United States District Court, D. Massachusetts
SCOTT KAPLAN and JEFF ROACH, on behalf of themselves and all others similarly situated, Plaintiffs,
FULTON STREET BREWERY, LLC d/b/a Goose Island Beer Company, Defendant.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION TO DISMISS
Gail Dein United States Magistrate Judge
plaintiffs, Scott Kaplan (“Kaplan”) and Jeff
Roach (“Roach”), brought this action on behalf of
themselves and all others similarly situated, against Fulton
Street Brewery d/b/a Goose Island Beer Company (“Goose
Island”). As alleged in the complaint, the plaintiffs
each purchased several bottles of specialty beer produced by
the defendant that contained a bacteria, causing an
“off flavor.” Plaintiffs allege that although the
defendant acknowledged that certain batches of its specialty
beer were “off flavor” and created a refund
program to reimburse purchasers of that beer, the refund
program was underpublicized and available for an unreasonably
short period of time, leaving plaintiffs, and a purported
class of other purchasers of the beer, with worthless beer.
filed a class action complaint on February 10, 2017 (Docket
No. 1) and a first amended class action complaint on May 5,
2017 (Docket No. 6) (“FAC”), asserting subject
matter jurisdiction pursuant to the Class Action Fairness Act
of 2005, 28 U.S.C. § 1332(d)(2). The FAC purports to
state claims for breach of warranty of merchantability (Count
I); violation of Mass. Gen. Laws ch. 93A § 2,
“Breach of Warranty of Merchantability” (Count
II); violation of Mass. Gen. Laws ch. 93A § 2,
“Unfair and Deceptive Notification and Recall”
(Count III); unjust enrichment (Count IV); and declaratory
relief (Count V).
matter is before the court on Goose Island's motion to
dismiss plaintiffs' claims for lack of subject matter
jurisdiction and failure to state a claim, brought pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(Docket No. 14). For the reasons detailed herein, this court
finds that plaintiffs' claims are moot, and that this
court lacks jurisdiction to hear this matter. Therefore,
defendant's motion to dismiss is ALLOWED.
STATEMENT OF FACTS
Rule of Civil Procedure 12(b)(1) is “[t]he proper
vehicle for challenging a court's subject-matter
jurisdiction” including a claim, such as the one made
by Goose Island, that the plaintiffs lack standing to
maintain this action because their claims are moot. See
Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362 (1st
Cir. 2001). See also Katz v. Pershing, LLC, 672 F.3d
64, 71 (1st Cir. 2012) (to meet the federal case or
controversy requirement under Article III of the U.S.
Constitution, the plaintiff must satisfy the standing
requirements of injury, causation and redressability). In
assessing jurisdiction at the pleading stage, the court must
“accept as true all well-pleaded factual
averments” in the complaint and “indulge all
reasonable inferences there-from in [plaintiffs']
favor.” Deniz v. Municipality of Guaynabo, 285
F.3d 142, 144 (1st Cir. 2002). In ruling on a Rule 12(b)(1)
motion, the court may consider materials outside the
pleadings. Gonzalez v. United States, 284 F.3d 281,
288 (1st Cir. 2002). Indeed, “when a factbound
jurisdictional question looms, a court must be allowed
considerable leeway in weighing the proof, drawing reasonable
inferences, and satisfying itself that subject-matter
jurisdiction has attached.” Valentin, 254 F.3d at 364.
this standard to the instant case, the relevant facts are as
2015 Beer Purchases and the 2016 Refund Program
allege that Goose Island advertises its Bourbon County beer
as high end beer with “exceptional and complex taste
profiles.” (FAC ¶ 66). Plaintiffs also assert that
this beer is “premium, award winning beer which many
consumers purchase in bulk and let . . . age in order to
enhance the beer's flavor.” (Id.
2015, Kaplan purchased 12 bottles of Goose Island Bourbon
County Brand Stout beer, for approximately $12.99 per bottle;
two bottles of Goose Island Bourbon County Brand Coffee Stout
beer, for approximately $10.99 per bottle; and one bottle of
Goose Island Bourbon County Brand Barleywine beer, for
approximately $18.99, for a total purchase price of
approximately $196.85. (Id. ¶¶ 12, 14-16).
2015, Roach purchased 32 bottles of Goose Island Bourbon
County Brand Stout beer; two bottles of Goose Island Bourbon
County Brand Coffee Stout beer; and six bottles of Goose
Island Bourbon County Brand Barleywine beer. (Id.
¶ 37). Roach spent approximately $12.00 to $15.00 per
bottle of beer. (Id. ¶ 38).
2016, Goose Island discovered, and subsequently acknowledged,
that certain 2015 Bourbon County beer contained a
lactobacillus acetotolerans bacteria, which the parties agree
can create a sour taste, inconsistent with the advertised
flavor profile of the beer. Plaintiffs do not allege that
they became ill from drinking the beer, and defendant
asserts, and plaintiffs do not dispute, that the affected
beer does not pose a health risk, but merely can taste
different than advertised. (See Id. ¶¶ 19,
39, 48; Def. Mem. Ex. 2 at 2). Kaplan and Roach allege that
their 2015 Bourbon County beer purchases included beer that
was “contaminated” with the bacteria and/or had
“off” flavors. (FAC ¶¶ 18, 39-41).
2016, Goose Island released information relating to the
affected beer and instituted a refund program for that
beer. (Id. ¶ 21). Plaintiffs
allege that the refund program was “unfair” or
“deceptive” in that it was insufficiently
advertised, was available for an unreasonably limited time
period, and imposed conditions requiring purchasers to prove
the beer was part of the refund program in order to
participate. (Id. ¶¶ 22-25, 27-30, 43-44).
As a result, plaintiffs allege that Kaplan was not able to
participate in the refund program, and Roach was only able to
receive a partial refund for his purchases. (Id.
¶¶ 32, 46). As such, plaintiffs allege that they
are left with beer that is “undrinkable, ”
“valueless, ” of “diminished value, ”
and which does not “meet the standards and quality
advertised” by Goose Island. (Id. ¶¶
33-36, 51-54). They further assert that they represent a
class of “[a]ll persons who purchased a Contaminated
2015 Bourbon County Beer(s) which were subject to the 2016
[refund program, ]” excluding those purchasers who were
fully reimbursed through the 2016 refund program.
(Id. ¶ 79).
93A Demand Letter and Defendant's Response
commenced this action on February 10, 2017. By letter dated
the same day, plaintiffs served a 93A demand letter on Goose
Island, which included the following demands on behalf of
themselves and “a putative class of similarly situated
1. That Goose Island immediately and satisfactorily market
and notify all potential Class Members of the contaminated
2015 [Bourbon County] Beers in a manner aimed at effectively
reaching all such persons (such as in-store recall notices at
all locations where the contaminated [Bourbon County] Beers
2. That Goose Island refund all amounts for purchases of
contaminated 2015 [Bourbon County] Beers to customers; and
3. That Goose Island extend the redemption period related to
the refund of contaminated 2015 [Bourbon County] Beers for a
period of no less than three years from the date of receipt
of this demand.
(See Demand Letter at 2, 4).
letter dated April 6, 2017,  Goose Island responded to
plaintiffs' demand letter and enclosed checks in the
amount of $3, 000 to Kaplan and $5, 000 to Roach, explaining:
Goose Island believes that the fixed submission period for
refund requests related to the 2015 Bourbon County Stout
release was a reasonable limitation, particularly when no
safety or health issue was involved. Nonetheless, Goose
Island has granted substantiated requests for refunds on the
affected variants after the expiration of the deadlines in
some instances. We likewise are willing to provide refunds to
Mr. Kaplan and Mr. Roach. Enclosed for that purpose are
checks ... payable to [each], respectively. These payments
reflect the maximum amount potentially available to them
under M.G.L. ch. 93A, plus additional funds to cover court
costs and attorneys' fees....
[T]he monetary tender enclosed provides more than full
relief, and we trust it will ...