Indiviglio v. B&G Foods, Inc.

Background

Deena Indiviglio filed a proposed class action against B&G Foods, Inc. concerning the labeling of Polaner-brand “All Fruit spreadable fruit.” The packaging included the phrases “All Fruit,” “Spreadable Fruit,” and “Sweetened Only with Fruit Juice.” Indiviglio alleged that these statements misled consumers into believing that the product contained only fruit ingredients, even though its ingredient list included citric acid and natural flavor. She asserted claims under the Magnuson-Moss Warranty Act, New York General Business Law Sections 349 and 350, consumer-protection statutes in eleven other states, breach of express warranty, breach of implied warranties, and unjust enrichment.

B&G moved to dismiss under Rules 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction; Rule 12(b)(6) tests whether a complaint adequately states a legal claim.

New York and Other States’ Consumer-Protection Claims

The court dismissed the claims based on New York General Business Law Sections 349 and 350 because Indiviglio did not adequately allege that the packaging contained a materially false or misleading statement. The court viewed “All Fruit spreadable fruit” as telling a reasonable consumer that the product consisted only of fruit ingredients in a processed form suitable for spreading, not that the jar contained raw, whole fruit.

The court rejected Indiviglio’s allegations concerning citric acid because she alleged only that citric acid is sometimes industrially produced rather than fruit-derived. She did not connect that general industry practice to the citric acid actually used in B&G’s product. The court likewise found her allegations about natural flavor conclusory because she did not identify the type or source of the natural flavor in the product. Because she had not adequately alleged that the product contained non-fruit ingredients, the court concluded that she had not adequately alleged a material misrepresentation.

The court also dismissed the claims under the consumer-protection laws of Alaska, Arkansas, Idaho, Iowa, Mississippi, North Carolina, North Dakota, Texas, Utah, Virginia, and Wyoming. The parties agreed those statutes require a false, misleading, or deceptive representation, and the court concluded that Indiviglio had not adequately alleged one.

Warranty Claims

The court dismissed the express-warranty claim because Indiviglio did not adequately allege that she gave B&G timely pre-suit notice of the alleged breach. Her allegations stated both that she provided or would provide notice and that B&G should have known about the issue through complaints from others. The court found those allegations insufficient. It also rejected the argument that the complaint itself could serve as pre-suit notice.

The court dismissed the implied-warranty claims because Indiviglio alleged only economic loss and did not purchase the product directly from B&G. Under the New York law discussed by the court, a retail purchaser generally lacks the required direct purchasing relationship with the manufacturer for implied-warranty claims involving only economic loss.

The court dismissed the Magnuson-Moss Warranty Act claim for a different reason from the one B&G advanced. The court explained that the federal warranty statute relies on state-law warranty liability. Because Indiviglio’s state-law warranty claims failed, her Magnuson-Moss claim also failed.

Unjust Enrichment and Common-Law Fraud

The court dismissed the unjust-enrichment claim as duplicative of Indiviglio’s statutory, contract, and tort theories. Her unjust-enrichment allegations relied on the same alleged misleading packaging and alleged that B&G obtained money because the product was not as represented. The court concluded that this claim could not proceed separately from the other claims.

The court also addressed an attempted common-law fraud theory raised for the first time in Indiviglio’s opposition to the motion. The complaint did not plead a common-law fraud claim, and the court stated that a plaintiff may not add a new claim through motion papers. The court further stated that, even if the theory were considered, it would fail because Indiviglio had not adequately alleged a material misrepresentation.

Leave to Amend and Disposition

Indiviglio requested permission to file an amended complaint if the motion to dismiss were granted. The court denied that request. It noted that she had previously chosen to rely on the existing complaint, had not submitted a proposed amended complaint, had not identified a basis for amendment, and had not explained how an amendment would cure the pleading deficiencies.

Judge Vincent L. Briccetti granted B&G’s motion to dismiss and denied Indiviglio’s request for leave to amend. The clerk was directed to terminate the motion and close the case.