Opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 DUNCAN MARC SMITH, No. 2:25–cv–02714-DC-SCR

12 Plaintiff, ORDER

13 v.

14 LINK SNACKS, INC., et al.,

15 Defendants.

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17 Plaintiff is proceeding pro se in this matter, which is referred to the undersigned pursuant

18 to Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Before the court are Plaintiff’s two motions

19 for leave to proceed in forma pauperis. See 28 U.S.C. § 1915 (authorizing the commencement of

20 an action “without prepayment of fees or security” by a person that is unable to pay such fees).

21 ECF Nos. 2 & 4. Plaintiff avers in both motions that he is unable to pay the costs of these

22 proceedings. The motions to proceed IFP will therefore be granted. However, for the reasons

23 provided below, the Court finds Plaintiff’s complaint is legally deficient and will grant Plaintiff

24 leave to file an amended complaint.

25 I. Motions to Proceed IFP

26 A motion to proceed IFP must make a sufficient showing for the Court to make a

27 determination. As the Ninth Circuit has recognized “one need not be absolutely destitute to

28 obtain benefits” of the IFP statute. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir.

1 2015). However, “a plaintiff seeking IFP status must allege poverty with some particularity,

2 definiteness and certainty.” Id. (internal citation and quotation omitted).

3 The original motion for IFP (ECF No. 2) appears to have answered every question with

4 zero. Plaintiff lists his income as zero, and lists all his expenses as zero. Plaintiff lists the

5 Defendant in this action as an entity owing him money, but lists the amount as zero. ECF No. 2

6 at 3. Plaintiff may have listed this amount as zero because no amount is currently owed, but it

7 also raises the possibility that every item on the form was just left as zero. Plaintiff also states

8 that he is currently unemployed and “living with family and friends.” ECF No. 2 at 5.

9 Plaintiff’s second motion for IFP, which he filed while the first was still pending, provides

10 no additional information. ECF No. 4. However, it can be viewed as confirming the information

11 in the first motion. Again, each question is answered with zero or none. Plaintiff again indicates

12 that he has no income, no assets, no expenses, and no financial obligations. ECF No. 4. The

13 Court will grant the motions to proceed IFP.

14 II. SCREENING

15 A. Legal Standard

16 The federal IFP statute requires federal courts to dismiss a case if the action is legally

17 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

18 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In

19 reviewing the complaint, the Court is guided by the requirements of the Federal Rules of Civil

20 Procedure. The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules-

21 policies/current-rules-practice-procedure/federal-rules-civil-procedure.

22 Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and

23 plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this

24 court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled

25 to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief

26 sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly.

27 Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in

28 the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200),

1 Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms.

2 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

3 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the

4 court will (1) accept as true all of the factual allegations contained in the complaint, unless they

5 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

6 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von

7 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert.

8 denied, 564 U.S. 1037 (2011).

9 The court applies the same rules of construction in determining whether the complaint

10 states a claim on which relief can be granted. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)

11 (court must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court

12 must construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held

13 to a less stringent standard than those drafted by lawyers. See Erickson, 551 U.S. at 94.

14 However, the court need not accept as true legal conclusions, even if cast as factual allegations.

15 See Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). A formulaic recitation of the

16 elements of a cause of action does not suffice to state a claim. See Bell Atlantic Corp. v.

17 Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

18 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to

19 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

20 facial plausibility when the plaintiff pleads factual content that allows the court to draw the

21 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

22 678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity

23 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Akhtar v.

24 Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012).

25 B. The First Amended Complaint

26 Plaintiff has filed a complaint (ECF No. 1) and First Amended Complaint (“FAC”) (ECF

27 No. 3). Plaintiff is allowed to amend once as a matter of course under Federal Rule of Civil

28 Procedure 15(a), and the FAC is now the operative complaint. The Court will screen the FAC

1 pursuant to 28 U.S.C. § 1915. Plaintiff states that he brings the FAC “for injuries caused by the

2 ingestion of an oxygen-absorber packet contained within a consumer bag of beef jerky.” ECF

3 No. 3 at 2. Plaintiff contends the beef jerky was manufactured and sold in a “manner that was

4 unreasonably dangerous and inadequately warned against foreseeable ingestion.” Id. at 3.

5 Plaintiff names as Defendants: 1) Link Snacks, Inc. (“Link”), the alleged manufacturer of

6 the beef jerky; 2) Mitsubishi Gas Chemical America, Inc. (“Mitsubishi”), the alleged

7 supplier/distributor of the oxygen absorber packet; 3) two Doe retailer defendants; and 4) Does 1-

8 20, who are unidentified “persons and/or entities.” Id. at 4-7. Plaintiff alleges jurisdiction based

9 on diversity of citizenship under 28 U.S.C. § 1332.

10 Plaintiff claims that on October 3, 2023, he was on a camping trip near Sacramento, and

11 that while setting up camp around 9:00 p.m., he was offered a bag of beef jerky by his brother-in-

12 law, “who stated he could not eat it and handed it to Plaintiff.” ECF No. 3 at ¶ 11. Plaintiff

13 alleges he did not know a “do not eat” oxygen-absorber packet (hereafter “Packet”) was present

14 in the bag. Plaintiff alleges the jerky was sold by an unnamed retailer in Orangevale, and that it is

15 one of two retailers located on the same block. Id. at ¶13.

16 Plaintiff alleges that after eating the jerky, he “developed progressively worsening

17 gastrointestinal symptoms over the following days, including severe abdominal pain, bloating,

18 inability to pass stool, profuse sweating, and sharp pain[.]” Id. at ¶ 14. Plaintiff sought

19 emergency medical attention on October 9 or 10, and underwent surgery. Id. at ¶¶ 15-16.

20 Plaintiff “was informed the condition was a serious gastrointestinal emergency consistent with

21 ingestion/obstruction caused by a foreign object.” Id. at ¶ 16. Plaintiff alleges there is a

22 “foreseeable risk that consumers may accidentally ingest small packets contained within food

23 packaging” and that such risk “required reasonable safeguards, adequate warnings, and packing

24 designs that prevent ingestion.” Id. at 19.

25 Plaintiff alleges four causes of action: 1) strict product liability (design defect); 2) strict

26 product liability (failure to warn); 3) negligence; and 4) breach of the implied warranty of

27 merchantability. Plaintiff seeks $19 million in damages plus punitive damages. ECF No. 3 at 13.

28 Plaintiff also attaches to his FAC a declaration and some medical records. Some of the attached

1 records reflect that a “foreign body” food preservation packet was surgically removed, and that

2 the Packet displayed the following inscription: “PACKET ENCLOSED TO KEEP PRODUCT

3 FRESH. DO NOT EAT PACKET. CONTAINS IRON.” ECF No. 3 at 21-22.

4 C. Analysis

5 Plaintiff brings negligence and strict liability claims based on the allegation that he

6 ingested the Packet in the beef jerky package that was marked “do not eat.” Perhaps surprisingly

7 given the litigious nature of our society, the undersigned could find no product liability cases—

8 whether in state or federal court—based on ingestion of an oxygen or silica packet in a food

9 product.

10 As to Plaintiff’s jurisdictional allegations, Plaintiff alleges there are two Doe retailer

11 defendants who are located in Orangevale, California. ECF No. 3 at ¶¶ 6-7 & 13. Plaintiff also

12 lists “Does 1-20” without providing any additional information as to their identity. Id. at ¶ 8. As

13 these Defendants are not named, their citizenship is unclear. Diversity jurisdiction requires

14 complete diversity. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (diversity jurisdiction

15 requires “complete diversity of citizenship” where “the citizenship of each plaintiff is diverse

16 from the citizenship of each defendant”). The use of Doe defendants at this time does not destroy

17 diversity. See Gardiner Fam., LLC v. Crimson Res. Mgmt. Corp., 147 F.Supp.3d 1029, 1035

18 (E.D. Cal. 2015) (“Plaintiffs’ use of fictional defendants does not destroy diversity and does not

19 divest the district court of jurisdiction”). However, should Plaintiff subsequently name any Doe

20 defendant, that addition could alter the jurisdictional analysis. Id. at 1036 (“Should Plaintiffs

21 amend the Complaint to in any way identify Does 1 through 50, Rule 12(h)(3) provides that a

22 court may raise, sua sponte, the question of subject matter jurisdiction at any point in the

23 litigation prior to final judgment.”). If Plaintiff has identified any of the Doe defendants and

24 wishes to pursue a claim against them in this proceeding, Plaintiff should identify any newly

25 named defendant and plead the citizenship of that defendant in the second amended complaint.

26 The Court now proceeds to address whether Plaintiff has pled sufficient factual matter to

27 state a claim to relief that is plausible. Count I asserts strict products liability for a design defect.

28 Plaintiff alleges the jerky and packet and/or packaging was defectively designed in that it

1 permitted foreseeable ingestion of the packet by an ordinary consumer using the product in a

2 reasonably foreseeable manner. ECF No. 3 at ¶ 21. Under California law, “[a] manufacturer is

3 strictly liable in tort when an article he places on the market, knowing that it is to be used without

4 inspection for defects, proves to have a defect that causes injury to a human being.” Anderson v.

5 Owens-Corning Fiberglas Corp., 53 Cal.3d 987, 994 (1991) (citation and quotation omitted).

6 However, strict liability is not “absolute liability” and the manufacturer does not “become the

7 insurer of the safety of the product’s use.” Id. “Strict liability has been invoked for three types of

8 defects—manufacturing defects, design defects, and ‘warning defects,’ i.e., inadequate warnings

9 or failures to warn.” Id. at 995.

10 Plaintiff’s design defect claim is somewhat conclusory. Plaintiff’s theory appears to be

11 that the Packet should not have been in the package with the beef jerky. “A plaintiff may prove a

12 design defect under either of two alternative tests—the consumer expectations test or the risk-

13 benefit test.” Demara v. The Raymond Corp., 13 Cal. App. 5th 545, 553 (2017). The consumer

14 expectations test is used when “the product is one within the common experience of ordinary

15 consumers.” In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs. & Prods.

16 Liab. Litig., 754 F. Supp. 2d 1208, 1220 (C.D. Cal. 2010) (quotation omitted). “To meet the

17 strictures of Twombly and Iqbal, Plaintiffs should identify which design defect theory is being

18 utilized and allege facts to support that theory.” Id. “For example, under the consumer

19 expectations test, plaintiff should describe how the [product] failed to meet the minimum safety

20 expectations of an ordinary consumer of that product.” Id. (quotation and citation omitted).

21 “Similarly, under the risk-benefit test, a plaintiff should allege that the risks of the design

22 outweigh the benefits, and then explain how the particular design of the [product] caused

23 [plaintiff] harm.” Id. (quotation and citation omitted). “A bare allegation that the product

24 suffered from a ‘design defect’ is an insufficient legal conclusion under Twombly and Iqbal.” Id.

25 (cleaned up). The Court finds that Plaintiff’s allegations of defective design do not meet the

26 Twombly/Iqbal pleading standard.

27 Count II alleges strict liability for failure to warn/inadequate warnings. Plaintiff contends

28 that Defendants knew or should have known that risks of putting the Packet inside the beef jerky

1 package and that “existing warnings and placement were insufficient to prevent injury.” ECF No.

2 3 at ¶ 24. “A plaintiff asserting causes of action based on a failure to warn must prove not only

3 that no warning was provided or the warning was inadequate, but also that the inadequacy or

4 absence of the warning caused the plaintiff's injury.” Bueno v. Merck & Co., 746 F. Supp. 3d

5 853, 870 (S.D. Cal. 2024), citing Himes v. Somatics, LLC, 29 F.4th 1125, 1126 (9th Cir. 2022).

6 Case law recognizes that “merely stating that the Defendants failed to ‘adequately warn’ of [the

7 alleged injury] is a bare legal conclusion and would be insufficient to state a cognizable failure to

8 warn claim[.]” Oregon v. Bos. Sci. Corp., No. 121CV01092DADBAK, 2022 WL 1607960, at *4

9 (E.D. Cal. May 20, 2022) (cleaned up). Plaintiff’s factual allegations are that there was a warning

10 and that the Packet stated “do not eat.” Plaintiff has not alleged, other than in a conclusory

11 manner, why this warning was inadequate. “A plausible claim for a failure to warn should

12 include allegations that inter alia identify which danger was not warned against, explain that the

13 danger was substantial, and that the danger was known or reasonably knowable, or explain how

14 any warning that was given was inadequate.” Marroquin v. Pfizer, Inc., 367 F. Supp. 3d 1152,

15 1160–61 (E.D. Cal. 2019). Plaintiff alleges only the conclusion that, “Defendants failed to

16 provide adequate warnings” and does not explain how the warning was inadequate. See also

17 Altman v. HO Sports Co., 821 F.Supp.2d 1178, 1188 (E.D. Cal. 2011) (“Generally, when a

18 warning is given, but the person to whom the warning is directed does not read the warning, there

19 is no causation.”)

20 In Count III, Plaintiff alleges negligence. “To state a cognizable claim for negligence

21 under California law, plaintiff must establish four required elements: (1) duty; (2) breach; (3)

22 causation; and (4) damages.” See Cisco Systems, Inc. v. STMicroelectronics, 77 F.Supp.3d 887,

23 895 (N.D. Cal. 2014). Plaintiff alleges that Defendants owed him a duty to exercise reasonable

24 care in the design, manufacture, distribution, and selling of the beef jerky. ECF No. 3 at ¶ 27.

25 Plaintiff alleges this duty was breached by failing to implement reasonable safeguards to prevent

26 ingestion and failing to provide adequate warnings. Id. at ¶ 28. Plaintiff alleges this negligence

27 caused him injury. Similar to Counts I and II, Plaintiff again largely pleads only the elements of

28 the claim without sufficient factual content. Plaintiff has not sufficiently alleged how Defendants

1 breached their duty and how that breach caused Plaintiff’s injury. See Marroquin, 367 F.Supp.3d

2 at 1164 (E.D. Cal. 2019) (“If a design defect is at issue, [plaintiff] must identify what aspect of

3 [the product] makes it defective. Without factual allegations that identify a product defect, and

4 allege that the defect resulted from Defendants’ negligence, no plausible claim is stated.”).

5 In Count IV, Plaintiff alleges breach of the implied warranty of merchantability, citing

6 California Commercial Code § 2314. That statute generally states that a contract for sale contains

7 an implied warranty that the goods are merchantable. The statute’s subsections give various

8 examples of merchantability, such as “fit for the ordinary purposes,” “are of fair average quality

9 within the description,” and are “adequately contained, packaged, and labeled.” Plaintiff alleges

10 the beef jerky was not merchantable “because it was not fit for the ordinary puprose for which

11 such goods are used and was unsafe due to the presence/ingestability of the oxygen-absorber

12 packet.” ECF No. 3 at ¶ 31. Under § 2314, “a plaintiff asserting breach of warranty claims must

13 stand in vertical contractual privity with the defendant.” Clemens v. DaimlerChrysler Corp., 534

14 F.3d 1017, 1024 (9th Cir. 2008). Generally “an end consumer … who buys from a retailer is not

15 in privity with a manufacturer.” Id. However, the Ninth Circuit recognized there are some

16 exceptions to this rule, including foodstuffs, and cited to Burr v. Sherwin Williams Co., 42 Cal.2d

17 682, 695 (1954) (“an exception to the privity requirement of privity has been made in cases

18 involving foodstuffs, where it is held that an implied warranty of fitness for human consumption

19 runs from the manufacturer to the ultimate consumer regardless of privity of contract.”).

20 Plaintiff alleges that the beef jerky was “not merchantable because it was not fit for the

21 ordinary purpose for which such goods are used and was unsafe due to the presence/ingestibility

22 [sic] of the oxygen-absorber packet.” ECF No. 3 at ¶ 31. This allegation does not strike the

23 Court as plausible given that such packets are commonly used in products like beef jerky for food

24 preservation.1 See Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible

25 claim for relief will … be a context-specific task that requires the reviewing court to draw on its

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1 As described in other litigation, oxygen packets are “packets of chemicals that react with

27 moisture to absorb oxygen when placed inside food containers. By removing oxygen from the

atmosphere inside the container, these packets ensure that food remains fresh for an extended

28 period of time.” Pactiv, LLC v. Multisorb Tech., Inc., 63 F.Supp3d 832, 835 (N.D. Ill. 2014).

1 judicial experience and common sense.”).

2 Plaintiff has largely pled the labels and conclusions which are insufficient under the pleading

3 standard set by Iqbal and Twombly. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the

4 elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

5 Accordingly, the Court will direct that Plaintiff submit a second amended complaint (“SAC”)

6 which alleges sufficient factual content to state a claim to relief that is plausible.

7 III. AMENDING THE COMPLAINT

8 If plaintiff chooses to amend the complaint, the SAC must contain a short and plain

9 statement of Plaintiff’s claims. The allegations of the SAC must be set forth in sequentially

10 numbered paragraphs, with each paragraph number being one greater than the one before, each

11 paragraph having its own number, and no paragraph number being repeated anywhere in the

12 complaint. Each paragraph should be limited “to a single set of circumstances” where

13 possible. Rule 10(b). As noted above, forms are available to help plaintiffs organize their

14 complaint in the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor

15 (Rm. 4-200), Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms.

16 The SAC must not force the Court or the Defendants to guess at what is being alleged

17 against whom. See McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir. 1996) (affirming

18 dismissal of a complaint where the district court was “literally guessing as to what facts support

19 the legal claims being asserted against certain defendants”). The SAC should contain specific

20 allegations as to the actions of each named defendant rather than making conclusory allegations

21 that the defendants acted collectively.

22 Also, the SAC must not refer to a prior pleading in order to make plaintiff’s pleading

23 complete. An amended complaint must be complete in itself without reference to any prior

24 pleading. Local Rule 220. This is because, as a general rule, an amended complaint supersedes

25 the original complaint. See Pacific Bell Tel. Co. v. Linkline Communications, Inc., 555 U.S. 438,

26 456 n.4 (2009) (“[n]ormally, an amended complaint supersedes the original complaint”) (citing 6

27 C. Wright & A. Miller, Federal Practice & Procedure § 1476, pp. 556-57 (2d ed. 1990)).

28 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

1 | of each defendant must be sufficiently alleged.

2 Plaintiffs second amended complaint must address the issues set forth herein. Plaintiff

3 | should include the identities of the Doe defendants, if he has learned the identities and wishes to

4 | include them in amended complaint. Plaintiff should plead the citizenship of all Defendants in

5 || support of his jurisdictional allegations. As to the substantive allegations, Plaintiff must plead

6 || sufficient factual content concerning his design defect and failure to warn claims to state a claim

7 || to relief that is plausible.

8 CONCLUSION

9 Accordingly, IT IS HEREBY ORDERED that:

10 1. Plaintiff's motions to proceed in forma pauperis (ECF Nos. 2 & 4) are GRANTED.

11 2. Plaintiff shall have 30 days from the date of this order to file a second amended

12 complaint that addresses the defects set forth above. If Plaintiff fails to timely comply

13 with this order, the undersigned may recommend that this action be dismissed.

14 3. Alternatively, if Plaintiff no longer wishes to pursue this action, Plaintiff may file a notice

15 of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil

16 Procedure.

17 | SOORDERED.

18 || DATED: July 12, 2026 Kink

20 SEAN C. RIORDAN

UNITED STATES MAGISTRATE JUDGE

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