Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 1 of 28
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MATTHEW SINATRO, et al.,
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`Plaintiffs,
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`v.
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`BARILLA AMERICA, INC.,
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`Case No. 22-cv-03460-DMR
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`ORDER ON MOTION TO DISMISS
`FIRST AMENDED COMPLAINT
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`Re: Dkt. No. 15
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`Defendant.
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`Plaintiffs Matthew Sinatro and Jessica Prost filed this putative class action against
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`Defendant Barilla America, Inc. (“Barilla”) alleging false, misleading, and deceptive marketing
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`practices with respect to the labeling of certain of its Barilla-brand pastas. Barilla moves pursuant
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`to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the amended complaint.
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`[Docket No. 15.] This motion is appropriate for determination without oral argument. Civ. L.R.
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`7-1(b). For the following reasons, the motion is granted in part and denied in part.
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`I.
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`BACKGROUND
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`Plaintiffs make the following allegations in the amended complaint, all of which are taken
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`as true for purposes of the motion to dismiss.1 Barilla is a corporation headquartered in Illinois. It
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`originated as a bread and pasta shop in Parma, Italy in the nineteenth century. [Docket No. 11
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`(First Am. Compl, “FAC”) ¶¶ 11, 14.]
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`At issue in the FAC is the labeling of certain Barilla-brand pastas as “ITALY’S #1
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`BRAND OF PASTA®.” See FAC ¶ 2. Plaintiffs allege that “authentic Italian products, including
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`pastas, hold a certain prestige and [are] generally viewed as a higher quality product,” and that
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`1 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all
`of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
`(per curiam) (citation omitted).
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`Northern District of California
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`United States District Court
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 2 of 28
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`“the general ‘Italianness’ of a product influences consumers[’] overall evaluation of a product.”
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`Id. at ¶ 12 (citation omitted). According to Plaintiffs, “consumers willingly pay more for Italian
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`sounding and/or looking products.” Id. (citation omitted). Further, they allege, “Italian pasta is
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`one of the best and most sought after products in the global market,” and “Italian durum wheat is
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`among some of the ‘best varieties[’]” of wheat. Id. at ¶ 13. However, Italy’s production of
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`durum wheat does not meet worldwide demand. Accordingly, Plaintiffs allege, many companies,
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`including Barilla, “have scrambled to manufacture, market, and sell purportedly authentic ‘Italian-
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`made’ pastas, using durum wheat that is not sourced in Italy, in an effort to gain market share and
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`increase sales.” Id.
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`Plaintiffs allege that “[i]n an effort to increase profits and to obtain an unfair competitive
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`advantage . . . [Barilla] falsely and misleadingly labels certain of its Barilla® brand pastas as
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`‘ITALY’S #1 BRAND OF PASTA®,’ deliberately leading reasonable consumers, including
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`Plaintiffs, to believe that the Products are made in Italy” from ingredients “sourced in Italy.” Id. at
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`¶¶ 2, 22 (emphasis removed) (the “Challenged Representation”). They further allege that Barilla
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`reinforces this representation about the origin of the products by replicating the green, white, and
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`red colors of Italy’s flag surrounding the representation, “further perpetuating the notion that the
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`Products are authentic pastas from Italy.” Id. at ¶ 2. According to Plaintiffs, “contrary to this
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`labeling, the Products are not made in Italy” and are not manufactured from ingredients from Italy.
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`Id. at ¶ 3. Rather, the products are manufactured in Barilla’s plants in Iowa and New York using
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`ingredients sourced from countries other than Italy. Id. at ¶¶ 3, 14, 25. The FAC includes
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`examples of the packaging and labeling of several types of Barilla-brand pastas. Id. at ¶ 2; Ex. 1.
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`The front of the packaging of each product contains Barilla’s red and white brand logo, the name
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`of the product, and the Challenged Representation.
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`According to Plaintiffs, Barilla “deliberately designed and executed a decades long
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`marketing campaign to identify the Barilla® brand, company, and Products at issue in this case, as
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`authentic, genuine Italian pastas—made from ingredients sources [sic] in Italy (like durum wheat),
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`and manufactured in Italy.” FAC ¶ 16. This campaign included websites, a Barilla Historical
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`Archive, a Barilla Pasta Museum, and Barilla Academy, which Plaintiffs allege were “all designed
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`to promote the brand and company’s Italian identity” and “convince consumers that Barilla®
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`brand pastas . . . come from Italian ingredients, [are] processed and manufactured in Italian
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`factories, and then exported for sale to various countries,” including the United States. Id.
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`Plaintiffs further allege that “[n]othing on the Products’ labeling or packaging would lead
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`reasonable consumers to believe that the Challenged Representation—that the Products are made
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`in Italy, their ingredients are sourced in Italy, and the finished Products are manufactured in
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`Italy—is not true.” Id. at ¶ 22. Specifically, Plaintiffs allege that there is no “clear, unambiguous,
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`and conspicuously displayed statement, reasonably proximate to the Challenged Representation,
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`that reasonable consumers are likely to notice, read, and understand to mean that . . . the
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`Challenged Representation is indeed false as the Products’ ingredients are not sourced in Italy and
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`the Products themselves are not assembled or manufactured in Italy.” Id.
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`Plaintiff Sinatro purchased a box of the Classic Barilla Blue Box Pasta (Angel Hair) for
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`approximately $2.00 at a grocery store in San Francisco, California in the winter of 2021. FAC ¶
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`8. The Challenged Representation on the label led him to believe “that the Product was made in
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`Italy—to wit, the Products’ ingredients are from Italy and the Products are manufactured in Italy.”
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`Id. Sinatro did not review the side or back panels of the product and did not notice any statements
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`on the packaging that contradicted the Challenged Representation or otherwise indicated that the
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`pasta was not made or manufactured in Italy and/or that its ingredients were not from Italy.
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`Plaintiffs allege that Sinatro “would not have purchased the Product, or would not have overpaid a
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`premium for the Product’s purported Italian origin, had he known that the Challenged
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`Representation was false.” Id. Further, they allege that Sinatro “is not personally familiar with
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`the location from which the Products’ ingredients are sourced or the location where the Products
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`are manufactured as he does not possess any personal knowledge regarding where the Products are
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`made,” and therefore “has no way of determining whether the Challenged Representation on the
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`Products is true.” Id.
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`Plaintiff Prost purchased two boxes of the Classic Barilla Blue Box Pasta (Spaghetti) for
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`approximately $2.00 per box at a grocery store in Los Angeles, California in the fall of 2021. Id.
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`at ¶ 9. The Challenged Representation on the label led Prost to believe “that the Product was
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 4 of 28
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`made in Italy—to wit, the Products’ ingredients are from Italy and the Products are manufactured
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`in Italy.” Id. When she made the purchase, Prost did not review the side or back panels of the
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`product and did not notice any statements on the packaging that contradicted the Challenged
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`Representation or otherwise indicated that the pasta was not made or manufactured in Italy and/or
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`that its ingredients were not from Italy. Plaintiffs allege that Prost “would not have purchased the
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`Product, or would not have overpaid a premium for the Product’s purported Italian origin, had she
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`known that the Challenged Representation was false.” Id. Prost “is not personally familiar with
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`the location from which the Products’ ingredients are sourced or the location where the Products
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`are manufactured as she does not possess any personal knowledge regarding where the Products
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`are made,” and therefore “has no way of determining whether the Challenged Representation on
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`the Products is true.” Id.
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`Based on these allegations, Plaintiffs assert the following claims for relief: 1) violation of
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`the Unfair Competition Law (“UCL”), California Business & Professions Code section 17200 et
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`seq.; 2) violation of the False Advertising Law (“FAL), California Business & Professions Code
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`section 17500 et seq.; 3) violation of the Consumers Legal Remedies Act (“CLRA”), California
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`Civil Code section 1750 et seq.; 4) breach of warranty; and 5) unjust enrichment/restitution.
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`In addition to the particular products Sinatro and Prost purchased (the “purchased
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`products”), Plaintiffs’ claims also challenge the packaging for 52 additional Barilla-brand pastas
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`across several sub-brands: Classic Blue Box, Collezione Artisanal, Gluten Free, Veggie, and
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`Whole Grain. FAC ¶ 4. According to Plaintiffs, these additional products also contain the
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`Challenged Representation on the front labels of the packaging. Id.
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`Plaintiffs seek to represent a nationwide class of allegedly similarly situated persons,
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`defined as:
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`All residents of the United States who, within the applicable statute
`of limitations periods, purchased the Products, containing the
`Challenged Representation on the Products’ front packaging, for
`purposes other than resale[.]
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`FAC ¶ 31. They also seek to represent the following California subclass:
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`All residents of California who, within four years prior to the filing of
`this Complaint, purchased the Products, containing the Challenged
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 5 of 28
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`Representation on the Products’ front packaging, for purposes other
`than resale[.]
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`Id. Plaintiffs bring claims one through three on behalf of themselves and the California subclass.
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`They bring claims four and five on behalf of themselves, the nationwide class, and the California
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`subclass.
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`Barilla now moves to dismiss the FAC.
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`II.
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`LEGAL STANDARDS
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`Barilla moves to dismiss the FAC pursuant to Federal Rules of Civil Procedure 12(b)(1)
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`and 12(b)(6).
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`A.
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`Rule 12(b)(1)
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`The question of standing is “an essential and unchanging part of the case-or-controversy
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`requirement of Article III [of the U.S. Constitution].” Lujan v. Defenders of Wildlife, 504 U.S.
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`555, 560 (1992). Because standing is a jurisdictional issue, it is properly addressed under a Rule
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`12(b)(1) motion. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). A court will
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`dismiss a party’s claim for lack of subject matter jurisdiction “only when the claim is so
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`insubstantial, implausible, foreclosed by prior decisions of th[e Supreme] Court, or otherwise
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`completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a
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`Better Env’t, 523 U.S. 83, 89 (1998) (citation and quotation marks omitted); see Fed. R. Civ. P.
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`12(b)(1). To satisfy Article III’s standing requirements, a plaintiff must show “(1) it has suffered
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`an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural
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`or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3)
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`it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
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`decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81
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`(2000).
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`“Where standing is raised in connection with a motion to dismiss, the court is to accept as
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`true all material allegations of the complaint, and . . . construe the complaint in favor of the
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`complaining party.” In re Facebook, Inc. Internet Tracking Litigation, 956 F.3d 589, 597 (9th Cir.
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`2020) (quotations omitted).
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`Northern District of California
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 6 of 28
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`B.
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`Rule 12(b)(6)
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`A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in
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`the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
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`When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all
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`of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94 (2007) (citation
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`omitted), and may dismiss a claim “only where there is no cognizable legal theory” or there is an
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`absence of “sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New
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`Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556
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`U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (quotation marks
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`omitted). A claim has facial plausibility when a plaintiff “pleads factual content that allows the
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`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate
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`“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
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`will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing Papasan v. Allain, 478
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`U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001), overruled on
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`other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
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`As a general rule, a court may not consider “any material beyond the pleadings” when
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`ruling on a Rule 12(b)(6) motion. Lee, 250 F.3d at 688 (citation and quotation marks omitted).
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`However, “a court may take judicial notice of ‘matters of public record,’” id. at 689 (citing Mack
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`v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may also consider “documents
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`whose contents are alleged in a complaint and whose authenticity no party questions, but which
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`are not physically attached to the pleading,” without converting a motion to dismiss under Rule
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`12(b)(6) into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.
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`1994), overruled on other grounds by Galbraith, 307 F.3d at 1125-26. The court need not accept
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`as true allegations that contradict facts which may be judicially noticed. See Mullis v. U.S. Bankr.
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`Court, 828 F.2d 1385, 1388 (9th Cir. 1987).
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`III. REQUEST FOR JUDICIAL NOTICE
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`Barilla submitted a request for judicial notice along with its motion to dismiss. [Docket
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`Northern District of California
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`Nos. 15-8 (Request for Judicial Notice, “RJN”); 15-1 (Swanholt Decl., Aug. 19, 2022) Exs. A-F.]
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`It asks the court to take judicial notice of six exhibits, including what it contends are true and
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`correct copies of front and side-nutrition labels for Barilla-brand pastas as well as documents
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`related to Barilla’s trademark, “Italy’s #1 Brand of Pasta.”2
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`A. Legal Standard
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`A district court generally may not consider any material beyond the pleadings in ruling on
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`a Rule 12(b)(6) motion. Branch, 14 F.3d at 453. If “matters outside the pleading are presented to
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`and not excluded by the court,” the court must treat the motion as a Rule 56 motion for summary
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`judgment. See Fed. R. Civ. P. 12(d). “A court may, however, consider certain materials—
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`documents attached to the complaint, documents incorporated by reference in the complaint, or
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`matters of judicial notice—without converting the motion to dismiss into a motion for summary
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`judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “Both of these procedures
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`permit district courts to consider materials outside a complaint, but each does so for different
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`reasons and in different ways.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir.
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`2018). The Ninth Circuit has cautioned courts about the appropriate use of judicial notice and the
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`incorporation by reference doctrine when ruling on Rule 12(b)(6) motions:
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`The overuse and improper application of judicial notice and the
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`2 Barilla’s RJN consisted of a three-page brief that it filed in addition to its 16-page motion to
`dismiss. Plaintiffs filed a six-page opposition to the RJN, in addition to their 26-page opposition
`to the motion to dismiss (which violates Local Rule 7-3(a), which provides that any opposition to
`a motion may not exceed 25 pages of text). Additionally, Barilla filed a three-page reply to
`Plaintiffs’ opposition to the RJN (Docket No. 26-1) in addition to its 14-page reply. These
`submissions resulted in the parties’ submissions going beyond the page limits for the opposition
`and reply briefs. The court will consider Barilla’s separately-filed RJN and Plaintiffs’ separately-
`filed opposition thereto, but in future motions the parties must include any argument supporting or
`opposing requests for judicial notice within the main briefs and within the allotted page limits.
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`The court also notes that Civil Local Rule 3-4(c)(2) states that text “must be double-spaced
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`with no more than 28 lines per page, except for the identification of counsel, title of the case,
`footnotes, and quotations,” and that text must be “in a standard, proportionally spaced font.” In
`addition to being oversized, Plaintiffs’ opposition brief contains lengthy single-spaced blocks of
`texts and/or footnotes on many pages that appear designed to overcome Civil Local Rule 3-
`4(c)(2)’s requirement for double spacing. Additionally, Plaintiffs’ brief appears to violate the
`requirement that font be “proportionally spaced” by decreasing the spacing between letters and
`characters. Future failure to comply with the Local Rules may result in sanctions or the court’s
`striking of the offending submission.
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 8 of 28
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`incorporation-by-reference doctrine . . . can lead to unintended and
`harmful results. Defendants face an alluring temptation to pile on
`numerous documents to their motions to dismiss to undermine the
`complaint, and hopefully dismiss the case at an early stage. Yet the
`unscrupulous use of extrinsic documents to resolve competing
`theories against the complaint risks premature dismissals of plausible
`claims that may turn out to be valid after discovery. . . . If defendants
`are permitted to present their own version of the facts at the pleading
`stage—and district courts accept those facts as uncontroverted and
`true—it becomes near impossible for even the most aggrieved
`plaintiff to demonstrate a sufficiently “plausible” claim for relief.
`Such undermining of the usual pleading burdens is not the purpose of
`judicial notice or the incorporation-by-reference doctrine.
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`Id. (internal citations omitted).
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`Federal Rule of Evidence 201 governs judicial notice. Under Rule 201, a court may take
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`judicial notice of “an adjudicative fact if it is ‘not subject to reasonable dispute.’” Id. at 999
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`(quoting Fed. R. Evid. 201(b)). A fact is “not subject to reasonable dispute” if it is “generally
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`known,” or “can be accurately and readily determined from sources whose accuracy cannot
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`reasonably be questioned.” Fed. R. Evid. 201(b). While a court may take judicial notice of
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`matters of public record without converting a motion to dismiss into a motion for summary
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`judgment, it may not take judicial notice of disputed facts stated in public records. Lee, 250 F.3d
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`at 690. “Just because [a] document itself is susceptible to judicial notice does not mean that every
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`assertion of fact within that document is judicially noticeable for its truth.” Khoja, 899 F.3d at
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`999. If a court takes judicial notice of a document, it must identify the specific fact or facts it is
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`noticing from the document. Id.
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`In contrast, the incorporation by reference doctrine is “a judicially-created doctrine that
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`treats certain documents as though they are part of the complaint itself.” Id. at 1002. This is to
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`prevent “plaintiffs from selecting only portions of documents that support their claims, while
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`omitting portions that weaken—or doom—their claims.” Id. Incorporation by reference is
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`appropriate “if the plaintiff refers extensively to the document or the document forms the basis of
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`the plaintiff’s claim.” Id. at 1002 (quoting Ritchie, 342 F.3d at 907). However, if a document
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`“merely creates a defense to the well-pled allegations in the complaint, then that document did not
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`necessarily form the basis of the complaint.” Id. Further, “the mere mention of the existence of a
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`document is insufficient to incorporate the contents of a document.” Id. (quoting Coto Settlement
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 9 of 28
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`v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010)). The Ninth Circuit has instructed that “the
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`doctrine is not a tool for defendants to short-circuit the resolution of a well-pleaded claim.” Id.
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`Thus, “while a court “may assume [an incorporated document’s] contents are true for purposes of
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`a motion to dismiss under Rule 12(b)(6) . . . it is improper to assume the truth of an incorporated
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`document if such assumptions only serve to dispute facts stated in a well-pleaded complaint.” Id.;
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`see also id. at 1014 (“The incorporation-by-reference doctrine does not override the fundamental
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`rule that courts must interpret the allegations and factual disputes in favor of the plaintiff at the
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`pleading stage.”).
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`B.
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`Exhibits A and B
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`According to Barilla’s RJN, Exhibit A contains “true and correct copies of images of the
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`front and side-nutrition labels” for the two products Plaintiffs allegedly purchased, Classic Barilla
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`Blue Box Pasta (Angel Hair) and Classic Barilla Blue Box Pasta (Spaghetti). Swanholt Decl. ¶ 3,
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`Ex. A; see FAC ¶¶ 8, 9. Counsel states that these images were “taken from a website Plaintiffs
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`used to attach product images to their FAC,” foodservicedirect.com. Swanholt Decl. ¶ 3.
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`Barilla contends that Exhibit B contains “true and correct copies of the front and side-
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`nutrition labels” for four other products: Barilla Whole Grain Pasta (Penne); Barilla Veggie Pasta
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`(Spaghetti); Barilla Gluten Free Pasta (Penne); and Barilla Collezione Artisanal Pasta (Penne). Id.
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`at ¶ 4, Ex. B. According to counsel, these copies were “taken from a similar grocery store website
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`as used by Plaintiffs to attach product images to their FAC,” fredmeyer.com. Swanholt Decl. ¶ 4.
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`Exhibit A consists of two pages of what appear to be multiple screenshots of product
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`images that have been cut and pasted into a standalone document. The images are identified by
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`typed captions and links to webpages. Several of the product images contain type that is illegible,
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`and two of the images are labeled, “Side—Nutrition Label—Close Screenshot.” Similarly,
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`Exhibit B consists of four pages of what appear to be screenshots of product images that have been
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`cut and pasted into a standalone document with typed captions and webpages. As with Exhibit B,
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`multiple images are labeled “Side—Nutrition Label Close Screenshot.” Many of the images
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`contain type that is illegible.
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`Barilla argues that Exhibits A and B are judicially noticeable under Federal Rule of
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 10 of 28
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`Evidence 201(b)(2) because they “consist of information available on publicly available websites.”
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`RJN 3. It notes that the documents “contain images concerning products specifically alleged to be
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`purchased by Plaintiffs and/or referenced in the FAC.” Id. According to Barilla, Plaintiffs
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`attached images of the front labels of the products at issue as Exhibit 1 to the FAC, and “Exhibits
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`A and B merely provide the complete picture.” Id.
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`Plaintiffs oppose the request to take judicial notice of Exhibits A and B. They agree that
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`the court may take judicial notice of websites when the authenticity of the websites is not in
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`dispute. Opp’n to RJN 3 (citing Threshold Enterprises Ltd. v. Pressed Juicery, Inc., 445 F. Supp.
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`3d 139, 146 (N.D. Cal. 2020) (“In general, websites and their contents may be judicially
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`noticed.”)). However, they dispute the authenticity of the Exhibits, noting that they are not true
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`and accurate copies of webpages. Instead, Plaintiffs argue that Exhibits A and B consist of
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`“altered, zoomed-in versions of the webpages” that in many instances are barely legible. They
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`object based on Federal Rules of Evidence 1001-1003, which govern the admissibility of
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`duplicates of an original writing or photograph. Id. at 4-5.
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`The court declines to take judicial notice of Exhibits A and B. Rather than asking the court
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`to take judicial notice of Barilla’s actual product labels or of complete copies of webpages
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`depicting the labels, Barilla submitted exhibits that contain images purportedly cut and pasted
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`from third party websites, accompanied by typed captions that do not appear to have been part of
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`the original webpages. Compare Dinan v. Sandisk LLC, No. 18-CV-05420-BLF, 2019 WL
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`2327923, at *2 (N.D. Cal. May 31, 2019) (in product labeling case, taking judicial notice of the
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`actual packaging for the product the plaintiff purchased); Zeiger v. WellPet LLC, 304 F. Supp. 3d
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`837, 845 n.1 (N.D. Cal. 2018) (same). Defense counsel does not explain how Exhibits A and B
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`were created, stating only that his associate “accessed the foregoing website[s] and downloaded
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`the product labels on August 18, 2022.” Id. at ¶¶ 3, 4. He does not explain how the images were
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`selected, how the “close screenshots” were created, who added the captions and other type, or
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`otherwise describe the creation of the exhibits. In sum, Exhibits A and B lack foundation. See
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`Fed. R. Evid. 901(a) (“[t]o satisfy the requirement of authenticating or identifying an item of
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`evidence, the proponent must produce evidence sufficient to support a finding that the item is what
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 11 of 28
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`the proponent claims it is.”). Given the lack of foundation of Exhibits A and B and Plaintiffs’
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`authenticity objection, judicial notice is not appropriate.
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`Barilla also appears to ask the court to consider Exhibits A and B pursuant to the
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`incorporation by reference doctrine. RJN 3-4. This is inappropriate given the parties’ dispute
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`about the authenticity of the exhibits and the images therein. See Coto Settlement, 593 F.3d at
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`1038 (incorporation by reference may be used where the complaint necessarily relies upon a
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`document or the contents of the document are alleged in a complaint, the document’s authenticity
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`is not in question and there are no disputed issues as to the document’s relevance.”).
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`C.
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`Exhibits C-F
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`Exhibits C through F “contain excerpts of the file history for the “Italy’s #1 Brand of
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`Pasta” trademark. RJN 4. Barilla argues that these materials “come[ ] directly from the United
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`States Patent and Trademark register and [are] judicially noticeable.” Id. (citing Stone Brewing
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`Co., LLC v. MillerCoors LLC, 445 F. Supp. 3d 1113, 1127 (S.D. Cal. 2020) (in trademark
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`infringement case, noting that courts may “take judicial notice of ‘records and reports of
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`administrative bodies,’ file histories, and application materials” and granting unopposed request
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`for judicial notice of United States Patent Trademark Office documents)). Barilla does not explain
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`the significance or relevance of these materials in its RJN or how they bear on Plaintiffs’ claims
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`for false, misleading, and deceptive marketing practices. Accordingly, the court denies the request
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`to take judicial notice of Exhibits C through F as moot.
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`IV. DISCUSSION
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`Barilla argues that the FAC fails to state a claim under Rule 12(b)(6). It also asserts that
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`Plaintiffs lack Article III standing to pursue their claims. As Article III standing is a jurisdictional
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`issue, the court must first address that argument before reaching the merits of any 12(b)(6)
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`challenges to the sufficiency of pleading. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
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`94-95 (1998).
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`A. Standing
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`1.
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`Economic Injury
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`Barilla argues that Plaintiffs lack Article III standing because they do not allege a plausible
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`Case 4:22-cv-03460-DMR Document 30 Filed 10/17/22 Page 12 of 28
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`economic injury. Mot. 17.
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`Federal courts are courts of limited jurisdiction. Under Article III of the United States
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`Constitution, federal courts are limited to deciding “cases” and “controversies.” See Bova v. City
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`of Medford, 564 F.3d 1093, 1095 (9th Cir. 2009). Article III standing “is a necessary component
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`of subject matter jurisdiction.” In re Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir.
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`2011). Article III standing requires three elements: “[t]he plaintiff must have (1) suffered an
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`injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is
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`likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
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`(2016) (citing Lujan, 504 U.S. at 560-61). “To establish injury in fact, a plaintiff must show that
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`he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’
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`and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (citing Lujan,
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`504 U.S. at 560). While a concrete injury need not be tangible, “it must actually exist”; that is, it
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`must be “real, and not abstract.” Id. at 340 (quotation marks and citation omitted). “No concrete
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`harm, no standing.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021).
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`According to Barilla, Plaintiffs “do not plead any viable theory of overpayment or price
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`premium” due to the Challenged Representation “because they do not plausibly allege they would
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`have purchased a cheaper alternative, or that the Purchased Products’ market value would have
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`been less” had the products not displayed the Challenged Representation. Mot. 18. In support,
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`Barilla cites McGee v. S-L Snacks National, 982 F.3d 700, 706 (9th Cir. 2020). See Mot. 17-18.
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`McGee is inapposite since it addressed standing in a case where the plaintiff did not allege that the
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`defendant’s labeling was misleading. McGee,