Axon v. Fla.'s Nat. Growers, Inc. ( 2020 )

19-203
Axon v. Fla.’s Nat. Growers, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 29th day of May, two thousand twenty.
PRESENT: JOHN M. WALKER, JR.,
RICHARD J. SULLIVAN,
Circuit Judges,
ALISON J. NATHAN,
District Judge. ∗
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ALEXANDRA AXON, ON BEHALF OF
HERSELF AND ALL OTHERS SIMILARLY
SITUATED,
Plaintiff-Appellant,
v. No. 19-203-cv
FLORIDA’S NATURAL GROWERS, INC.,
CITRUS WORLD, INC.,
∗
Judge Alison J. Nathan, of the United States District Court for the Southern District of
New York, sitting by designation.
Defendants-Appellees.
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FOR APPELLANT: KIM E. RICHMAN, Richman
Law Group, New York, NY.
FOR APPELLEES: DANIEL H. COULTOFF
(Christina Y. Taylor, on the
brief), Latham, Shuker, Eden &
Beaudine, LLP, Orlando, FL.
Tom M. Fini, on the brief,
Catafago Fini LLP, New York,
NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Allyne R. Ross, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Alexandra Axon commenced this putative class action against Florida’s
Natural Growers, Inc. and its parent company, Citrus World, Inc. (collectively,
“Florida’s Natural” or “Defendant”), asserting claims under New York’s
consumer protection statutes prohibiting deceptive business practices and false
advertising, as well as common law claims for breach of express warranty and
unjust enrichment. This case centers on the appearance of the word “natural” in
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the brand name “Florida’s Natural.” Specifically, Axon alleges that the use of the
term “natural” in Defendant’s brand name – the term appears nowhere else on
Defendant’s products or packaging – is deceptive because its orange-juice
products contain trace amounts of glyphosate, an herbicide used to kill weeds that
is not a natural ingredient. Axon appeals from a judgment of the district court
(Ross, J.) dismissing her complaint for failure to state a claim and denying as futile
her motion for leave to amend her complaint.
On appeal, Axon challenges both rulings, contending that the court made
improper evidentiary determinations, applied too strict a pleading standard, erred
in analyzing the deceptive significance of Defendant’s branding, and incorrectly
dismissed her unjust enrichment claim as duplicative of her other claims. Because
the district court correctly determined that Axon’s complaint fails to state a claim
as a matter of law – a reasonable consumer would not be misled by the challenged
statement – and did not err in denying her motion for leave to amend, we affirm.
We assume the parties’ familiarity with the underlying facts, procedural history,
and issues on appeal, to which we refer only as necessary to explain our decision.
I.
Florida’s Natural contends that Axon lacks standing to seek injunctive relief
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or damages. We disagree, at least with respect to Axon’s standing to seek
damages. 1
“The existence of standing is a question of law that we review de novo.”
Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004). To establish Article III standing,
“(1) the plaintiff must have suffered an injury-in-fact; (2) there must be a causal
connection between the injury and the conduct at issue; and (3) the injury must be
likely to be redressed by a favorable decision.” Nicosia v. Amazon.com, Inc., 834
F.3d 220, 239 (2d Cir. 2016) (quoting Jewish People for the Betterment of Westhampton
Beach v. Vill. of Westhampton Beach, 778 F.3d 390, 394 (2d Cir. 2015)). “For each form
of relief sought, a plaintiff ‘must demonstrate standing separately.’” Id. (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000)).
For statutory standing, “the question is whether the plaintiff ‘has a cause of action
under the statute.’” Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist.
Comm’n, 768 F.3d 183, 201 (2d Cir. 2014) (quoting Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 128 (2014)).
1Whether plaintiffs seeking injunctive relief for consumer deception have standing where
they allege that they would buy the products in the future if not mislabeled is unsettled
in this Circuit. See Podpeskar v. Dannon Co., No. 16-cv-8478 (KBF), 2017 WL 6001845, at *4
n.2 (S.D.N.Y. Dec. 3, 2017) (collecting cases). Because we conclude that Axon has standing
to seek damages and that her claims fail as a matter of law, we need not resolve that
question or determine whether Axon has standing to seek injunctive relief.
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Defendant maintains that Axon does not have Article III standing or
statutory standing under New York law to seek damages because she fails to
establish an injury-in-fact. As for Article III standing, Axon has suffered an injury-
in-fact because she purchased products bearing allegedly misleading labels and
sustained financial injury – paying a premium – as a result. See, e.g., Langan v.
Johnson & Johnson Consumer Cos., Inc., 897 F.3d 88, 92 (2d Cir. 2018). As for
statutory standing, Axon has alleged that “the price of the product was inflated as
a result of defendant’s deception,” which meets the injury requirement. Baron v.
Pfizer, Inc., 840 N.Y.S.2d 445, 448 (3d Dep’t 2007). Furthermore, Axon’s failure to
identify the prices of competing products to establish the premium that she paid
“is not fatal to [her] claim” at this stage of the proceedings. Goldemberg v. Johnson
& Johnson Consumer Cos., 8 F. Supp. 3d 467, 481–82 (S.D.N.Y. 2014) (collecting
cases); see also Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 56 (1999); Cox v. Microsoft
Corp., 809 N.Y.S.2d 480, 2005 WL 3288130, at *5 (Sup. Ct. July 29, 2005).
II.
“[T]he [d]istrict [c]ourt’s dismissal of a complaint under Federal Rule of
Civil Procedure 12(b)(6)” is reviewed de novo, Nat’l Credit Union Admin. Bd. v. U.S.
Bank Nat’l Ass’n, 898 F.3d 243, 252 (2d Cir. 2018), as is the denial of a motion for
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leave to amend on the basis of futility, Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014).
Axon asserts that the district court improperly weighed the evidentiary
value of certain survey evidence that she submitted with her motion for leave to
amend her complaint, failed to apply a liberal pleading standard, and did not view
her allegations in the light most favorable to her. The district court, however, did
not engage in any factfinding or weighing of evidence in determining that the
survey did not render Axon’s claims plausible. Instead, the court concluded that
the proposed amended complaint’s conclusory allegations were unsupported by
the survey.
New York’s General Business Law prohibits the use of “[d]eceptive acts or
practices” and “[f]alse advertising” “in the conduct of any business, trade or
commerce.” N.Y. Gen. Bus. Law §§ 349 and 350. To survive a motion to dismiss,
“[p]laintiffs must plausibly allege ‘that a significant portion of the general
consuming public or of targeted consumers, acting reasonably in the
circumstances, could be misled’” by the relevant statements. Jessani v. Monini N.
Am., Inc., 744 F. App’x 18, 19 (2d Cir. 2018) (quoting Ebner v. Fresh Inc., 838 F.3d
958, 965 (9th Cir. 2016)). Furthermore, where “the allegations of [a] [c]omplaint
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are materially inconsistent with the” evidence a plaintiff relies on to make those
allegations, we may “easily conclude that [p]laintiffs’ claims lack the facial
plausibility necessary to survive a motion to dismiss.” Fink v. Time Warner Cable,
714 F.3d 739, 742 (2d Cir. 2013).
The survey that accompanied Axon’s proposed amended complaint did not
specifically address any aspect of Florida Natural’s products or packaging.
Moreover, the conclusions that Axon asserts based on the survey are not
supported by it. The district court properly determined that the survey concerned
the use of a “natural label,” rather than a brand name using the word “natural.”
App’x at 205. Although the survey “does not include details on how it defined . . .
a ‘natural label,’” id., nothing in the survey suggests that it defined “label” broadly
to include a product’s brand name. Consequently, even without making findings
of fact regarding the survey, the court properly determined that the claims Axon
asserted based on the survey were facially unsupported by it. Put simply, the
survey does not render Axon’s claims plausible even taking the allegations of the
proposed amended complaint as true and viewing them in the light most favorable
to her. Accordingly, the district court did not make impermissible evidentiary
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determinations or fail to apply the correct pleading standard when it denied
Axon’s motion for leave to amend her complaint.
III.
Axon next contends that the district court created an improper distinction
between products whose brand name contains a “natural” representation and
products that make “natural” representations apart from the brand name. But the
district court properly analyzed the Florida’s Natural packaging as a whole in
analyzing whether it was potentially deceptive or misleading, determining that no
reasonable consumer would be misled into believing that Defendant’s products
did not contain any trace amounts of glyphosate. See Frink, 714 F.3d at 742 (“[I]n
determining whether a reasonable consumer would have been misled by a
particular advertisement, context is crucial.”). The court noted that the term
“natural” occurred only within the brand name “Florida’s Natural” and nowhere
else on the packaging. Axon v. Citrus World, Inc., 354 F. Supp. 3d 170, 184 (E.D.N.Y.
2018). The packaging does not describe the orange juice as “natural” on a stand-
alone label or as “100% natural.” Instead, Defendant’s packaging represents that
their products are “100% Orange Juice,” “NOT FROM CONCENTRATE,” and
“NON-GMO.” App’x at 9. These representations provide context for the
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“Florida’s Natural” brand name, and Axon does not challenge their veracity.
Having considered the brand name in context, the district court concluded “that it
is not plausible to allege that a reasonable consumer would interpret the brand
label ‘Florida’s Natural’ as meaning that the product contains no traces of
glyphosate” as a result of the planting and cultivation of oranges in its product.
Axon, 354 F. Supp. 3d at 183. Contrary to Axon’s characterizations of the district
court’s analysis, the court did not conclude that a brand name can never be
misleading, but merely performed the requisite objective reasonable consumer
inquiry under the circumstances of this case.
IV.
Axon maintains that the district court improperly concluded that a claim
based on a “natural” label is not plausible if the product contains “unnatural
contaminants,” as opposed to “unnatural ingredients.” Axon Br. at 5, 22–24. First,
we agree with the district court that the presence of glyphosate as a contaminant
in Defendant’s products, rather than an intentionally-added ingredient, bolsters
the conclusion that a reasonable consumer, viewing the brand name “Florida’s
Natural,” would not make assumptions regarding the presence or absence of trace
amounts of glyphosate. Axon, 354 F. Supp. 3d at 183.
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Second, the district court was correct to distinguish the cases that Axon cited
because those cases involved different representations, such as “pure” or “100%
natural,” and allegations that the defendant added unnatural ingredients to its
products. Id. at 183–84. Unlike “natural,” the words “pure” and “100% natural”
indicate the absolute absence of contaminants. See, e.g., Pure, Merriam-Webster
Dictionary, http://merriam-webster.com/dictionary/pure (defining “pure” as “free
from dust, dirt, or taint”). And Axon makes no allegation that Defendant adds
glyphosate as an artificial/synthetic ingredient to its products.
Third, Axon is incorrect that the district court speculated about “how and
when” glyphosate entered the production process. Axon’s complaint and
proposed amended complaint themselves establish that glyphosate is introduced
through the growing process. She alleges that glyphosate (1) is “a synthetic
biocide frequently used to kill weeds;” (2) was invented by “Monsanto, which
began marketing the herbicide in 1974 under the trade name Roundup;” and (3) “is
not a ‘Natural’ method of growing or harvesting oranges.” App’x at 185, 191.
Consequently, the court’s characterization of glyphosate’s presence in Florida
Natural’s orange juice as “trace amounts of a commonly used pesticide introduced
early in the production process” accords with Axon’s allegations and is not an
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evidentiary finding regarding the source of glyphosate. Axon, 354 F. Supp. 3d at
183.
Axon thus fails to demonstrate any error in the district court’s analysis of
the proposed amended complaint.
V.
Axon finally asserts that the district court improperly dismissed her unjust
enrichment claim as duplicative of her breach of warranty/implied contract claim,
arguing that “a claim for unjust enrichment may survive, despite a claim for
warranty, when there is doubt as to the existence of the warranty.” Axon’s Br. at
5.
But while it is true that a plaintiff may plead unjust enrichment in the
alternative to a breach of warranty claim, see Newman & Schwartz v. Asplundh Tree
Expert Co., 102 F.3d 660, 663 (2d Cir. 1996), the unjust enrichment claim here fails
for the same reasons that Axon’s other claims do – namely, that she has not alleged
a fraud that would render Florida’s Natural’s enrichment “unjust,” see Indyk v.
Habib Bank Ltd., 694 F.2d 54, 57 (2d Cir. 1982). Accordingly, we affirm the district
court’s dismissal of Axon’s alternative unjust enrichment claim.
* * *
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We have considered Axon’s remaining contentions and conclude that they
are without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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