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`Case 3:19-cv-00410-X Document 25 Filed 05/19/20 Page 1 of 22 PageID 196Case 3:19-cv-00410-X Document 25 Filed 05/19/20 Page 1 of 22 PageID 196
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
`
`
`MARILYN PIERCE,
`on Behalf of Herself and
`All Others Similarly Situated,
`
`
`Plaintiffs,
`
`
`v.
`
`NORTH DALLAS HONEY COMPANY,
`a Domestic Corporation,
`
`
`Defendant.
`
`
`
`§
`§
`§
`§
`§
`§
`§ Civil Action No. 3:19-cv-00410-B
`§
`§
`§
`§
`§
`
`
`DEFENDANT NORTH DALLAS HONEY COMPANY’S
`MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT
`AND MEMORANDUM IN SUPPORT THEREOF
`
`
`Michelle Y. Ku (mku@foley.com)
`Texas State Bar No. 24071452
`Foley Gardere
`
`Foley & Lardner LLP
`2021 McKinney Avenue, Suite 1600
`Dallas, TX 75201
`(214) 999-3000 Telephone
`(214) 999-4667 Facsimile
`
`Robert B. Wolinsky
`(robert.wolinsky@hoganlovells.com)
`DC Bar No. 479816
`(admitted pro hac vice)
`Hogan Lovells US LLP
`555 Thirteenth Street, NW
`Washington, DC 20004-1109
`(202) 637-8895 Telephone
`(202) 637-5910 Facsimile
`
`
`
`
`
`
`Counsel for Defendant North Dallas Honey Company
`
`
`
`
`
`
`
`
`
`
`

`

`
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`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ...........................................................................................................................1
`
`FACTUAL BACKGROUND ..........................................................................................................2
`
`LEGAL STANDARD ......................................................................................................................6
`
`ARGUMENT ...................................................................................................................................7
`
`I.
`
`Plaintiffs Still Have Failed to Adequately Allege Fraudulent Misrepresentation as
`to the Heating Claim and the Syrup Claim (Count III) ............................................7
`
`A.
`
`B.
`
`Plaintiffs have failed to allege that Nature Nate’s knowingly or
`recklessly made a representation that was false (element four). ..................8
`
`The Second Amended Complaint still fails to plead any facts
`indicating when and how Plaintiffs relied on Nature Nate’s
`representations (element six). ......................................................................9
`
`II.
`
`Plaintiffs Still Do Not Adequately Plead a Violation of the DTPA (Count I). ......10
`
`III.
`
`Plaintiffs’ New FDUTPA Claim (Count II) is Not Adequately Pled. ...................11
`
`IV.
`
`The Court Should Exercise Its Discretion to Dismiss Plaintiffs’ Declaratory
`Judgment Claim (Count V). ...................................................................................13
`
`CONCLUSION ..............................................................................................................................15
`
`
`
`
`
`i
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................6
`
`Baker v. Great N. Energy, Inc.,
`64 F. Supp. 3d 965 (N.D. Tex. 2014) ........................................................................................8
`
`Baldwin Metals Co. v. Donovan,
`642 F.2d 768 (5th Cir. 1981) ...................................................................................................14
`
`Bartlett v. Schmidt,
`33 S.W.3d 35 (Tex. App.—Corpus Christi 2000, pet. denied) ..........................................10, 11
`
`Barton v. Huerta,
`No. 1:14-cv-085, 2014 WL 4088582 (N.D. Tex. Aug. 19, 2014) ...........................................14
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................6
`
`Berry v. Indianapolis Life Ins. Co.,
`608 F. Supp. 2d 785 (N.D. Tex. 2009) ....................................................................................11
`
`Blair v. Wachovia Mortg. Corp.,
`No. 5:11-CV-566-OC-37TBS, 2012 WL 868878 (M.D. Fla. Mar. 14, 2012) ...................11, 12
`
`Carroll v. Fort James Corp.,
`470 F.3d 1171 (5th Cir. 2006) ................................................................................................11
`
`Ecoquij-Tzep v. Le Arlington, Inc.,
`No. 3:16-CV-625-BN, 2018 WL 1737658 (N.D. Tex. Apr. 10, 2018) ...................................14
`
`Frith v. Guardian Life Ins. Co. of Am.,
`9 F. Supp. 2d 734 (S.D. Tex. 1998) .........................................................................................10
`
`Hart v. Bayer Corp.,
`199 F.3d 239 (5th Cir. 2000) .....................................................................................................7
`
`Henderson v. Wells Fargo Bank, N.A.,
`974 F. Supp. 2d 993 (N.D. Tex. 2013) ....................................................................................10
`
`Krames v. Bohannon Holman, LLC,
`No. 3:06-CV-2370-O, 2009 WL 762205 (N.D. Tex. Mar. 24, 2009)......................................10
`
`
`
`ii
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`

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`
`
`Llado-Carreno v. Guidant Corp.,
`No. 09-20971-CIV, 2011 WL 705403 (S.D. Fla. Feb. 22, 2011) ............................................12
`
`Lovelace v. Software Spectrum Inc.,
`78 F.3d 1015 (5th Cir. 1996) .....................................................................................................6
`
`McPeters v. LexisNexis,
`910 F. Supp. 2d 981 (S.D. Tex. 2012) .....................................................................................11
`
`Mohamed for A.M. v. Irving Indep. Sch. Dist.,
`252 F. Supp. 3d 602 (N.D. Tex. 2017) ......................................................................................6
`
`Montes v. Am. Hosp. Ass’n,
`No. 3:12-CV-1999-M-BK, 2012 WL 4928872 (N.D. Tex. Sept. 18, 2012)............................10
`
`N. Port Firefighters’ Pension--Local Option Plan v. Temple-Inland, Inc.,
`936 F. Supp. 2d 722 (N.D. Tex. 2013) ......................................................................................6
`
`Perry v. Bank of New York Mellon,
`No. 3:12-CV-5275-O, 2013 WL 3722326 (N.D. Tex. July 16, 2013) .......................................9
`
`PGBA, LLC v. United States,
`389 F.3d 1219 (Fed. Cir. 2004)................................................................................................15
`
`Schrader-Scalf v. CitiMortgage, Inc.,
`No. 3:12-CV-4446-D, 2013 WL 625745 (N.D. Tex. Feb. 20, 2013) ................................13, 14
`
`In re Sec. Litig. BMC Software, Inc.,
`183 F. Supp. 2d 860 (S.D. Tex. 2001) .......................................................................................4
`
`Shafran v. Avital,
`No. CIV.A. H-15-140, 2015 WL 5457059 (S.D. Tex. Sept. 17, 2015) .....................................9
`
`State Farm Mut. Auto. Ins. Co. v. Performance Orthopaedics & Neurosurgery,
`LLC,
`278 F. Supp. 3d 1307 (S.D. Fla. 2017) ..............................................................................11, 12
`
`Stires v. Carnival Corp.,
`243 F. Supp. 2d 1313 (M.D. Fla. 2002) ...................................................................................12
`
`Teague v. Norcold, Inc.,
`774 F. Supp. 2d 817 (N.D. Tex. 2011) ......................................................................................6
`
`Ulstein Mar., Ltd. v. United States,
`833 F.2d 1052 (1st Cir. 1987) ..................................................................................................14
`
`Williams v. WMX Techs., Inc.,
`112 F.3d 175 (5th Cir. 1997) .................................................................................................7, 8
`
`
`
`iii
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`
`
`Statutes
`
`Fed. Declaratory Judgment Act ............................................................................................. passim
`
`Fla. Deceptive and Unfair Trade Pracs. Act ....................................................................6, 7, 11, 12
`
`Magnuson–Moss Warranty Act .......................................................................................................2
`
`Tex. Deceptive Trade Pracs.-Consumer Protection Act ........................................................ passim
`
`Other Authorities
`
`Fed. R. Civ. P. 9(b) ................................................................................................................ passim
`
`Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 6
`
`
`
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`iv
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`Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b), Defendant North Dallas
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`Honey Company (“Nature Nate’s”), by and through its undersigned counsel, respectfully moves
`
`this Court to dismiss Plaintiffs Marilyn Pierce and Anish Dave’s (collectively, “Plaintiffs”)
`
`second amended class-action complaint (the “Second Amended Complaint” or “SAC”) (ECF No.
`
`24). In support, Nature Nate’s respectfully shows the Court as follows:
`
`INTRODUCTION
`
`In their third attempt, Plaintiffs still fail to adequately state any claim for relief. Despite
`
`being given the opportunity to replead their claims, and receiving instruction from the Court on
`
`the necessary elements of their claims, Plaintiffs’ pleadings still remain wholly deficient. Their
`
`claims should be dismissed with prejudice this time. The Second Amended Complaint does not
`
`solve any of the problems identified by the Court. Plaintiffs merely included additional facts
`
`about what they believe to be the proper methodology for heating honey and about consumers’
`
`preferences for raw honey, and added another deficient state-law unfair trade practices claim,
`
`this time from Florida. While these additions may be interesting to read, they do nothing to
`
`solve the serious pleading deficiencies identified by the Court in dismissing these claims last
`
`time. For this reason, the Second Amended Complaint should be dismissed.
`
`Plaintiffs continue to allege that they were misled by the words “Raw” and “100% Pure”
`
`on the label of Nature Nate’s honey because Nature Nate’s gently heats its honey (which it
`
`discloses) and because, according to Plaintiffs, the honey allegedly had syrup in it (though
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`Plaintiffs still do not allege how that syrup got into the honey or how Nature Nate's supposedly
`
`knew about it). All five of Plaintiffs’ claims based on these allegations fall short of adequately
`
`
`
`1
`
`

`

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`
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`stating a claim upon which relief can be granted.1 The fraud-based claims (fraudulent
`
`misrepresentation, fraudulent concealment and violations of Florida and Texas consumer
`
`protection statutes) still do not meet the required heightened pleading standard, while the
`
`declaratory judgment claim should also be dismissed as duplicative of Plaintiffs’ inadequately
`
`pled fraud claims, and because the relief it seeks is actually injunctive relief masquerading as
`
`declaratory relief.
`
`FACTUAL BACKGROUND2
`
`
`
`Nature Nate’s is a Texas company that sells honey, at least some of which is labeled as
`
`“100% Pure Raw and Unfiltered Honey” (the “Honey”). SAC ¶¶ 1, 8, 11. Plaintiff Marilyn
`
`Pierce is a Texas citizen who claims to have purchased a bottle of the Honey on December 22,
`
`2018. Id. ¶¶ 6, 34. Plaintiff Anish Dave is a Florida citizen who claims to have purchased the
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`Honey in January 2019. Id. ¶¶ 7, 35.
`
`
`
`Plaintiffs first brought suit against Nature Nate’s in February 2019, ECF No. 1, and filed
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`an Amended Complaint in March 2019, ECF No. 5. Plaintiffs’ Amended Complaint included
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`seven counts: negligence, violation of the Texas Deceptive Trade Practices-Consumer
`
`Protection Act (“DTPA”), fraudulent misrepresentation, fraudulent concealment, unjust
`
`enrichment, violation of the Magnuson–Moss Warranty Act, and declaratory judgment under 28
`
`U.S.C. § 2201. Nature Nate’s moved to dismiss that Amended Complaint. ECF No. 14.
`
`Plaintiffs acknowledged during briefing on the motion to dismiss that their negligence, unjust
`
`enrichment and Magnuson–Moss Warranty Act claims were defective, and agreed to drop these
`
`
`1
`Plaintiffs’ fraudulent concealment claim previously was dismissed with prejudice. Order
`at 8. Plaintiffs have repled it for purposes of preserving it for appeal. SAC n. 18.
`2
`This Factual Background section adopts the allegations in the Second Amended
`Complaint, which, at this stage, must be taken as true. Nature Nate’s vigorously disputes the
`veracity of the allegations in the Second Amended Complaint and will present additional facts as
`necessary in the future.
`
`
`
`2
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`

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`
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`claims. ECF No. 23 (the “Order”) at 5 n.16. The Court granted the motion as to all remaining
`
`claims in March 2020.
`
`In the Order, this Court dismissed Plaintiffs’ fraudulent misrepresentation claim because
`
`Plaintiffs failed to allege sufficient facts, as required by Rule 9(b), that Nature Nate’s knowingly
`
`or recklessly made a false representation related to heating, finding “it isn’t possible to make
`
`these allegations any more conclusory.” Id. at 6. The Court also dismissed Plaintiffs’ fraudulent
`
`misrepresentation claim based on the presence of syrup in the Honey because Plaintiffs
`
`acknowledged in the Amended Complaint that they did not know whether Nature Nate’s adds
`
`syrup to its Honey. Id. Plaintiffs’ fraudulent concealment claim was dismissed by the Court
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`with prejudice because Nature Nate’s had no duty to disclose to Plaintiffs, and “[i]mplying a
`
`duty here, where Pierce and Dave identified none, would subvert carefully crafted products
`
`liability and consumer protection law.” Id. at 7. Because this pleading defect was
`
`“insurmountable,” the Court dismissed Plaintiffs’ fraudulent concealment claim with prejudice.
`
`Id. As for Plaintiffs’ DTPA claim, the Court dismissed the claim because it suffered the same
`
`fatal defects as Plaintiffs’ fraudulent misrepresentation and fraudulent concealment claims:
`
`Plaintiffs did not adequately plead an affirmative, common-law duty to disclose, nor did they
`
`plead allegations of intent with sufficient detail. Id. at 8-9. Finally, the Court also abated the
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`case for 60 days to provide Plaintiffs an opportunity to provide the required notice under the
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`DTPA. Id. at 9-10. Plaintiffs provided notice, and then filed their Second Amended Complaint
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`on May 5, 2020, ECF No. 24.
`
`The crux of Plaintiffs’ Second Amended Complaint is still that the Honey is not, in fact,
`
`raw or pure and that they were misled into purchasing it. SAC ¶¶ 39–46. Plaintiffs claim that
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`the Honey is not raw because it has been heated beyond what they allege is an acceptable
`
`
`
`3
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`

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`
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`threshold for “raw” honey (the “Heating Claim”), and that the Honey is not “100% Pure”
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`because it contains syrup (the “Syrup Claim”). Id. ¶¶ 17–21.
`
`The Heating Claim:
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`Nature Nate’s purchases honey from a variety of sources. Id. ¶ 11. These sources ship
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`honey to Nature Nate’s in large drums and Nature Nate’s packages the honey for sale to
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`consumers. Id. On its website, Nature Nate’s explains that “We simply warm the honey so that
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`it’s easier to deal with and pour into bottles. High heat is a no-no. It kills all the good stuff.”3
`
`Raw & Unfiltered: What We Do
`
`(and What we Don’t), NATURE NATE’S,
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`https://www.naturenates.com/raw-unfiltered/ (last visited May 14, 2020). See also SAC ¶ 11.
`
`According to the Second Amended Complaint, “when raw honey is overheated—that is, heated
`
`to more than 105 degrees—the enzymes in the honey that are prized by consumers who purchase
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`raw honey become denatured.” SAC ¶ 14. Plaintiffs allege—without support—that Nature
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`Nate’s actually heats its Honey beyond 105 degrees Fahrenheit and to as much as 120 degrees
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`Fahrenheit. Id. ¶ 18.
`
`Plaintiffs then run with this unsubstantiated allegation to conjure a theory about why that
`
`means the Honey is no longer raw. In Plaintiffs’ view, raw honey is honey that “exists in the
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`beehive,” id. ¶ 14, but can maintain its “raw” status” as long as it is heated to an “acceptable
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`industry standard” before it is bottled. Id. Plaintiffs claim to have tested samples of the Honey,
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`which they allege confirm that the Honey has been overheated. Id. ¶ 17. According to Plaintiffs’
`
`Second Amended Complaint, Codex Alimentarius, an “international reference standard for the
`
`resolution of disputes concerning food safety and consumer protection,” has set the maximum 5-
`
`
`3
`Plaintiffs quote a portion of the website in the SAC, SAC ¶ 11. At the motion to dismiss
`stage, the Court can consider “the full text of documents that are partially quoted or referred to in
`the complaint.” In re Sec. Litig. BMC Software, Inc., 183 F. Supp. 2d 860, 882 (S.D. Tex. 2001).
`
`
`
`4
`
`

`

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`
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`hydroxymethylfurfural (“HMF”) level for honey at 40 mg/kg or 80 mg/kg for honey “used
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`industrially from tropical climates.” Id. ¶ 15. Plaintiffs claim that “the scientific community”
`
`and “the honey industry” recognizes HMF values over 40 mg/kg as “evidence that honey has
`
`been heated enough to break down the enzymes contained in the honey.” Id. ¶ 16. Plaintiffs
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`claim that the Honey samples they had tested showed HMF levels of 69, 80, 103, 232, and 292
`
`mg/kg. Id. ¶ 17.4 Plaintiffs still do not allege that Nature Nate’s was aware of the HMF standard
`
`or agreed to abide by the standard.
`
`The Syrup Claim:
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`Nature Nate’s states on its website that “We only bottle the best. That’s why we test.
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`And test. And test. No antibiotics, pesticides or herbicides or added corn or rice syrup gets past
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`us.” Id. ¶ 20. Some of the samples tested by Plaintiffs allegedly “showed that syrups had been
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`added.” Id. While Plaintiffs no longer specifically include an acknowledgement that they cannot
`
`know whether Nature Nate’s adds syrup to the Honey, they still do not allege Nature Nate’s
`
`added any syrups. Put differently, Plaintiffs do not allege any conduct by Nature Nate’s tying
`
`them to the syrup Plaintiffs claim to have found in their Honey samples.
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`Plaintiffs allege the Heating Claim and the Syrup Claim make the Honey defective and
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`the statements on Nature Nate’s labels and website are false and misleading. Id. ¶¶ 22-24. They
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`claim that Nature Nate’s knew or should have known that its claims were false and that Plaintiffs
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`would—and did—rely on them. Id. ¶¶ 25-38. Plaintiffs claim they would not have bought the
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`Honey if they knew about the Heating Claim and the Syrup Claim and that they were damaged
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`by paying a premium for the Honey. Id. ¶¶ 37, 101. The Second Amended Complaint does not
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`allege the price Plaintiffs paid for the Honey or the amount of any price premium they believe
`
`4
`Nature Nate’s disputes the HMF standard Plaintiffs advocate and the results of the testing
`they claim to have done.
`
`
`
`5
`
`

`

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`
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`they paid. The Second Amended Complaint alleges five counts: violation of the DTPA,
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`violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), fraudulent
`
`misrepresentation, fraudulent concealment, and declaratory judgment under 28 U.S.C. § 2201.
`
`LEGAL STANDARD
`
`When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
`
`court “test[s] the sufficiency of the allegations contained in the pleadings to determine whether
`
`they are adequate enough to state a claim upon which relief can be granted.” Mohamed for A.M.
`
`v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 614 (N.D. Tex. 2017). To survive a motion to
`
`dismiss, Plaintiffs’ factual allegations must be sufficient to “state a claim to relief that is
`
`plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[N]aked
`
`assertion[s]” or “formulaic recitation[s] of the elements of a cause of action will not do.”
`
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While well-pleaded facts of a complaint are to be
`
`accepted as true, legal conclusions are not ‘entitled to the assumption of truth.’” Mohamed for
`
`A.M., 252 F. Supp. 3d at 614 (quoting Iqbal, 556 U.S. at 613). Moreover, the court need not
`
`“strain to find inferences favorable to the plaintiff.” Id. at 615. Claims should also be dismissed
`
`if they are “based upon invalid legal theories even though they might otherwise be well-
`
`pleaded.” Teague v. Norcold, Inc., 774 F. Supp. 2d 817, 820 (N.D. Tex. 2011).
`
`In addition, “[the Fifth Circuit] treat[s] a dismissal for failure to plead fraud with
`
`particularity under Rule 9(b) as a dismissal for failure to state a claim upon which relief can be
`
`granted.” Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). “[P]leading
`
`fraud with particularity sufficient to satisfy Rule 9(b) requires the pleader to identify the ‘time,
`
`place, and contents of the false representations, as well as the identity of the person making the
`
`misrepresentation and what that person obtained thereby.’” N. Port Firefighters’ Pension--Local
`
`Option Plan v. Temple-Inland, Inc., 936 F. Supp. 2d 722, 736 (N.D. Tex. 2013) (quoting
`
`
`
`6
`
`

`

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`
`
`Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)). “Anything less fails to
`
`provide defendants with adequate notice of the nature and grounds of the claim.” Hart v. Bayer
`
`Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000). Fraud claims are thus properly dismissed when the
`
`plaintiff does not “specify the statements contended to be fraudulent, identify the speaker, state
`
`when and where the statements were made, and explain why the statements were fraudulent.”
`
`Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997).
`
`ARGUMENT
`
`The entire Second Amended Complaint should be dismissed because Plaintiffs have not
`
`adequately alleged any of their causes of action.
`
` Plaintiffs’ claims for fraudulent
`
`misrepresentation, fraudulent concealment, and violation of the DTPA and FDUTPA each fail to
`
`meet the heightened pleading standard for fraud-based claims. The Court also should exercise its
`
`discretion in dismissing Plaintiffs’ declaratory judgment claim since it is duplicative of other
`
`claims, and those claims should be dismissed.
`
`I.
`
`Plaintiffs Still Have Failed to Adequately Allege Fraudulent Misrepresentation as to
`the Heating Claim and the Syrup Claim (Count III)
`
`The Court dismissed Plaintiffs’ fraudulent misrepresentation claim because Plaintiffs
`
`failed to allege fraudulent intent with any specificity. Order, at 6-7. The SAC fails to add any
`
`specific allegations regarding fraudulent intent, and therefore still should be dismissed but with
`
`prejudice this time.5
`
`
`5
`Count IV of the Second Amended Complaint still pleads a fraudulent concealment claim.
`In the Order, this Court held that implying a duty to disclose on Nature Nate’s would “subvert
`carefully crafted products liability and consumer protection law” and dismissed Plaintiffs’
`fraudulent concealment claim with prejudice. Order, at 8. Plaintiffs state that they are re-
`pleading this claim in the Second Amended Complaint to preserve it for appeal, SAC, ¶¶ 92-102
`& n.18. However, as the Court acknowledged, the pleading defect is “insurmountable,” Order, at
`8, and that dismissal with prejudice remains appropriate.
`
`
`
`7
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`

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`
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`“To state a fraud claim under Texas law, a complaint must plausibly set forth the
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`following elements: ‘(1) the defendant made a representation to the plaintiff; (2) the
`
`representation was material; (3) the representation was false; (4) when the defendant made the
`
`representation the defendant knew it was false or made the representation recklessly and without
`
`knowledge of its truth; (5) the defendant made the representation with the intent that the plaintiff
`
`act on it; (6) the plaintiff relied on the representation; and (7) the representation caused the
`
`plaintiff injury.’” Baker v. Great N. Energy, Inc., 64 F. Supp. 3d 965, 972 (N.D. Tex. 2014)
`
`(quoting Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1032-33
`
`(5th Cir. 2010)).
`
`The Second Amended Complaint still fails to allege fraudulent misrepresentation with
`
`sufficient specificity so as to survive a motion to dismiss for at least two reasons, each of which
`
`is independently fatal to the claim. See, e.g., Williams, 112 F.3d at 179–80 (dismissing
`
`inadequately pled fraud claims).
`
`A.
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`Plaintiffs have failed to allege that Nature Nate’s knowingly or recklessly
`made a representation that was false (element four).
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`According to Plaintiffs, the Honey is not raw because Nature Nate’s heated it beyond 105
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`degrees. SAC ¶¶ 14, 16, 18, 26. Plaintiffs repeatedly claim, without any basis, Nature Nate’s
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`“knew” that the honey was not “raw.” Id. ¶¶ 26-28, 30, 57, 85. Yet, Plaintiffs offer no
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`explanation for how Nature Nate’s would have had such knowledge based on Plaintiffs’
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`undisclosed and novel theories. The SAC does not allege that Nature Nate’s knew or even had
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`reason to know that by gently warming its Honey, it would be false to represent that the honey
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`was “raw.” Nor have Plaintiffs made any allegations suggesting that Nature Nate’s recklessly
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`made a representation that its Honey is raw. Indeed, Plaintiffs’ allegation that Nature Nate’s
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`stated on its website that it heated the Honey, id. ¶ 11, further proves this point. If Nature Nate’s
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`8
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`knew or had reason to know that heating the Honey made it no longer “raw,” then it would
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`assiduously avoid disclosing that it heated the Honey. Plaintiffs’ own allegations therefore
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`preclude them from arguing that element four of this claim has been adequately alleged.
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`Moreover, Plaintiffs still have not pointed to anything suggesting that Nature Nates’s knew of
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`the HMF standards or was required to or agreed to abide by them. See Order, at 7 (observing
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`that the allegations in the Amended Complaint regarding the HMF threshold standards “yield no
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`indication” that Nature Nate’s knew of, or agreed to abide by, the standards). Dismissal still is
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`appropriate for the same reasons.
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`Plaintiffs’ claim for fraudulent misrepresentation as to the Syrup Claim fares no better.
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`Plaintiffs removed their allegation that they do not know whether Nature Nate’s adds syrup to its
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`Honey, but the SAC still does not allege that Nature Nate’s added syrup to the Honey. Instead,
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`Plaintiffs passively plead that the Honey “had had syrup added to it,” SAC ¶ 29, and make the
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`conclusory allegation that Nature Nate’s had “actual or constructive knowledge” of that syrup,
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`id. Such a conclusory broadside comes nowhere close to satisfying the heightened pleading
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`standard of Rule 9(b). Yet again, Plaintiffs claim for fraudulent misrepresentation as to the
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`Syrup Claim should be dismissed.
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`B.
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`The Second Amended Complaint still fails to plead any facts indicating when
`and how Plaintiffs relied on Nature Nate’s representations (element six).
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`Plaintiffs have done nothing to elaborate on their recitation of the legal conclusion that
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`they “relied on Nature Nate’s representations on the Honey bottles’ labels and on Nature Nate’s
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`website,” SAC ¶ 42, which still does not suffice under the heightened pleading standard of Rule
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`9(b). See, e.g., Shafran v. Avital, No. CIV.A. H-15-140, 2015 WL 5457059, at *3 (S.D. Tex.
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`Sept. 17, 2015) (dismissing a fraud claim for failure to adequately plead reliance); Perry v. Bank
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`of New York Mellon, No. 3:12-CV-5275-O, 2013 WL 3722326, at *6 (N.D. Tex. July 16, 2013)
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`9
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`(same). Plaintiffs still fail to allege that they read the label or the website before buying the
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`Honey or that the statements contained therein were a part—let alone a material part—of their
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`decision to purchase the Honey. Plaintiffs have therefore still not plead element six of a
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`fraudulent misrepresentation claim, and thus should be dismissed.
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`II.
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`Plaintiffs Still Do Not Adequately Plead a Violation of the DTPA (Count I).
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`Plaintiffs’ DTPA claim suffers the same fatal defects as it did in Plaintiffs’ Amended
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`Complaint. A claim alleging violation of the DTPA is based in fraud and thus subject to the
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`heightened pleading standards of Rule 9(b). See, e.g., Montes v. Am. Hosp. Ass’n, No. 3:12-CV-
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`1999-M-BK, 2012 WL 4928872, at *6 (N.D. Tex. Sept. 18, 2012), report and recommendation
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`adopted, 2012 WL 4929853 (N.D. Tex. Oct. 16, 2012); Krames v. Bohannon Holman, LLC, No.
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`3:06-CV-2370-O, 2009 WL 762205, at *10 (N.D. Tex. Mar. 24, 2009); Frith v. Guardian Life
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`Ins. Co. of Am., 9 F. Supp. 2d 734, 742 (S.D. Tex. 1998). “The elements of a DTPA claim are:
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`(1) the plaintiff is a consumer, (2) the defendant engaged in false, misleading, or deceptive acts,
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`and (3) these acts constituted a producing cause of the consumer’s damages.” Henderson v.
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`Wells Fargo Bank, N.A., 974 F. Supp. 2d 993, 1015 (N.D. Tex. 2013) (internal quotation marks
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`omitted). A party asserting a DTPA claim must demonstrate “some unbroken causal connection
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`between the allegedly deceptive act and the actual damages suffered.” Bartlett v. Schmidt, 33
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`S.W.3d 35, 39 (Tex. App.—Corpus Christi 2000, pet. denied).
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`Because DTPA claims sound in fraud, Count I fails because it has the same deficiencies
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`as the fraudulent misrepresentation and fraudulent concealment claims. Order, at 9 (“[T]he
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`fraudulent concealment claim suffers from the fatal defect of . . . not demonstrating an
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`affirmative, common-law duty to disclose . . . [t]his defect applies with equal force to the
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`omission allegation of the deceptive trade practice claim.”); id. (“Regarding the fraudulent
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`misrepresentation claim, the only allegations of intent were conclusory and require repleading.
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`By extension, this defect applies to the deceptive trade practice claim as well.”); see, e.g., Berry
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`v. Indianapolis Life Ins. Co., 608 F. Supp. 2d 785, 800 (N.D. Tex. 2009) (dismissing DTPA
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`claim that was predicated on the same allegations as other fraud-based claims that were being
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`dismissed for failure to state a claim). For a fraud claim based on an alleged omission li