Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK 3/31/2022
--------------------------------------------------------------------- x
KELVIN BROWN, individually and on behalf of :
all others similarly situated, :
:
Plaintiff, : 1:20-CV-7283-ALC
:
-against- : ORDER GRANTING
: MOTION TO DISMISS
KELLOGG SALES CO., :
:
Defendant. :
--------------------------------------------------------------------- x
ANDREW L. CARTER, JR., District Judge:

Plaintiff Kelvin Brown, a resident of the Bronx, New York, brings this putative class

action against global food manufacturer, Kellogg Sales Company, individually and on behalf of

all others similarly situated, alleging that Kellogg participated in deceptive business practices

and/or false advertising by overexaggerating the amount of strawberries in its well-known

“Frosted Strawberry Pop-Tarts” breakfast treat through materially misleading labeling. Kellogg

moves to dismiss for failure to state a claim under Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure. For the reasons discussed below, chiefly because Brown fails to plead

that the challenged representations on the front label are materially misleading, the motion to

dismiss is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Kelvin Brown (“Plaintiff” or “Brown”) is a citizen of Bronx County, New York.

FAC ¶¶ 49, 55. Defendant Kellogg Sales Company (“Defendant” or “Kellogg”) is one of the

largest food manufacturers globally and is popularly known for its pioneer breakfast foods,

including Special K, Corn Flakes, Nutri-Grain Bars, Pop-Tarts, and other product items. FAC ¶¶

57-58. Kellogg manufactures, distributes, markets, labels, and sells Pop-Tarts, which are toaster

1
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 2 of 14

pastries that contain strawberry filling and are covered with a frosted coating (“Frosted

Strawberry Pop-Tarts” or the “Product”). FAC ¶ 1.

See FAC ¶ 2. The front label on the packaging contains representations, including (1) the words

“Frosted Strawberry,” (2) an image of half of a fresh strawberry, and (3) an image of the Product

depicting “a dark red fruit filling.” SAC ¶ 2. Plaintiff alleges that these representations are false

and misleading because “they give consumers the impression the fruit filling contains more

strawberries than it does” and “creates an erroneous impression that strawberries are present in

an amount greater than is the case.” FAC ¶¶ 3, 33. The front label includes strawberries but

omits pears and apples, “even though these fruits are stated elsewhere on the label – in the small

print on the ingredient list.” FAC ¶ 31.

2
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 3 of 14

See FAC ¶ 29. The front label also fails to inform customers of the percentage of strawberries in

the Product relative to pears and apples. FAC ¶ 32. Brown further avers that the Product contains

red 40, a synthetic food coloring, that gives the strawberry-pear-apple combination in the filling

a dark red color. FAC ¶¶ 34-36. Because apples and pears are not disclosed on the front

packaging, the Product is unable to provide the taste and health benefits inherent to strawberries

and consumers end up paying for the Product at a higher price than they would absent the alleged

misrepresentations. FAC ¶¶ 10-18, 20-22, 24, 29, 43-46, 62-65. Brown has purchased the

Product “on one or more occasions” at stores in New York. FAC ¶ 61. If he had known of the

alleged misrepresentations, he would not have purchased the Product or would have paid less for

it. FAC ¶ 64.

3
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 4 of 14

Plaintiff commenced this action on September 5, 2020. ECF No. 1. After the parties

submitted competing pre-motion conference letters regarding Defendant’s motion to dismiss the

original complaint, Plaintiff took the opportunity to amend. ECF No. 14. He filed the First

Amended Class Action Complaint (the “FAC”) on March 13, 2021. ECF No. 15. On April 16,

2021, Kellogg moved to dismiss the FAC under Rules 12(b)(1) and 12(b)(6) of the Federal Rules

of Civil Procedure. ECF No. 18-20. Plaintiff opposed on May 3, 2021. ECF No. 23. Plaintiff

filed a reply on May 7, 2021. ECF No. 24. On March 1, 2022, Defendant filed a notice of

supplemental authority. ECF No. 25. Plaintiff did not respond to or otherwise oppose that notice

of authority. The Court considers the motion fully briefed and will exercise its discretion to

decide this motion on the papers. No oral argument is needed.

The FAC asserts several causes of action: (1) N.Y. General Business Law (“GBL”) §§

349 and 350; (2) negligent misrepresentation; (3) breaches of express warranty, implied warranty

of merchantability, and the Magnuson Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2310, et

seq.; (4) fraud; and (5) unjust enrichment. Brown seeks injunctive relief, monetary and statutory

damages, and attorneys’ fees. FAC at 14-15.

II. STANDARD OF REVIEW

A. 12(b)(1) Motion to Dismiss

In reviewing a motion to dismiss under Rule 12(b)(1), a court “must take all facts alleged

in the complaint as true and draw all reasonable inferences in favor of plaintiff, but jurisdiction

must be shown affirmatively, and that showing is not made by drawing from the pleadings

inferences favorable to the party asserting it.” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167,

170 (2d Cir. 2008) (citation and internal quotation marks omitted). Rather, “[t]he plaintiff bears

the burden of proving subject matter jurisdiction by a preponderance of the

4
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 5 of 14

evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Courts

“may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional

issue, but [the Court] may not rely on conclusory or hearsay statements contained in the affidavits.”

J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004).

B. 12(b)(6) Motion to Dismiss

To survive a motion to dismiss pursuant to Rule 12(b)(6), “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 Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). A claim is facially plausible “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 plaintiff must allege sufficient facts to show

“more than a sheer possibility that a defendant has acted unlawfully,” and accordingly, where the

plaintiff alleges facts that are “‘merely consistent with’ a defendant's liability, it ‘stops short of the

line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S.

at 557).

In considering a motion to dismiss, the court accepts as true all factual allegations in the

complaint and draws all reasonable inferences in the plaintiff's favor. See Goldstein v. Pataki, 516

F.3d 50, 56 (2d Cir. 2008). However, the court need not credit “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555); see also id. at 681. Instead, the complaint must provide factual

allegations sufficient “to give the defendant fair notice of what the claim is and the grounds upon

which it rests.” Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir.

2007) (citing Twombly, 550 U.S. at 555). “[I]f [the] complaint clearly shows the claim is out of

5
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 6 of 14

time,” a court may dismiss a claim under the statute-of-limitations at the pleadings stage. Harris

v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999). In addition to the factual allegations in the

complaint, the court may consider “the documents attached to the complaint as exhibits, and any

documents incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v.

Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (citation and internal quotation marks omitted).

III. DISCUSSION

A. Plaintiff Fails to State a Claim under Sections 349 and 350 of the New York
General Business Law

Section 349 of New York General Business Law makes unlawful “[d]eceptive acts or

practices in the conduct of any business, trade or commerce or in the furnishing of any service in

this state.” N.Y. Gen. Bus. Law. § 349(a). Section 350 prohibits “[f]alse advertising in the

conduct of any business.” N.Y. Gen. Bus. Law § 350. To state a cognizable claim for deceptive

practices under either section, a plaintiff must show that the act or practice constitutes “(1)

consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury

as a result of the deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir.

2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941, 967 N.E.2d 675, 675

(N.Y. 2012)).

In New York, a claim for false advertising or deceptive business practices must

adequately allege that the deceptive act or practice was “likely to mislead a reasonable consumer

acting reasonably under the circumstances.” Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir.

2018) (quoting Fink, 714 F.3d at 741); see also Oswego Laborers’ Local 214 Pension Fund v.

Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995). “[I]n

determining whether a reasonable consumer would have been misled by a particular [act or

6
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 7 of 14

practice], context is crucial.” Mantikas, 910 F.3d at 636 (quoting Fink, 714 F.3d at 742). “We

therefore consider the challenged [act or practice] as a whole, including disclaimers and

qualifying language.” Id. (citations omitted). Though the issue of whether a reasonable consumer

was misled by a business act or practice is normally a question of fact, “[i]t is well settled that a

court may determine as a matter of law that an allegedly deceptive [act or practice] would not

have misled a reasonable consumer.” Fink, 714 F.3d at 741 (citations omitted).

Here, Defendant does not dispute that Plaintiff has pleaded consumer-oriented conduct

and injury. Kellogg only contests the plausibility of allegations that it made any materially

misleading representation. The Court agrees. Brown has failed to sufficiently plead that the front

packaging is misleading.

1. The Challenged Representations Are Not Misleading

Defendants argue that the representations on the front label are not misleading. In

particular, they contend that (1) the front label does not represent that strawberries are the only

fruit ingredient in the filling, that the filling contains a specific quantity or proportion of

strawberries, that the filling contains a de minimis amount of non-strawberry fruits, or that the

Product has nutritional benefits derived solely from strawberries; (2) the ingredient list resolves

any ambiguity about fruit ingredients in the filling; and (3) the use of red food coloring does not

exaggerate the amount of strawberries in the filling. Examining the front label in context, the

Court concludes that Brown has failed to adequately plead that a reasonable consumer would

find the front label misleading.

The crux of the complaint is that the word “[Frosted] Strawberry” and the images of half

of a fresh strawberry and of the oozing, dark red fruit filling on the front label of “Frosted

Strawberry Pop-Tarts” are misleading because they fail to disclose that the ingredients include

7
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 8 of 14

non-strawberry fruit—i.e., apples and pears. FAC ¶ 3 (“The representations are misleading

because they give consumers the impression the fruit filling contains more strawberries than it

does.”); ¶ 29 (“[T]he Product contains less strawberry ingredient than consumers expect, as the

fine print on the back of the box – the ingredient list – reveals the strawberry filling contains

pears and apples.”); ¶ 31 (“The Product’s name, ‘Frosted Strawberry Pop Tarts,’ is misleading

because it includes strawberries but does not include pears and apples, even though these fruits

are stated elsewhere on the label – in the small print on the ingredient list.”) (citation omitted).

Plaintiff asserts that the representations are material because consumers today are seeking snacks

that are “a healthy indulgence, which is a treat with all the flavor and taste desired,” with the

accompanying health benefits. FAC ¶ 7 (internal quotation marks and footnote omitted).

Viewing the product label in context, the representations are simply not deceptive. Courts

typically find misleading representations about ingredients when the product label explicitly

asserts that it is made with a specific ingredient or specifies the quantity of an ingredient when

the ingredient is not predominant in the Product. The front labels in most of these cases

prominently make assertions such as “Made with [Ingredient]” and/or “[Amount] Grams of

[Ingredient] Per Serving” on the front packaging. See, e.g., Mantikas, 910 F.3d 633 (“Whole

Grain” in large print with “Made with 5G of Whole Grain Per Serving” in smaller print, and

“Made with Whole Grain” in larger print with “Made with 8G of Whole Grain Per Serving” in

smaller print); Jonathan Chuang v. Dr. Pepper Snapple Grp., Inc., No.

CV1701875MWFMRWX, 2017 WL 4286577, at *1 (C.D. Cal. Sept. 20, 2017) (“Made with real

FRUIT and VEGETABLE juice” displayed prominently next to pictures of apples, pears, and

carrots); Kennedy v. Mondelēz Global LLC, No. 19-302, 2020 WL 4006197 (E.D.N.Y. July 10,

8
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 9 of 14

2020) (“Made with Real Honey,” “Honey Maid,” and “No High Fructose Corn Syrup”). 1 The

front packaging does not contain any content that would suggest to a reasonable consumer that

strawberries are the sole ingredient in the Product. Courts in this District have dismissed claims

where “[n]othing in the label states or implies that the [product’s] flavor is derived entirely from

[the ingredient(s) at issue].” Wallace v. Wise Foods, Inc., No. 20-CV-6831 (JPO), 2021 WL

3163599, at *2 (S.D.N.Y. July 26, 2021) (citing Pichardo v. Only What You Need, Inc., No. 20

Civ. 493, 2020 WL 6323775, at *5 (S.D.N.Y. Oct. 27, 2020)). There is also no “only” or

“exclusively” modifier before the phrase “Strawberry.” See Campbell v. Freshbev LLC, 322

F.Supp.3d 330, 341 (E.D.N.Y. 2018). “In th[is] context, ‘[r]easonable consumers would not

expect, upon learning that the [Frosted Strawberry Pop-Tarts] contain [strawberries], that the

[strawberries] [are] present in a particular form or not mixed with other ingredients.” Harris v.

Mondelez Glob. LLC, No. 19CV2249ERKRER, 2020 WL 4336390, at *3 (E.D.N.Y. July 28,

2020) (cleaned up).

Furthermore, the photo of the fresh half strawberry must be viewed in context. No

reasonable consumer would see the entire product label, reading the words “Frosted Strawberry

Pop-Tarts” next to a picture of a toaster pastry coated in frosting, and reasonably expect that

fresh strawberries would be the sole ingredient in the Product. 2 Cf. Workman v. Plum Inc., 141

1
Plaintiff misapplies Mantikas, which is triggered only after a plaintiff sufficiently pleads that a challenged
representation is misleading. It is not applicable to this case because the product label is not a statement about
ingredients and, even if it were, strawberries are the predominant ingredient in the Product, as seen on the ingredient
list. SAC ¶ 29.
2
In Mantikas, the Second Circuit cited a handful of cases that were dismissed at the pleadings stage where
“plaintiffs alleged they were misled about the quantity of an ingredient that obviously was not the products’ primary
ingredient.” 910 F.3d at 638 (citing cases). For example, Manchouck v. Mondelez Int’l Inc., No. CV 13-02148, 2013
WL 5400285, at *2 (N.D. Cal. Sept. 26, 2013), involved a label for cookies that asserted that they had been made
with “real fruit.” Id. “Frosted Strawberry Pop-Tarts” are akin to cookies. A reasonable customer would not
reasonably expect strawberries to be the primary ingredient in the Product prominently and widely known to be
“frosted” and a toaster pastry.

9
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 10 of 14

F.Supp.3d 1032, 1036 (N.D. Cal. 2015) (dismissing deceptive practices claim under California

law because the product labels “merely show[ed] pictures of featured ingredients” and where

“[n]o reasonable consumer would expect the size of the flavors pictured on the label to directly

correlate with the predominance of the pictured ingredient in the [product].”). In fact,

strawberries are a common food flavor, whether artificial or otherwise, especially in processed

snack foods like Pop-Tarts. The “Frosted” modifier before “Strawberry” further points toward

the reasonable interpretation that the labeling describes flavor instead of the source of the flavor.

See Dashnau v. Unilever Mfg. (US), Inc., 529 F.Supp.3d 235, 243 (S.D.N.Y. Mar. 26, 2021)

(referring to multiple “SDNY Vanilla Cases” in which the word “vanilla” on a front label made

the “representation about the flavor of the product, but [did] not make a representation about the

source of the product’s vanilla flavor”). Because the FAC is devoid of allegations that “Frosted

Strawberry Pop-Tarts” do not taste like strawberries or do not contain strawberries in any form,

as pleaded, the front packaging cannot be misleading.

Plaintiff cites to Izquierdo v. Panera Bread Co., 450 F.Supp.3d 453, 462 (S.D.N.Y.

2000), but the case is easily distinguishable. In that case, Judge Broderick reasoned that viewing

a label for a blueberry bagel product in context, the plaintiff had plausibly alleged materially

misleading representations. He opined that a reasonable consumer could be misled to think that

the bagel’s “blueberry content consist[ed] solely of real blueberries, when in fact the [b]agel

contains[ed] primarily imitation blueberries with a lesser quantity of real blueberries.” Id. at 461-

62 (footnote omitted). The plaintiff there alleged that the bagel was advertised alongside a

placard that read “Blueberry;” appeared near a sign advertising “menu transparency” and “clean

food;” was sold and displayed next to a blueberry muffin that contained real, and not imitation,

blueberries; was sold online under the product name “Blueberry Bagel;” and seemed to contain

10
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 11 of 14

small pieces of real blueberry scattered throughout. Id. at 462. None of these case-specific

circumstances exist in the instant case. The ruling in Izquerido largely turned on the untruth that

the blueberry content of the bagel product was primarily made up of real blueberries instead of

imitation ones. Id. at 461-62. Here, Brown does not assert or otherwise argue that the strawberry

content of the fruit filling is made up of imitation strawberries. And by all indications, Plaintiff

concedes that there are strawberries in the filling—even if not his personally preferred amount.

FAC ¶¶ 3, 24, 29, 34.

Defendant asserts that no reasonable consumer would look at the front packaging of a

sugary breakfast treat like “Frosted Strawberry Pop-Tarts” and determine that it has nutritional

value exclusively derived from its strawberry content. Plaintiff alleges that the Product cannot

“confer any of the health-related benefits because it has less strawberries than it purports to” and

that strawberries have a plethora of widely known health benefits. FAC ¶¶ 24, 11-18. The Court

concludes that Brown fails to plead this theory of misrepresentation. First, the FAC does not

allege with specificity any claims on the front packaging about “the objective or relative

nutritional value of the [Product] whatsoever.” Solak v. Hain Celestial Grp., Inc., No.

317CV0704LEKDEP, 2018 WL 1870474, at *6-7 (N.D.N.Y. Apr. 17, 2018).

Second, Plaintiff argues that Kellogg has publicly emphasized the importance of fruit

ingredients in their snacks (FAC ¶ 5), but he fails to adequately plead a sufficient nexus between

the general health benefits of fresh strawberries and the objective expectations of reasonable

consumers who purchase a pre-packaged, processed sugary treat called “Frosted Strawberry Pop-

Tarts.” “[T]he Complaint does not substantiate these allegations in a manner that ‘nudge[s] [that]

claim[ ] across the line from conceivable to plausible.” Wynn v. Topco Assocs., LLC, No. 19-CV-

11104 (RA), 2021 WL 168541, at *3 (S.D.N.Y. Jan. 19, 2021) (citing Pichardo, 2020 WL

11
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 12 of 14

6323775, at *1, 4. Absent sufficient factual matter substantiating this conclusory assertion, the

Court must rely on the commonsense expectation that a reasonable consumer is unlikely to

purchase a toaster pastry coated in frosting exclusively for the nutritional value of strawberries in

its fruit filling.

Defendant contests Plaintiff’s argument that the Product uses Red 40 food coloring to

“make[ ] the strawberry-pear-apple combination look entirely dark red” to create the erroneous

“impression that the Product contains more strawberries than it does.” FAC ¶¶ 35-36. In

particular, it argues that the use of red food coloring, in context, would not lead a reasonable

consumer to believe that the fruit filling in the Product was made exclusively from strawberries

and not other fruits. Plaintiff does not respond to this argument in his opposition papers. Any

claims or theories of liability that Plaintiff failed to defend in his opposition papers are deemed

abandoned. “When a party fails adequately to present arguments,” including in an opposition

brief, courts may “consider those arguments abandoned.” Malik v. City of New York, 841 F.

App’x 281, 284 (2d Cir. 2021) (quoting State St. Bank & Tr. Co. v. Inversiones Errazuriz

Limitada, 374 F.3d 158, 172 (2d Cir. 2004)). This is especially true “in the case of a counseled

party” where “a court may . . . infer from a party’s partial opposition that relevant claims and

defenses that are not defended have been abandoned.” Id. (quoting Jackson v. Fed. Exp., 766

F.3d 189, 198 (2d Cir. 2014)).

2. Even Assuming the Challenged Representations Create Some Ambiguity,

Which They Do Not, the Ingredient List Would Resolve Any Confusion

Even if one assumes that the product label is ambiguous about the amount of strawberries

in the Product, which it is not, “the ambiguity is resolved by reference to the list of ingredients or

a Nutrition Facts panel.” Boswell v. Bimbo Bakeries USA, Inc., No. 20-CV-8923 (JMF), 2021

WL 5144552, at *2 (S.D.N.Y. Nov. 4, 2021). In Boswell, “Judge Furman [specifically]

12
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 13 of 14

distinguished Mantikas because the label there was unambiguously misleading, which could not

be cured by the “small print” of the ingredients list.” Johnnie Bynum v. Family Dollar Stores,

Inc., No. 1:20-CV-06878 (MKV), 2022 WL 837089, at *4 (S.D.N.Y. Mar. 21, 2022) (citing

Boswell, 2021 WL 5144552, at *2) (emphasis in original). Under Mantikas, a manufacturer may

clarify an ambiguous interpretation of a label based on disclaimers and disclosures on the side or

back of product packaging “to correct misleading information set forth . . . on the front of the

box.” 910 F.3d at 637. The FAC alleges that strawberries are on the ingredient list for the

Product, and strawberries are designated as the first (and predominant) fruit ingredient. FAC ¶

29. To the extent the label contains any ambiguity about the presence or amount of strawberries

in the Product, in the Second Circuit, courts are to consider “disclaimers and qualifying

language.” Mantikas, 910 F.3d at 636 (quoting Fink, 714 F.3d at 742). Here, the reasonable

consumer would overcome any confusion by referring to the unambiguous ingredient list on the

packaging. The ingredients list does not “contradict,” but rather “confirm[s] . . . representations

on the front of the box.” Id. at 637.

3. Plaintiff’s Other State Law Claims Must Be Dismissed Because He Has Failed
to Plead that the Challenged Representations are Materially Misleading

This Court finds as a matter of law that Brown has failed to adequately plead a materially

misleading representation under GBL sections 349 and 350. Orlander, 802 F.3d 289, 300 (2d

Cir. 2015). Because he has not pleaded an underlying materially misleading representation, the

other claims in this case, which he pleaded on the basis that the label would likely deceive or

mislead, must be dismissed. Courts in this District have taken this approach in substantially

similar lawsuits asserting the same or substantially similar claims after dismissing the GBL

claims. See, e.g., Johnnie Bynum v. Family Dollar Stores, Inc., No. 1:20-CV-06878 (MKV),

2022 WL 837089, at *5-8 (S.D.N.Y. Mar. 21, 2022); Wallace, 2021 WL 3163599, at *3;

13
 Case 1:20-cv-07283-ALC Document 26 Filed 03/31/22 Page 14 of 14

Dashnau, 529 F.Supp.3d at 241 (citation omitted); Wynn, 2021 WL 168541, at *6-7. Because all

claims are dismissed, this Court need not and does not reach Kellogg’s other arguments. 3

B. Plaintiff’s Request for Leave to Amend Is Denied

Rule 15(a)(2) states that “the court should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). The Supreme Court has instructed that “this mandate is to be

heeded.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). However, it is

ultimately “within the sound discretion of the court whether to grant leave to amend.” John

Hancock Mut. Fife Ins. Co. v. Amerford Int’l Corp., 22 F.3d 458, 462 (2d Cir. 1994)

(citing Foman, 371 U.S. at 178, 83 S.Ct. 227). Where “the moving party has unduly delayed or

acted in bad faith, the opposing party will be unfairly prejudiced if leave is granted, or the

proposed amendment is futile,” district courts within the Second Circuit will deny leave to

amend. See Agerbrink v. Model Serv. LLC, 155 F.Supp.3d 448, 452 (S.D.N.Y. 2016). Based

upon the front packaging, ingredients list, and reasoning set forth herein, the Court believes that

any amendment would be futile. Accordingly, the request for leave to amend is denied.

IV. CONCLUSION

For the reasons discussed above, Defendant Kellogg Sales Company’s motion to dismiss

the First Amended Complaint is GRANTED. The Clerk of Court is respectfully directed to

terminate this case.

Dated: March 31, 2022 ____________________________

New York, New York ANDREW L. CARTER, JR.

United States District Judge

3
However, the Court holds that Plaintiff lacks standing to seek injunctive relief in this case. In Berni v. Barilla
S.p.A., 964 F.3d 141, 147 (2d Cir. 2020), the Second Circuit made clear that “past purchasers of a product” are
unlikely to suffer future imminent injury “once they become aware that they have been deceived.” Now that Brown
is aware of the alleged deception, he does not have standing to seek injunctive relief.

14