United States District Court, D. Hawaii
MICHAEL MAEDA and RICK SMITH, individually and on behalf of all others similarly situated, Plaintiffs,
KENNEDY ENDEAVORS, INC.; DOES 1 THROUGH 50, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ SECOND
AMENDED CLASS ACTION COMPLAINT FILED ON JULY 17,
A. Otake United States District Judge.
putative consumer class action arises out of the sale and
marketing of Defendant Kennedy Endeavors, Inc.’s
(“Defendant”) Hawaiian brand snacks, including:
Hawaiian Kettle Style Potato Chips, Original; Hawaiian Kettle
Style Potato Chips, Luau BBQ; Hawaiian Kettle Style Potato
Chips, Sweet Maui Onion; Hawaiian Kettle Style Potato Chips,
Ginger Wasabi; Hawaiian Kettle Style Potato Chips, Hulapeno;
Hawaiian Kettle Style Potato Chips, Mango Habanero; Hawaiian
Luau Barbeque Rings; and Hawaiian Sweet Maui Onion Rings
(collectively “Hawaiian Snacks”). Plaintiffs
Michael Maeda and Rick Smith (collectively
“Plaintiffs”) allege that they purchased certain
varieties of these snacks due to false and deceptive
labeling, packaging, and advertising, which misled them into
believing that the snacks are made in Hawai'i from local
moves to dismiss this action on the following grounds: (1)
its brand name and trade dress are at most puffery; (2)
Plaintiffs’ fraud-based claims continue to be
deficient; and (3) the Court lacks subject matter
jurisdiction over any claims related to the six varieties of
chips that Plaintiffs did not purchase. For the reasons
articulated below, the Court GRANTS IN PART AND DENIES IN
PART Defendant’s Motion to Dismiss Plaintiffs’
Second Amended Class Action Complaint Filed on July 17, 2019.
ECF No. 55.
commenced this action on October 12, 2018 in the Circuit
Court of the First Circuit, State of Hawai'i. Defendant
removed the action on November 23, 2018.
10, 2019, the Court issued an Order Granting in Part and
Denying in Part Defendant Pinnacle Foods
Inc.’s Motion to Dismiss Plaintiffs’ Class
Action Complaint (“Order”), which (1) dismissed
formerly named Plaintiff Iliana Sanchez’s claims for
lack of personal jurisdiction; (2) dismissed with prejudice
the “made in Hawaii” claim; (3) dismissed with
leave to amend the Hawai'i Revised Statutes
(“HRS”) Chapter 480, California consumer
protection, breach of warranty, and fraud/intentional
misrepresentation claims; (4) denied the Motion to Dismiss as
to the jurisdictional challenges to the unnamed non-resident
class members; and (5) denied the Motion to Dismiss as to the
Hawai'i false advertising, negligent misrepresentation,
quasi-contract/unjust enrichment/restitution claims, and the
request for injunctive relief. ECF No. 32. The Court granted
Plaintiffs until June 10, 2019 to file an amended pleading in
conformance with the Order. Id. at 50.
timely filed a First Amended Complaint, adding Plaintiff
Smithand a Hawai'i Uniform Deceptive Trade
Practices Act (“UDTPA”) claim. ECF No. 39. The
Court struck the First Amended Complaint for violating the
Order but allowed Plaintiffs to file another First Amended
Complaint that conformed with the Order. ECF No. 46. The
Court admonished Plaintiffs that they must seek leave of
court for any amendments not authorized by the Order.
subsequently filed their corrected First Amended Complaint
(“FAC”). ECF No. 47. They then filed a Motion for
Leave to File Second Amended Class Action Complaint. ECF No.
50. Due to Defendant’s lack of opposition, ECF No. 52,
the Magistrate Judge granted the Motion for Leave to File
Second Amended Class Action Complaint. ECF No. 53. On July
17, 2019, Plaintiffs filed their Second Amended Complaint
(“SAC”). ECF No. 54.
continue to allege that although the Hawaiian Snacks are
manufactured in Algona, Washington, Defendant markets them in
such a manner as to mislead consumers into believing that
they were manufactured in Hawai'i. The SAC asserts the
following claims: (1) violation of Hawai'i’s Unfair
Deceptive Acts or Practices Statute (“UDAP”), HRS
Chapter 480 (Count 1); (2) violation of Hawai'i’s
false advertising law, HRS § 708-871 (Count 2); (3)
violation of UDTPA, HRS Chapter 481A (Count 3); (4) violation
of California’s Consumers Legal Remedies Act
(“CLRA”), Cal. Civil Code § 1750 (Count 4);
(5) violation of California’s unfair competition law
(“UCL”), Cal. Business & Professions Code
§ 17200 (Count 5); (6) violation of California’s
false advertising law (“FAL”), Cal. Business
& Professions Code § 17500 (Count 6) ; (7) common
law fraud/intentional misrepresentation (Count 7); (8)
negligent misrepresentation (Count 8); and (9)
quasi-contract/unjust enrichment/restitution (Count 9).
three proposed classes identified by Plaintiffs are as
Hawai'i Class: All persons, who, within the
relevant statute of limitations period, purchased any of the
Hawaiian Snacks, in the State of Hawai'i.
California Class: All persons, who, within the
relevant statute of limitations period, purchased any of the
Hawaiian Snacks, in the State of California.
California Consumer Subclass: All persons, who,
within the relevant statute of limitations period, purchased
any of the Hawaiian Snacks for personal, family, or household
purpose, in the State of California.
SAC, ECF No. 54 at ¶ 54.
their prayer for relief, Plaintiffs request a declaration
that Defendant’s conduct violates the law; injunctive
and other equitable relief; restitution; damages; punitive
damages; treble damages; attorneys’ fees and costs; and
pre and post judgment interest. Id. at 64-65.
Federal Rule of Procedure (“FRCP”) 12(b)(1), a
district court must dismiss a complaint if it lacks subject
matter jurisdiction to hear the claims alleged in the
complaint. Fed.R.Civ.P. 12(b)(1). “Standing is a
threshold matter central to our subject matter
jurisdiction.” Bates v. United Parcel Serv.,
Inc., 511 F.3d 974, 985 (9th Cir. 2007). “[L]ack
of Article III standing requires dismissal for lack of
subject matter jurisdiction under [FRCP] 12(b)(1).”
Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir.
2011) (citations omitted). In determining constitutional
standing, the trial court has the authority “to allow
or to require the plaintiff to supply, by amendment to the
complaint or by affidavits, further particularized
allegations of fact deemed supportive of plaintiff’s
standing.” Id. (citation and quotations
omitted). The court “must accept as true all material
allegations of the complaint, and must construe the complaint
in favor of the complaining party” when “ruling
on a motion to dismiss for want of standing.” Warth
v. Seldin, 422 U.S. 490, 501 (1975).
12(b)(6) authorizes dismissal of a complaint that fails
“to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). On a Rule 12(b)(6)
motion to dismiss, “‘the court accepts the facts
alleged in the complaint as true,’ and
‘[d]ismissal can be based on the lack of a cognizable
legal theory or the absence of sufficient facts
alleged.’” UMG Recordings, Inc. v. Shelter
Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1988))
(alteration in original). However, conclusory allegations of
law, unwarranted deductions of fact, and unreasonable
inferences are insufficient to defeat a motion to dismiss.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001); Nat’l Ass’n for the
Advancement of Psychoanalysis v. Cal. Bd. of Psychology,
228 F.3d 1043, 1049 (9th Cir. 2000). Furthermore, the court
need not accept as true allegations that contradict matters
properly subject to judicial notice. Sprewell, 266
F.3d at 988.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Facial plausibility exists
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). The tenet that
the court must accept as true all of the allegations
contained in the complaint does not apply to legal
conclusions. Id. As such, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to
relief.’” Id. at 679 (citing
Fed.R.Civ.P. 8(a)(2)) (some alterations in original). If
dismissal is ordered, the plaintiff should be granted leave
to amend unless it is clear that the claims could not be
saved by amendment. Swartz v. KPMG LLP, 476 F.3d
756, 760 (9th Cir. 2007).
seeks dismissal of the SAC because: (1) the Hawaiian brand
name and trade dress accurately reflect the Hawaiian
Snacks’ heritage, and are puffery, at
most; (2) Plaintiffs’ fraud-based claims
are facially deficient pursuant to FRCP 9(b); and (3) the
Court lacks subject matter jurisdiction over any claims
pertaining to the six varieties of Hawaiian snacks not
purchased by Plaintiffs. The Court addresses each of
Defendant’s arguments in turn.
Consumer Protection Claims
Hawai'i and California consumer protection claims are
premised on the same underlying facts: Plaintiffs reasonably
believed that the Hawaiian Snacks were made in Hawai'i
based on Defendant’s deceptive “Hawaiian”
reference and packaging and they would not have purchased, or
would have paid less for the Hawaiian Snacks, had they known
that the snacks are not manufactured in Hawai'i.
Defendant argues that Plaintiffs’ claims are subject to
dismissal because its use of “Hawaiian” and
Hawai'i imagery are mere puffery, and do not amount to
actionable misrepresentations. Mem. in Supp. of Mot., ECF No.
55-1 at 7. Plaintiffs characterize this argument as an
attempt by Defendant to seek reconsideration of the
Court’s prior ruling that it could not conclude as a
matter of law that a reasonable consumer would not be
deceived by the Hawaiian Snacks’ packaging and
marketing. Opp’n, ECF No. 58 at 4. Plaintiffs urge the
Court not to revisit and reverse its prior holding under the
law of the case doctrine. Id.
Law of the Case Doctrine
of the case doctrine “generally provides that
‘when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent
stages in the same case,’” Askins v. U.S.
Dep’t of Homeland Sec., 899 F.3d 1035, 1042 (9th
Cir. 2018) (quoting Musacchio v. United States, __
U.S. __, 136 S.Ct. 709, 716 (2016) (citation omitted)), and
“applies most clearly where an issue has been decided
by a higher court; in that case, the lower court is precluded
from reconsidering the issue and abuses its discretion in
doing so except in the limited circumstances the district
court identified.” Id. (citations omitted).
The doctrine “does not preclude a court from
reassessing its own legal rulings in the same case,”
however. Id. Indeed, a court may reconsider
“its own orders before judgment is entered or the court
is otherwise divested of jurisdiction over the order.”
Id. (citations omitted).
as here, a plaintiff files an amended complaint, the law of
the case doctrine is inapplicable:
Once the plaintiff elects to file an amended complaint, the
new complaint is the only operative complaint before the
district court. Ferdik v. Bonzelet, 963 F.2d 1258,
1262 (9th Cir. 1992) (“[A]fter amendment the original
pleading no longer performs any function and is treated
thereafter as non-existent[.]” (internal quotation
marks omitted)). Thus, when an original complaint is
dismissed without prejudice, the filing of an amended
complaint does not ask the court to reconsider its analysis
of the initial complaint. The amended complaint is a new
complaint, entitling the plaintiff to judgment on the
complaint’s own merits; we do not ask whether the
plaintiff is “precluded” or “barred”
by the prior ruling. When the defendant files a motion to
dismiss the amended complaint, it may urge the district court
to determine that the plaintiff’s amended complaint did
not cure the deficiencies of the initial complaint. If the
district court determines the amended complaint is
substantially the same as the initial complaint, the district
court is free to follow the same reasoning and hold that the
amended claims suffer from the same legal insufficiencies.
The district court is not, however, bound by any law of
the case. The district court may decide the second
motion to dismiss in the same way it decided the first, but
permitting the filing of an amended complaint requires a new
determination. That leaves the district court free to correct
any errors or misunderstandings without having to find that
its prior decision was “clearly erroneous.”
[United States v.] Cuddy, 147 F.3d [1111,]
1114 [(9th Cir. 1998)]. By contrast, where a final legal
determination has been made by a higher court, or by the
district court in the same or a related case, the law of the
case doctrine allows the court to impose a heightened burden
on the plaintiff-to show clear error, changed law, new
evidence, changed circumstances, or manifest injustice.
Id. (emphasis added). In this case, the Court
dismissed the claims at issue with leave to amend. The Court
must therefore consider the SAC on its merits and it is not
constrained by statements its prior Order. Id.
the law of the case doctrine applied, the Court did not
“decide” the puffery issue, as Plaintiffs claim.
Rather, without addressing puffery and in reviewing the
sufficiency of Plaintiff Maeda’s California consumer
protection claims, the Court merely stated that it
“cannot at this stage conclude as a matter of law that
a reasonable consumer would not be deceived by the Hawaiian
Snacks’ packaging and marketing.” Order, ECF No.
32 at 31. The Court instead dismissed Plaintiff Maeda’s
California consumer protection claims for failure to
sufficiently plead fraud and granted Plaintiff Maeda leave to
amend those claims. Id. Because Plaintiffs should be
given leave to amend claims that could be saved by amendment,
the Court properly allowed Plaintiff Maeda to cure his
defective California consumer protection claims before
considering whether dismissal is appropriate on puffery
grounds and/or for failure to satisfy the reasonable consumer
contends that Plaintiffs’ claims are subject to
dismissal because the Hawaiian Snacks’ trade names and
trade dress are mere puffery; that is, they are “an
accurate homage to their history and heritage . . . and not a
concrete statement of geographic origin.” Mem. in Supp.
of Mot., ECF No. 55-1 at 10. Now that Plaintiffs are on the
fourth iteration of their pleading, the Court finds it
appropriate to evaluate whether certain claims are subject to
dismissal as a matter of law based on puffery grounds.
that are “generalized, vague and unspecific assertions
 constitu[te] mere ‘puffery’ upon which a
reasonable consumer could not rely” and are not
actionable under the California consumer protection statutes.
Glen Holly Entm’t, Inc. v. Tektronix
Inc., 343 F.3d 1000, 1015 (9th Cir. 2003); Hadley v.
Kellogg Sales Co., 273 F.Supp. 3d 1052, 1081 (N.D. Cal.
2017). Put another way, a “statement is considered
puffery if the claim is extremely unlikely to induce consumer
reliance.” Newcal Indus., Inc. v. Ikon Office
Sol., 513 F.3d 1038, 1053 (9th Cir. 2008); Cook,
Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.
Inc., 911 F.2d 242, 246 (9th Cir. 1990) (affirming
district court’s dismissal of false advertising claim
under the Lanham Act because the statement-“we’re
the low cost commercial collection experts”-was mere
puffery and holding that “it is beyond the realm of
reason to assert . . . that a reasonable consumer would
interpret this as a factual claim upon which he or she could
consumer protection law distinguishes between concrete
statements about a product and generalized boasts or
statements of opinion, and only the former is actionable
under the [consumer protection statutes].” Bruton
v. Gerber Prod. Co., No. 12-CV-02412-LHK, 2014 WL
172111, at *11 (N.D. Cal. Jan. 15, 2014) (citing Consumer
Advocates v. Echostar Satellite Corp., 113 Cal.App.4th
1351, 1360-62 (2003)); Newcal Indus., 513 F.3d at
1053 (“Ultimately, the difference between a statement
of fact and mere puffery rests in the specificity or
generality of the claim.”). “If an alleged
misrepresentation would not deceive a reasonable consumer or
amounts to mere puffery, then the claim may be dismissed as a
matter of law.” In re Yahoo! Inc. Customer Data
Sec. Breach Litig., No. 16- MD-02752-LHK, 2017 WL
3727318, at *26 (N.D. Cal. Aug. 30, 2017) (quoting
Baltazar v. Apple Inc., 2011 WL 6747884, at *4 (N.D.
Cal. Dec. 22, 2014)).
considering a motion to dismiss pursuant to FRCP 12(b)(6),
“[d]istrict courts often resolve whether a statement is
puffery.” Cook, 911 F.2d at 245. However,
“whether a business practice is deceptive will usually
be a question of fact not appropriate for decision on
demurrer.” Williams v. Gerber Prod. Co., 552
F.3d 934, 938 (9th Cir. 2008). Only in a “rare
situation” is a motion to dismiss granted on this
ground. Id. at 939.
Hawai'i and California employ the reasonable consumer
standard in evaluating consumer protection claims.
Yokoyama v. Midland Nat’l Life Ins. Co., 594
F.3d 1087, 1092 (9th Cir. 2010) (“Hawaii’s
consumer protection laws look to a reasonable consumer, not
the particular consumer.”); Williams, 552 F.3d
at 938 (explaining that the California consumer protection
statutes are governed by the reasonable consumer test).
However, only the California courts apply the puffery defense
in the manner urged by Defendant. Therefore, although the
parties conflate the Hawai’i and California claims and
their related analyses, the Court evaluates the Hawai’i
and California consumer protection claims as they are
conventionally addressed by the respective state appellate
courts and federal district courts.
Hawai'i Consumer ...