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Dumont v. Reily Foods Co.

United States Court of Appeals, First Circuit

August 8, 2019

KATHY DUMONT, individually and on behalf of all others similarly situated, Plaintiff, Appellant,


          John T. Longo and Citadel Consumer Litigation, PC on brief for appellant.

          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.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          Kayatta, Circuit Judge

         Defendant New England Coffee Company, operating as a subsidiary of Reily Foods Company, [1] 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.


         We set 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.[2]

         Kathy 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.

         Suing 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).

         Dumont 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).



         We turn 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).

         Rule 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 9(b)].

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).

         This 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) question.

         In any 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.

         The 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.


         Citing 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 ...

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