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Becerra V. Dr Pepper/Seven Up, Inc., Slip Copy (2018) 2018 WL 1569697

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Becerra V. Dr Pepper/Seven Up, Inc., Slip Copy (2018) 2018 WL 1569697 Becerra v. Dr Pepper/Seven Up, Inc., Slip Copy (2018) 2018 WL 1569697 Pepper/Seven Up, Inc. (“Dr Pepper”) from marketing its Diet Dr Pepper product as “diet.” While Dr Pepper moves 2018 WL 1569697 Only the Westlaw citation is currently available. to transfer this action to the United States District Court United States District Court, N.D. California. for the Eastern District of Texas pursuant to 28 U.S.C. § 1404(a), the case belongs here—it has a California Shana BECERRA, Plaintiff, plaintiff who was injured in California and chose this v. venue. Dr Pepper also moves to dismiss plaintiff’s Second DR PEPPER/SEVEN UP, INC., Defendant. Amended Complaint (“SAC”) in its entirety, and I agree with its contention that it is not plausible that a reasonable Case No. 17-cv-05921-WHO consumer would believe that drinking Diet Dr Pepper | would assist in weight loss, beyond the fact that it has no Signed 03/30/2018 calories. Accordingly, I DENY Dr Pepper’s motion to transfer venue but GRANT its motion to dismiss with leave to amend Attorneys and Law Firms . Jack Fitzgerald, Melanie Rae Persinger, Trevor Matthew Flynn, The Law Office of Jack Fitzgerald, PC, San Diego, CA, Andrew B. Sacks, John K. Weston, John Kerry Weston, Sacks Weston Diamond, LLC, Philadelphia, PA, for Plaintiff. BACKGROUND Ariel D. House, Baker Botts LLP, Palo Alto, CA, Jessica Dr Pepper is a Delaware corporation with its principal Elaine Underwood, Monica Hughes Smith, Baker Botts place of business in Plano, Texas. SAC ¶ 7. It first L.L.P., Dallas, TX, Stuart Christopher Plunkett, Baker introduced Diet Dr Pepper, a soft drink product, in 1962. Botts L.L.P., San Francisco, CA, for Defendant. SAC ¶ 11. It “uses the term ‘diet’ to market Diet Dr[ ] Pepper because the product is sweetened with a non-caloric artificial sweetener, aspartame, rather than sugar.” Id. ¶ 14. Plaintiff alleges that “[a]lthough ORDER DENYING MOTION TO TRANSFER AND aspartame does not contain calories, scientific research GRANTING MOTION TO DISMISS demonstrates that it, like other nonnutritive sweeteners, is likely to cause weight gain.” Id. ¶ 17. She cites a number of studies and articles discussing aspartame’s effects on Re: Dkt. No. 30, 35 the body and their findings in her SAC. Plaintiff is a resident of Santa Rosa, California who has William H. Orrick, United States District Judge struggled with obesity since childhood. She has been a regular purchaser of Diet Dr Pepper for over thirteen years. SAC ¶¶ 46–47. She purchased the product believing that its prominent use of the term “diet” on its label and in its advertising indicated “that it would INTRODUCTION contribute to healthy weight management, and, due to its lack of calories, would not cause her to gain weight.” Id. ¶ *1 Plaintiff Shana Becerra alleges that she is a consumer 47. She alleges that she would not have purchased the of the soft drink product Diet Dr Pepper. She believed product at the price she paid, or perhaps at all, had that Diet Dr Pepper would assist in weight loss or healthy defendant not marketed the product as “diet.” Id. ¶ 48. weight management due to the use of the term “diet” in the name of the product and on its label, but has since Plaintiff brings suit on behalf of herself and a California learned that studies and articles suggest that artificial class alleging false and misleading advertising, in sweeteners, including those used in Diet Dr Pepper, may violation of California’s False Advertising Law (“FAL”), instead cause weight gain. She brings this putative class Consumers Legal Remedies Act (“CLRA”), and Unfair action on behalf of herself and a California class of Competition Law (“UCL”), as well as breach of both similarly-situated consumers for damages and equitable express and implied warranty.1 Defendant moves to relief, including an injunction to stop defendant Dr transfer venue to its home state of Texas and to dismiss © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Becerra v. Dr Pepper/Seven Up, Inc., Slip Copy (2018) 2018 WL 1569697 the action in its entirety. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to LEGAL STANDARD relief above the speculative level.” Twombly, 550 U.S. at 555, 570. I. Motion to Transfer In deciding whether the plaintiff has stated a claim upon *2 Granting a transfer of venue pursuant to 28 U.S.C. § which relief can be granted, the court accepts the 1404(a) requires two findings. First, the district court plaintiff’s allegations as true and draws all reasonable must determine that the transferee court is one “where the inferences in favor of the plaintiff. See Usher v. City of action might have been brought.” Hatch v. Reliance Ins. Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, Co., 758 F.2d 409, 414 (9th Cir. 1985) (internal quotation the court is not required to accept as true “allegations that marks omitted). Second, as part of completing an are merely conclusory, unwarranted deductions of fact, or “individualized, case-by-case consideration of unreasonable inferences.” In re Gilead Scis. Sec. Litig., convenience and fairness,” Jones v. GNC Franchising, 536 F.3d 1049, 1055 (9th Cir. 2008). Inc., 211 F.3d 495, 498 (9th Cir. 2000), the district court must find “that the convenience of parties and witnesses Claims sounding in fraud or mistake are subject to the in the interest of justice favor[s] transfer.” Hatch, 758 heightened pleading standard of Federal Rule of Civil F.2d at 414 (internal quotation marks omitted). Procedure 9(b), which requires that such claims “state Importantly, the Ninth Circuit has held that a “defendant with particularity the circumstances constituting fraud or must make a strong showing of inconvenience to warrant mistake,” Fed. R. Civ. P. 9(b), including “the who, what, upsetting the plaintiff’s choice of forum.” Decker Coal when, where, and how of the misconduct charged.” Vess Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. Cir. 1986). 2003) (internal quotation marks and citation omitted). “The plaintiff must set forth what is false or misleading As part of its convenience analysis, the court must weigh about a statement, and why it is false.” Id. The allegations a variety of “private and public interest factors affecting of fraud “must be specific enough to give defendants the convenience of the forum.” Decker Coal, 805 F.2d at notice of the particular misconduct which is alleged to 843. Courts in this district consider the following factors: constitute the fraud charged so that they can defend (i) plaintiff’s choice of forum; (ii) convenience of the against the charge and not just deny that they have done parties; (iii) convenience of the witnesses; (iv) ease of anything wrong.” Swartz v. KPMG LLP, 476 F.3d 756, access to the evidence; (v) familiarity of each forum with 764 (9th Cir. 2007). the applicable law; (vi) feasibility of consolidation with other claims; (vii) any local interest in the controversy; *3 If the court dismisses a complaint, it “should grant and (vii) the relative court congestion and time to trial in leave to amend even if no request to amend the pleading each forum. See, e.g., Lax v. Toyota Motor Corp., 65 F. was made, unless it determines that the pleading could not Supp. 3d 772, 776 (N.D. Cal. 2014); Barnes & Noble, Inc. possibly be cured by the allegation of other facts.” Lopez v. LSI Corp., 823 F. Supp. 2d 980,993 (N.D. Cal. 2011); v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151, this determination, the court should consider factors such 1156 (N.D. Cal. 2009). as “the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing II. Motion to Dismiss party and futility of the proposed amendment.” See Moore Under Federal Rule of Procedure 12(b)(6), a district court v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. must dismiss a complaint if it fails to state a claim upon 1989). which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim DISCUSSION is facially plausible when the plaintiff pleads facts that “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” I. Motion to Transfer © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Becerra v. Dr Pepper/Seven Up, Inc., Slip Copy (2018) 2018 WL 1569697 Neither party disputes that this case is properly brought (9th Cir. 2015) (quoting Rice v. Santa Fe Elevator Corp., here but could also have been brought in the Eastern 331 U.S. 218, 230 (1947)). This assumption applies not District of Texas, as defendant is headquartered there. The only “to the question whether Congress intended any question is whether the relevant convenience and fairness pre-emption at all,” but also “to questions concerning the factors weigh in favor of transfer or retention. While the scope of its intended invalidation of state law....” strong presumption in favor of plaintiff’s choice of forum Medtronic, Inc.
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