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Defendants argue that the Court should dismiss plaintiffs' complaint for lack of standing because plaintiffs have not suffered any injury in fact. Defendants further argue that plaintiffs have failed to state claims for breach of the implied warranty of merchantability, unfair trade practices and unjust enrichment. Finally, defendants argue that the Court should defer primary jurisdiction to the FDA. I. Plaintiffs' Standing Defendants argue that the Court should dismiss plaintiffs' claims under Rule 12(b)(1) for lack of standing. n6 Specifically, defendants argue that plaintiffs have not suffered any injury in fact because they have alleged no personal injury and they received what they paid for when they purchased their beverage products. Plaintiffs concede that they have not suffered any personal injury, but argue that they have alleged economic damages which are sufficient to create an injury in fact in this case. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n6 Because plaintiffs' standing implicates subject matter jurisdiction, see San Juan County, Utah v. United States, 420 F.3d 1197, 1203 (10th Cir. 2005), the Court considers defendants' argument under Rule 12(b)(1) which governs dismissals for lack of subject matter jurisdiction. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*11] The concept of constitutional standing is derived from the case or controversy requirement of Article III of the Constitution, and requires plaintiffs to show that they have suffered an injury in fact which is fairly traceable to the challenged action of defendants and is likely to be redressed by a favorable decision. See Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1210-11 (10th Cir. 2006). The elements of constitutional standing are not mere pleading requirements, but rather are an indispensable part of plaintiffs' case. Utah v. Babbitt, 137 F.3d at 1204 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Thus, "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Defenders of Wildlife, 504 U.S. at 561. On a motion to dismiss, the Court must accept as true all material allegations of the complaint, and must construe the complaint in favor of plaintiffs. Babbitt, 137 F.3d at 1204 (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)). [*12] An injury in fact is one that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. See Schmidt v. Cline, 127 F. Supp.2d 1169, 1172 (D. Kan. 2000) (citing Bear Lodge Multiple Use Ass'n v. Babbitt, 175 F.3d 814, 821 (10th Cir. 1999)). For purposes of alleging an injury in fact, general factual allegations of injury resulting from defendants' conduct will suffice because such allegations are presumed to "embrace those specific facts that are necessary to support the claim." Id. (citing Defenders of Wildlife, 504 U.S. at 561). Here, the complaint alleges that plaintiffs suffered economic damages resulting from the difference between the purchase price of the beverage products as warranted and their actual value considering the potential presence of benzene in those products. Generally, economic injury is a paradigmatic form of injury in fact. See Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (citing San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996)) (economic injury clearly sufficient basis for standing); [*13] see also 15 James Wm. Moore et al., Moore's Federal Practice ? 101.40 (5)(a) (3d ed. 2006) (pecuniary injury provides sufficient basis for standing). More specifically, plaintiffs' benefit of the bargain damages are sufficient to demonstrate an injury in fact. n7 See Trew v. Volvo Cars of N. Am., L.L.C., No. CIV-S-051379, 2006 WL 306904, at *6 (E.D. Cal. Feb. 8, 2006) (allegation that plaintiff would not have paid as much for vehicle had she known of defect establishes injury in fact). Because plaintiffs have alleged economic damages sufficient to establish an injury in fact, the Court overrules defendants' motion to dismiss for lack of standing. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n7 Much of defendants' cited authority on this issue is misplaced. For example, citing Porter v. Merck & Co., No. 04-CV-586, 2005 WL 3719630 (Kan. Dist. Ct. Aug. 19, 2005), defendants argue that plaintiffs have not suffered a legally cognizable injury under Kansas law. Porter holds that an individual who purchases and uses a prescription drug which provides pain relief and does not cause physical injury is not an aggrieved consumer under the KCPA. Id. at *3. While Porter may speak to plaintiffs' ability to state a claim under the KCPA, the question whether plaintiffs allege an injury sufficient to establish standing is distinctly broader than the question whether plaintiffs have stated a claim under the KCPA. Similarly, In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002), and Heindel v. Pfizer Inc., 381 F. Supp.2d 364 (D.N.J. 2004), which consider the viability of breach of warranty and consumer fraud claims under state law, are unpersuasive on the issue of standing. See In re Bridgstone/Firstone, 288 F.3d at 1017-18 (considering claims on review of class certification under Rule 23); Heindel, 381 F.3d at 386 (dismissing claims on summary judgment). Defendants also rely heavily on Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315 (5th Cir. 2002), in which the Fifth Circuit held that a plaintiff who claims only economic injury in a products liability action does not assert a cognizable injury for standing purposes. Id. at 320-21. Notably, Rivera focused on plaintiff's attempt to impose liability through products liability law while alleging benefit of the bargain damages grounded in contract law. Id. (defendant alleged failure to warn and sale of defective product but sought only out of pocket expenses). According to the Fifth Circuit, this oscillation between tort and contract law did not establish an injury in fact because contract damages do not create a concrete injury in tort actions. Id. Here, plaintiffs do not shift back and forth between tort and contract law; their warranty and consumer protection claims do not attempt to impose tort-based liability on defendants. Rivera's evaluation of standing in so-called "no-injury products liability actions" is not helpful here. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*14] II. Sufficiency Of Plaintiffs' Claims Under Kansas Law Defendants argue that under Rule 12(b)(6), plaintiffs have not stated a claim on which relief can be granted. Defendants generally argue that the Kansas Product Liability Act ("KPLA"), K.S.A. ? 60-3301 et seq., subsumes plaintiffs' claims and does not permit recovery of purely economic damages. Defendants argue that plaintiffs have not stated a claim for breach of the implied warranty of merchantability because (1) they have not alleged privity between themselves and defendants, and (2) they have not alleged any present defect in the beverage products. Defendants argue that plaintiffs have not stated a claim under the KCPA because (1) they have not pleaded their claim with particularity, and (2) they are not aggrieved customers. Defendants argue that plaintiffs have not stated a claim for unjust enrichment because (1) they did not confer a benefit on defendants, or (2) if they did confer a benefit, it would not be inequitable for defendants to retain such benefit. A. The Kansas Product Liability Act Section 60-3302 of the KPLA provides in pertinent part as follows: (c) [*15] "Product liability claim" includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any action based on, strict liability in tort, negligence, breach of express or implied warranty, breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation, concealment or nondisclosure, whether negligent innocent, or under any other substantive legal theory. (d) "Harm" includes: (1) Damage to property; (2) personal physical injuries, illness and death; (3) mental anguish or emotional harm attendant to such personal physical injuries, illness or death. The term "harm" does not include direct or consequential economic loss. |
