Hamman et al v. Cava Group, Inc., No. 3:2022cv00593 - Document 38 (S.D. Cal. 2023)
Court Description: ORDER Denying 31 Defendant's Motion to Dismiss Second Amended Complaint. Signed by Judge Michael M. Anello on 12/4/23. (aas)
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Hamman et al v. Cava Group, Inc. Doc. 38 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 NEIL HAMMAN and MICHAEL STEWART, individually and on behalf of all others similarly situated, 13 14 15 16 Case No.: 22-cv-593-MMA (MSB) ORDER DENYING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT Plaintiffs, v. [Doc. No. 31] CAVA GROUP, INC., Defendant. 17 18 19 20 21 22 Pending before the Court is Defendant Cava Group, Inc.’s (“Defendant”) motion to 23 dismiss Plaintiffs Neil Hamman and Michael Stewart’s (“Plaintiffs”) Second Amended 24 Complaint. Doc. No. 31. Plaintiffs filed an opposition, Doc. No. 35, and Defendant 25 replied, Doc. No. 36. The Court found this matter suitable for determination on the 26 papers and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and 27 Civil Local Rule 7.1.d.1. See Doc. No. 37. For the reasons set forth below, the Court 28 DENIES Defendant’s motion to dismiss. 1 22-cv-593-MMA (MSB) Dockets.Justia.com 1 I. BACKGROUND 2 In this putative class action, Plaintiffs allege that Defendant failed to disclose the 3 presence of “heightened levels of organic fluorine and unsafe per-and polyfluoroalkyl 4 substances” (“PFAS”) contained in the packaging of its grain and salad bowls. Doc. No. 5 28 (Second Amended Complaint, the “SAC”) ¶ 1. The Court further detailed Plaintiffs’ 6 factual allegations in its February 8, 2023 Order granting in part and denying in part 7 Defendant’s motion to dismiss Plaintiffs’ First Amended Complaint (“FAC”). See 8 Hamman v. Cava Grp., Inc., No. 22-CV-593-MMA (MSB), 2023 WL 3450654, at *1–2 9 (S.D. Cal. Feb. 8, 2023). The Court incorporates that discussion by reference here. 10 In its previous Order, the Court dismissed with leave to amend Plaintiffs’ claims 11 regarding biocides and their common law causes of action for failure to identify the 12 applicable state laws, which included a claim for fraudulent omission. Doc. No. 26 at 17, 13 20. The Court further found that as to their claim for fraudulent omission, Plaintiffs 14 failed to assert a duty to disclose. Id. at 17. In response to this Order, Plaintiffs filed 15 their SAC, asserting their common law claims under California law and dropping their 16 biocide and fraudulent omission claims. See generally SAC. 17 In the instant motion, Defendant again moves to dismiss Plaintiffs’ SAC pursuant 18 to Federal Rule of Civil Procedure 12(b)(6), but only as to their claims for punitive 19 damages, breach of implied warranty, and unjust enrichment. See Doc. No. 31. 20 II. LEGAL STANDARD Under Rule 12(b)(6),1 a district court must dismiss if a claim fails to state a claim 21 22 upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the 23 claimant must allege “enough facts to state a claim to relief that is plausible on its face.” 24 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 25 the plaintiff pleads facts that “allow the court to draw the reasonable inference that the 26 27 28 1 Unless otherwise noted, all “Rule” references are to the Federal Rules of Civil Procedure. 2 22-cv-593-MMA (MSB) 1 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 2 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant 3 has acted unlawfully.” Id. While courts do not require “heightened fact pleading of 4 specifics,” a claim must be supported by facts sufficient to “raise a right to relief above 5 the speculative level.” Twombly, 550 U.S. at 555, 570. 6 Under Rule 9(b), a party must “state with particularity the circumstances 7 constituting fraud or mistake,” including “the who, what, when, where, and how of the 8 misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 9 2003) (internal quotation marks omitted). However, “Rule 9(b) requires only that the 10 circumstances of fraud be stated with particularity; other facts may be pleaded generally, 11 or in accordance with Rule 8.” United States ex rel. Lee v. Corinthian Colls., 655 F.3d 12 984, 992 (9th Cir. 2011). In deciding a motion to dismiss for failure to state a claim, the 13 court accepts all of the factual allegations as true and draws all reasonable inferences in 14 favor of the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 15 But the court is not required to accept as true “allegations that are merely conclusory, 16 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. 17 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 18 19 III. DISCUSSION In its motion to dismiss, Defendant argues that Plaintiffs fail to “allege grounds for 20 [their] punitive damages and implied warranty claims” and that their claim for “unjust 21 enrichment . . . fails as a matter of law.” Doc. No. 31-1 at 8. Plaintiffs argue that the 22 Court need not reach the merits of Defendant’s arguments pursuant to Rule 12(g)(2). 23 Doc. No. 35 at 5–8. 24 Rule 12(g)(2) states that “[e]xcept as provided in Rule 12(h)(2) or (3), a party that 25 makes a motion under this rule must not make another motion under this rule raising a 26 defense or objection that was available to the party but omitted from its earlier motion.” 27 Fed. R. Civ. P. 12(g)(2). Rule 12(h)(2), in turn, allows a party to raise a defense of 28 failure to state a claim: “(A) in any pleading allowed or ordered under Rule 7(a); (B) by a 3 22-cv-593-MMA (MSB) 1 motion under Rule 12(c); or (C) at trial.” Fed. R. Civ. P. 12(h)(2). Therefore, under Rule 2 12(g)(2) and Rule 12(h)(2), a party that seeks to assert a defense that was available but 3 omitted from an earlier Rule 12 motion can only do so in a pleading, a Rule 12(c) motion, 4 or at trial. 5 While Rule 12(g)(2) “technically prohibits successive motions to dismiss that raise 6 arguments that could have been made in a prior motion,” “courts faced with a successive 7 motion often exercise their discretion to consider the new arguments in the interests of 8 judicial economy.” Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. 10-cv-05696- 9 CRB, 2011 WL 2690437, at *2 n.1 (N.D. Cal. July 8, 2011); see also Aetna Life Ins. Co. 10 v. Alla Med. Servs., Inc., 855 F.2d 1470, 1475 n.2 (9th Cir. 1988) (“[C]ourts have 11 discretion to hear a second motion under Rule 12(b)(6) if the motion is not interposed for 12 delay and the final disposition of the case will thereby be expedited.”). 13 Plaintiffs contend that Defendant could have made its arguments in its previous 14 motion to dismiss and therefore Rule 12(g) precludes it from now asserting them. Doc. 15 No. 35 at 5. One of the cases they cite is In re Packaged Seafood Prod. Antitrust Litig., 16 277 F. Supp. 3d 1167 (S.D. Cal. 2017), in which U.S. District Judge Janis L. Sammartino 17 barred the defendants from bringing a successive Rule 12(b)(6) motion. In that case, the 18 court “previously ruled on Defendants’ motion to dismiss Plaintiffs’ post-2013 [price- 19 fixing conspiracy] allegations and denied the requested relief.” Id. at 1175 (emphasis in 20 original). The court held that defendants could not “now again request the same relief,” 21 and “decline[d] to exercise its discretion to disregard Rule 12(g)(2), despite the fact that 22 the Ninth Circuit might well be ‘forgiving of . . . [this] court’s failure to follow Rule 23 12(g)(2).’” Id. (citing to In re Apple iPhone Antitrust Litig., 846 F.3d 313, 318 (9th Cir. 24 2017), aff’d sub nom. Apple Inc. v. Pepper, 139 S. Ct. 1514 (2019)). 25 Importantly, in that case, the factual footing had shifted between the initial and 26 second motion to dismiss. Multiple guilty pleas were entered in the U.S. Department of 27 Justice’s concurrent grand jury investigation and plaintiffs received approximately 28 2,000,000 pages of documents that were previously only available to the grand jury, 4 22-cv-593-MMA (MSB) 1 which meant that the new complaint “contain[ed] much more information than their 2 predecessors.” 277 F. Supp. 3d at 1172. Although the court found that there was 3 evidence of defendants’ “valid belief that the factual footing in the case shifted such that 4 it would be advantageous to press a new, more-particularized argument that they failed to 5 previously raise,” it nonetheless declined to reach it under its discretion pursuant to Rule 6 12(g)(2). Id. at 1175. 7 Here, the factual footing has not substantively changed between the FAC and SAC, 8 both of which largely share the same factual material. Indeed, the redline comparison 9 submitted by Plaintiffs with their SAC demonstrates very minimal alterations between 10 the FAC and SAC, aside from the deletion of Plaintiffs’ biocide and fraudulent omission 11 claims that were dismissed in the Court’s previous Order. See generally Doc. No. 28-1. 12 Therefore, because the allegations are not substantively different in the SAC, Defendant’s 13 arguments could have been raised in its previous motion to dismiss and the instant motion 14 violates Rule 12(g)(2)’s ban on successive Rule 12(b) motions. 15 Further, the Court is unpersuaded by Defendant’s argument in its reply that “Rule 16 12(g)(2) has no application here because this is the first motion directed to the operative 17 complaint,” given that Defendant relies on older cases from this District 2 that pre-date the 18 Ninth Circuit’s In re Apple iPhone Antitrust Litig. case, which affirmed “that Rule 19 12(g)(2) facially bars successive Rule 12(b)(6) motions.” 846 F.3d at 318. Although the 20 Ninth Circuit might well be “forgiving of . . . [this] [C]ourt’s failure to follow Rule 21 12(g)(2),” the Court declines to exercise its discretion to do so as Defendant requests. 22 Id.; see also Gardner v. Starkist Co., 2020 WL 1531346, at *2 (N.D. Cal. Mar. 31, 2020) 23 (“a party that seeks to assert a defense that was available but omitted from an earlier Rule 24 12 motion can only do so in a pleading, a Rule 12(c) motion, or at trial.”). 25 26 27 28 2 For example, Defendant cites to Mir v. Kirchmeyer, No. 12-cv-2340-GPC-DHB, 2014 WL 12029269, at *4–5 (S.D. Cal. Nov. 3, 2014). 5 22-cv-593-MMA (MSB) 1 In sum, the court in In re Packaged Seafood Prod. Antitrust Litig. declined to allow 2 a successive 12(b)(6) motion even though the factual footing changed. Here, the factual 3 footing has not even changed in a way that would give the Court some pause before using 4 its discretion to ban this successive 12(b)(6) motion. Defendant could have raised its 5 arguments in its motion to dismiss Plaintiff’s FAC. Therefore, Defendant’s motion to 6 dismiss the SAC is DENIED. 7 IV. CONCLUSION 8 For the foregoing reasons, the Court DENIES Defendant’s motion to dismiss 9 10 11 12 Plaintiffs’ SAC. Defendant shall file an answer to Plaintiffs’ SAC no later than January 8, 2024. IT IS SO ORDERED. Dated: December 4, 2023 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 22-cv-593-MMA (MSB)
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