Not for Publication United States Court of Appeals
NOT FOR PUBLICATION FILED DEC 20 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS CYNTHIA CARDARELLI PAINTER, No. 17-55901 individually and on behalf of other members of the general public similarly situated, D.C. No. 2:17-cv-02235-SVW-AJW Plaintiff-Appellant, v. MEMORANDUM* BLUE DIAMOND GROWERS, a California corporation and DOES, 1-100, inclusive, Defendants-Appellees. Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted December 3, 2018 Pasadena, California Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. Cynthia Painter appeals the district court’s order dismissing her complaint with prejudice on grounds of preemption and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). On behalf of a putative class, Painter claims that Blue Diamond Growers (“Blue Diamond”) mislabeled its almond beverages as “almond milk” when they should be labeled “imitation milk” because they substitute for and resemble dairy milk but are nutritionally inferior to it. See 21 C.F.R. § 101.3(e)(1). We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s dismissal de novo. Durnford v. MusclePharm Corp., 907 F.3d 595, 601 (9th Cir.
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