SEIBEL, District Judge.
Before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 19), and Defendants' unopposed Motion for Judicial Notice, (Doc. 22). For the reasons stated below Defendants' Motion for Judicial Notice is GRANTED and Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.
The following facts are assumed to be true for purposes of the motion.
Plaintiff Lee Porrazzo consumed approximately ten six-ounce cans of tuna fish per week from approximately January 2006 to October 2008. (Am. Compl. ¶ 1.)
At some point between January 2006 and October 2008, Plaintiff began to experience, two to three times per week, "episodes of chest pains, heart palpitations, sweatiness, dizziness, and lightheadedness," which led him to believe that he had a heart condition. (Id. ¶ 5.) Plaintiff sought medical attention and underwent numerous tests to understand the cause of his symptoms, but none of these tests provided an answer. (Id. ¶ 5.) On April 14, 2006, Plaintiff went to the White Plains Hospital Emergency Room because he believed (incorrectly) that he was having a heart attack. (Id. ¶ 6.)
On or about October 1, 2008, Plaintiff's primary care practitioner ordered a heavy metals blood test, which showed that there was an elevated level of mercury in Plaintiff's blood. (Id. ¶ 7.) Specifically, Plaintiff's blood mercury level was 23 mcg/L as opposed to the less than 10 mcg/L, which is normal. (Id.) On the same date, the New York State Department of Health contacted Plaintiff by telephone, advised him that he had a dangerous level of mercury in his blood, asked him questions, filled out a questionnaire, and instructed him to stop eating tuna fish. (Id. ¶ 8.) Plaintiff stopped eating tuna fish, and a blood test on November 4, 2008, revealed that his mercury levels had returned to normal. (Id. ¶ 9.) Plaintiff no longer suffered the heart attack-like symptoms previously
Plaintiff filed the Amended Complaint on August 31, 2010, alleging claims for: (1) breach of implied warranty of merchantability and fitness for consumption; (2) failure to warn under both strict liability and negligence theories; (3) "emotional distress;" (4) violations of New York State Agriculture and Markets Law; and (5) violations of New York State General Business Law. (Doc. 9.)
"To survive a 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.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "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." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,. . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S.Ct. at 1950.
In considering whether a complaint states a claim upon which relief can be granted, the court may "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determine whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not `show[n]'—`that the pleader is entitled to relief'" Id. (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).
When deciding a motion to dismiss, the Court is entitled to consider the following:
Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011) (internal quotation marks omitted); accord Chambers v. Time Warner, Inc., 282 F.3d 147,
Before addressing the merits of Defendants' Motion to Dismiss, I must first address which documents may properly be considered on this motion. Defendants' request that I take judicial notice of the following documents of the United States Food and Drug Administration ("FDA"):
"Rule 201 of the Federal Rules of Evidence permits judicial notice of a fact that is `either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably[] questioned.'" U.S. v. Bryant, 402 Fed.Appx. 543, 545 (2d Cir.2010). Further, it is well-established that courts may take judicial notice of publicly available documents on a motion to dismiss. See Byrd v. City of N.Y., No. 04-CV-1396, 2005 WL 1349876, at *1 (2d Cir. June 8, 2005) ("[M]aterial that is a matter of public record may be considered in a motion to dismiss."); Blue Tree Hotels Inv. (Can.) v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d
Defendants contend that Plaintiff's state law claims must be dismissed because they are "preempted by a `pervasive federal regulatory scheme implemented by and through the FDA' which specifically addresses and regulates the extent to which the Defendants could distribute canned tuna containing legally permitted levels of methylmercury and whether it was required to warn consumers of trace amounts." (Defs.' Mem. 25-26.)
The Supremacy Clause, U.S. Const., art. VI, cl. 2, "invalidates state laws that `interfere with, or are contrary to,' federal law." Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824)). "[S]tate laws can be pre-empted by federal regulations as well as by federal statutes," id. at 713, 105 S.Ct. 2371; see Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (agency "regulations have no less pre-emptive effect than federal statutes"), at least where the regulations "are properly adopted in accordance with statutory authorization," City of N.Y. v. FCC, 486 U.S. 57, 63, 108 S.Ct. 1637, 100 L.Ed.2d 48 (1988). Preemption inquiries are "guided by the rule that [t]he purpose of Congress is the ultimate touchstone in every pre-emption case." Altria Grp., Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (alteration in original and internal quotation marks omitted). In addressing questions of preemption, courts are to begin their analysis "with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 77, 129 S.Ct. 538 (alteration in original). This assumption "applies with particular force when Congress has legislated in a field traditionally occupied by the States." Id.
Fellner, 539 F.3d at 256.
As far as this Court is aware, since the time of the Fellner decision the FDA has promulgated no new regulations with respect to methylmercury in tuna. Moreover, the Fellner court had before it the same supporting documents that were submitted to me on this motion—namely, the five documents of which I have been asked to take judicial notice.
Although I am not bound by the Fellner Court's decision, I find its reasoning and approach to this issue persuasive. Thus, for substantially the same reasons cited by the Fellner court, I decline to find that Plaintiff's state law claims here are preempted by a pervasive federal regulatory scheme implemented by and through the FDA.
Defendants next assert that all of Plaintiff's claims must be dismissed because Plaintiff fails to allege that he sustained any injuries that were proximately caused by his consumption of Defendants' canned tuna fish. (Defs.' Mem. at 14.) Specifically, Defendants assert that despite Plaintiff's consultations "with numerous physicians. . . there was no diagnosis of any specific ailment," and although Plaintiff claims that he remains worried about what effects the mercury has had on his health, "he has not alleged the existence of any actual ill health effects caused by consumption of tuna." (Id.) Defendants also assert that Plaintiff has not alleged "that the elevated mercury level in his blood was proximately caused by his consumption of Bumble Bee canned tuna fish." (Defs.' Reply at 8.)
"Under New York law, [i]t is well settled that, whether [an] action is pleaded in strict products liability, breach of warranty or negligence, it is a consumer's burden to show that a defect in the product was a substantial factor in causing the injury." Viscusi v. P & G-Clairol, Inc., 346 Fed. Appx. 715, 716 (2d Cir.2009) (alterations in original and internal quotation marks omitted); see Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53, 82 (S.D.N.Y. 2001) ("To make out a prima facie case for negligence in New York, a plaintiff must show (1) that the manufacturer owed plaintiff a duty to exercise reasonable care; (2) a breach of that duty by failure to use reasonable care so that a product is rendered defective, i.e. reasonably certain to be dangerous; (3) that the defect was the proximate cause of the plaintiff's injury; and (4) loss or damage. . . . Strict liability in New York requires a showing that (1) a defective product (2) caused plaintiff's injury."); Fahey v. A.O. Smith Corp., 77 A.D.3d 612, 908 N.Y.S.2d 719, 723 (2d Dep't 2010) ("Whether an action is pleaded in strict products liability, breach of warranty, or negligence, the plaintiffs must prove that the alleged defect is a substantial cause of the events which produced the injury.").
Defendants' contention that Plaintiff has not alleged that he suffered injury
I also find that Plaintiff has plausibly alleged that Defendants' conduct was the proximate cause of his injuries. "Proximate cause requires only some direct relation between the injury asserted and the injurious conduct alleged, and excludes only those link[s] that are too remote, purely contingent, or indirect." Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186, 1192, 179 L.Ed.2d 144 (2011) (internal quotation marks omitted). Moreover, "[t]he issue of proximate cause may be determined as a matter of law [only] where no reasonable person could find causation based on the facts alleged in the complaint." Pelman v. McDonald's Corp., 237 F.Supp.2d 512, 538 (S.D.N.Y.2003) (finding "[n]o reasonable person could find probable cause based on the facts in the Complaint without resorting to `wild speculation'"). Plaintiff asserts that Bumble Bee canned tuna fish was his major source of protein from approximately January 2006 to October 2008, (Am. Compl. ¶ 3), that it contained mercury, (id. ¶ 4), that during that time period he began to experience physical symptoms that led him to believe he had a heart condition, (id. ¶¶ 56), that an October 2008 heavy metals blood test revealed that Plaintiff had a very elevated blood mercury level, (Id. ¶ 8), that Plaintiff was informed of these test results and instructed to stop eating tuna fish, which he did, and that his mercury levels returned to normal and his symptoms abated, within a month thereafter, (id. ¶¶ 8-9). Based on the foregoing, Plaintiff asserts that he was "caused to sustain serious personal injuries" as a result of the defendants' tuna fish products which contained "poisonously high levels of mercury." (Id. ¶ 39.) This timeline provides more than sufficient factual allegations to make it plausible that Plaintiff's ingestion of Defendants' tuna fish was the cause of his injuries.
Defendants next assert that Plaintiff's claims for emotional distress must be dismissed because Plaintiff fails to allege a physical injury which was proximately caused by his consumption of Defendants' canned tuna fish. As described above, I find he has sufficiently pleaded the same. But emotional distress is a prayer for relief, not a separate cause of action, see Brennan v. N.Y. Law Sch., No. 10-CV-0338, 2011 WL 2899154, at *1 (S.D.N.Y. Jul. 11, 2011) (granting Plaintiff's "motion to amend to add a request for emotional distress damages to the prayer for relief"); Galotti v. Town and City of Stamford, No. 96-CV-0224, 1996 WL 684409, at *5 (D.Conn. Nov. 19, 1996) ("Damages for emotional distress may be recovered . . . . However, they should be included as part of the `prayer for relief' section of the complaint. They are not to be pled as a separate count."), and Plaintiff's claims for emotional distress are therefore dismissed. That Plaintiff's claims for emotional distress are dismissed does not, however, preclude Plaintiff's ability to recover emotional distress damages if he is successful on his remaining claims. See Goldberg v. N.Y. Times, 66 A.D.2d 718, 411 N.Y.S.2d 294, 295 (1st Dep't 1978) ("The relief sought, though erroneously stated as a separate cause, should be deemed part of the prayer for damages.").
Defendants also contend that Plaintiff's common law claims—Counts I through IV, for breach of the implied warranties of merchantability and fitness for consumption
Under New York law, "[a] manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries." Liriano v. Hobart Corp., 92 N.Y.2d 232, 237, 677 N.Y.S.2d 764, 700 N.E.2d 303 (1998). In an action for strict products liability,
Leary ex rel. Debold v. Syracuse Model Neighborhood Corp., 9 Misc.3d 292, 799 N.Y.S.2d 867,
A manufacturer may also be held liable under New York law for breach of implied warranty of merchantability when its products are not "fit for the ordinary purposes for which such goods are used." New York U.C.C. § 2-314(2)(c). Specifically, a Plaintiff may recover "upon a showing that [a] product was not minimally safe for its expected purpose," and the focus of a breach of implied warranty inquiry is whether the product meets "the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners." Denny v. Ford Motor Co., 87 N.Y.2d 248, 258-59, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995).
Defendants contend that Plaintiff's consumption of its canned tuna fish was unreasonable as a matter of law and that Plaintiff's claims therefore cannot survive. (See Defs.' Mem. at 22 ("[A] diet consisting of nearly 1,500 cans or over 500 lbs of tuna in thirty-three months is undisputedly outside the `intended use' of the product").) Defendants' contention is unavailing. Plaintiff's daily consumption of one to two cans of tuna fish cannot, as a matter of law at this stage, be said to be unreasonable.
In order to succeed on either a failure to warn claim, or a breach of implied warranty claim, a plaintiff must also establish that the danger inherent in the injurious product was not open and obvious and thus something which a reasonable consumer would ordinarily anticipate finding therein. See Fitzgerald v. Fed. Signal Corp., 63 A.D.3d 994, 883 N.Y.S.2d 67, 69 (2d Dep't 2009) (dismissing plaintiff's strict products liability claim based on defendant's alleged duty and failure to warn of risk of hearing loss from prolonged exposure to sirens because "risk alleged is `open and obvious' and `readily apparent as a matter of common sense'"); Lamb v. Kysor Indus., 305 A.D.2d 1083, 759 N.Y.S.2d 266, 268 (4th Dep't 2003) (no duty to warn of open and obvious danger of placing fingers in path of power saw); Belling v. Haugh's Pools, Ltd., 126 A.D.2d 958, 511 N.Y.S.2d 732, 733 (4th Dep't 1987) (no duty to warn of open and obvious danger of diving into shallow pool); Langiulli v. Bumble Bee Seafood, Inc., 159 Misc.2d 450, 604 N.Y.S.2d 1020, 1021 (Sup. Ct.1993) (breach of warranty claim stated when "consumer is injured by conditions which he could not have reasonably anticipated to be present in the product purchased"). Whether a danger is in fact common knowledge among the public is ordinarily a question of fact that cannot be resolved at the motion to dismiss stage. See In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 175 F.Supp.2d 593, 626 n. 50 (S.D.N.Y.2001) (denying defendant's motion to dismiss plaintiffs' failure to warn claims because court could not determine, as matter of law, that "it is common knowledge that gasoline must be handled with care"); Rudloff v. Wendy's Rest. 12 Misc.3d 1081, 821 N.Y.S.2d 358, 369 (City Ct. Buffalo 2006) (relevant question on breach of implied warranty claim is whether one would reasonably anticipate substance would be present, and this question is ordinarily one of fact for jury). But see Kaplan v. Am. Multi-Cinema, Inc., 21 Misc.3d 1103(A), 873 N.Y.S.2d 234, *2 (Civ.Ct.2008) (table decision) (determining as matter of law that one reasonably expects un-popped kernels in popcorn); Vitiello v. Captain Bill's Rest., 191 A.D.2d 429, 594 N.Y.S.2d 295, 296 (2d Dep't 1993) (determining, as matter of law, that one reasonably expects fish filet is not free of all bones).
This is not a case where I can say as a matter of law at this stage that the dangers of mercury poisoning from consumption of canned tuna fish are open and obvious, and that an ordinary consumer would necessarily be aware that canned tuna fish contains high levels of methylmercury, the consumption of which could
Plaintiff here has adequately set forth a strict liability failure to warn claim. As noted above, he has established both injury and proximate cause, and has sufficiently alleged that the dangers of mercury poisoning from consumption of canned tuna fish are not open and obvious. Further, there is no suggestion at this stage that this particular Plaintiff was, in fact, aware either that canned tuna fish contained methylmercury or that there were risks inherent in the consumption of fish which contained high concentrations of this substance. See Colon ex rel. Molina, 199 F.Supp.2d at 85 ("A failure-to-warn inquiry focuses on three factors: obviousness of risk from actual use of product, knowledge of the particular user, and proximate cause."). Finally, the fact that methylmercury in tuna may be "naturally occurring" does not necessarily mean Defendants cannot be strictly liable for failing to warn customers of same.
Defendants nonetheless contend that Stop & Shop cannot be held liable for failure to warn because "there are no circumstances under which the alleged defect could have been discovered during a normal inspection while the tuna cans were in Defendant Stop & Shop's possession." (Defs.' Mem. 23.) "There is no question," however, "that under New York law the seller of a defective product may be strictly liable for any resultant injury even though the seller was not responsible for the defect." Davila v. Goya Foods, Inc., No. 05-CV-8607, 2007 WL 415147, at *6 (S.D.N.Y. Feb. 7, 2007). Thus, an injured plaintiff in a strict liability failure to warn case may recover from both manufacturers and retail sellers of the product. See Adeyinka v. Yankee Fiber Control, Inc., 564 F.Supp.2d 265, 274-75 (S.D.N.Y.2008) (strict liability for product defects "also extends to sellers who by reason of their continuing relationships with manufacturers, are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation") (internal quotation marks omitted). The retailer can be held strictly liable for failure to warn regardless of whether it could discover the defect upon normal visual inspection of the product. See Leary ex rel. Debold, 799 N.Y.S.2d at 873 ("Distributors and retailers may be held strictly liable to injured parties, even though they may be innocent conduits in the sale of the product. . . . It is well settled that strict products liability extends to retailers and distributors in the chain of distribution even if they never inspected, controlled, installed or serviced the product") (internal quotation
Plaintiff has also adequately alleged a negligent failure to warn claim against Bumble Bee, because "[r]egardless of the descriptive terminology used to denominate the cause of action (viz, `strict liability' or `negligence'), where the theory of liability is failure to warn, negligence and strict liability are equivalent." Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 423 N.Y.S.2d 95, 97 (4th Dep't 1979); see Anderson v. Hedstrom Corp., 76 F.Supp.2d 422, 439 (S.D.N.Y.1999) ("Where liability is predicated on a failure to warn, New York views negligence and strict liability claims as equivalent.") (internal quotation marks omitted); Denny, 87 N.Y.2d at 258, 639 N.Y.S.2d 250, 662 N.E.2d 730 ("Failure to warn claim . . . couched in terms of strict liability, is indistinguishable from a negligence claim.") (internal quotation marks omitted). Defendants' motion to dismiss Plaintiff's claim against Bumble Bee for negligent failure to warn is thus likewise denied.
Defendants are correct, however, that Plaintiff's negligent failure to warn claim cannot be sustained against Stop & Shop. Under a negligence theory of liability, a "retailer . . . can be held liable . . . for the sale of a defective product or for failure to warn only if it fails to detect a dangerous condition that it could have discovered during the course of a normal inspection while the product was in its possession." Pelman, 237 F.Supp.2d at 523. Consequently, Defendants' motion to dismiss Plaintiff's claim (within Count II) for negligent failure to warn against Stop & Shop is granted.
Plaintiff has also adequately asserted a breach of implied warranty of merchantability claim here. "To establish that a product is defective for purposes of a breach of implied warranty of merchantability claim, a plaintiff must show that the
The relevant question here, therefore, is whether the presence of mercury in Defendants' canned tuna, without any accompanying warnings, renders it not reasonably fit for the ordinary purpose for which it was intended. In other words, Plaintiff's claim for breach of implied warranty turns upon whether: 1) the customary, usual, and reasonably foreseeable use of tuna fish includes the type of consumption Plaintiff engaged in—namely, eating approximately one to two cans of tuna fish daily for more than two years; and 2) Plaintiff reasonably expected mercury— which, when consumed in those quantities,
With respect to Plaintiff's claim for breach of implied warranty of merchantability against Stop & Shop (Count II), however, such claim must fail. For claims for breach of warranty and negligence, a retailer "cannot be held liable for injuries sustained from the contents of a sealed product even though a test might have disclosed a potential danger" because "[t]here [i]s no obligation upon it to make such a test." Brownstone v. Times Square Stage Lighting Co., 39 A.D.2d 892, 333 N.Y.S.2d 781, 782 (1st Dep't 1972); see Cosgrove v. Delves' Estate, 35 A.D.2d 730, 315 N.Y.S.2d 369, 371 (2d Dep't 1970) (dismissing claim for breach of warranty against retailer because "evidence established that she could not have discovered any danger by mere inspection [and s]he was not obligated under these circumstances to ... test" the product); Alfieri v. Cabot Corp., 17 A.D.2d 455, 235 N.Y.S.2d 753, 757 (1st Dep't 1962) (retail seller not liable "even though it might have discovered the dangerous character ... by a test [because t]here was no obligation upon it to make such test"). Because Stop & Shop is a retail seller that cannot be held liable under breach of warranty for a defect it could not discover through ordinary inspection, Defendants' motion to dismiss Count II, as to a breach of implied warranty, is granted.
Defendants also contend that Counts III and IV should be dismissed because "Plaintiff improperly couches a common law claim for punitive damages, which is a prayer for relief, as a cause of action ... [and] there is no independent cause of action for punitive damages" under New York law. (Defs.' Mem. 22.) Counts III and IV appear to merely duplicate the claims that are set forth in Counts I and II. Thus, to the extent that Counts III and IV are, in fact, simply requests for punitive damages, they are dismissed as "separate claim[s] for punitive damages . . . [which] cannot be maintained" because "[i]t is settled that there is no independent cause of action for punitive damages." Mayes v. UVI Holdings, 280 A.D.2d 153, 723 N.Y.S.2d 151, 157 (1st Dep't 2001) (internal quotation marks omitted). That Counts III and IV are dismissed does not, however, preclude Plaintiff's ability to recover punitive damages if he is successful on his remaining claims. See Goldberg, 411 N.Y.S.2d at 294 ("The relief sought, though erroneously stated as a separate cause, should be deemed part of the prayer for damages.").
Finally, Defendants assert that Counts V and VI should be dismissed because Defendants' manufacture and sale of its canned tuna fish does not violate any provision of the New York Agriculture and Markets ("A & M") Law. (Defs.' Mem. 24.)
Section 199-a(1) of the A & M Law provides that "No person or persons, firm, association or corporation shall within this state manufacture, compound, brew, distill, produce, process, pack, transport, possess, sell, offer or expose for sale, ... any article of food which is adulterated or misbranded within the meaning of this article." Section 200 of this law defines adulterated food and provides that food shall be deemed adulterated:
N.Y. Agric. & Mkts. Law § 200.
Plaintiff asserts in Count V that "by manufacturing, selling, processing, marketing and packaging canned tuna fish adulterated with poisonously high levels of mercury, the defendants violated [A & M] Law Sections 199-a(1), 200(1), 200(2), 200(3), 200(5), 200(9) and 200(11)." (Am. Compl. ¶ 52.) In Langiulli, 604 N.Y.S.2d at 1022, the court held that the apparent thrust and intent of Sections 199 and 200 of the A & M Law "is to prohibit the sale of impure or contaminated products, and [they] are not in fact aimed at the presence
Plaintiff's claims under Sections 200(2), 200(3), 200(5), and 200(9), cannot, however, survive. First, with respect to Section 200(2), despite Plaintiff's assertion to the contrary, there is no indication that Defendants' canned tuna contained "any added poisonous or added deleterious substance." The Amended Complaint does not allege any addition and is consistent with Defendants' claim that the mercury was already part of the fish before it was canned or sold. See People ex rel. Brown, 171 Cal.App.4th at 1573, 90 Cal.Rptr.3d 644 (affirming trial court's determination that preponderance of the evidence supports finding that methylmercury in tuna is naturally occurring). Next, with respect to Section 200(3), while Defendants' canned tuna contained mercury, it was not "contaminated" by such mercury because contamination under this section ordinarily refers to an external substance that adulterates the food product, see, e.g., J & R
Although Defendants assert in their motion papers that both Counts V and VI of Plaintiff's Complaint, alleging violations of New York State Agriculture and Markets Law, must be dismissed because they fail to state a claim, Defendants' arguments in their motion papers are limited to Plaintiff's claims in Count V under Section 200, with respect to adulterated food, and they do not address the merits of Plaintiff's claims in Count VI under Section 201, with respect to misbranding. Likewise, Defendants have not included any discussion of Count VII of Plaintiff's Amended Complaint, which alleges that "defendants engaged in deceptive acts and practices in violation of New York State General Business Law Section 349(a)." (Am. Compl. ¶ 58.) Thus Counts VI and VII—which in any event appear to the Court, at least at first blush, to state a claim—will stand.
Leave to amend a complaint should be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). It is within the sound discretion of the district court to grant or deny leave to amend. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). "Leave to amend, though liberally granted, may properly be denied for: `undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir.2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Amendment is futile when the claim as amended cannot "withstand a motion to dismiss pursuant to Rule 12(b)(6)," and "[i]n deciding whether an amendment is futile, the court uses the same standard as those governing the adequacy of a filed pleading." MacEntee v. IBM, 783 F.Supp.2d 434, 446 (S.D.N.Y.2011) (internal quotation marks omitted). Where the problem with a claim "is substantive[,] better pleading will not cure it," and "[r]epleading would thus be futile." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). Leave to amend may also be denied where the party fails to identify with sufficient specificity the facts that would save his Complaint were he granted leave to amend. See Arnold v. KPMG LLP, 334 Fed.Appx. 349, 352-53
A pre-motion conference was held on August 17, 2010, at which time Plaintiff was granted leave to amend his Complaint and was advised by the Court that he "ought to put everything in there that [he's] got because[i]f [Defendants'] motion is well taken, [he]'ll already have had [his] chance to amend." (Hr'g Tr. 5, Aug. 17, 2010.) Plaintiff filed his Amended Complaint on August 31, 2010. (Doc. 9.) He has not requested leave to file a Second Amended Complaint, demonstrated how further amendment would cure the deficiencies that remain in his pleadings, as identified in Defendants' papers, or submitted to the Court a Proposed Second Amended Complaint addressing such deficiencies. Accordingly, I decline to grant leave to amend sua sponte. See, e.g., Walton v. Morgan Stanley & Co., 623 F.2d 796, 799 n. 7 (2d Cir.1980) ("[A]ppellants never sought leave to amend their complaint either in the district court or as an alternative form of relief in this court after [appellee] raised the issue of the sufficiency of appellants' complaint. Accordingly, we see no reason to grant such leave sua sponte."); In re Eaton Vance Mut. Funds Fee Litig., 380 F.Supp.2d 222, 242 (S.D.N.Y.2005) (denying leave to amend because "the plaintiffs have had two opportunities to cure the defects in their complaints, including a procedure through which the plaintiffs were provided notice of defects in the Consolidated Amended Complaint by the defendants and given a chance to amend their Consolidated Amended Complaint," and "plaintiffs have not submitted a proposed amended complaint that would cure these pleading defects"), aff'd sub nom. Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (plaintiffs "were not entitled to an advisory opinion from the Court informing them of the deficiencies in the complaint and then an opportunity to cure those deficiencies") (internal quotation marks omitted); see also Ruotolo, 514 F.3d at 191 (affirming denial of leave to amend "given the previous opportunities to amend").
For the reasons stated above, Defendants' Motion for Judicial Notice is GRANTED, and Defendants' Motion to Dismiss is GRANTED as to Counts 111 and IV, as to the allegations for breach of implied warranty and negligent failure to warn against Stop & Shop within Count II, and as to the allegations within Count V as to subsections 200(2), 200(3), 200(5), and 200(9), and DENIED in all other respects. The Clerk of the Court is respectfully directed to terminate the pending motions, (Docs. 19, 22). The remaining parties are directed to appear for a status conference on
I likewise do not find determinative Comment (h) to Section 402A of the Restatement (2d) of Torts, which asserts that if an "injury results . . . from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable." I simply cannot determine as a matter of law, at least at this stage, that eating one to two cans of tuna fish daily in an apparent effort to pursue a heart-healthy diet is unreasonable or unforeseeable, and akin to child who eats too much candy and thereby makes herself ill.
Since Plemmons, some courts addressing breach of implied warranty claims under New York law have picked up the Plemmons language and asserted that the aforementioned three elements are required for establishing a breach of implied warranty, see, e.g., Oscar v. BMW of N. Am., LLC, 274 F.R.D. 498 (S.D.N.Y.2011); Pinello v. Andreas Stihl Ag & Co. KG, No. 08-CV-0452, 2011 WL 1302223 (N.D.N.Y. Mar. 31, 2011); Dayton Superior Corp. v. Spa Steel Prods., Inc., No. 08-CV-1312, 2010 WL 3825619 (N.D.N.Y. Sept. 24, 2010); Lewis v. White, No. 08-CV-7480, 2010 WL 6465230 (S.D.N.Y. Jul. 1, 2010); Lewis v. Abbott Labs., No. 08-CV-7480, 2009 WL 2231701 (S.D.N.Y. Jul. 24, 2009); Barrett v. Black & Decker, No. 06-CV-1970, 2008 WL 5170200 (S.D.N.Y. Dec. 9, 2008); Dalton v. Stedman Mach. Co., No. 05-CV-0452, 2008 WL 351676 (N.D.N.Y. Feb. 7, 2008), while others have simply looked to the reasonable expectations test to identify such a breach, see, e.g., Scientific Components Corp. v. Sirenza Microdevices, Inc., 399 Fed.Appx. 637 (2d Cir.2010); O'Sullivan, 910 N.Y.S.2d 763; Ferraro v. Perry's Brick Co., 30 Misc.3d 1213(A), 924 N.Y.S.2d 308 (Civ.Ct.2011) (table decision).
