On Monday,, Judge Kenneth Karas issued an Opinion and Order granting defendant Rubbermaid Incorporated’s motion to dismiss the complaint in Turk v. Rubbermaid Incorporated, a putative class action in the Southern District of New York alleging that Defendant’s labeling on two models of portable ice coolers is false and misleading.
The opinion summarizes the procedural history of the case, the operative complaint and Defendants’ motion to dismiss. Plaintiffs, each allegedly purchasers of one of the cooler models, filed their initial complaint on January 14, 2021 and a first amended complaint (FAC) on June 16, 2021. Although the specific allegations regarding each cooler model vary somewhat, Plaintiffs generally contend that “Defendant [falsely] represents on the labels of both Products that the Products ‘keep’ or retain ice for five days, which means that ice will remain intact in the Product for five days …”
The FAC alleges violations of New York General Business Law Sections 349 (pertaining to deceptive business practices) and 350 (pertaining to false advertising) as well as violation of the federal Magnuson Moss Warranty Act (MMWA); common law breaches of express warranty and implied warranty of merchantability; common law misrepresentation and common law fraud; and unjust enrichment. Plaintiffs seek not only damages but also injunctive relief to correct the alleged misrepresentations.
Defendant moved to dismiss the FAC pursuant to FRCP 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief can be granted). The opinion does not generally distinguish between the distinct grounds for dismissal, quoting recent Second Circuit and Southern District of New York authority for the proposition that the standard of review is “identical” for motions under both provisions except as to burden of proof.
Judge Karas’s analysis in granting the motion to dismiss is detailed. As to the request for injunctive relief to correct labeling disclosures, he states that Plaintiffs effectively abandoned the claim by not opposing it in response to Defendant’s motion to dismiss and that such claims cannot be pursued by past purchasers in any event.
Judge Karas dismisses the claims under the New York General Business Law because, “When considering the full context of both Products’ labels, the Court finds that no reasonable consumer could be mislead” and because Plaintiffs fail to allege injury.
Judge Karas dismisses breach of express warranty claim because Plaintiffs fail to allege adequate pre-suit notice to the Defendant as required by New York law under the Uniform Commercial Code, and he dismisses the breach of implied warranty of merchantability claim because of a lack of privity between Plaintiffs and Defendant. Judge Karas dismisses the MMWA claim because Plaintiffs fail adequately to “plead a cause of action for breach of written or implied warranty under state law,” which the federal statute requires.
Judge Karas dismisses the common law negligent misrepresentation claim because Plaintiffs fail to plead the requisite “special relationship” with Defendant. He also dismisses the common law fraud claim because Plaintiffs fail to allege scienter with the particularity required under FRCP 9(b). Finally, the judge dismisses the unjust enrichment claim as being merely duplicative of other claims.
Turning to the claim for injunctive relief, the order dismissed the claim but allows Plaintiff 30 days to file a second amended complaint. In a footnote at the end of them opinion, Judge Karas states, “The Court takes a moment to reiterate its warning to Plaintiffs’ counsel made in its recent decision in Gordon v. Target Corporation … (S.D.N.Y. Mar. 18, 2022). Plaintiffs here may only file a second amended complaint where they have a good faith basis to do so.”
Plaintiffs counsel are the Law Office of James Chung in Queens, New York and Sheehan & Associates, P.C.
