United States District Court, D. Connecticut
KEVIN STEWART on behalf of himself and all others similarly situated, Plaintiff,
OCEAN STATE JOBBERS, INC., ET AL., Defendants.
RULING RE: MOTION TO DISMISS (DOC. NO. 16)
C. Hall United States District Judge
case comes before the court pursuant to a putative class
action Complaint (“Compl.”) (Doc. No. 1) filed by
Kevin Stewart (“Stewart”) on July 28, 2017.
Stewart alleges that the defendant, Ocean State Jobbers,
Inc., d/b/a Ocean State Job Lot (“Ocean State”),
sold Duracell batteries that were intended for the Asian
market in its stores in the northeastern United States. On
the basis of these allegations, Stewart alleges violations of
consumer protection statutes in New York, Rhode Island,
Maine, New Hampshire, Vermont, Massachusetts, Connecticut,
and New Jersey. See Compl. at 14, 16.
September 11, 2017, Ocean State filed a Motion to Dismiss
(Doc. No. 16) pursuant to Federal Rule of Civil Procedure
12(b)(6), arguing that, with respect to the New York consumer
protection claims, Stewart has failed to adequately allege
that the packaging in question was materially misleading, or
that he was materially misled by it. See Memorandum
of Law in Support of Motion to Dismiss (“Def.'s
Mem.”) (Doc. No. 17) at 8-11. Ocean State further
argues that Stewart lacks standing to bring claims pursuant
to the consumer protection statutes of Rhode Island, Maine,
New Hampshire, Vermont, Massachusetts, Connecticut, and New
Jersey. Id. at 11-14. In the alternative, Ocean
State moved for a more definite statement pursuant to Federal
Rule of Civil Procedure 12(e). Motion to Dismiss at 1.
reasons that follow, Ocean State's Motion to Dismiss
(Doc. No. 16) is granted. Stewart is granted leave to replead
within twenty-one days of this Ruling.
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must determine whether the plaintiff has stated a
legally cognizable claim by making allegations that, if true,
would show that the plaintiff is entitled to relief. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)
(interpreting Rule 12(b)(6), in accordance with Rule 8(a)(2),
to require allegations with “enough heft to
‘sho[w] that the pleader is entitled to relief”
(alteration in original)). The court takes all factual
allegations in the complaint as true and draws all reasonable
inferences in the plaintiff's favor. Crawford v.
Cuomo, 796 F.3d 252, 256 (2d Cir. 2015). However, the
tenet that a court must accept a complaint's allegations
as true is inapplicable to “[t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
survive a motion pursuant to Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). “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. The plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556).
facts alleged in this case are straightforward. The
defendant, Ocean State, is a Rhode Island corporation with
127 retail stores located throughout the northeastern United
States. Compl. at ¶¶ 1, 16. Stewart, a resident of
New York, purchased a two-pack of Duracell C alkaline
batteries, a four-pack of Duracell AA alkaline batteries, and
a four-pack of Duracell AAA alkaline batteries from a New
York Ocean State location. Id. at ¶¶ 14,
15. The packaging for these batteries included an image of a
pink bunny, and the advertising claims “LASTS LONGER .
. . MUCH LONGER” and “UP TO 6X LONGER LASTING
POWER.” Id. at ¶ 3. Stewart made this
purchase based on his belief that Duracell batteries are
“a top notch, top quality consumer product.”
Id. at ¶ 15. When he purchased the batteries,
Stewart believed that they were high quality Duracell
alkaline batteries intended for the United States market.
Id. at ¶ 25. He paid a premium price for the
batteries. Id. After making the purchase, Stewart
learned that Duracell intended the batteries he had purchased
for the Asian market, not the United States market.
Id. at ¶¶ 4, 15. Had Stewart known that
the batteries in question were intended for sale on the Asian
market, he would not have purchased them. Id.
New York Law Claims
Complaint, Stewart alleges that Ocean State violated two
sections of New York General Business Law: section 349, which
prohibits “[d]eceptive acts or practices in the conduct
of any business, trade or commerce or in the furnishing of
any service in this state, ” and section 350, which
prohibits “[f]alse advertising in the conduct of any
business, trade or commerce in the furnishing of any service
in this state.” The New York Court of Appeals has held
that “[t]he standard for recovery under General
Business Law § 350, while specific to false advertising,
is otherwise identical to section 349.” Goshen v.
Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 n.1
(2002). In order to prove liability under either section 349
or section 350, therefore, a plaintiff must prove the same
three elements: “first, that the challenged act or
practice was consumer-oriented; second, that is was
misleading in a material way; and third, that the plaintiff
suffered injury as a result of the deceptive act.”
New World Sols., Inc. v. NameMedia Inc., 150
F.Supp.3d 287, 329 (S.D.N.Y. 2015) (quoting Stutman v.
Chem. Bank, 731 N.E.2d 608, 611 (N.Y. 2000).
State does not dispute that the first factor, namely that the
challenged practice was “consumer-oriented, ” has
been adequately pled. However, Ocean State argues that
Stewart has not plausibly alleged that the battery packaging
in question was “misleading in a material way”
because, first, Stewart has not alleged that the batteries
are of inferior quality and, second, because Stewart has
provided “no plausible basis from which to infer that
the subject advertising claims are not equally true for U.S.
markets” as they are for Asian markets. Def.'s Mem.
at 8-9. Ocean State further argues that the statements in
question, that the batteries “LAST LONGER . . . MUCH
LONGER” and have “UP TO 6X LONGER LASTING POWER,
” are not materially misleading because they constitute
non-actionable puffery. Id. at 10.
court agrees with Ocean State that the representations on the
packages-- that the batteries “LAST LONGER . . . MUCH
LONGER” and have “UP TO 6X LONGER LASTING
POWER”--are not materially misleading as a matter of
law because they constitute “mere puffery.”
See id. The Second Circuit has defined puffery in an
advertising context as “subjective claims about
products, which cannot be proven either true or false.”
Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d
144, 159 (2d Cir. 2007) (quoting Lipton v. Nature
Co., 71 F.3d 464, 474 (2d Cir. 1995)). The Second
Circuit has further cited with approval the Fifth
Circuit's definition of puffery as “an exaggerated,
blustering, and boasting statement upon which no reasonable
buyer would be justified in relying.” Id. at
160 (quoting Pizza Hut, Inc. v. Papa John's
Int'l, Inc., 227 F.3d 489, 497 (5th Cir. 2000)).
With respect to the claim that the Duracell batteries
“LAST[ ] LONGER . . . MUCH LONGER, ” the court
concludes this statement is puffery: it is a vague, boastful
statement which, in the absence of a point of comparison,
cannot be proven true or false, and a reasonable ...