CATHERINE D. PERRY, District Judge.
In this putative class action, named plaintiff Christine Krumm claims that defendant Kittrich Corporation violated various federal and Missouri state consumer protection laws by marketing and selling an ineffective insect repellant. Krumm seeks class certification for a nationwide class consisting of all non-resale purchasers of the allegedly ineffective repellant, and a subclass consisting of all class members who purchased the repellant in Missouri. Pending before the Court is Kittrich's motion to dismiss for lack of subject-matter jurisdiction, lack of personal jurisdiction, and failure to state a claim. For the reasons discussed below, I am denying the motion to dismiss on all grounds, except as to Count IV of Krumm's complaint.
Defendant Kittrich manufactures and sells EcoSMART Insect Repellant. The repellant consists of a formula of "naturally occurring active ingredients" which the Environmental Protection Agency classifies as "minimum risk pesticides." Def.'s Memorandum, ECF 14 at pg. 1. The repellant comes in a handheld spray bottle, labelled front and back with information and instructions. In relevant part, the repellent's front label states: "KEEPS AWAY MOSQUITOES, TICKS & GNATS!" The back label reads: "EcoSMART Insect Repellent is made from a proprietary blend of plant oils. It repels for hours. It's safe, it's effective. It's smart — Naturally." Below this introduction is an instructional paragraph, which directs users to "[a]pply every 2-3 hours or as needed as effectiveness varies with excessive perspiration." The back label also contains the following disclaimer:
Plaintiff Krumm alleges she purchased a bottle of the repellant for approximately $6.00 from a Shop `n Save retail store in the Summer of 2016. Complaint, ECF 1 at pg. 5. Krumm maintains she "carefully read" the repellant's labelling before making the purchase, and that she "used the [repellant] according to its directions and the [repellant] was ineffective to repel mosquitos." Consequently, she alleges she "would not have purchased the [repellant] at all," or would have only bought it for a "substantially reduced price." Krumm brings six counts against Kittrich under federal and Missouri state law stemming from the alleged misrepresentations of the repellant's efficacy.
Kittrich seeks to dismiss Krumm's complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). First, Kittrich contends Krumm lacks standing to sue, thus the Court should dismiss the case in its entirety for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). In support, Kittrich argues 1) Krumm fails to adequately allege that she suffered a cognizable injury in fact, and 2) her claim is moot because of a pre-litigation tender of payment. Second, Kittrich challenges the factual sufficiency of Krumm's pleadings, and contends that three of Krumm's six counts should be dismissed due to various procedural and/or substantive deficiencies. Fed. R. Civ. P. 12(b)(6). Finally, Kittrich asserts that the Court should dismiss Krumm's claims on behalf of the nationwide class for lack of personal jurisdiction over the out-of-state (i.e. non-Missouri) purchasers. Fed. R. Civ. P. 12(b)(2). I will exercise my discretion to consider Kittrich's jurisdictional challenges first because its Rule 12(b)(6) defenses are moot if the Court lacks subject-matter or personal jurisdiction. See Siegfried v. Boehringer Ingelheim Pharm., Inc., No. 4:16 CV 1942 CDP, 2017 WL 2778107, at *2 (E.D. Mo. June 27, 2017).
Kittrich first moves to dismiss Krumm's complaint under Rule 12(b)(1) for lack of standing. Specifically, Kittrich argues Krumm has not adequately alleged that she suffered a `concrete and particularized' injury in fact. The injury in fact requirement is one of three elements of the "irreducible constitutional minimum of standing[.]" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "To establish injury in fact, a plaintiff must show that he or she suffered `an invasion of a legally protected interest' that is `concrete and particularized' and `actual or imminent, not conjectural or hypothetical.'" Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560).
By attacking the sufficiency of Krumm's pleadings, Kittrich presents a facial challenge to the Court's jurisdiction. A facial attack, as opposed to a factual attack, is when a movant "asserts that the [challenged pleading] fails to allege sufficient facts to support subject matter jurisdiction." Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018) (internal citations omitted). When confronted with a facial challenge under Rule 12(b)(1), the Court "restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (citation omitted). In other words, "all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993).
In light of this standard, Krumm has adequately alleged a cognizable economic injury in fact. Krumm alleges she personally read the repellant's label and purchased a bottle in reliance of its representation that it repels mosquitos. Krumm further alleges she "used the [repellant] according to its directions and the [repellant] was ineffective
Johnson v. Atkins Nutritionals, Inc., No. 2:16-CV-04213-MDH, 2017 WL 6420199, at *3 (W.D. Mo. Mar. 29, 2017); see also Wallace v. ConAgra Foods Inc., 747 F.3d 1025, 1029 (8th Cir. 2014) ("When the alleged harm is economic, the `injury in fact' question is straightforward."). Accordingly, because Krumm has standing to sue individually, the class action may proceed: "The requirements for standing do not change in the class action context. A putative class action can proceed as long as one named plaintiff has standing." In re SuperValu, Inc., 870 F.3d 763, 768 (8th Cir. 2017) (internal citations omitted).
Alternatively, Kittrich contends Krumm's individual claims were rendered moot by a pre-litigation tender of payment, thus the Court should dismiss for lack of subject-matter jurisdiction. The mootness doctrine requires proof of an actual, justiciable controversy at the time a plaintiff files suit: "In order to invoke federalcourt jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable interest, or personal stake, in the outcome of the action." Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528 (2013) (internal quotations and citation omitted). On November 16, 2018, Kittrich mailed Krumm a certified $20.00 cashier's check to "cover all costs in purchasing the [repellant]." Aff. of Priscilla Sambrano, ECF 14-1 at pg. 3. The value of the check was "three times the value of a full refund," so Kittrich argues Krumm was made "(more than) whole" before she filed suit. Krumm rejected the check and returned it to Kittrich; accordingly, she contends her individual and class-wide claims are unaffected by the tender of payment. The facts are undisputed, so the sole issue is a legal question: Whether issuing a consumer an unsolicited and unaccepted refund before she files suit preemptively moots her individual claims in a subsequently filed class action.
The Supreme Court has held that a plaintiff's individual claim in a putative class action is not rendered moot by a rejected settlement offer and simultaneous offer of judgment under Rule 68:
Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 670 (2016) (citing Genesis Healthcare, 133 S. Ct. at 1533 (Kagan, J. dissenting) (citation and internal quotations omitted)). This Court subsequently extended Campbell-Ewald's logic to deny a defendant's attempt to `pick off' a named plaintiff's individual claim through a rejected tender offer of settlement. Getchman v. Pyramid Consulting, Inc., No. 4:16 CV 1208 CDP, 2017 WL 713034, at *3 (E.D. Mo. Feb. 23, 2017); see also Giesmann, MD, P.C. v. American Homepatient, Inc., No. 4:14 CV 1538 RLW, 2016 WL 3407815, at *3 (E.D. Mo. June 16, 2016) (applying Campbell-Ewald and finding "no principled difference between a plaintiff rejecting a tender of payment and an offer of payment.").
Kittrich argues these cases are inapplicable, or otherwise distinct, because they do not specifically address pre-litigation tenders of payment. I disagree. The central holding of Campbell-Ewald is straightforward; a rejected settlement offer "creates no lasting right or obligation" in the offeree. Campbell-Ewald, 136 S. Ct. at 666. Likewise, a rejected tender of payment, like a rejected settlement offer, is a "legal nullity, with no operative effect." Getchman, 2017 WL 713034, at *3 (quoting Campbell-Ewald, 136 S. Ct. at 670). The existence or non-existence of active litigation simply has no bearing on the basic contractual principle that a rejected offer is null as to the offeree. Moreover, "if I were to accept that a defendant's rejected tender of payment moots a plaintiff's individual claims, `[d]efendants would essentially have control of the putative class.'" Getchman, 2017 WL 713034, at *3 (quoting Giesmann, 2016 WL 3407815, at *3). The same concern is present here; whether a defendant attempts to `pick off' an active claim or prevent a plaintiff from suing in the first place, "[t]he law does not countenance the use of individual offers to thwart class litigation[.]" Id.
In any event, a case becomes moot "only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Campbell-Ewald, 136 S. Ct. at 663 (quoting Knox v. Service Employees, 132 S.Ct. 2277, 2287 (2012)). In addition to monetary damages, Krumm requests equitable relief in the form of an order enjoining Kittrich from continuing its alleged "illegal practices" and an order compelling Kittrich to undertake a corrective advertising campaign. Kittrich's tender of payment did not state that it would cease making misrepresentations on its repellant, nor undertake a corrective advertising campaign. Accordingly, for this reason and the reasons stated above, Krumm's claims are not rendered moot by the rejected tender of payment and Kittrich's motion to dismiss under Rule 12(b)(1) is denied in full.
Next, Kittrich moves to dismiss Krumm's claims under Rule 12(b)(2) for lack of personal jurisdiction. Personal jurisdiction takes two forms: "`[G]eneral' (sometimes called `all-purpose') jurisdiction and `specific' (sometimes called `case-linked') jurisdiction." Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.Ct. 1773, 1780 (2017) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)). Krumm's complaint alleges only that the Court has general personal jurisdiction;
Krumm's complaint nonetheless contains allegations sufficient to establish the Court's specific jurisdiction over her individual claims. This Court may exercise specific jurisdiction over an out-of-state defendant if 1) the exercise of jurisdiction is permitted by the Missouri long-arm statute, and 2) the reach of the long-arm statute comports with due process. Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 593-94 (8th Cir. 2011). Missouri's long-arm statute authorizes personal jurisdiction over corporate defendants who transact business within the State. Mo. Rev. Stat. § 506.500.1(1). With regard to due process, the Eighth Circuit has held "[t]he exercise of specific jurisdiction is permissible if a defendant purposefully directs its activities at residents of the forum state, and the litigation results from alleged injuries that `arise out of or relate to' those activities[.]'" Myers v. Casino Queen, Inc., 689 F.3d 904, 912 (8th Cir. 2012) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)). Krumm alleges, and Kittrich concedes, that it conducted business in Missouri by marketing and selling the repellant in the state. See ECF 1 at pg. 6. Further, Krumm purchased and used the repellant—the factual predicate for her alleged injury—in Missouri. ECF 14 at pg. 16. Viewing the evidence in the light most favorable to Krumm, I conclude that she has satisfied her "minimal" prima facie burden of establishing the Court's specific jurisdiction over Kittrich as to her individual claims. K—V Pharm. Co. v. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir. 2011).
However, Kittrich argues that Krumm's connection to Missouri, standing alone, is insufficient to establish the Court's specific jurisdiction over the claims brought on behalf of the non-Missouri class members. Kittrich contends that the non-resident class members individually lack connections to this forum, so exercising jurisdiction over those claims would "evade the limitations of due process and Missouri's long-arm statute." ECF 14 at pg. 19.
Kittrich's jurisdictional argument relies principally on Bristol-Myers, 137 S.Ct. 1773 (hereafter "BMS"). In BMS, 86 California residents and 592 non-California residents filed a consolidated mass tort action in California state court against a non-resident pharmaceutical company. Bristol-Myers, 137 S. Ct. at 1778. The Supreme Court held that the California court's exercise of personal jurisdiction over the claims of the out-of-state plaintiffs violated due process, reasoning: "The mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug] in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents' claims." Id. at 1781 (emphasis in original). However, the Court did not clarify whether the holding of BMS extended to putative class actions,
In a consolidated mass tort action, as in BMS, each plaintiff is a real party in interest to independent lawsuits. Accordingly, in mass tort actions, the plaintiffs must independently establish the jurisdictional prerequisites to pursue their individual claims. Bristol-Myers, 137 S. Ct. at 1781. Here, by contrast, there is only one lawsuit, brought by one named plaintiff, so there is just one `party' for purposes of determining the Court's jurisdiction. Id.; see also Molock v. Whole Foods Mkt., Inc., 297 F.3d 114, 126 (D.D.C. 2018). "Nonnamed class members . . . may be parties for some purposes and not for others." Devlin v. Scardelletti, 536 U.S. 1, 9-10 (2002). While absent class members are considered `parties' in certain procedural respects, such as being bound to certified class action settlements, "[a]bsent class members are not parties for purposes of determining whether there is complete diversity of citizenship in cases governed by substantive state law." Al Haj v. Pfizer Inc., 338 F.Supp.3d 815, 820 (N.D. Ill. 2018) (citing Scardelletti, 536 U.S. at 10). If the residency of unnamed class members is not considered in determining diversity of citizenship, it follows that the same should not be considered in assessing the jurisdictional reach of Missouri's long-arm statute. Id. at 822. Indeed, "[e]ase of administration of class actions would be compromised by having to consider the citizenship of all class members, many of whom may even be unknown, in determining jurisdiction." Scardelletti, 536 U.S. at 10 (citing Charles Alan Wright, et al., FEDERAL PRACTICE AND PROCEDURE § 1755, pp. 63-64 (2d ed. 1986)).
Kittrich's due process arguments are also unavailing. "Unlike a mass tort, Rule 23 provides procedural due process safeguards for class actions: numerosity, commonality, typicality, adequacy of representation, predominance, and superiority." Swinter, 2019 WL 266299, at *2. "Given these safeguards, due process concerns for the defendant in the class action context are far less compelling than in a mass tort such as BMS, where each joined plaintiff may make different claims requiring different responses." Knotts v. Nissan N. Am., Inc., 346 F.Supp.3d 1310, 1334 (D. Minn. 2018). These safeguards "ensure that the defendant will be `presented with a unitary, coherent claim to which it need respond only with a unitary, coherent defense.'" Id. (quoting Sanchez v. Launch Tech. Workforce Sols., LLC, 297 F.3d 1360, 1366 (N.D. Ga. 2018)). Kittrich must already come to this forum to litigate Krumm's claims and the claims of the Missouri subclass (pending certification), so "there is little hardship, as a jurisdictional matter, for it to also litigate the nationwide class claims." Id.; see also Sanchez, 297 F.3d, at 1366 ("Because of the unitary nature of that class claim, the Court perceives no unfairness in haling the defendant into court to answer to it in a forum that has specific jurisdiction over the defendant based on the representative's claim.").
Finally, as a jurisprudential concern, it is highly unlikely that the Supreme Court would have drastically limited the nationwide class action mechanism without expressly stating its intent to do so:
Al Haj, 338 F. Supp. 3d at 819 (citing Bristol-Myers, 137 S. Ct. at 1783) (emphasis in original); see also Morgan, 2018 WL 3580775, at *6 ("The Court is reluctant to believe that the Supreme Court's `straightforward application . . . of settled principles of personal jurisdiction' in [BMS] requires a substantial limiting of that valuable [class action mechanism]."). This holding thus "preserves the class action as an efficient mechanism for prospective plaintiffs to seek redress of their claims." Knotts, 346 F.3d at 1335. Further, because I conclude that Kittrich does not have a substantive right to exclude the claims of the nonresident class members on the grounds that the Court lacks specific jurisdiction, this holding does not run afoul of the Rules Enabling Act. Id. at 1334. Accordingly, Kittrich's motion to dismiss for lack of personal jurisdiction is denied in full.
Kittrich next moves to dismiss Krumm's complaint in its entirety under Rule 12(b)(6) for failure to state a claim. Kittrich contends that Krumm fails to provide sufficient factual support for the alleged ineffectiveness of the repellant, rendering her pleadings deficient under Rule 8(a)(2). ECF 14 at pg. 9. When reviewing a Rule 12(b)(6) motion, I assume the factual allegations of the complaint as true and construe them in the plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief "that is plausible on its face." Iqbal, 556 U.S. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
Krumm's factual allegations concerning the ineffectiveness of the repellant are supported by two scientific studies cited in her complaint: 1) the Consumer Reports study which purportedly gave the repellant an "overall effectiveness rating of 5 out of 100;" and 2) an independent laboratory test, commissioned by Krumm's counsel in early 2018, which "revealed that the [repellant] was ineffective in repelling Aedes mosquitoes and Culex mosquitoes." ECF 1 at pg. 3-4. These studies ostensibly conclude that the repellant does not repel mosquitoes as effectively, nor for as long of a duration, as the repellant's label suggests. Id. Accepting the pleaded allegations as true and drawing all reasonable inferences in Krumm's favor (including the inference that Krumm's repellant bottle contained the same formula as those tested in the studies
In Count I, brought under the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. § 407, Krumm alleges Kittrich engaged in unfair or deceptive acts or practices in the manufacture and sale of its repellant. Kittrich moves to dismiss, noting Krumm fails to specifically allege she purchased the repellant for "personal, family, or household purposes"—a requisite element of an MMPA claim. See Ward v. W. Cty. Motor Co., 403 S.W.3d 82, 84 (Mo. banc 2013). However, in the `Parties' section of the complaint, which Krumm incorporates by reference in Count I, Krumm states that she personally purchased the repellant and "used the [repellant] according to its directions[.]" Accordingly, I can reasonably conclude Krumm purchased the repellant for personal purposes. Kittrich's motion to dismiss Count I is therefore denied.
Krumm brings Count II of her complaint for breach of express warranty under the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. §§ 2301 et seq. Krumm alleges the repellant's label provides express written warranties that "[the repellant is] an `insect repellent' that `keeps away mosquitoes' and `repels for hours.'" Krumm further alleges the repellant expressly warrants its period of effectiveness is "2-3 hours." Kittrich disputes that label provides any written warranties, and accordingly moves to dismiss for failure to state a claim.
"The MMWA grants relief to a consumer `damaged by the failure of a . . . warrantor . . . to comply with any obligation . . . under a written warranty.'" Wilbur v. Toyota Motor Sales, U.S.A., Inc., 86 F.3d 23, 26 (2d Cir. 1996) (quoting 15 U.S.C. § 2310(d)(1)). The MMWA defines the term "written warranty" as:
15 U.S.C. § 2301(6)(A). In its motion, Kittrich breaks down the alleged warranties on the label into isolated fragments, then points out how those individual fragments do not warrant that the repellant will "meet a specified level of performance over a specified period of time." ECF 16 at pg. 8. However, the statute does not mandate that the "written affirmation" be contained in a single sentence. I therefore read the label as a whole in determining whether it contains any written warranties. Cf. Bourbia v. S.C. Johnson & Son, Inc., 375 F.Supp.3d 454 (S.D.N.Y. 2019).
Unlike an "All Natural" label on a bag of chips,
Count IV of Krumm's complaint alleges breaches of both an implied warranty of merchantability and fitness for a particular purpose. Kittrich contends it validly disclaimed
Under Mo. Stat. Ann § 400.2-316(2), "an implied warranty of merchantability may be disclaimed by a `conspicuous' writing which mentions the term `merchantability'; and the implied warranty of fitness may be excluded by a conspicuous writing." Karr-Bick Kitchens & Bath, Inc. v. Gemini Coatings, Inc., 932 S.W.2d 877, 879 (Mo. App. 1996). A writing is `conspicuous' if the Court determines that "a reasonable person against which it is to operate ought to have noticed it." Mo. Ann. Stat. § 400.1-201(10).
The disclaimer on the repellant's label explicitly disclaims the implied warranties of merchantability and fitness for a particular purpose. ECF 1 at pg. 2. A reasonable person would have noticed the disclaimer, as it follows bolded and capitalized text stating
Accordingly,
This case will be set for a Rule 16 scheduling conference by separate order.
