IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF MISSOURI
`WESTERN DIVISION
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`) Case No. 21-2984-MD-W-BP
`) This Document Relates to All Actions
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`IN RE: FOLGERS COFFEE,
`MARKETING LITIGATION.
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`ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
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`Pending is Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Consolidated
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`Complaint, (Doc. 115). For the following reasons, the Motion is DENIED.
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`I. BACKGROUND
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`In this multidistrict litigation (“MDL”), Plaintiffs allege generally that Defendants The
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`J.M. Smucker Company (“Smucker”) and its subsidiary, The Folger Coffee Company (“Folgers”)
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`are liable for labeling coffee canisters in a way that misrepresents how many cups of coffee a
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`consumer can brew from the canisters’ contents. The Court recently issued an order addressing
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`Defendants’ motion to dismiss the Amended Consolidated Complaint, which explained Plaintiffs’
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`allegations in detail. (See Doc. 105.) The Court will not repeat that material here, but will instead
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`discuss aspects of the procedural history of this case which bear on Defendants’ current motion to
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`dismiss.
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`In April 2021, the Judicial Panel on Multidistrict Litigation (“JPML”) consolidated nine
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`cases from across the country, all of which advanced similar allegations about the allegedly
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`misleading labels on Folgers coffee. (Doc. 1.) At the outset of the litigation, the Court directed
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`the parties to confer on a variety of issues, including which group of attorneys should represent
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`Plaintiff. (Doc. 19.) Plaintiffs then divided into two factions, each of which supported a different
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`leadership structure; the Court then appointed the leadership team that currently represents
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`Plaintiffs. (Doc. 48.)
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`Per the parties’ agreement, Plaintiffs then drafted and filed a Consolidated Class Action
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`Complaint (the “First Consolidated Complaint”) which incorporated all of the claims from all of
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`the Plaintiffs. (Doc. 62.) However, for each individual Plaintiff who had advocated for a different
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`leadership team, the First Consolidated Complaint substituted a different individual from the same
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`state who raised similar claims; thus, some of the original individual Plaintiffs (the “Original
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`Plaintiffs”) were omitted from the First Consolidated Complaint in favor of different individuals
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`(the “New Plaintiffs”). In August 2021, the Court directed Plaintiffs to file an Amended
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`Consolidated Complaint (the “ACC”) which included the claims of the Original Plaintiffs. (Doc.
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`67.) Plaintiffs did so, Defendants duly moved to dismiss the Complaint, and in December 2021,
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`the Court granted the motion to dismiss in part and discussed Plaintiffs’ claims in detail. (Doc.
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`105.)
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`While this was happening, the New Plaintiffs began filing separate lawsuits in the various
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`states where their claims originated; the JPML subsequently consolidated those suits with this
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`MDL. In January 2022, Plaintiffs requested and received permission to file a Second Amended
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`Consolidated Complaint (“SACC”) incorporating the claims of all individual Plaintiffs, both new
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`and original. (Doc. 112.) The SACC became the operative pleading, and in February 2022,
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`Defendants filed the now-pending motion to dismiss it. (Doc. 115.)
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`Defendants’ motion to dismiss does not reiterate the arguments the Court addressed in its
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`previous order addressing the motion to dismiss the ACC; instead, it raises other arguments, most
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`of which are procedural issues relating to the claims of the New Plaintiffs. Therefore, the Court
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`will not summarize the manifold claims in the SACC, and instead will limit its discussion to those
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`aspects of the pleading that are relevant to Defendants’ motion. First, the SACC does not
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`incorporate some of the claims or requests for relief that the New Plaintiffs raised in the suits that
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`were subsequently consolidated with this case. Specifically:
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`• All New Plaintiffs requested punitive damages in their original complaints, but the SACC
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`does not request punitive damages;
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`• New Plaintiff Kimberly Clark brought a claim for violating the Magnuson-Moss Warranty
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`Act in her original complaint, but that claim does not appear in the SACC; and
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`• New Plaintiff Deborah Bosso brought claims for breach of express warranty and breach of
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`implied warranty in her original complaint, but those claims do not appear in the SACC.
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`The Court will refer to these claims collectively as the “Abandoned Claims.” Second, Bosso—
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`who resides and brought suit in New York—asserts claims for both unjust enrichment and a variety
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`of other statutory and common law claims. (E.g., Doc. 144, ¶¶ 142, 213.) With this background
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`in mind, the Court turns to the parties’ arguments.
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`II. DISCUSSION
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`Defendants raise three arguments in their motion to dismiss. First, they contend that all
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`the New Plaintiffs’ claims should be dismissed under the “First-to-File” rule. Second, they argue
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`that the Court should dismiss the Abandoned Claims with prejudice. Third, they request that
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`Bosso’s unjust enrichment claim be dismissed. The Court addresses each of these arguments in
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`turn.
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`1. The “First-to-File” Rule
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`Defendants first argue that all of the New Plaintiffs’ claims should be dismissed under the
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`so-called “first-to-file” rule. (Doc. 116, pp. 11–14.) The “first-to-file” rule provides that a court
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`can “decline jurisdiction over an action when a complaint involving the same parties and issues
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`has already been filed in another district.” Orthmann v. Apple River Campground, Inc., 765 F.2d
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`119, 121 (8th Cir. 1985) (emphasis added). Importantly, the first-to-file rule only applies where
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`the same “plaintiff attempts to maintain two actions against the same defendant . . . .” Missouri ex
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`rel. Nixon v. Prudential Health Care Plan, Inc., 259 F.3d 949, 954 (8th Cir. 2001); see also
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`Lexington Ins. Co. v. Integrity Land Title Co., Inc., 721 F.3d 958, 968 (8th Cir. 2013). Defendants
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`contend that because the New Plaintiffs filed their cases after this MDL was already pending and
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`raised similar claims to those in the MDL, the first-to-file rule bars the New Plaintiffs’ claims.
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`(Doc. 116, p. 13.)
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` The Court finds that the first-to-file rule does not apply for a very simple reason: the New
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`Plaintiffs are not the “same party” as the original Plaintiffs. The New Plaintiffs are different people
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`from the Original Plaintiffs, purchased different canisters of Folgers coffee at different times and
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`locations from the Original Plaintiffs, and consequently, suffered different alleged injuries, giving
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`rise to different claims. Defendants suggest that because this case is a putative class action, the
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`fact that the New Plaintiffs are different individuals from the original Plaintiffs is “inconsequential
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`because, ‘[i]n a class action, the classes, and not the class representatives, are compared.’” (Doc.
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`116, p. 13 (quoting Ross v. U.S. Bank Nat’l Ass’n, 542 F. Supp. 2d 1014, 1020 (N.D. Cal. 2008)).)
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`But as the Court has emphasized repeatedly, this case is not yet a class action, and indeed, it may
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`never become a class action; and as long as the case remains “simply a collection of individual
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`suits aggregated by the JPML,” (Doc. 67, pp. 10–11), the individual Plaintiffs are not fungible in
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`the manner Defendants suggest. Indeed, if Defendants’ application of the first-to-file rule were
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`the law, it would obviate the very concept of an MDL: each subsequent suit alleging a similar
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`injury, even if it were filed by a different plaintiff, would have to be dismissed rather than
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`consolidated with the other suits. But that is not the law, and because the New Plaintiffs are not
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`the “same party” as the other Plaintiffs, the Court declines to dismiss their claims on the basis of
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`the first-to-file rule.1
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`2. The Abandoned Claims
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`Defendants next argue that the Abandoned Claims should be dismissed with prejudice
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`because they did not appear in the SACC. (Doc. 116, pp. 14–15.) Plaintiffs respond that they
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`“voluntarily dismiss without prejudice any claims not asserted in the [SACC].” (Doc. 118, p. 6.)
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`“[A]n amended complant super[s]edes an original complaint and renders the original
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`complaint without legal effect.” In re Atlas Van Lines, 209 F.3d 1064, 1067 (8th Cir. 2000). Thus,
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`when Plaintiffs filed the SACC, the New Plaintiffs’ individual complaints were “in effect
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`withdrawn as to all matters not restated in the amended pleading, and bec[ame] functus officio.”
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`Tolen v. Ashcroft, 377 F.3d 879, 882 n.2 (8th Cir. 2004) (citation omitted). Put differently, the
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`Abandoned Claims are no longer in the case at all, and because they do not exist, they cannot be
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`dismissed—with or without prejudice. Therefore, the Court declines both parties’ invitations to
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`dismiss the Abandoned Claims.
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`3. Bosso’s Unjust Enrichment Claim
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`Finally, Defendants move to dismiss Bosso’s unjust enrichment claim, arguing that
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`because Bosso has an adequate remedy at law, he may not assert a claim arising in equity. (Doc.
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`116, p. 22.) The Court rejected a similar argument Defendants advanced in their initial motion to
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`dismiss, adhering to its general unwillingness to “require the dismissal of equitable unjust
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`enrichment claims where other remedies exist.” (Doc. 105, p. 32); see also Jones v. Monsanto
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`Company, 2019 WL 9656365, at *4 (W.D. Mo. June 13, 2019).
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`1 Defendants also assert that the incorporation of additional Plaintiffs into the case will place a discovery burden on
`Defendants, because they are limited to twenty depositions and there are fourteen individual Plaintiffs. (Doc. 116, p.
`14.) This is a reasonable concern, and the Court would entertain a request to allow Defendant to take additional
`depositions; but the Court does not believe that the burdens of discovery justify dismissing potentially viable claims.
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`In their current motion, Defendants acknowledge the Court’s ruling, but argue that Second
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`Circuit law requires the dismissal of unjust enrichment claims that are asserted alongside parallel
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`legal claims. (Doc. 116, p. 22.) As Plaintiffs point out, Defendants do not explain why the law of
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`the Second Circuit applies, given the generally applicable principle that “[w]hen analyzing
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`questions of federal law, the transferee court should apply the law of the circuit in which it is
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`located.” (Doc. 118, p. 8 (quoting In re Temporomandibular Joint (TMJ) Implants Prod. Liab.
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`Litig., 97 F.3d 1050, 1055 (8th Cir. 1996)).)2 And the Court is aware of no Eighth Circuit law
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`requiring the dismissal of unjust enrichment claims pled alongside legal remedies; therefore, the
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`Court declines to dismiss Bosso’s unjust enrichment claim.
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`III. CONCLUSION
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`For the foregoing reasons, Defendants’ motion to dismiss, (Doc. 115), is DENIED.
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`IT IS SO ORDERED.
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`DATE: March 9, 2022
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`/s/ Beth Phillips
`BETH PHILLIPS, CHIEF JUDGE
`UNITED STATES DISTRICT COURT
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`2 Of course, whether a legal claim is incompatible with an equitable one may be a question of state law, since unjust
`enrichment is a state common law cause of action; but whether a person may plead both types of claims is plainly a
`matter of federal law, and indeed, is governed by the Federal Rules of Civil Procedure. See FED. R. CIV. P. 8(d)(3).
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