KATHY DUMONT, individually and on behalf of all others similarly situated, Plaintiff, Appellant,
REILY FOODS COMPANY; NEW ENGLAND COFFEE COMPANY, Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge]
T. Longo and Citadel Consumer Litigation, PC on brief for
Timothy H. Madden, Donnelly, Conroy & Gelhaar, LLP, Mark
A. Cunningham, Thomas A. Casey, Jr., John R. Guenard, and
Jones Walker LLP, on brief for appellees.
Torruella, Lynch, and Kayatta, Circuit Judges.
Kayatta, Circuit Judge
New England Coffee Company, operating as a subsidiary of
Reily Foods Company,  sells a "Hazelnut Crème"
coffee. Kathy Dumont contends that she purchased the coffee
because she thought that a coffee styled "Hazelnut
Crème" contained some hazelnut. After learning
that the "Hazelnut Crème" coffee contained
no hazelnut at all, Dumont brought this putative class action
challenging the coffee's labeling as a violation of
Massachusetts' consumer protection laws. The district
court dismissed the case for failure to meet the heightened
pleading standard of Federal Rule of Civil Procedure 9(b).
For the following reasons, we reverse.
out the facts as alleged in the complaint, but do not credit
"unsupported conclusions or assertions." U.S.
ex rel. Gagne v. City of Worcester, 565 F.3d
40, 42 (1st Cir. 2009). At all times relevant to this case,
the front label of the package containing the Hazelnut
Crème coffee described the coffee as follows:
"freshly ground," "100% Arabica Coffee,"
"Hazelnut Crème," "Medium Bodied,"
and "Rich, Nutty Flavor." The ingredients label on
the back of the package provided the following list of
ingredients: "100% Arabica Coffee Naturally and
Artificially Flavored." There is no image of a hazelnut
anywhere on the bag.
Dumont purchased in Massachusetts at least one package of the
Hazelnut Crème coffee labeled as described above.
Dumont alleges that she would not have purchased the coffee
had she known that it did not contain some hazelnut.
individually and on behalf of a putative nationwide class of
allegedly similarly situated consumers, Dumont claimed that
the packaging was (1) an unfair and deceptive practice under
Massachusetts General Laws chapter 93A and (2) untrue and
misleading advertising under Massachusetts General Laws
chapter 266, section 91. In the alternative, Dumont claimed
unjust enrichment. The district court dismissed Dumont's
complaint without leave to amend. Citing Federal Rule of
Civil Procedure 9(b), the court held that "the complaint
offer[ed] insufficient detail regarding the circumstances of
plaintiff's purchase" and that it therefore
"fail[ed] to pass muster under the relevant pleading
standard." Dumont v. Reily Foods Co.,
No. CV 18-10907-RWZ, 2018 WL 4571656, at *1 (D. Mass. Sept.
24, 2018) (record citation omitted).
then appealed to this court. Though her Notice of Appeal
covers the entire judgment of dismissal, her brief makes no
argument regarding the dismissal of her claim under
Massachusetts General Laws chapter 266, section 91, or her
alternative claim for unjust enrichment. Any such argument is
therefore waived. See Sparkle Hill, Inc. v.
Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir.
2015). So, we address only the dismissal of her claim under
Massachusetts General Law Chapter 93A, § 2(a).
first to Dumont's argument that the district court erred
in its conclusion that her complaint provided insufficiently
particularized facts to satisfy Rule 9(b). We review de novo
the dismissal of a complaint for failure to comply with Rule
9(b). U.S. ex rel. Ge v. Takeda Pharm. Co.,
737 F.3d 116, 123 (1st Cir. 2013).
9(b) provides that, "[i]n alleging fraud or mistake, a
party must state with particularity the circumstances
constituting fraud or mistake." We have explained that
"[t]he circumstances to be stated with particularity
under Rule 9(b) generally consist of 'the who, what,
where, and when of the allegedly [misleading]
representation.'" Kaufman v. CVS
Caremark Corp., 836 F.3d 88, 91 (1st Cir. 2016) (quoting
Alt. Sys. Concepts, Inc. v. Synopsys, Inc.,
374 F.3d 23, 29 (1st Cir. 2004)) (alteration in original).
The district court concluded that Dumont's complaint
failed this test:
Beyond the allegation that "Plaintiff purchased [New
England Coffee Company's] Hazelnut Crème
Coffee" and the conclusory assertion that she
"reasonably believed that the coffee contained . . .
hazelnut," the complaint offers insufficient detail
regarding the circumstances of the plaintiff's purchase.
Without more, her complaint fails to pass muster under [Rule
Dumont, 2018 WL 4571656, at *1 (record citation
omitted). Dumont presumes that Rule 9(b) applies to the
pleading of her chapter 93A claim, so we shall too. C.f.
Mulder v. Kohl's Dep't Stores, Inc.,
865 F.3d 17');">865 F.3d 17, 21 (1st Cir. 2017)(observing that the Rule 9(b)
heightened pleading standard applies to claims under chapter
93A that involve fraud). She contends that her pleading
provided sufficient particularity to satisfy Rule 9(b).
court's decision in Kaufman v. CVS
Caremark Corporation favors Dumont. 836 F.3d at
90-91. In that case, a consumer claimed that a CVS-brand
dietary supplement labeled as promoting "heart
health" was deceptive because no scientifically valid
studies supported the "heart health" statement.
Id. at 90. Concluding that the complaint satisfied
the Rule 9(b) heightened pleading standard, this court
observed that "CVS is the 'who'; the heart
health statements are the 'what'; the label is the
'where'; and the occasion on which Kaufman purchased
the product is the 'when.'" Id. at 91.
It follows here that Reily Foods and New England Coffee
Company are the "who"; the "Hazelnut
Crème" statement is the "what"; the
label is the "where"; and the occasion on which
Dumont purchased the coffee is the "when." The
defendants barely acknowledge the import of our holding in
Kaufman, wanly suggesting in a footnote that it is
distinguishable because the label in that case had less
information. But that distinction suggests that the complaint
in this case had more, not less, particularity than the
complaint in in Kaufman. Moreover, such a difference
would go to the merits of the claim, not the Rule 9(b)
event, even were we to ignore Kaufman, we would find
no merit in defendants' contention that the complaint
failed to satisfy Rule 9(b) by neglecting to include further
details about Dumont's reliance on the allegedly
misleading statement, including the date and location of her
purchase. As for the date of the purchase, the complaint
makes clear that the purchase occurred when the defendants
were selling the "Hazelnut Crème" coffee in
the package pictured in the complaint. The defendants offer
no reason why further particularity on the date is relevant.
So, too, the other "circumstances" the defendants
say are lacking (e.g., where in Massachusetts Dumont
made the purchase and whether "similar" products
were present at the point of sale) strike us as either
irrelevant or the potential subjects of discovery.
core purposes of Rule 9(b) are "to place the defendants
on notice and enable them to prepare meaningful
responses," "to preclude the use of a groundless
fraud claim as pretext for discovering a wrong," and
"to safeguard defendants from frivolous charges [that]
might damage their reputation." New England Data
Servs., Inc. v. Becher, 829 F.2d 286, 289 (1st
Cir. 1987). The defendants do not suggest that they required
any further particularity to respond to the complaint. This
is not a case, after all, in which the defendant can claim
that it never made the allegedly deceptive statement. Nor is
this a case in which liability turns on more precise
information concerning the "when" or the
"where." Rather, it turns on an assessment of the
very particularly identified "what" in the product
label. We conclude, therefore, that the complaint satisfied
the Rule 9(b) particularity standard.
Federal Rule of Civil Procedure 12(b)(6), the defendants urge
us to affirm on the alternative basis that the complaint
failed to state a claim for a violation of chapter 93A. Our
task is to "first disregard conclusory allegations that
merely parrot the relevant legal standard" and
"then inquire whether the remaining factual allegations
state a plausible, rather than merely possible, assertion of
defendants' liability." Young v.Wells
Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). As
a federal court sitting in diversity, we look to state law,
as articulated by the ...