McMorrow et al v. Mondelez International, Inc., No. 3:2017cv02327 - Document 30 (S.D. Cal. 2018)
Court Description: ORDER denying Plaintiffs' 25 Motion for Leave to File Amended Complaint. Defendant shall file a responsive pleading to the operative complaint within 14 days of the date of this Order. Signed by Judge Cynthia Bashant on 10/17/2018. (jah)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 PATRICK MCMORROW, et al., 12 Case No. 17-cv-2327-BAS-JLB Plaintiffs, 13 v. 14 [ECF No. 25] MONELEZ INTERNATIONAL, INC., 15 16 ORDER DENYING MOTION FOR LEAVE TO AMEND COMPLAINT Defendant. 17 18 Presently before the Court is Plaintiffs’ Motion for Leave to Amend 19 Complaint, (“Mot.,” ECF No. 25). Also before the Court is Defendant’s opposition 20 to the Motion, (ECF No. 28), and Plaintiffs’ reply in support of the Motion, (ECF 21 No. 29). The Court finds this Motion suitable for determination on the papers 22 submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated 23 below, this Court DENIES Plaintiffs’ Motion. 24 I. BACKGROUND 25 Plaintiffs Patrick McMorrow and Marco Ohlin filed a complaint against 26 Defendant Mondelez International, Inc. in November 2017. (ECF No. 1.) Plaintiffs 27 alleged they were deceived into buying Defendant’s belVita Breakfast Products (the 28 “Products”) and alleged violations of the Consumer Legal Remedies Act, Unfair –1– 17cv2327 1 Competition Law, and False Advertising Law, as well as breaches of express and 2 implied warranties. Defendant filed a motion to dismiss. (ECF No. 7.) Before the 3 Court ruled on the motion, Plaintiffs filed an amended complaint, which added 4 Melody DiGregorio as a Plaintiff and alleged violations of various California and 5 New York laws. (ECF No. 13.) Defendant moved to dismiss the amended complaint. 6 (ECF No. 15.) The Court granted in part and denied in part Defendant’s motion. 7 (ECF No 23.) 8 In the order, the Court analyzed whether Plaintiffs’ claims were preempted by 9 the Federal Food, Drug, and Cosmetic Act (“FDCA”). As relevant here, the Court 10 analyzed Plaintiffs’ “fiber” claims, which centered on the following advertising 11 statements: “a nutritious, convenient breakfast choice that contains slow-release 12 carbs from wholesome grains to help fuel your body for 4 hours” “Power up People,” 13 “Enjoy belVita Breakfast Biscuits as part of a balanced breakfast with a serving of 14 low-fat dairy and fruit,” “specifically baked to release energy regularly and 15 continuously to fuel your body throughout the morning,” and “satisfying morning 16 energy to start your day off right.” The Court noted the FDCA preempts three types 17 of labeling claims (or statements): express nutrient content claims, implied nutrient 18 content claims, and health claims. (Id. at 10.) An implied nutrient content claim 19 “must either suggest (1) a nutrient is absent or present in a food ‘in a certain amount 20 (e.g. “high in oat bran”)’ or (2) a food helps ‘maintain[] healthy dietary practices’ 21 and is made along with ‘an explicit claim or statement about the nutrient (e.g. 22 “healthy, contains 3 grams (g) of fat”).’” (Id. at 14 (quoting 21 C.F.R. § 23 101.13(b)(2)(i), (ii)).) The Court found Plaintiffs’ fiber claims were implied-nutrient 24 content claims and implied “that the Products contain a high enough amount of fiber 25 from whole grains to last four hours.” (Id.) Therefore, the fiber claims were 26 preempted by the FDCA. 27 The Court granted the motion to dismiss Plaintiffs’ fiber claims without leave 28 to amend. (Id. at 28.) The Court granted the motion to dismiss Plaintiffs’ warranty –2– 17cv2327 1 claims with leave to amend and permitted Plaintiffs to file a second amended 2 complaint. Plaintiffs then filed a second amended complaint. Five days after doing 3 so and before Defendant could file a responsive pleading, Plaintiffs filed the present 4 motion seeking leave to file a third amended complaint. 5 II. LEGAL STANDARD 6 Rule 15(a) of the Federal Rules of Civil Procedure provides that after a 7 responsive pleading has been served, a party may amend its complaint only with the 8 opposing party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a). “The 9 court should freely give leave when justice so requires,” and apply this policy with 10 “extreme liberality.” Id.; DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th 11 Cir. 1987). However, leave to amend is not to be granted automatically. Zivkovic v. 12 S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Jackson v. Bank of 13 Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)). Granting leave to amend rests in the 14 sound discretion of the district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 15 1331 (9th Cir. 1996). 16 The Court considers five factors in assessing a motion for leave to amend: (1) 17 bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of the 18 amendment, and (5) whether the plaintiff has previously amended the complaint. 19 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Foman v. Davis, 20 371 U.S. 178, 182 (1962). The party opposing amendment bears the burden of 21 showing any of the factors above. See DCD Programs, 833 F.2d at 186. Of these 22 factors, prejudice to the opposing party carries the greatest weight. Eminence 23 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). However, absent 24 prejudice, a strong showing of the other factors may support denying leave to amend. 25 See id. 26 “Futility of amendment can, by itself, justify the denial of a motion for leave 27 to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Futility is a measure 28 of the amendment’s legal sufficiency. “[A] proposed amendment is futile only if no –3– 17cv2327 1 set of facts can be proved under the amendment . . . that would constitute a valid and 2 sufficient claim or defense.” Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th 3 Cir. 1988). Thus, the test of futility is identical to the one applied when considering 4 challenges under Rule 12(b)(6) for failure to state a claim upon which relief may be 5 granted. Baker v. Pac. Far E. Lines, Inc., 451 F. Supp. 84, 89 (N.D. Cal. 1978); see 6 Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (“A district court does not 7 err in denying leave to amend . . . where the amended complaint would be subject to 8 dismissal.” (citation omitted)). 9 III. ANALYSIS 10 Plaintiffs seek leave to add new claims to their complaint: “allegations that the 11 ‘high’ fiber claim violates applicable food labeling regulations, which are actionable 12 under California’s and New York’s consumer protection statutes.” (Mot 1.) In sum, 13 Plaintiffs allege the Court found in its prior order that Defendant’s advertising 14 statements make “a ‘high’ fiber claim.” (Id. at 4.) Given this, Plaintiffs allege “the 15 Products fail to make the required total fat disclosure and fail meet the requirements 16 for a ‘high’ fiber claim” per federal code regulations. (Id.) Therefore, Plaintiffs 17 request “leave to amend to add additional allegations of these violations.” (Id.) 18 Plaintiffs allege the proposed amendment is a “natural consequence[] of accepting 19 the Court’s finding.” (Id. at 5.) 20 Defendant’s response is two-fold: (1) Plaintiffs offer no compelling reason to 21 file a fourth complaint; and (2) Plaintiffs’ proposed amendments are futile. As to 22 Defendant’s first argument, a plaintiff need not offer a “compelling reason” to amend 23 a complaint. Instead, the Court must look for evidence of bad faith, undue delay, 24 prejudice to the defendant, futility of the amendment, and whether the plaintiff has 25 previously amended the complaint. Johnson, 356 F.3d at 1077 (9th Cir. 2004). The 26 Court finds no evidence of undue delay or bad faith. Although the Court finds it 27 strange that Plaintiffs filed their second amended complaint and immediately moved 28 to file another amended complaint, (rather than simply move to amend before filing –4– 17cv2327 1 at all), this is not evidence of bad motive. Nor is there evidence of a repeated failure 2 to cure deficiencies through prior amendments because Plaintiffs seek to add a brand 3 new allegation that the Court has not yet analyzed. Further, Defendant will not be 4 prejudiced by the amendment because Defendant will be required to respond to the 5 operative complaint, regardless of which version that may be. 6 The Court now turns to futility. Plaintiffs’ proposed amendment centers on 21 7 C.F.R. § 101.54(b) and (d)(1)–(2). (Mot. 3.) Under section (b), the term “high” may 8 be used on a food label if the food contains twenty percent or more of the Reference 9 Daily Intake or the Daily Reference Value per reference amount customarily 10 consumed. 21 C.F.R. § 101.54(b). Under subsection (d), if a food label claims the 11 food is “high in fiber” and the food is not “low” in fat, then the label “shall disclose 12 the level of total fat per labeled serving.” Id. § 101.54(d)(1). Plaintiffs allege 13 Defendant’s Products do not meet the requirements of a “high” fiber claim because 14 they do not contain twenty percent of the Daily Reference Value of fiber. (Mot 4.) 15 Plaintiffs also allege the Products do not make the required total fat disclosure. (Id.) 16 Defendant argues Plaintiffs’ amendment would be futile because 21 C.F.R. 17 § 101.54 only applies if the claim explicitly states the product is “high” in fiber, not 18 if a claim or statement only suggests it. (Opp’n 5.) Defendant cites a few cases, one 19 being Coe v. General Mills, Inc., No. 15-cv-5112-TEH, 2016 WL 4208287 (N.D. 20 Cal. Aug. 10, 2016). There, the court rejected the argument that the use of the name 21 “Cheerios Protein” is the same as advertising the Cheerios contained a “good source” 22 of protein. 2016 WL 4208287, at *4. Therefore, the regulation under 21 C.F.R. § 23 101.54(c) (which comes into play if the food advertises it contains a “good source” 24 of something) does not apply. “The regulation governing such claims applies only 25 to the use of the words ‘good source,’ ‘contains,’ or ‘provides’—none of which is 26 present here.” Id. (citing 21 C.F.R. § 101.54(c).) 27 The Court agrees with this reasoning. Simply because the Court found 28 Defendant’s advertising statements imply the Products are high in fiber does not –5– 17cv2327 1 trigger Defendant to advertise or label the Products as “high” in fiber nor follow any 2 rules related to this. In its prior order, the Court specifically stated Defendant’s 3 statement “suggests the Products include a high amount of fiber,” (ECF No. 23, at 4 15), and this is not the same as a finding that Defendant does or should advertise the 5 Products as “high” in fiber per the code. The Products do not even advertise they 6 contain any fiber, so there is certainly no requirement that the label quantify the 7 amount of fiber the Products contain. This follows the plain meaning of the language 8 of the code, which says: The term “‘high’ . . . may be used on the label . . . provided 9 that the food contains” the required amount of the nutrient. 21 C.F.R. § 101.54(b)(1). 10 Subsection (d) provides, “If a nutrient content claim is made with respect to the level 11 of dietary fiber . . . .” then certain labeling requirements must be met. 12 § 101.54(d)(1) (emphasis added). The code does not state that a Product must 13 advertise it contains a “high” level of fiber and follow other requirements if it indeed 14 contains fiber. Therefore, Plaintiffs’ proposed amendment which would allege a 15 labeling violation under 21 C.F.R. § 101.54 is futile. 16 IV. Id. CONCLUSION 17 For the foregoing reasons, the Court DENIES Plaintiffs’ Motion to Amend. 18 (ECF No. 25.) As stipulated, Defendant shall file a responsive pleading to the 19 operative complaint within fourteen (14) days of the date of this Order. 20 IT IS SO ORDERED. 21 22 DATED: October 17, 2018 23 24 25 26 27 28 –6– 17cv2327
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