FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. F. Dennis Saylor IV, U.S. District Judge]
James Boumil, with whom Boumil Law Offices, Konstantine W.
Kyros, and Law Offices of Konstantine W. Kyros, were on
brief, for appellant.
A. Mazzuchetti, with whom Michael C. Lynch, James B. Saylor,
Kelly Drye & Warren LLP, and William T. Harrington, were
on brief, for appellee.
Torruella, Lynch, and Lipez, Circuit Judges.
appeal involves a putative class action lawsuit arising out
of allegedly deceptive labeling and marketing of products by
Kohl's Department Stores, Inc. Appellant Ellen Mulder
purchased several items from a Kohl's store in Hingham,
Massachusetts. The price tags on these items listed both
purchase prices and significantly higher "comparison
prices." Mulder alleges that these comparison prices are
entirely fictional, and were selected by Kohl's to
mislead unsuspecting consumers about the quality of its
products. Feeling cheated by Kohl's allegedly deceitful
pricing scheme, Mulder filed suit alleging that Kohl's
had, in violation of Massachusetts statutory and common law,
improperly obtained money from her and other Massachusetts
consumers. She requested that a court order Kohl's to
restore this money and enjoin Kohl's from continuing to
violate Massachusetts law. The district court granted
Kohl's motion to dismiss all of Mulder's claims. We
faced identical claims against a different retailer in a
related case, Shaulis v. Nordstrom, No. 15-2354,
slip op. at 5-32 (1st Cir. July 26, 2017), also decided
today. The reasoning of that opinion applies fully here. We
provide the following background and analysis only to address
Mulder's contentions regarding the district court's
denial of her motion for leave to amend and to address a new
"travel expenses" theory of injury proposed in an
accompanying proposed second amended complaint.
facts underlying this case are taken from the amended
complaint and are presumed true for the purposes of this
appeal. They are fully set forth in the opinion of the
district court. See Mulder v. Kohl's Dept. Stores,
Inc., 15-11377-FDS, 2016 WL 393215, at *1-3 (D. Mass.
Feb. 1, 2016).
Kohl's Department Stores, Inc. is a Wisconsin-based
corporation that operates department stores throughout the
United States, including more than twenty stores in
Massachusetts. Mulder purchased two items at one of these
stores in 2014. The first item listed a
"manufacturer's suggested retail price" of $55;
the second displayed a "comparison price" of $26.
The items were listed as being on sale for $29.99 and $17.99,
claims that these price tags were deceptive. According to
Mulder, Kohl's "misrepresented the existence,
nature, and amount of price discounts on [its] products"
by falsely "purporting to offer specific dollar
discounts from its own former retail prices . . . or
manufacturer's suggested retail prices" when, in
reality, the listed sale prices were "fabricated [and]
inflated." In short, Mulder claims that the comparison
prices listed on the price tags were "fictional amounts
intentionally selected so that Kohl's could advertise
phantom markdowns" and persuade customers to make
purchases they otherwise would not make.
November 20, 2014, Mulder filed suit in Massachusetts
Superior Court. She filed an amended complaint on February
19, 2015. The amended complaint alleged claims for fraud,
breach of contract, unjust enrichment, violations of the Code
of Massachusetts Regulations and the Federal Trade Commission
Act, and violations of Mass. Gen. Laws ch. 93A
Kohl's removed the case to federal court, it successfully
moved to dismiss the action for failure to state a claim. The
district court held that Mulder had failed to adequately
plead a legally cognizable injury under Chapter 93A, and
further denied her requests to certify several Chapter 93A
questions to the Massachusetts Supreme Judicial Court
("SJC") and for leave to file a second amended
complaint. The court also dismissed all of Mulder's
common law claims.
appeal, Mulder challenges dismissal of her Chapter 93A claim
and her common law claims for fraud, breach of contract, and
unjust enrichment. Our review is de novo. Carter's of
New Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 291 (1st
Cir. 2015). As a federal court sitting in diversity, we apply
the substantive law of ...