidents arising out of purchases made

20 outside California by a Delaware company with a principal place of business in Michigan

21 (quoting Bristol-Myers Squibb Co., 582 U.S. at 263)).

22 Plaintiffs also argue that the Court may assert pendent personal jurisdiction over the

23 ICFA claims, but the Court is not persuaded. Oppo. at 27. “[A] court may assert pendent

24 personal jurisdiction over a defendant with respect to a claim for which there is no

25 independent basis of personal jurisdiction so long as it arises out of a common nucleus of

26 operative facts with a claim in the same suit over which the court does have personal

27 jurisdiction.” Action Embroidery Corp., 368 F.3d at 1180. “Pendent personal jurisdiction

28 is typically found where one or more federal claims for which there is nationwide personal

1 jurisdiction are combined in the same suit with one or more state or federal claims for

2 which there is not nationwide personal jurisdiction.” Id. at 1180–81. The exercise of

3 pendent personal jurisdiction is within the court’s discretion. Id. at 1181. Because this

4 action is before the Court based on diversity jurisdiction with no federal claim to hook their

5 state law claim onto, the Court declines to exercise pendent personal jurisdiction.4 See

6 LeGrand v. Abbott Lab’ys, 655 F. Supp. 3d 871, 885 (N.D. Cal. 2023) (declining to exercise

7 pendent personal jurisdiction because most courts conclude that it cannot be exercised by

8 a federal court sitting in diversity); Maeda v. Pinnacle Foods Inc., 390 F. Supp. 3d 1231,

9 1247 (D. Haw. 2019) (declining pendent personal jurisdiction because there is no federal

10 claim); Sloan v. Gen. Motors LLC, No. 16-CV-07244-EMC, 2019 WL 6612221, at *9

11 (N.D. Cal. Dec. 5, 2019) (“However, nearly every court considering the issue has

12 concluded pendent party jurisdiction cannot be exercised by a federal court sitting in

13 diversity.”).

14 Accordingly, the Court GRANTS Defendant’s Motion to dismiss the ICFA claim

15 without leave to amend because the allegations of other facts could not cure the

16 jurisdictional deficiency, but without prejudice to filing in an appropriate jurisdiction. See

17 DeSoto, 957 F.2d at 658 (citation omitted).

18 C. Rule 12(b)(6) Failure to State a Claim

19 Defendant contends that Plaintiffs’ claims must be dismissed because they cannot

20 plausibly plead consumer deception, and they fail to plead reliance and “when” and

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4 Plaintiffs bring this claim under the Class Action Fairness Act of 2005 (“CAFA”). FAC

25 ¶ 115. Because CAFA is an expansion of diversity jurisdiction, the jurisdictional basis for

this matter is diversity, not federal question. Sloan v. Gen. Motors LLC, 438 F. Supp. 3d

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1017, 1021 (N.D. Cal. 2020) (“This is consistent with the fact that CAFA constituted an

27 expansion of diversity jurisdiction; it does not, on its own, purport to establish federal

question jurisdiction.”).

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1 “where” they purchased the Product with specificity. Mot. at 20, 28; Reply at 6, 10.

2 Plaintiffs disagree. Oppo. at 13–21.

3 1. Synthetic Malic Acid Allegations

4 As an initial matter, Defendant argues that Plaintiffs do not sufficiently plead that

5 the Product contains synthetic malic acid, which is “the gravamen of all of their claims.”

6 Mot. at 21–22. Plaintiffs disagree. Oppo. at 15–16.

7 The Court finds Plaintiffs have failed to plead with sufficient particularity that the

8 malic acid used in the Product is artificial. In the FAC, Plaintiffs explain what makes DL-

9 malic acid artificial, describe a method for testing for its presence, and state that

10 “[l]aboratory analysis of the Product’s filling was performed based on this enzymatic

11 method in accordance with accepted industry standards and protocols” which identified the

12 “synthetic D-isomer of malic acid . . . indicating the Product used artificial, DL-Malic Acid

13 and not L-Malic Acid.” FAC ¶¶ 33–53. However, the Court finds this to be insufficient to

14 meet Rule 9(b)’s heightened pleading standard for determining that the Product contains

15 synthetic malic acid—the “how” of the “who, what, when, where, and how of the

16 misconduct charged”—because it does not include the specific date or place of the testing,

17 and who conducted the testing. See Myers v. Wakefern Food Corp., No. 20 CIV. 8470

18 (NSR), 2022 WL 603000, at *4 (S.D.N.Y. Mar. 1, 2022) (finding the plaintiff failed to

19 sufficiently allege the product contained synthetic flavoring in part because of the lack of

20 details about the laboratory test such as “the testing methodology followed, the specific

21 date, time, or place of the testing, who conducted the testing, the qualifications of the

22 testers, etc.”); see also Ebeid ex rel. U.S., 616 F.3d at 998 (“Rule 9(b) requires a party to

23 ‘state with particularity the circumstances constituting fraud or mistake,’ including ‘the

24 who, what, when, where, and how of the misconduct charged.’” (citation omitted));

25 Trammell v. KLN Enterprises, Inc., No. 3:23-CV-01884-H-JLB, 2024 WL 4194794, at *5

26 (S.D. Cal. Sept. 12, 2024) (finding allegations that a product contained synthetic malic acid

27 insufficient under Rule 9(b) which included the date, place, and company that conducted

28 the testing, but lacked other details). But see, e.g., Scheibe v. Perfect Keto Grp. LLC, 700

1 F. Supp. 3d 928, 935 (S.D. Cal. 2023) (finding allegations regarding laboratory testing

2 sufficiently alleged the presence of synthetic malic acid); Scheibe v. Lifeaid Beverage LLC,

3 No. 23-CV-840-MMA-DEB, 2023 WL 6131082, at *4 (S.D. Cal. Sept. 19, 2023) (same).

4 The Rule 9(b) standard “does not require absolute particularity or a recital of the

5 evidence,” and the Court finds in this case that details of the date and place of the testing

6 and who conducted the testing are not so particular as to go against that standard, especially

7 as this is information in Plaintiffs’ possession and upon which the entire complaint is built.

8 See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1180 (9th Cir. 2016)

9 (citation omitted). But see Scheibe v. Fit Foods Distribution, Inc., No. 23-CV-220 JLS

10 (AHG), 2023 WL 7434964, at *14 & n.9 (S.D. Cal. Nov. 8, 2023) (“For a court to credit

11 his allegation for its truth, it is enough that Plaintiff allege that laboratory testing occurred

12 and describe the results of that testing.”). The Court also finds that requiring some factual

13 details as to when and where the testing was conducted and by whom is aligned with one

14 of the principal purposes of Rule 9(b), which is “[b]y requiring some factual basis for the

15 claims, the rule protects against false or unsubstantiated charges. See United Healthcare

16 Ins. Co., 848 F.3d at 1180. This serves “to deter the filing of complaints as a pretext for the

17 discovery of unknown wrongs, to protect defendants from the harm that comes from being

18 subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the

19 court, the parties and society enormous social and economic costs absent some factual

20 basis.” Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (citation omitted).

21 Accordingly, the Court GRANTS Defendant’s Motion to dismiss Plaintiffs’ claims

22 for failing to sufficiently plead the malic acid in the Product is artificial pursuant to Rule

23 9(b)’s heightened pleading standard. Although this finding is enough to dismiss the entire

24 complaint, the Court will proceed to analyze Defendant’s argument regarding consumer

25 deception as if the allegations of synthetic malic acid are sufficient.

26 2. Consumer Deception

27 Defendant moves to dismiss all claims on the grounds that “naturally flavored” and

28 “made with real fruit” on the Product’s label are not deceptive.

1 The consumer law claims in this case all require Plaintiffs to prove the Product label

2 is likely to deceive reasonable consumers. See Beardsall v. CVS Pharmacy, Inc., 953 F.3d

3 969, 972 (7th Cir. 2020); Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016). The UCL

4 prohibits “any unlawful, unfair or fraudulent business act or practice.”

5 Cal. Bus. & Prof. Code § 17200. The FAL prohibits “untrue or misleading” advertising.

6 Cal. Bus. & Prof. Code § 17500. The CLRA prohibits “unfair methods of competition and

7 unfair or deceptive acts or practices” in commercial transactions. Cal. Civ. Code § 1770(a).

8 The ICFA prohibits “[u]nfair methods of competition and unfair or deceptive acts or

9 practices.” 815 Ill. Comp. Stat. 505/2. The reasonable consumer test requires more than a

10 mere possibility that the Product’s label “might conceivably be misunderstood by some

11 few consumers viewing it in an unreasonable manner.” Ebner, 838 F.3d at 965 (citation

12 omitted). “Rather, the reasonable consumer standard requires a probability “that a

13 significant portion of the general consuming public or of targeted consumers, acting

14 reasonably in the circumstances, could be misled.” Id. (internal quotation marks and

15 citation omitted). A reasonable consumer “is neither the most vigilant and suspicious of

16 advertising claims nor the most unwary and unsophisticated, but instead is the ordinary

17 consumer within the target population.” Chapman v. Skype Inc., 220 Cal. App. 4th 217,

18 226, 162 Cal. Rptr. 3d 864, 871–72 (2013) (internal quotation marks and citation omitted).

19 “California courts . . . have recognized that whether a business practice is deceptive

20 will usually be a question of fact not appropriate for decision [at the pleadings stage].”

21 Whiteside v. Kimberly Clark Corp., 108 F.4th 771, 778 (9th Cir. 2024) (quoting Williams

22 v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)). However, “[d]ismissal is

23 appropriate when ‘the advertisement itself [makes] it impossible for the plaintiff to prove

24 that a reasonable consumer [is] likely to be deceived.’” Id. (quoting Williams, 552 F.3d at

25 939).

26 In evaluating a product’s packaging for consumer deception claims at the pleadings

27 stage, “[a] court must begin its analysis with the front label, as reasonable consumers are

28 not expected to look beyond unambiguous misleading representations on the front label to

1 determine the truth from the rest of the packaging, especially the ingredients list.” Garza

2 v. Spectrum Brands Pet LLC, No. 1:24-CV-00012-JLT-CDB, 2024 WL 5202472, at *3

3 (E.D. Cal. Dec. 23, 2024) (citing Whiteside, 108 F.4th at 778). “[A] front label can be

4 unambiguous for FRCP 12(b)(6) purposes even if it may have two possible meanings, so

5 long as the plaintiff has plausibly alleged that a reasonable consumer would view the label

6 as having one unambiguous (and deceptive) meaning.” Whiteside, 108 F.4th at 780.

7 If the front label is ambiguous, the back label may be considered at the pleadings

8 stage. Id. at 778 (citing McGinity v. Procter & Gamble Co., 69 F.4th 1093, 1099 (9th Cir.

9 2023)). “[A] front label is not ambiguous simply because it is susceptible to two possible

10 meanings; a front label is ambiguous when reasonable consumers would necessarily

11 require more information before reasonably concluding that the label is making a particular

12 representation.” Id. at 781; see also id. at 780 (quoting Moore v. Trader Joe’s Co., 4 F.4th

13 874, 882 (9th Cir. 2021)). “In some cases, other contextual factors aside from the back

14 label can defeat claims that a product’s label is misleading.” Id. at 779; Moore, 4 F.4th at

15 882 (“[I]nformation available to a consumer is not limited to the physical label and may

16 involve contextual inferences regarding the product itself and its packaging.”).

17 The Court finds Plaintiffs have not plausibly alleged that the front label of the

18 Product is “unambiguously deceptive to an ordinary consumer, such that the consumer

19 would feel no need to look at the back label.” See Whiteside, 108 F.4th at 780. Plaintiffs

20 contend that the front label—which includes the phrases “naturally flavored” under the

21 word “blueberry,” and “made with real fruit” near pictures of blueberries bursting from a

22 cereal bar with dark blue filling—is misleading because they did not expect the Product

23 would use artificial flavoring in addition to blueberries and natural flavors. FAC ¶¶ 28, 29,

24 104. The Court does not agree. The front label “‘does not promise that the product is wholly

25 natural,’ as would a label declaring that a product is ‘100% natural’ or ‘all natural’” and so

26 is not unambiguously deceptive. See Bryan v. Del Monte Foods, Inc., No. 23-3685, 2024

27 WL 4866952, at *1 (9th Cir. Nov. 22, 2024) (quoting McGinity, 69 F.4th at 1098);

28 / / /

1 Trammell v. KLN Enterprises, Inc., No. 3:23-CV-01884-H-JLB, 2024 WL 4194794,

2 at *7 & n.2 (S.D. Cal. Sept. 12, 2024).

3 The terms “naturally flavored” and “made with real fruit” are ambiguous as to

4 whether the Product is flavored only with natural flavors and blueberries, and reasonable

5 consumers would require more information to make that determination. See Moore, 4 F.4th

6 at 882 (finding the phrase “100% New Zealand Manuka Honey” ambiguous and that

7 “reasonable consumers would necessarily require more information before they could

8 reasonably conclude Trader Joe’s label promised a honey that was 100% derived from a

9 single, floral source”). A look at the Product’s ingredients list on the back label confirms

10 that the Product contains natural flavors and blueberry puree as well as many other

11 ingredients both natural and artificial. See Manchouck v. Mondelez Int’l Inc.,

12 No. C 13-02148 WHA, 2013 WL 5400285, at *1–3 (N.D. Cal. Sept. 26, 2013), aff’d,

13 603 F. App’x 632 (9th Cir. 2015) (finding “made with real fruit” is not misleading when

14 product contains fruit puree). A reasonable consumer would see the artificial ingredients

15 on the list and realize that the Product’s flavoring is not entirely natural. Although the

16 ingredients list includes “malic acid” as opposed to the specific subtype of malic acid,

17 federal regulations do not require it to do so. Scheibe v. Fit Foods Distribution, Inc.,

18 No. 23-CV-220 JLS (AHG), 2023 WL 7434964, at *4–6 (S.D. Cal. Nov. 8, 2023) (agreeing

19 with the majority of courts finding the listing of “malic acid” as opposed to the scientific

20 name of “DL- or L-malic acid” to be sufficient pursuant to federal regulations, and finding

21 claims relying on the premise that the ingredient list required “DL-malic acid” pursuant to

22 state or federal food labeling regulations to be preempted).

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

1 Accordingly, the Court GRANTS Defendants’ Motion to dismiss Plaintiffs’ claims

2 ||for failing to adequately plead that the Product label is likely to deceive reasonable

3 || consumers.° Because the Court has found the Product label is not deceptive as a matter of

4 || law, any additional factual allegations consistent with the FAC will not change this finding,

5 |}and amendment of the complaint would therefore be futile. See Desoto, 957 F.2d at 658

6 || (citation omitted); Workman v. Plum Inc., 141 F. Supp. 3d 1032, 1037 (N.D. Cal. 2015)

7 ||(denying leave to amend because any amendment would be futile “as this order finds that

8 || the labels at issue are not deceptive, and the labels themselves cannot be changed by a new

9 || complaint’).

10 |] IV. CONCLUSION

11 For the reasons set forth above, the Court GRANTS Defendant’s Motion with

12 || prejudice, and without leave to amend. The Clerk of Court shall enter judgment and close

13 case.

14 IT IS SO ORDERED.

15 Dated: February 12, 2025 NO

16 DE |

17 Honorable Linda Lopez

8 United States District Judge

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27 ||° Because the Court finds Plaintiffs have not adequately alleged consumer deception as a

28 matter of law, the Court need not reach Defendant’s arguments regarding actual reliance

and equitable claims.