Murray McIver v. Ginger Ale
- Louis Stanton
- 1:24-cv-09102
- U.S. District Court · Southern District of New York
- 4
In Tamicko Murrya McIver v. Ginger Ale, Judge Stanton dismissed the false-advertising lawsuit because it stated no legally valid claim.
Tamicko Murrya McIver’s false-advertising claims against Ginger Ale, Canada Dry, and Keurig Dr. Pepper were dismissed; any state-law claims were not decided because the court declined supplemental jurisdiction.
What happened
Tamicko Murrya McIver sued Ginger Ale, Canada Dry, and Keurig Dr. Pepper without a lawyer, alleging that their sodas were advertised as containing real ginger when they contained artificial flavoring and no ginger. McIver sought $5,000 to replace food stamps and cash allegedly spent on the products.
The court said consumers cannot use the federal trademark law to bring this kind of claim because McIver alleged a personal purchasing injury, not harm to a business reputation or sales. It also said individuals cannot sue under the Federal Trade Commission Act or the Food, Drug, and Cosmetic Act for false advertising because those laws do not give individuals the right to bring such lawsuits.
Judge Louis L. Stanton dismissed the complaint for failure to state a claim, declined to allow an amended complaint, declined to exercise jurisdiction over any state-law claims, and directed the clerk to enter judgment.
The detailed version
- Murray McIver v. Ginger Ale · No. 1:24-cv-09102
- Louis Stanton
- June 20, 2025
Background
Tamicko Murrya McIver proceeded without a lawyer and was permitted to file without paying court fees in advance. McIver sued “Ginger Ale,” Canada Dry, and Keurig Dr. Pepper, alleging false advertising. According to the complaint, from 2022 onward McIver bought the defendants’ products believing they contained real ginger, but the products allegedly contained artificial flavoring and no ginger. McIver alleged spending thousands of dollars in food stamps and cash and sought $5,000 in damages to replace the food stamps.
Court’s analysis
Because the case was filed without prepaying fees, the court screened the complaint under 28 U.S.C. § 1915(e)(2)(B). That law requires dismissal of a complaint that is frivolous, malicious, fails to state a claim for relief, or seeks money from an immune defendant. The court also noted that it must dismiss a case when it lacks subject-matter jurisdiction, meaning authority to hear the dispute.
The court considered the federal Lanham Act, which can provide a false-advertising claim in some circumstances. It held that McIver could not proceed under that law because the complaint alleged only that McIver was personally misled into buying a disappointing product. The Lanham Act requires an injury to a commercial interest in reputation or sales, and the court said a consumer’s personal purchasing injury does not satisfy that requirement.
The court also held that McIver could not sue under the Federal Trade Commission Act because that statute does not provide individuals with a private right of action, meaning the right to bring a lawsuit directly under the statute. The court likewise stated that the Food, Drug, and Cosmetic Act does not provide a private right of action.
Disposition
The court dismissed the complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). It declined to grant leave to amend because it found that the defects could not be cured by changing the complaint. After dismissing the federal claims, it declined to exercise supplemental jurisdiction, meaning authority over related state-law claims, and any such state-law claims McIver may have been asserting. The court directed the clerk to enter judgment. Judge Louis L. Stanton signed the order.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.