Case 7:21-cv-03885-NSR Document 24 Filed 07/27/22 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`BRANDY OLDREY, individually and on behalf of
`all others similarly situated,
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`Plaintiff,
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`v.
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`NESTLÉ WATERS NORTH AMERICA, INC.,
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`Defendant.
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`NELSON S. ROMÁN, United States District Judge:
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`7/27/2022
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`21 CV 03885 (NSR)
`OPINION & ORDER
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`Plaintiff Brandy Oldrey (“Plaintiff”) brings this putative class action against Nestlé Waters
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`North America, Inc.1 (“Defendant”), alleging violation of New York’s General Business Law §§
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`349 and 350, breach of express warranty, breach of the implied warranty of merchantability,
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`violation of the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq., negligent
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`misrepresentation, fraud, and unjust enrichment. (ECF No. 1.) Presently before the Court is
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`Defendant's motion to dismiss the Complaint. (ECF No. 16.) For the following reasons, the
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`motion is GRANTED.
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`BACKGROUND
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`The following facts are taken from Plaintiff’s Complaint (ECF No. 1) and are accepted as
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`true and construed in the light most favorable to Plaintiff for purposes of this motion.
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`Defendant is a multinational bottler of water products, and it manufactures, markets, and
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`sells a raspberry and lime-flavored sparkling water under its Poland Springs brand (the “Product”).
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`(Compl. ¶¶ 1; 64.) Defendant markets the Product as a way to “ditch the sugary sodas.” (Id. ¶ 3.)
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`1 Nestlé Waters North America, Inc. is now known as BlueTriton Brands, Inc.
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`The Product has a label that states, “With a Twist of Raspberry Lime” and “Taste the Real” with
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`pictures of raspberries and limes. (Id. ¶¶ 5; 7.)
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`Consumers seek sparkling waters with real fruit ingredients, and value raspberries and
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`limes for their nutritive purposes. (Id. ¶¶ 5; 42.) However, most of the Product’s flavoring is from
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`non-raspberry and non-lime flavors. (Id. ¶ 22.) The ingredient list only includes “spring water,
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`CO2, natural flavors.” (Id. ¶ 23.) “Natural Flavors” is the term used where “a mix of extractives
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`and essences from various fruits, along with additives and solvents, are combined in a laboratory.”
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`(Id. ¶ 24.) This fails to inform consumers that the Product’s taste is mainly from fruits other than
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`raspberries and limes. (Id. ¶ 25.) If the Product provided “all the flavor depth” of the named fruit
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`ingredients, the label would state “raspberry oil, lime juice” instead of “Natural Flavors.” (Id. ¶
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`28.)
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`Plaintiff alleges that Defendant’s labeling misleads consumers as to the relative amount
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`and quantity of raspberry and lime ingredients. (Id. ¶ 9.) Consumers expect the presence of a non-
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`de minimis amount of raspberry and lime ingredients based on the labeling, and consumers prefer
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`foods which get their taste from food ingredients instead of added flavor as this is perceived as
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`more natural, less processed and not exposed to additives or solvents. (Id. ¶¶ 10; 12.) The Product
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`lacks “an authentic raspberry and lime taste” because it lacks sufficient amounts of the flavor
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`compounds of these fruits. (Id. ¶ 40.)
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`The front label also includes a “disclaimer” which states “NATURALLY FLAVORED
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`SPRING WATER WITH OTHER NATURAL FLAVORS AND CO2.” (Id. ¶ 18.)
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`Plaintiff alleges that even if consumers examined this disclaimer after seeing the other
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`representations, they would not know this meant the Product does not contain a “Twist of
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`Raspberry Lime.” (Id. ¶ 19.)
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`Plaintiff purchased the Product on at least one occasion. (Id. ¶ 67.) She bought the Product
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`because she expected it would provide the non-negligible amounts of the named fruit ingredients.
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`(Id. ¶ 68.) As a result of the representations, Defendant sold more of the Product and at higher
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`prices, and Plaintiff bought the product and paid more than she would have absent the
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`representations. (Id. ¶¶ 52-55; 69-70.)
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`Plaintiff initiated this action on May 2, 2021. (ECF No. 1.) On January 11, 2022,
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`Defendant filed a motion to dismiss (ECF No. 16), and Plaintiff filed a brief in opposition (ECF
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`No. 19.) Defendant also filed a notice of supplemental authority on April 7, 2022. (ECF No. 23.)
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`LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 12(b)(6), dismissal is proper unless the complaint
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`“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
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`its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 570 (2007)). When there are well-pled factual allegations in the complaint, “a court
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`should assume their veracity and then determine whether they plausibly give rise to an entitlement
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`to relief.” Id. at 679.
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`While the Court must take all material factual allegations as true and draw reasonable
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`inferences in the non-moving party’s favor, the Court is “not bound to accept as true a legal
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`conclusion couched as a factual allegation,” or to credit “mere conclusory statements” or
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`“[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 662, 678 (quoting
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`Twombly, 550 U.S. at 555). The critical inquiry is whether the plaintiff has pled sufficient facts to
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`nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. A
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`motion to dismiss will be denied where the allegations “allow[] the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
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`DISCUSSION
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`Plaintiff asserts claims against Defendant for (1) violations of §§ 349 and 350 of the New
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`York General Business Law (“GBL”), (2) negligent misrepresentation, (3) breach of express
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`warranty, (4) breach of implied warranty of merchantability, (5) violation of the Magnuson Moss
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`Warranty Act (“MMWA”), 15 U.S.C. §§ 2301, et seq., (6) fraud, and (7) unjust enrichment.
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`(Compl. ¶¶ 81-101.) The Court will examine each claim in turn.
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`I. New York General Business Law Sections 349 and 350
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`Section 349 of the GBL involves unlawful deceptive acts and practices, while section 350
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`involves unlawful false advertising. “The standard for recovery under [Section] 350, while
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`specific to false advertising, is otherwise identical to Section 349.” Denenberg v. Rosen, 897
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`N.Y.S.2d 391, 396 (2010) (quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324
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`n.1 (2002)). The elements of a cause of action under both Sections 349 and 350 are that: “(1) the
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`challenged transaction was ‘consumer-oriented’; (2) defendant engaged in deceptive or materially
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`misleading acts or practices; and (3) plaintiff was injured by reason of defendant’s deceptive or
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`misleading conduct.” Id. (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland
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`Bank, 85 N.Y.2d 20, 25 (1995)).
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`The parties’ main dispute in the instant motion involves the second element: whether
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`Defendant engaged in deceptive or materially misleading acts or practices. To be actionable, the
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`alleged deceptive act must be “likely to mislead a reasonable consumer acting reasonably under
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`the circumstances.” Oswego, 85 N.Y.2d at 26; see also Orlander v. Staples, Inc., 802 F.3d 289,
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`300 (2d Cir. 2015) (“As for the ‘materially misleading’ prong, ‘[t]he New York Court of Appeals
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`has adopted an objective definition of misleading, under which the alleged act must be likely to
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`mislead a reasonable consumer acting reasonably under the circumstances.’”). In determining
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`whether a reasonable consumer would be misled, “[c]ourts view each allegedly misleading
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`statement in light of its context on the product label or advertisement as a whole.” Pichardo v.
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`Only What You Need, Inc., No. 20-cv-493 (VEC), 2020 WL 6323775, at *2 (S.D.N.Y. Oct. 27,
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`2020) (citing Wurtzburger v. Kentucky Fried Chicken, No. 16-cv-08186, 2017 WL 6416296, at *3
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`(S.D.N.Y. Dec. 13, 2017)); see also Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir. 2013)
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`(“[I]n determining whether a reasonable consumer would have been misled by a particular
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`advertisement, context is crucial.”). “It is well settled that a court may determine as a matter of
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`law
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`that an allegedly deceptive advertisement would not have misled a reasonable
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`consumer.” Fink, 714 F.3d at 741 (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995);
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`Oswego, 85 N.Y.2d at 26).
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`A.
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`The Phrase “With a Twist of Raspberry Lime” is Not Misleading
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`Plaintiff first claims that the phrase “With a Twist of Raspberry Lime” viewed together
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`with the pictures of raspberries and limes on the Product’s front label is misleading because it
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`implies that the Product contains a non-de minimis amount of raspberry and lime ingredients, when
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`in fact, it contains only a trace amount of the same. (Compl. ¶ 10; 27.) Defendant avers that “the
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`law is clear that even where a product contains no fruit ingredients at all, use of names and
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`depictions of fruit to indicate flavor is not misleading to a reasonable consumer.” (BlueTriton
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`Brands Inc.’s Memorandum of Law in Support of Defendant’s Motion to Dismiss (“Mem.”) ECF
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`No. 17 at 10.)
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`“[C]ourts in this Circuit have sustained claims where the language of a product label, in
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`context, referred not only to a flavor but also indicated the presence of an ingredient.” Budhani
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`v. Monster Energy Co., 527 F. Supp. 3d 667, 678 (S.D.N.Y. 2021) (emphasis added). This is
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`evident in how courts have treated the word “vanilla” in food labels. Numerous courts (including
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`this Court) have dismissed challenges involving the use of the word “vanilla” on food labels
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`because there is nothing in the word “vanilla” itself that would lead a reasonable consumer to
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`understand a product’s flavor to be derived mostly or exclusively from the vanilla bean. See,
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`e.g., Myers v. Wakefern Food Corp., No. 20 CIV. 8470 (NSR), 20-CV-2402 (PGG) (JLC), 2022
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`WL 603000, at *4 (S.D.N.Y. Mar. 1, 2022) (concluding that the Product’s “vanilla” label would
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`not lead a reasonable consumer to understand its flavor to be derived mostly or exclusively from
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`the vanilla bean.”); Garadi v. Mars Wrigley Confectionery US, LLC, No. 1:19-cv-03209
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`(RJD)(ST), 2021 WL 2843137, at *3 (E.D.N.Y. July 6, 2021) (explaining the phrase “vanilla ice
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`cream” does not “make any claims about where or in what quantity the vanilla taste comes from.
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`It simply alerts a consumer faced with different flavors that this ice cream tastes
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`like vanilla”); Robie v. Trader Joe’s Co., No. 20-cv-07355-JSW, 2021 WL 2548960, at *6 (N.D.
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`Cal. June 14, 2021) (finding that the phrase “Vanilla Flavored” does not suggest to the reasonable
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`consumer that the flavor comes exclusively from the vanilla bean); Cosgrove v. Oregon Chai, Inc.,
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`520 F. Supp. 3d 562, 581 (S.D.N.Y. 2021) (concluding that the word “vanilla” on the front of the
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`package “appears to describe a flavor more than an ingredient” where there was “no reference to
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`‘vanilla bean’ or ‘vanilla extract’ anywhere on the packaging; nor [was] there any reference to the
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`product being ‘made with’ or ‘made from’ any part of the vanilla plant”); Parham, v. ALDI, Inc.,
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`No. 1:19-cv-08975 (PGG) (SDA), 2021 WL 709632, at *3 (S.D.N.Y. Feb. 15, 2021) (“A
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`reasonable consumer would understand that the word ‘vanilla’ on the front of the carton describes
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`how the Product tastes, not what it contains, especially in circumstances where the ingredients
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`listed . . . do not mention vanilla at all.”).
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`Here, when assessing the Product’s packaging as a whole, the label’s use of the phrase
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`“With a Twist of Raspberry Lime” merely represents that the Product is raspberry and lime
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`flavored. See Cruz v. D.F. Stauffer Biscuit Co., No. 20-CV-2402 (PGG) (JLC), 2021 U.S. Dist.
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`LEXIS 213641, at *16 (S.D.N.Y. Nov. 4, 2021) (dismissing GBL claim where “nothing on the
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`Product label states or implies that the cookies’ flavor is derived entirely or predominantly from
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`real lemons or from natural, non-artificial ingredients”). Indeed, the Product’s label does not use
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`language such as “made with raspberries and limes,” or any other similar message that would
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`convey to a reasonable consumer that the Product includes those particular ingredients. Cf. Atik v.
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`Welch Foods, Inc., No. 15-CV-5405 (MKB) (VMS), 2016 WL 5678474, at *10; 13 (E.D.N.Y.
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`Sept. 30, 2016) (holding the court could not conclude that the product’s labeling, which depicted
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`pictures of actual fruits and stated the fruit snacks were “made with real fruit”, would not mislead
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`a reasonable consumer). Further, any “confusion” that is created by the Product’s labeling may be
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`“sufficiently dispelled by the ingredients on the back of the package.” Cruz, 2021 U.S. Dist.
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`LEXIS 213641, at *17 (quoting Wallace v. Wise Foods, Inc., No. 20-CV-6831 (JPO), 2021 WL
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`3163599, at *2 (S.D.N.Y. July 26, 2021)). The label clearly states, “NATURALLY FLAVORED
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`SPRING WATER WITH OTHER NATURAL FLAVORS”, and the ingredients include “spring
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`water, CO2, and natural flavors.” (Compl. ¶¶ 18; 23.) As the Complaint states, “[b]ecause
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`raspberry oil or raspberry extract and lime juice are not separately identified ingredients, it means
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`that any real raspberry and lime is necessarily present as a flavoring.” (Id. ¶ 27.) Therefore, the
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`Court concludes that a reasonable consumer would associate the phrase “With a Twist of
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`Raspberry Lime” in the Product’s front label with its flavor and not as particular ingredients, much
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`less the predominant ones.
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`Plaintiff responds that Defendant’s position is contrary to the Second Circuit’s opinion in
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`Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018). (Plaintiff’s Memorandum of Law in
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`Opposition to Defendant’s Motion to Dismiss the Complaint (“Opp.”) ECF No. 19 at 3-4.)
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`Mantikas concerned the packaging of Cheez-Its crackers, the boxes of which were conspicuously
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`labeled “WHOLE GRAIN” and “MADE WITH WHOLE GRAIN.” Id. at 634. But in that case,
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`the grain content was indisputably comprised of predominantly enriched white flour and a smaller
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`amount of whole grain flour. Id. at 634. The product’s packaging disclosed the number of grams
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`of whole grain per serving (5 or 8 grams per serving size) and the Nutrition Facts panel accurately
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`listed the crackers’ actual composition: a serving size was 29 total grams and the first ingredient
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`listed was “enriched white flour.” Id. at 634–35. Despite these disclosures, the Second Circuit
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`held that the plaintiffs had stated a plausible claim because the crackers’ labeling “falsely impl[ied]
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`that the grain content is entirely or at least predominantly whole grain, whereas in fact, the grain
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`component consisting of enriched white flour substantially exceeds the whole grain portion.” Id.
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`at 637. Therefore, even the technically accurate Nutrition Facts panel did not “render [p]laintiffs’
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`allegations of deception implausible.” Id. Rather, the Court concluded that “a reasonable
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`consumer should not be expected to consult the Nutrition Facts panel on the side of the box to
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`correct misleading information set forth in large bold type on the front of the box.” Id. Therefore,
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`Plaintiff avers that “Defendant may not mislead reasonable consumers into believing the Product
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`contains raspberry and lime ingredients in one place, while ‘disclaiming’ their presence through
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`esoteric language in other places.” (Opp. at 4.)
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`However, the key distinction here is that the Court has found the “With a Twist” language
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`to be consistent with the full Product label. While the Nutrition Facts panel and ingredients list on
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`the whole grain Cheez-Its box contradicted rather than confirmed the “whole grain”
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`representations, here the Product’s full label and ingredients list confirm that the Product is merely
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`raspberry and lime flavored. See Cruz, 2021 U.S. Dist. LEXIS 213641, at *17–18 (“[T]he
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`Product’s front label does not state that it is free of artificial flavors, suggest that real lemons are
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`the only source of the cookies’ lemon flavoring, or claim that the flavor from real lemons
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`constitutes a certain percentage of the total lemon flavor. Therefore, the ingredient label’s
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`statement that the Product contains ‘natural and artificial flavors’ is consistent with Stauffer’s
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`representations on the front of its packaging and serves as clarifying language about the source of
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`the Product’s lemon flavor.”).
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`As the court in Boswell v. Bimbo Bakeries USA, Inc., held, cases involving food and drink
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`packaging that is alleged to be false or misleading with respect to the product’s actual ingredients
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`“yield a standard that distinguishes between two categories of packaging: first, packaging with a
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`prominent label that is unambiguous and misleading; and second, packaging with a prominent
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`label that is ambiguous, but the ambiguity is resolved by reference to the list of ingredients or a
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`Nutrition Facts panel.” 570 F.Supp.3d 89, 94 (S.D.N.Y. 2021). As the packaging in Mantikas
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`was found to be unambiguous and misleading, any disclosures in small print would not cure the
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`deception. Id. at 94–95. In contrast, here, the “With a Twist” phrase is ambiguous, as reasonable
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`consumers could differ on what this phrase means. Therefore, the Product’s labeling should be
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`viewed as a whole.
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`B.
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`The Phrase “Taste the Real” is Not Misleading
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`Plaintiff next alleges that the Product’s side panel which states, “Taste the Real” and “Real
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`Raspberry Lime flavor” “furthers the expectation that the Product will contain raspberry and lime
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`ingredients in non-negligible amounts.” (Compl. ¶ 17.) Defendant avers that a reasonable
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`consumer reading the label as a whole would not believe “Taste the Real” referred to real fruit
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`ingredients. (Mem. at 13.) The Court agrees. Directly underneath “Taste the Real”, the label
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`states “Real Raspberry Lime flavor. Real natural spring water. Refreshing bubbles. Enjoy the
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`real taste.” Reading the label as a whole, it is clear that “Taste the Real” is referring to the flavor
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`of the natural spring water. See Brown v. Kerry Inc., No. 20-CV-9730 (PGG) (JLC), 2021 WL
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`5446007, at *5 (S.D.N.Y. Nov. 22, 2021) (“[T]he context of the label as a whole suggests that
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`‘Slightly Sweet’ is a representation of the Product’s taste, rather than a representation that it is
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`‘low sugar.’”).
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`Accordingly, the Court concludes that Plaintiff has failed to sufficiently allege that the
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`Product’s label is misleading for purposes of her claims under GBL §§ 349 and 350. Because the
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`Court concludes that Plaintiff has not plausibly alleged that the Product’s label is misleading to a
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`reasonable consumer, it will dismiss Plaintiff’s claims under GBL §§ 349 and 350 of the GBL. It
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`is therefore not necessary to reach Defendant’s argument that these claims are preempted by
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`federal law. See Barreto v. Westbrae Nat., Inc., 518 F. Supp. 3d 795, 806 (S.D.N.Y 2021).
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`II.
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`Negligent Misrepresentation
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`Under New York law, a claim for negligent misrepresentation requires the plaintiff to
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`plausibly allege “(1) the existence of a special or privity-like relationship imposing a duty on the
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`defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and
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`(3) reasonable reliance on the information.” Marc J. Bern & Partners LLP v. U.S. Legal Support,
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`Inc., No. 17 Civ. 6771 (ER), 2018 WL 2943784, at *6 (S.D.N.Y. June 11, 2018) (citing J.A.O.
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`Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144, 148 (2007)). “A special relationship may be
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`established by ‘persons who possess unique or specialized expertise, or who are in a special
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`position of confidence and trust with the injured party such that
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`reliance on
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`the negligent
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`misrepresentation is justified.’” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180 (2011)
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`(quoting Kimmell v. Schaefer, 89 N.Y.2d 257, 263 (1996)).
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`“[G]enerally, a special relationship does not arise out of an ordinary arm’s length business
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`transaction between two parties.” Marc J. Bern, 2018 WL 2943784, at *6 (quoting MBIA Ins.
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`Corp. v. Countrywide Home Loans, Inc., 87 A.D.3d 287, 296–97 (2011)). Instead, “[i]n the
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`commercial context, a closer degree of trust between the parties than that of the ordinary buyer
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`and seller is required to establish the ‘existence of . . . a special relationship . . . [capable of]
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`giv[ing] rise to an exceptional duty regarding commercial speech and justifiable reliance on such
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`speech.’” Izquierdo v. Mondelez Int’l, Inc., No. 16-cv-04697 (CM), 2016 WL 6459832, at *8
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`(S.D.N.Y. Oct. 26, 2016) (quoting Kimmell, 89 N.Y.2d at 264) (alterations in original). Kimmell
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`directs courts to examine the following factors to determine whether a special relationship, and a
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`duty to provide correct information, exists: (1) “whether the person making the representation held
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`or appeared to hold unique or special expertise”; (2) “whether a special relationship of trust or
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`confidence existed between the parties”; and (3) “whether the speaker was aware of the use to
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`which the information would be put and supplied it for that purpose.” Id. (quoting Kimmell, 89
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`N.Y.2d at 264).
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`Here, Defendant argues that Plaintiff does not plausibly allege the existence of a special
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`relationship. (Mem. at 22.) Plaintiff responds that Defendant “h[eld] itself out as having special
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`knowledge and experience [in] this area.” (Opp. at 18.) Applying the Kimmell factors, the
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`relationship between Defendant, as the manufacturer and seller, and Plaintiff as the buyer, does
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`not rise to the level of the kind of special relationship—approaching that of privity—that would
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`impose a duty to speak on Defendant. “[N]ot all representations made by a seller of goods . . . will
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`give rise to a duty to speak with care.” Dallas Aero., Inc. v. CIS Air Corp., 352 F.3d 775, 788 (2d
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`Cir. 2003) (quoting Kimmell, 89 N.Y.2d at 263). “Instead, the law of negligent misrepresentation
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`requires a closer degree of trust between the parties than that of the ordinary buyer and seller in
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`order to find reliance on such statements justified.” Id. (citing Kimmell, 89 N.Y.2d at 263).
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`The Complaint’s allegations here only describe a relationship between Plaintiff and
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`Defendant which is that of an ordinary buyer and seller—which does not give rise to the kind of
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`special relationship necessary to maintain a claim for negligent misrepresentation. See, e.g.,
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`Izquierdo, 2016 WL 6459832, at *9 (dismissing negligent misrepresentation claim based on
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`allegedly misleading candy packaging because “[n]othing in the complaint suggests that the
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`transaction differs in any way from the numerous cases in this District and Circuit in which courts
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`have held that a basic commercial transaction does not give rise to a special relationship.”); Segedie
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`v. Hain Celestial Grp., Inc., No. 14-cv-5029 (NSR), 2015 WL 2168374, at *14 (S.D.N.Y. May 7,
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`2015) (dismissing negligent misrepresentation claim alleging defendant’s products were
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`misleadingly labeled as “organic,” “natural,” or “all natural” for “failure to plead any cognizable
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`special relationship” with the defendant, reasoning that “[d]efendant’s obligation to label products
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`truthfully does not arise from any special relationship. There is nothing approximating privity
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`between the parties.”).
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`Accordingly, Plaintiff’s negligent misrepresentation claim fails.
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`III. Breach of Express Warranty
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`To state a claim for an express breach of warranty under New York law, plaintiffs must
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`plead “(1) the existence of a material statement amounting to a warranty, (2) the buyer’s reliance
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`on this warranty as a basis for the contract with the immediate seller, (3) breach of the warranty,
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`and (4) injury to the buyer caused by the breach.” Goldemberg v. Johnson & Johnson Consumer
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`Cos., Inc., 8 F. Supp. 3d 467, 482 (S.D.N.Y. 2014). However, “[i]n order to assert a breach of
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`express warranty claim under New York law, ‘a buyer must provide the seller with timely notice
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`of the alleged breach of warranty.’”2 Lugones, 440 F. Supp. 3d at 244 (quoting Quinn v. Walgreen
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`Co., 958 F. Supp. 2d 533, 544 (S.D.N.Y. 2013)); see also N.Y. U.C.C. § 2-607(3)(a) (“the buyer
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`2 “Although a minority of New York State cases suggest an exception to the notice requirement in retail sales,
`the court declines to impose this exception in the instant action, particularly given that the exception appears to be
`exclusively applied where a party alleges physical, in addition to economic, injury.” Colella v. Atkins Nutritionals,
`Inc., 348 F. Supp. 3d 120, 143–44 (E.D.N.Y. 2018); see also Lugones v. Pete & Gerry’s Organic, LLC, 440 F. Supp.
`3d 226, 245 (S.D.N.Y. 2020) (following Colella and finding the exception “inapplicable where, as here, Plaintiffs
`have not alleged any physical or personal injury as a result of Defendant's alleged breach”). Here, too, Plaintiff has
`not alleged any physical or personal injury, so the exception is inapplicable.
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`Case 7:21-cv-03885-NSR Document 24 Filed 07/27/22 Page 14 of 17
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`must within a reasonable time after he discovers or should have discovered any breach notify the
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`seller of breach or be barred from any remedy”).
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`Here, Defendant avers that Plaintiff has failed to give timely pre-suit notice of the alleged
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`breach as required by New York law. (Mem. at 17.) The Court agrees and concludes that
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`Plaintiff’s express warranty claim fails for lack of timely notice. Plaintiff alleges only that she
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`“provided or will provide notice to defendant, its agents, representatives, retailers and their
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`employees.” (Compl. ¶ 90.) “That allegation is insufficient to show that the buyer provided timely
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`notice of the alleged breach—the statement is wholly equivocal.” Campbell v. Whole Foods Mkt.
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`Grp., Inc., 516 F. Supp. 3d 370, 391 (S.D.N.Y. 2021). It does not allege that notice has been
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`provided, only that Plaintiff “provided or will provide” notice.3 “If Plaintiff had provided notice,
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`she could have written that, rather than pleading, in essence, both that she did provide notice, and
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`that she did not do so but will do so in the future. Plaintiff has not adequately pleaded that she in
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`fact provided notice.” Id.
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`Accordingly, the Court dismisses Plaintiff’s claim for breach of express warranty. See
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`Lugones, 440 F. Supp. 3d at 245 (finding that “Plaintiffs must allege some form of timely, pre-
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`litigation notice” and dismissing breach of express warranty claim for failure to provide timely
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`notice); Colella, 348 F. Supp. 3d at 143–44 (dismissing express warranty claim where the
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`complaining “ma[de] no allegations and state[d] no facts showing that notice was provided to
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`defendant”); Quinn, 958 F. Supp. 2d at 544 (dismissing breach of warranty claim for failure to
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`allege timely notice).
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`Breach of Implied Warranty of Merchantability
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`IV.
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`
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`3 Plaintiff also alleges that “Defendant received notice and should have been aware of these issues due to
`complaints by regulators, competitors, and consumers, to its main office over the past several years.” (Compl. ¶ 91.)
`This allegation does not suggest that the buyer provided timely notice, as required.
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`Case 7:21-cv-03885-NSR Document 24 Filed 07/27/22 Page 15 of 17
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`On the same basis on which the Court dismissed Plaintiff’s claim for breach of express
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`warranty, the Court similarly dismisses her claim for breach of the implied warranty of
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`merchantability. “The U.C.C.’s notice requirement also applies to claims for breach of implied
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`warranty.” Campbell, 516 F. Supp. 3d at 392; see also Int’l Bhd. of Teamsters Local 456 Health
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`& Welfare Tr. Fund v. Quest Diagnostics Inc., No. 10-cv-1692 (RJD), 2012 WL 13202126, at *23
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`(E.D.N.Y. Apr. 19, 2012) (dismissing express and implied warranty claims for failure to plead that
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`defendants were given timely notification of breach); Hubbard v. Gen. Motors Corp., No. 95-cv-
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`4362, 1996 WL 274018, at *4 (S.D.N.Y. May 22, 1996) (dismissing express and implied warranty
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`claims under Section 2-607(3) of the U.C.C. because the complaint “lacks any allegation that
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`plaintiff notified [the defendant]”).
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`V. Magnuson Moss Warranty Act
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`“To state a claim under the MMWA, plaintiffs must adequately plead a cause of action for
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`breach of written or implied warranty under state law.” Garcia v. Chrysler Grp. LLC, 127 F. Supp.
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`3d 212, 232 (S.D.N.Y. 2015). Hence, as her state law claims for express and implied warranty
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`fail, Plaintiff’s MMWA claim similarly fails for the same reasons.
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`VI.
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`Fraud
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`To state a claim of fraud under New York law, Plaintiff must allege “(1) a material
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`misrepresentation or omission of fact, (2) made with knowledge of its falsity, (3) with an intent to
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`defraud, and (4) reasonable reliance on the part of the plaintiff, (5) that causes damage to the
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`plaintiff.” Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir. 1997). A claim of
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`fraud must be alleged with the particularity required by Federal Rule of Civil Procedure 9(b),
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`which “requires that the plaintiff (1) detail the statements (or omissions) that the plaintiff contends
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`are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions)
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`were made, and (4) explain why the statements (or omissions) are fraudulent.” Fin. Guar. Ins. Co.
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`v. Putnam Advisory Co., LLC, 783 F.3d 395, 402–03 (2d Cir. 2015). Rule 9(b) permits a plaintiff
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`to allege scienter generally, but the Second Circuit has “repeatedly required plaintiffs to plead the
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`factual basis which gives rise to a strong inference of fraudulent intent.” United States ex rel.
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`Tessler v. City of N.Y., 712 F. App’x 27, 29 (2d Cir. 2017) (summary order) (quoting O’Brien v.
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`Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991)).
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`As discussed above, the Court concludes that Plaintiff has failed to allege a material
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`misrepresentation of fact or omission because a reasonable consumer would not conclude that the
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`Product’s label communicates that the Product’s flavor derives predominantly from raspberries
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`and limes. Furthermore, Plaintiff fails to plead facts that show Defendant acted with fraudulent
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`intent. The Complaint merely contains conclusory statements that Defendant’s intent “is evinced
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`by its knowledge of the relevant regulations, as its misleading claims are carefully worded to avoid
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`the obvious prohibited statements but still misleading.” (Compl. ¶ 100.) This is insufficient. See
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`Barreto, 518 F. Supp. 3d at 808 (dismissing fraud claim for the same reasons); Santiful v. Wegmans
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`Food Markets, Inc., No. 20-CV-2933 (NSR), 2022 WL 268955, at *7 (S.D.N.Y. Jan. 28, 2022)
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`(same). Therefore, Plaintiff’s fraud claim fails.
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`VII. Unjust Enrichment
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`Under New York law, an unjust enrichment claim requires “(1) that the defendant
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`benefitted; (2) at the plaintiff’s expense; and (3) that equity and good conscience require
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`restitution.” Kaye v. Grossman, 202 F.3d 611, 616 (2d. Cir. 2000) (internal quotation marks
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`omitted). Plaintiff has failed to allege that any gains to Defendant would be unjust because she
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`has not plausibly alleged that a reasonable consumer would be misled or deceived by the Product’s
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`label. See, e.g., McVetty v. TomTom N. Am., Inc., No. 19 CV 4908 (NSR), 2021 WL 965239, at
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`*8 (S.D.N.Y. Mar. 13, 2021) (holding “McVetty [] failed to allege that any gains would be unjust
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