UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

WEST PALM BEACH DIVISION 

Case No. 9:20-cv-80897-WPD 

MARCIA SORIN, Individually and on Behalf 

of All Others Similarly Situated, 

Plaintiff, 

v. 

THE FOLGER COFFEE COMPANY, 

A Subsidiary of THE J. M. SMUCKER COMPANY, 

Defendant. 

Case No. 9:20-cv-80897-WPD 

Judge William P. Dimitrouleas 

/ 

THE FOLGER COFFEE COMPANY’S MOTION TO DISMISS CLASS ACTION 

COMPLAINT AND MEMORANDUM IN SUPPORT WITH REQUEST FOR 

TELEPHONIC HEARING 

Ronald Y. Rothstein (pro hac vice) 

Sean H. Suber (pro hac vice) 

WINSTON & STRAWN LLP 

35 W. Wacker Drive 

Chicago, IL 60601 

Telephone: (312) 558-5600 

Facsimile: (312) 558-5700 

rrothste@winston.com 

ssuber@winston.com 

Cristina Calvar (Florida Bar No. 114201) 

WINSTON & STRAWN LLP

200 Park Avenue 

New York, NY 10166-4193 

Telephone: (212) 294-5331 

Facsimile: (212) 294-4700 

ccalvar@winston.com 

Megan L. Whipp (pro hac vice) 

WINSTON & STRAWN LLP 

333 S. Grand Avenue 

Los Angeles, CA 90071-1543 

Telephone: (213) 615-1700 

Facsimile: (213) 615-1750 

mwhipp@winston.com 

Counsel for Defendant The Folger Coffee Company 

July 29, 2020 

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TABLE OF CONTENTS 

INTRODUCTION AND BACKGROUND ....................................................................................1

LEGAL STANDARDS ...................................................................................................................7

ARGUMENT ...................................................................................................................................7

I. Plaintiff Lacks Article III Standing ..........................................................................8

A. Plaintiff cannot rely on someone else’s testing or use of different

canisters of Folgers Coffee to allege a particularized injury for 

herself. ..........................................................................................................8

B. Plaintiff cannot pursue claims for Folgers Coffee Products that 

Plaintiff does not allege she specifically bought and are not the 

subject of this Complaint. ............................................................................9

C. Plaintiff cannot pursue claims for which she has not alleged a 

cognizable injury—her disappointment and made-up price premium 

are not enough. ...........................................................................................10

D. Plaintiff cannot pursue injunctive relief on behalf of herself or the 

putative class because she fails to allege a likelihood of future injury. .....12

II. The Complaint Fails on the Merits ........................................................................12

A. The Complaint is inadequately pleaded and does not provide Folgers 

(or the Court) fair notice of the spurious grounds upon which its 

claims rest. .................................................................................................13

B. The Complaint is implausible because it is based on a false premise 

and asks the Court to engage in speculation and ignore obvious 

alternative explanations. ............................................................................14

C. Based on the Complaint’s flaws, Plaintiff’s FDUTPA claim fails on 

its face. .......................................................................................................17

III. Dismissal Should Be with Prejudice ......................................................................20

CONCLUSION ..............................................................................................................................20

REQUEST FOR TELEPHONIC HEARING ................................................................................20

 

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ......................................................................................................... passim

Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 

953 F.3d 707 (11th Cir. 2020) .............................................................................................5, 16 

Barron v. Snyder’s-Lance, Inc., 

2015 WL 11182066 (S.D. Fla. Mar. 20, 2015) ..........................................................................9 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) ......................................................................................................... passim

Carruth v. Bentley, 

942 F.3d 1047 (11th Cir. 2019) ...............................................................................................17 

Casey v. Fla. Coastal Sch. of Law, Inc., 

2015 WL 10096084 (M.D. Fla. Aug. 11, 2015) ......................................................................17 

City First Mortg. Corp. v. Barton, 

988 So. 2d 82 (Fla. Dist. Ct. App. 2008) .................................................................................20 

In re Cole v. Patton, 

2019 WL 3413525 (M.D. Fla. July 29, 2019) ...........................................................................5 

Colston v. Schiller, 

2020 WL 687599 (N.D. Fla. Jan. 8, 2020) ..............................................................................20 

Comercial LTDA v. BPI Sports, LLC, 

2016 WL 11504100 (S.D. Fla. Aug. 11, 2016)........................................................................14 

Conley v. Gibson, 

355 U.S. 41 (1957), abrograted by Bell Atl.Corp. v. Twombly, 550 U.S. 544 

(2007) ...................................................................................................................................2, 13 

Cordes v. Boulder Brands USA, Inc., 

2018 WL 6714323 (C.D. Cal. Oct. 17, 2018) ..........................................................................12 

CWELT-2008 Series 1045 LLC v. PHH Corp., 

2020 WL 2744191 (S.D. Fla. May 27, 2020) ..........................................................................14 

Dapeer v. Neutrogena Corp., 

95 F. Supp. 3d 1366 (S.D. Fla. 2015) ..................................................................................7, 12 

Case 9:20-cv-80897-WPD Document 17 Entered on FLSD Docket 07/29/2020 Page 3 of 27
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Davis v. Powertel, Inc., 

776 So. 2d 971 (Fla. Dist. Ct. App. 2000) ...............................................................................18 

Day v. Taylor, 

400 F.3d 1272 (11th Cir. 2005) .................................................................................................3 

Eike v. Allergan, Inc., 

850 F.3d 315 (7th Cir. 2017) ...................................................................................................10 

Fahey v. Deoleo USA, Inc., 

2018 WL 5840664 (D.D.C. Nov. 8, 2018) ................................................................................9 

Finkelman v. NFL, 

810 F.3d 187 (3d Cir. 2016).....................................................................................................10 

Gaminde v. Lang Pharma Nutrition, Inc., 

2019 WL 1338724 (N.D.N.Y. Mar. 25, 2019) ..........................................................................9 

Goldin v. Boce Grp., L.C., 

773 F. Supp. 2d 1376 (S.D. Fla. 2011) ......................................................................................7 

Griffin Indus., Inc. v. Irvin, 

496 F.3d 1189 (11th Cir. 2007) ...............................................................................................15 

Hillen v. Blistex, Inc., 

2017 WL 2868997 (N.D. Ill. July 5, 2017) ..............................................................................10 

Holliday v. Albion Labs., Inc., 

2015 WL 10857479 (S.D. Fla. June 9, 2015) ........................................................................6, 9 

Infinity Global, LLC v. Resort at Singer Island, Inc., 

2008 WL 1711535 (S.D. Fla. Apr. 10, 2008) ..........................................................................19 

Irizarry v. Orlando Utils. Comm’n, 

393 F. Supp. 3d 1110 (M.D. Fla. 2019) .....................................................................................7 

Koronthaly v. L’Oreal USA, Inc., 

374 F. App’x 257 (3d Cir. 2010) .........................................................................................6, 10 

Kuenzig v. Kraft Foods, Inc., 

2011 WL 4031141 (M.D. Fla. Sept. 12, 2011) ..............................................................4, 16, 18 

Lewis v. Governor of Alabama, 

944 F.3d 1287 (11th Cir. 2019) .................................................................................................8 

Marjam Supply Co. of Fla., LLC v. Pliteq, Inc., 

2018 WL 4932871 (S.D. Fla. Apr. 23, 2018) ..........................................................................12 

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Marketran, LLC v. Brooklyn Water Enters., Inc., 

2017 WL 1292983 (S.D. Fla. Jan. 31, 2017) .................................................................6, 11, 20 

Marty v. Anheuser-Busch Cos., LLC, 

43 F. Supp. 3d 1333 (S.D. Fla. 2014) ......................................................................................12 

Merrill Lynch Bus. Fin. Serv., Inc. v. Performance Mach. Sys. U.S.A., Inc., 

2005 WL 975773 (S.D. Fla. 2005) ..........................................................................................19 

Meyer v. Colavita USA Inc., 

2011 WL 13216980 (S.D. Fla. Sept. 13, 2011) ...............................................................6, 9, 11 

In re Monat Hair Care Prods. Mktg., Sales Practices, & Prods. Liab. Litig., 

2019 WL 5423457 (S.D. Fla. Oct. 23, 2019) ...........................................................................12 

In re Motions to Certify Classes Against Court Reporting Firms for Charges 

Relating to Word Indices, 

715 F. Supp. 2d 1265 (S.D. Fla. 2010), aff’d, 2011 WL 3822001 (11th Cir. 

Aug. 31, 2011) .........................................................................................................................17 

Ohio State Troopers Ass’n, Inc. v. Point Blank Enters., Inc., 

347 F. Supp. 3d 1207 (S.D. Fla. 2018) ......................................................................................9 

Parks v. Ainsworth Pet Nutrition, LLC, 

377 F. Supp. 3d 241 (S.D.N.Y. 2019) ......................................................................................12 

PNR, Inc. v. Beacon Prop. Mgmt., Inc., 

842 So. 2d 773 (Fla. 2003).......................................................................................................18 

Prado-Steiman ex rel. Prado v. Bush, 

221 F.3d 1266 (11th Cir. 2000) ...............................................................................................10 

QSGI, Inc. v. IBM Glob. Fin., 

2012 WL 1150402 (S.D. Fla. Mar. 14, 2012) ................................................................6, 11, 20 

Reilly v. Chipotle Mexican Grill, Inc., 

711 F. App’x 525 (11th Cir. 2017) ..........................................................................................11 

Remedios v. Nat’l Fire & Marine Ins. Co., 

2019 WL 7956170 (S.D. Fla. Aug. 29, 2019)............................................................................7 

Rodriguez v. Recovery Performance & Marine, LLC, 

38 So. 3d 178 (Fla. Dist. Ct. App. 2010) .................................................................................20 

Sanchez-Knutson v. Ford Motor Co., 

52 F. Supp. 3d 1223 (S.D. Fla. 2014) ......................................................................................14 

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Savalli v. Gerber Prods. Co., 

2016 WL 5390223 (S.D. Fla. Sept. 20, 2016) .....................................................................5, 18 

Shahar v. Bowers, 

120 F.3d 211 (11th Cir. 1997) ...................................................................................................5 

Smith v. 2001 S. Dixie Highway, Inc., 

872 So. 2d 992 (Fla. Dist. Ct. App. 2004) ...............................................................................20 

Spokeo, Inc. v. Robins, 

136 S. Ct. 1540 (2016) .........................................................................................................8, 10 

Toback v. GNC Holdings, Inc., 

2013 WL 5206103 (S.D. Fla. Sept. 13, 2013) .........................................................................10 

Stalley ex rel. U.S. v. Orlando Reg7 Healthcare Sys., Inc., 

524 F.3d 1229 (11th Cir. 2008) .................................................................................................7 

Wallace v. ConAgra Foods, Inc., 

747 F.3d 1025 (8th Cir. 2014) ...................................................................................................9 

World Fuel Servs., Inc. v. Thrifty Propane, Inc., 

2016 WL 11547771 (S.D. Fla. July 15, 2016) .........................................................................17 

Zlotnick v. Premier Sales Grp., Inc., 

480 F.3d 1281 (11th Cir. 2007) ...............................................................................................18 

Statutes 

Fla. Stat. § 501.211 ........................................................................................................................20 

Florida Deceptive and Unfair Practices Act, Fla. Stat. § 501.201 et seq. .............................. passim

Other Authorities 

Fed. R. Civ. P. 8 .........................................................................................................................5, 14 

Fed. R. Civ. P. 9(b) ....................................................................................................................5, 14 

Fed. R. Civ. P. 10(c) ......................................................................................................................16 

Fed. R. Civ. P. 12(b)(1)....................................................................................................................7 

Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 7 

U.S. Const. art. III, § 1 ...........................................................................................................8, 9, 10 

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INTRODUCTION AND BACKGROUND 

Defendant The Folger Coffee Company (“Folgers”) moves this Court for an Order 

dismissing Plaintiff Marcia Sorin’s (“Plaintiff”) class action complaint (the “Complaint”) in its 

entirety and with prejudice under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil 

Procedure. 

Plaintiff, a resident of Palm Beach County, filed this Complaint on June 4, 2020 “on behalf 

of herself and all other . . . consumers within the State of Florida who purchased any . . . Folgers 

Coffee Products which contained the Folgers Label Claims. . . .” ECF No. 1, Compl., ¶ 24. She 

says the “Folgers Coffee Products” that contain the “Folgers Label Claims” are the “many Folger 

coffee product canisters” that “prominently state[] that they will produce up to a certain amount of 

six fluid ounce cups when, in fact, the canister contents are grossly insufficient to produce that 

volume of coffee.” Id., ¶ 2. To Plaintiff, “Defendant affirmatively represents on the coffee can 

label the expected number of cups of coffee that the can will produce when the coffee is brewed 

according to instructions,” but she alleges “this information is false because” she thinks “the can 

contents cannot produce anywhere near the number of cups represented.” Id. 

As an example of the “Folgers Coffee Products,” Plaintiff provides pictures of a “Classic 

French Roast canister illustrated” in the Complaint—but not the canister purchased by her. See 

Id. ¶¶ 5–6 (emphasis added); see also Ex. A, Pictures from Compl. Even though Plaintiff broadly 

states that she “purchased Folgers products containing the misrepresentations that are the subject 

of this suit online and in local markets,” Compl., ¶ 13, the basis of this lawsuit is just one “canister 

Plaintiff purchased”—“a coffee canister purchased, Folgers Classic Roast,” that Plaintiff says 

“prominently states on the front label that it ‘MAKES UP TO 380 6 FL OZ CUPS.’” Id., ¶¶ 3, 9; 

see also id., ¶ 14 (describing the one “product Plaintiff purchased”). Indeed, even though she is 

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only basing her claims on one canister of coffee, Plaintiff is suing based on some analysis that says 

12 different types of Folgers’ canisters “only produce[] approximately” a range of cups that are 

“short of what Folgers represents on its front panel.” Id., ¶¶ 4, 7, 8. And based on this, Plaintiff 

brings a claim under the Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), seeking 

damages, injunctive relief, and attorneys’ fees and costs. See id., § Prayer for Relief. 

Plaintiff’s Complaint must be dismissed because she has not put together a complaint “that 

will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it 

rests,” as required. See Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 545 (2007) (same standard). 

Plaintiff alleges she is suing Folgers under FDUTPA because “Folgers makes 

representations about the number of servings its containers provide” and she believes consumers 

“do not receive the amount of coffee servings Folgers represents to be present in in [sic] the 

container.” Compl., ¶ 1. But Plaintiff does not give Folgers fair notice of the grounds upon which 

this claim rests, as required. See Twombly, 550 U.S. at 545. Instead, to support her conclusory 

allegation that Folgers’ coffee product cannot make up to 380 six-fluid-ounce cups of coffee, 

Plaintiff just alleges the conclusion she seeks to prove: that “if the back-pane instructions are 

followed, the canister only produces approximately 265-275 six fluid-ounce servings.” Compl., ¶ 

4 (emphasis added). That is not enough under the law. See Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (“[T]he pleading standard . . . demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” (citing Twombly, 550 U.S. at 555)).

Plaintiff’s standalone statement and theory that Folgers’ canisters supposedly produce 

“over 100 cups short of what Folgers represents,” Compl., ¶ 4, is not enough because she is just 

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pleading a conclusion that Folgers hurt her without supplying any factual enhancement to her 

Complaint, as required. See Iqbal, 556 U.S. at 678 (citation omitted). 

That said, Plaintiff’s theory of the case is demonstrably wrong. Plaintiff’s theory is that “if 

the back-pane instructions are followed, the canister only produces approximately 265-275 six 

fluid-ounce servings.” Compl., ¶ 4 (emphasis added). What Plaintiff refers to as “instructions” are 

the words printed “on the back of the panel of the canister,” which Plaintiff adds to the Complaint 

but describes out of context by saying “Instructions on the back panel of the canister direct 

consumers to use the following measurements: ‘Cold Water: 1 Serving (6 fl. oz)’ with ‘Folgers 

Coffee: 1 Tablespoon’ which yields ‘1 Serving (6 fl. oz.)’” Id., ¶ 3 (hereinafter Plaintiff’s “1:1 

ratio”). Because of these supposed “instructions,” Plaintiff says that “[t]his means that each Classic 

Roast canister should contain 380 tablespoons of coffee.” Id. 

But this is where Plaintiff’s claim starts to unravel. If the Court looks at the canister in the 

Complaint, as it can and should,1 it will see that nothing on the canister states that it contains 380 

tablespoons of coffee, as Plaintiff claims—it is certainly not where Plaintiff says it is: 

 1

 This court may consider the labels of the canister “without converting the motion into one 

for summary judgment” because the labels’ “contents are alleged in a complaint and no party 

questions those contents.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). 

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Compl., ¶ 6. The only thing Folgers actually represents on the canister is noticeably absent in the 

Complaint—and that is that the “canister makes up to 380 suggested strength 6 fl oz servings.” Id. 

Nowhere in the Complaint is there any allegation that this Folgers’ canister is incapable of making 

up to 380 suggested strength servings, as Folgers represents. For this reason, the Complaint should 

be dismissed because the only representation that Folgers actually makes is clearly disclosed on 

the package and not even challenged in the Complaint. See Kuenzig v. Kraft Foods, Inc., 2011 WL 

4031141, at *9 (M.D. Fla. Sept. 12, 2011) (finding label was not misleading as a matter of law 

where the number of calories from fat was clearly disclosed on the nutrition panel). 

Plaintiff does allege that the product “yields only about 270 servings” based on supposed 

“instructions” that “direct consumers to use” Plaintiff’s 1:1 ratio. See id., ¶ 3, 9. But if the Court 

looks at the canister from the Complaint, Plaintiff’s 1:1 ratio for making 380 cups of coffee is not 

actually on the package and is not recommended by Folgers at all. There are no “instructions” 

directing consumers to—or suggesting that consumers can—make “380 suggested strength 6 fl oz 

servings” by using Plaintiff’s 1:1 ratio of 1 serving of 6 fluid ounces and 1 tablespoon of coffee. 

Instead, the canister has recommendations “[f]or best brewing results,” and Folgers states that “we 

recommend” using certain fluid ounces of cold water and tablespoons of coffee per serving. See 

id., ¶ 6. And a recommendation is just that since all coffee drinkers have different preferences for 

the strength of their coffee. These recommendations state that the suggested strength of servings 

can be accomplished with 10 servings of 6 fluid ounces and 1⁄2 cup (or 8 tablespoons) of coffee, 

which makes it clear that as more water is added, fewer tablespoons of coffee are required. See

id., ¶ 6.2

 Thus, the packaging confirms that Plaintiff’s 1:1 ratio (that she is trying to impose on 

 2

 Folgers notes that 1⁄2 measuring cup = 8 tablespoons. See UNITED STATES DEP’T OF COM., 

National Institute of Standards and Technology, Metric Cooking Resources (last visited July 22, 

2020) (noting 1 cup = 240 milliliters and 15 milliliters = 1 tablespoon, such that 1⁄2 cup = 120 

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Folgers as instructing consumers to make the suggested 380 cups of coffee) comes from whole 

cloth. Plaintiff is wrong and the Complaint must be dismissed because Plaintiff cannot pursue 

FDUTPA claims based on her subjective misconception that is belied by a plain reading of Folgers’ 

labels and packaging. Cf. Savalli v. Gerber Prods. Co., 2016 WL 5390223, at *1 (S.D. Fla. Sept. 

20, 2016) (noting that under FDUTPA, “reasonable consumers should—well, read the label”). 

Plaintiff has offered no plausible explanation why or how her supposed injury can be 

explained by Folgers’ recommendations as opposed to “obvious alternative explanations,” see 

Twombly, 550 U.S. at 567—like the fact that the recommendations do not say that a 1:1 ratio is 

needed to make the 380 suggested strength servings. She ignores the requirements of Rule 8 (in 

addition to Rule 9(b)) and provides no factual enhancement to explain how Folgers’ suggestions 

are wrong. She just expects this Court to speculate that Folgers’ instructions caused her some harm. 

“But [this Court is] not permitted to engage in speculation, even at the pleading stage.” Auto. 

Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 729 (11th Cir. 

2020). Thus, this case should be dismissed on the merits because the Complaint is implausible. 

Even aside from being implausible, however, the Complaint also suffers from standing 

deficiencies. This is because Plaintiff is relying on someone else’s testing of different Folgers’ 

Products, but not her own use of the specific canister of Folgers Coffee she claims she purchased. 

As discussed, she says the basis of this lawsuit is just one “canister Plaintiff purchased.” Compl.,

 

milliliters = 8 tablespoons). Folgers request that the Court take judicial notice of this innocuous 

scientific fact from the Department of Commerce’s website. See Shahar v. Bowers, 120 F.3d 211, 

214 (11th Cir. 1997) (“scientific facts” are “the kinds of things about which courts ordinarily take 

judicial notice”); cf. In re Cole v. Patton, 2019 WL 3413525, at *2 (M.D. Fla. July 29, 2019) (“the 

information . . . accessed from a government agency’s website [] falls squarely within the class of 

materials suitable for judicial notice.” (citations omitted)). 

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¶¶ 3, 9, 14. Yet, even though she is only suing about one canister of coffee, Plaintiff is including 

12 different types of canisters in her Complaint. See id., ¶¶ 4, 7, 8. 

Thus, Plaintiff lacks standing because she has failed to allege a particularized injury and 

she is attempting to bring claims for products she did not purchase. See Holliday v. Albion Labs., 

Inc., 2015 WL 10857479, at *5 (S.D. Fla. June 9, 2015). And there is no allegation that Plaintiff’s 

specific canister cannot make 380 cups of coffee. Courts have found the failure to make such 

allegations to be fatal. See, e.g., Meyer v. Colavita USA Inc., 2011 WL 13216980, at *5 (S.D. Fla. 

Sept. 13, 2011) (dismissing complaint when, like here, the “Plaintiffs support their claims with 

speculation and unwarranted extrapolation from [a] ... [third party]’s findings”). 

Plaintiff has also failed to allege a concrete injury. Plaintiff is expressing subjective 

disappointment about her “expected number of cups of coffee that the can will produce when the 

coffee is brewed according to instructions.” Compl., ¶ 2. There is no standing for such subjective 

disappointment—and FDUTPA would not allow such a recovery in any event. Cf. Koronthaly v. 

L’Oreal USA, Inc., 374 F. App’x 257, 259 (3d Cir. 2010); Marketran, LLC v. Brooklyn Water 

Enters., Inc., 2017 WL 1292983, at *3 (S.D. Fla. Jan. 31, 2017) (Dimitrouleas, J.) (no FDUTPA 

recovery “for subjective feelings of disappointment”). 

Plaintiff has also not alleged a concrete injury because she does not allege what she paid 

for her canister. She says her canister was “advertised by Folgers on Amazon at $24.43” the week 

before she filed this case, but she fails to allege that she actually paid that price. See Compl., ¶ 9. 

Thus, she “has failed to plead any facts from which one could plausibly infer the degree to which, 

or even whether, the market value of any product has changed as a result of [Folgers’] purported 

conduct.” QSGI, Inc. v. IBM Glob. Fin., 2012 WL 1150402, at *5 (S.D. Fla. Mar. 14, 2012). 

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Finally, Plaintiff lacks standing to sue on behalf of the class because she has not alleged 

future harm. She has conceded she will not buy the product in the future given her current 

allegations and is therefore foreclosed from seeking relief on behalf of a class. See Dapeer v. 

Neutrogena Corp., 95 F. Supp. 3d 1366, 1374 (S.D. Fla. 2015). 

For all these reasons, the Complaint should be dismissed in its entirety and with prejudice. 

LEGAL STANDARDS 

“Because standing is jurisdictional, [a motion to dismiss] falls under Federal Rule of Civil 

Procedure 12(b)(1).” Stalley ex rel. U.S. v. Orlando Reg7 Healthcare Sys., Inc., 524 F.3d 1229, 

1232 (11th Cir. 2008). Plaintiffs “must establish that they have standing to sue.” Remedios v. Nat'l 

Fire & Marine Ins. Co., 2019 WL 7956170, at *4 (S.D. Fla. Aug. 29, 2019). “To survive a motion 

to dismiss” under Rule 12(b)(6), “a complaint must allege both a cognizable legal theory and 

sufficient facts to support it.” Goldin v. Boce Grp., L.C., 773 F. Supp. 2d 1376, 1378 (S.D. Fla. 

2011). “[A] plaintiff’s obligation to provide the ‘grounds’ of his entitlement to relief requires more 

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Twombly, 550 U.S. at 555. Rather, “[a] complaint must contain sufficient factual matter 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678. 

ARGUMENT 

Plaintiff’s Complaint should be dismissed on the merits because she does not plausibly 

allege Folgers’ packaging is misleading to a reasonable consumer. Even so, Folgers will first 

address Plaintiff’s lack of standing because “[s]tanding is . . . a ‘threshold jurisdictional question’ 

that must be resolved before a court can turn to a claim’s merits.” Irizarry v. Orlando Utils. 

Comm’n, 393 F. Supp. 3d 1110, 1113 (M.D. Fla. 2019) (quoting Bochese v. Town of Ponce Inlet, 

405 F.3d 964, 974 (11th Cir. 2005)). 

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I. Plaintiff Lacks Article III Standing 

“[T]o establish her standing to sue, a plaintiff must satisfy three (by now familiar) criteria.” 

Lewis v. Governor of Alabama, 944 F.3d 1287, 1296 (11th Cir. 2019). But Plaintiff cannot even 

“demonstrate that she has suffered an ‘injury in fact’—an invasion of a legally protected interest 

that is both (a) ‘concrete and particularized’ and (b) ‘actual or imminent, not conjectural or 

hypothetical.’” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). 

A. Plaintiff cannot rely on someone else’s testing or use of different canisters of 

Folgers Coffee to allege a particularized injury for herself. 

Plaintiff has not identified a particularized injury. “For an injury to be ‘particularized,’ it 

‘must affect the plaintiff in a personal and individual way.’” Spokeo, Inc. v. Robins, 136 S. Ct. 

1540, 1548 (2016) (citations omitted). Plaintiff does not provide a single allegation about the 

amount of coffee her specific canister produces. Instead, she speaks vaguely about what she thinks 

theoretically happens “if the back-panel instructions are followed” because, as discussed, it is 

obvious that she has not used or tested the Product to make a specific determination on her own.

See Compl. ¶ 4 (emphasis added).3

 Yet allegations about someone else’s use or testing of different 

canisters yielding different ranges of cups, does not make up for the fact that there is no allegation 

that Plaintiff’s canister is, in fact, mislabeled. There is no allegation in the Complaint that 

Plaintiff’s specific canister cannot make 380 cups of coffee. And courts in this District and around 

the country have found that the failure to make allegations about the plaintiff’s specific product is 

 3

 Folgers reiterates that this testing is obviously based on an external analysis because 

Plaintiff only purchased one product, but she is providing “approximate” findings from someone 

who allegedly followed “instructions” for 12 different products. But the range of coffee that these 

different types of canisters “approximately” produce based on nonexistent instructions says 

nothing about what Plaintiff’s specific canister produces. Analyzing a complaint is “a contextspecific task that requires the reviewing court to draw on its judicial experience and common 

sense.” Iqbal, 556 U.S. at 679. And common sense says that if Plaintiff actually used or tested the 

specific canister she purchased, then surely she would be able to allege exactly how many cups 

her canister produced. She has tellingly not done so or made any allegations to draw that inference. 

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fatal. See, e.g., Meyer, 2011 WL 13216980, at *5 (dismissing complaint when, like here, the 

“Plaintiffs support their claims with speculation and unwarranted extrapolation from [a] ... [third 

party]’s findings”); Gaminde v. Lang Pharma Nutrition, Inc., 2019 WL 1338724, at *2–3 

(N.D.N.Y. Mar. 25, 2019) (explaining that “standing requires that ‘the plaintiff must have suffered 

an ‘injury in fact . . . which is . . . particularized’” and finding that the plaintiff’s “failure to allege 

that . . . his bottle” of a product was “tested . . . is fatal” (emphasis added) (citations omitted)).4 

B. Plaintiff cannot pursue claims for Folgers Coffee Products that Plaintiff does not 

allege she specifically bought and are not the subject of this Complaint. 

On a related note, Plaintiff has not identified a particularized injury because she could not 

be injured by canisters of coffee that she does not allege she ever purchased. 

It is well-established that “a plaintiff cannot establish Article III standing to bring claims 

for products he did not purchase.” Holliday, 2015 WL 10857479, at *5; see also Barron v. 

Snyder’s-Lance, Inc., 2015 WL 11182066, at *17 (S.D. Fla. Mar. 20, 2015) (“[A] named plaintiff 

in a consumer class action ‘cannot raise claims relating to those other products which he did not 

purchase[.]” (quoting Garcia v. Kashi Co., 43 F. Supp. 3d 1359, 1359 (S.D. Fla. 2014)); Ohio State 

Troopers Ass'n, Inc. v. Point Blank Enters., Inc., 347 F. Supp. 3d 1207, 1221 (S.D. Fla. 2018). 

Here, Plaintiff alleges that she “purchased Folgers products containing the 

misrepresentations that are the subject of this suit online and in local markets.” Compl., ¶ 13. But 

the only product that is the subject of this dispute is one 48-ounce canister of Folgers Classic Roast. 

 4 Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1030–31 (8th Cir. 2014) (plaintiffs 

lacked standing because their “allegations fail[ed] to show that any of the particular packages of 

Hebrew National beef they personally purchased contained non-kosher beef” and it was “pure 

speculation to say the particular packages sold to the [plaintiff]s were tainted by non-kosher beef” 

(emphasis added)); Fahey v. Deoleo USA, Inc., 2018 WL 5840664, at *2 (D.D.C. Nov. 8, 2018) 

(“[T]he question is whether Fahey has alleged facts that support an inference that the particular 

bottle of Bertolli EVOO he purchased . . . contained something other than ‘extra virgin’ olive oil. 

. . . [H]e has not”; he only “marshals but one ‘fact’ to substantiate his claim . . .: the results of a 

2010 study on olive oil quality. . . . This meager ‘factual content’ is not enough . . .”). 

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Id. ¶¶ 3, 9. And despite the fact that Plaintiff only purchased one product, she tries to represent 

claims for all Folgers Coffee Products. Id. ¶¶ 2, 24. Thus, Plaintiff lacks standing and her FDUTPA 

claim must be dismissed with respect to products other than the Classic Roast—assuming she 

actually brought it. See Toback v. GNC Holdings, Inc., 2013 WL 5206103, at *5 (S.D. Fla. Sept. 

13, 2013) (class representative lacked standing to “raise claims relating to those other products 

which he did not purchase”—“the law in the Eleventh Circuit is clear that at least one named 

plaintiff must establish Article III standing for each class subclaim”); Prado-Steiman ex rel. Prado 

v. Bush, 221 F.3d 1266, 1279–80 (11th Cir. 2000). 

C. Plaintiff cannot pursue claims for which she has not alleged a cognizable injury—

her disappointment and made-up price premium are not enough. 

Plaintiff’s failure to demonstrate a particularized injury is only the beginning of her 

problems because particularization alone “is not sufficient”—“an injury in fact must also be 

‘concrete,’” which means it “must be ‘de facto’; that is, it must actually exist” and must be “‘real,’ 

and not ‘abstract.’” Spokeo, 136 S. Ct. at 1548 (citations omitted). 

Plaintiffs’ damages theory is based on subjective disappointment about her “expected 

number of cups of coffee that the can will produce when the coffee is brewed according to 

instructions.” Compl., ¶ 2. But there is no standing for such subjective disappointment because 

such “disappointment ... fail[s] to allege ‘an invasion of a legally protected interest.’” Eike v. 

Allergan, Inc., 850 F.3d 315, 318 (7th Cir. 2017) (citations omitted); see also Finkelman v. NFL, 

810 F.3d 187, 188–89 (3d Cir. 2016) (“Article III requires more” than “the disappointment of 

wanting to attend a concert or athletic event only to discover that the event has sold out.”); 

Koronthaly, 374 F. App’x at 259 (“Koronthaly [] has asserted only a subjective allegation that the 

trace amounts of lead in the lipsticks are unacceptable to her, not an injury-in-fact sufficient to 

confer Article III standing.”); Hillen v. Blistex, Inc., 2017 WL 2868997, at *3 (N.D. Ill. July 5, 

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2017) (“Put simply, plaintiff’s disappointment in defendant’s [product] design does not establish 

deception . . . .”). Even if there were standing, FDUTPA would not allow a recovery. See 

Marketran, 2017 WL 1292983, at *3 (Dimitrouleas, J.) (“FDUTPA does not provide for . . . 

compensation for subjective feelings of disappointment.”). 

In addition, Plaintiff has also not alleged a concrete injury because, as discussed, she does 

not allege what price she paid for her canister—if she paid for it at all. See Compl., ¶ 9. 

Accordingly, she “has failed to plead any facts from which one could plausibly infer the degree to 

which, or even whether, the market value of any product has changed as a result of [Folgers’] 

purported conduct.” QSGI, 2012 WL 1150402, at *5. 

To be clear, Plaintiff was required to allege a “difference in the market value of the 

product ... in the condition in which it was delivered and its market value in the condition in which 

it should have been delivered” because “the Act ‘does not provide for the recovery of . . . 

speculative losses.’” Reilly v. Chipotle Mexican Grill, Inc., 711 F. App’x 525, 529 (11th Cir. 2017) 

(citation omitted). Yet Plaintiff does not allege how Folgers sold the Product at a premium price, 

above similar products in the marketplace that do not claim to be capable of brewing 380 6 fluid 

ounce cups of coffee. She does not state what price she paid for the Product. Thus, Plaintiff fails 

to “set forth any facts demonstrating how [she] ha[s] been aggrieved or what damages [she] 

suffered”—“[f]or example, Plaintiff[] do[es] not plead facts demonstrating that [she] paid ‘X’ 

dollars for what [she] thought was [a good product] that in fact turned out to be [a bad product] 

worth ‘Y’ dollars.” Meyer, 2011 WL 13216980, at *5. Without an allegation estimating “the 

difference in value,” which she has not made because she has not alleged the price she paid, 

Plaintiff has not alleged an “actual loss.” Reilly, 711 F. App’x at 529. Thus, her claim based on 

disappointment but not any actual economic injury cannot proceed. 

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D. Plaintiff cannot pursue injunctive relief on behalf of herself or the putative class 

because she fails to allege a likelihood of future injury. 

Finally, Plaintiff lacks standing to pursue claims for injunctive relief because it is wellestablished that a plaintiff cannot pursue a claim for injunctive relief under FDUTPA when a 

plaintiff fails to allege a threat of future harm. See In re Monat Hair Care Prods. Mktg., Sales 

Practices, & Prods. Liab. Litig., 2019 WL 5423457, at *5 (S.D. Fla. Oct. 23, 2019). 

The injury in fact requirement “cannot be met absent a showing of a real or immediate 

threat that the plaintiff will be wronged again.” Marty v. Anheuser-Busch Cos., LLC, 43 F. Supp. 

3d 1333, 1355 (S.D. Fla. 2014). Nowhere does Plaintiff allege that she will continue to purchase 

the product. Nor would that be reasonable to infer given the fact that the Complaint says the 

“canister contents are grossly insufficient.” Compl. ¶ 2. Plaintiff’s silence about purchasing the 

product in the future is “effectively a concession that she does not intend to purchase the product 

in the future.” Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241, 249 (S.D.N.Y. 2019) 

(citation omitted); see also Cordes v. Boulder Brands USA, Inc., 2018 WL 6714323, at *4 (C.D. 

Cal. Oct. 17, 2018). Thus, the Court should dismiss the claim for injunctive relief. See Dapeer, 95 

F. Supp. 3d at 1374 (“[Plaintiff] . . . fails to sufficiently allege a threat of future harm . . . . 

Accordingly, Plaintiff’s claims for injunctive relief are dismissed.”); Marjam Supply Co. of Fla., 

LLC v. Pliteq, Inc., 2018 WL 4932871, at *4 (S.D. Fla. Apr. 23, 2018) (same) 

II. The Complaint Fails on the Merits 

Even if Plaintiff could somehow show that she has standing, it would make no difference 

because the merits of her claim are implausible and inadequately pleaded. Indeed, her FDUTPA 

claim (the only claim in the Complaint) is flawed because, at bottom, she fails to show how the 

representations on Folgers’ otherwise true packaging are false—let alone deceptive. 

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A. The Complaint is inadequately pleaded and does not provide Folgers (or the 

Court) fair notice of the spurious grounds upon which its claims rest. 

Plaintiff’s Complaint must “give the defendant fair notice of what the plaintiff’s claim is 

and the grounds upon which it rests.” Conley, 355 U.S. at 47. She did not do so. 

As discussed, Plaintiff does not meet the requirement of giving Folgers fair notice of the 

grounds upon which her claim rests. To support her conclusory allegation that Folgers’ Coffee 

Products cannot make up to 380 six-fluid-ounce cups, Plaintiff just alleges the conclusion she 

seeks to prove: that “if the back-pane instructions are followed, the canister only produces 

approximately 265-275 six fluid-ounce servings.” Compl., ¶ 4 (emphasis added). That is it. 

Plaintiff’s standalone statement that Folgers’ canisters supposedly produce “over 100 cups short 

of what Folgers represents,” id., is not enough because she is just pleading a conclusion that 

Folgers hurt her without supplying any factual enhancement to her Complaint, as required. 

It is not enough for Plaintiff to just plead the conclusion that Folgers hurt her. “[T]he 

pleading standard . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must plead facts so Folgers can 

understand how Plaintiff arrived at her convenient conclusion that Folgers harmed her. As 

discussed, she has not. She just says that “if” someone theoretically follows some “instructions,” 

then that theoretical person would be harmed and therefore she has been harmed. That is 

insufficient. Folgers has no basis for what the grounds are for this claim. And that is a fundamental 

problem because without further explanation, Plaintiff has nothing but “a complaint [that] pleads 

facts that are ‘merely consistent with’ a defendant’s liability,” and “‘stops short of the line between 

possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (citation omitted). 

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff needs to explain 

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how she reaches her conclusion about Folgers’ liability, whether based on her own use or testing 

of the product, or based on her reliance on someone else’s testing. All Plaintiff is armed with is 

her conclusion that Folgers harmed her. But “Rule 8 . . . does not unlock the doors of discovery 

for a plaintiff armed with nothing more than conclusions.” Id. at 678–79. 

Plaintiff does not satisfy Rule 8. She does not even try to satisfy Rule 9(b), as required.5

Accordingly, these pleading inadequacies sink Plaintiff’s claim. 

B. The Complaint is implausible because it is based on a false premise and asks the 

Court to engage in speculation and ignore obvious alternative explanations. 

Putting Plaintiff’s inadequate pleading to the side, the Complaint should also be dismissed 

because it is demonstrably false and asks this Court to ignore obvious alternative explanations that 

are simply not addressed by the pleading inadequacies discussed above. 

Plaintiff’s theory is that “if the back-pane instructions are followed, the canister only 

produces approximately 265-275 six fluid-ounce servings.” Compl., ¶ 4. She says Folgers’ 

“instructions” direct consumers to use Plaintiff’s 1:1 ratio—or 380 tablespoons of coffee—to make 

380 suggested strength cups. See id, ¶ 3; supra at pp. 3-5. And it is based on these supposed 

 5

 Plaintiff says she is “not required to plead her FDUPTA claim with particularity, or 

ple[a]d the elements of fraud.” Compl. ¶ 17. This is wrong. Folgers is aware that, in other cases, 

this Court has been “persuaded that Rule 9(b) does not apply to FDUTPA claims.” SanchezKnutson v. Ford Motor Co., 52 F. Supp. 3d 1223, 1239 (S.D. Fla. 2014) (Dimitrouleas, J.). But 

this case should be pleaded with particularity under Rule 9(b). Indeed, this Court has recognized 

in cases with FDUTPA claims that when a “claim appears to be based upon . . . alleged fraud” it 

“is subject to the heightened pleading requirements of [Rule 9(b)].” W.W. Sports Importadora 

Exportadora e Comercial LTDA v. BPI Sports, LLC, 2016 WL 11504100, at *4 (S.D. Fla. Aug. 

11, 2016) (Dimitrouleas, J.). So in a case like this one, when the plaintiff is using FDUTPA to 

allege that the Product “is false and misleading,” Compl., ¶ 9 (emphasis added), the “claim[] under 

FDUTPA [should be] subject to the federal rules’ ‘heightened’ pleading standard under 

Rule 9(b)’” because “courts ‘regularly apply Rule 9(b) to FDUTPA claims, [when] such claims 

uniquely sound in both tort and fraud.’” CWELT-2008 Series 1045 LLC v. PHH Corp., 2020 WL 

2744191, at *4 (S.D. Fla. May 27, 2020) (emphasis added) (citation omitted). 

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“instructions,” and nothing else, that Plaintiff makes her conclusory assertion that Folgers’ 

canisters supposedly produce “over 100 cups short of what Folgers represents.” Id., ¶ 4. 

But as discussed above, nothing on the canister states the canister contains 380 

tablespoons of coffee (as Plaintiff claims), and nowhere in the Complaint is there any allegation 

that the Folgers Products are incapable of making “up to 380 suggested strength servings,” which 

is the only thing Folgers actually represents on the canister: 

Compl., ¶ 6. And also as discussed, the so-called “instructions” Plaintiff talks about are actually 

nothing but recommendations for “best results” that clarify it will not take 380 tablespoons of 

coffee to make the 380 suggested strength servings. See id. (explaining the suggested strength of 

servings can also be accomplished with 10 servings of 6 fluid ounces and a 1⁄2 measuring cup (8 

tablespoons) of coffee, such that more water means fewer tablespoons of coffee). 

Accordingly, Plaintiff is wrong. Even though this Court has a “duty to accept the facts in 

the complaint as true,” that “does not require [the Court] to ignore specific factual details of the 

pleading in favor of general or conclusory allegations”—especially “when,” as here, “the exhibits 

contradict the general and conclusory allegations of the pleading.” Griffin Indus., Inc. v. Irvin, 496 

Folgers’ only actual 

representation 

More water means less 

coffee needed (not 

Plaintiff’s 1:1 ratio) 

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F.3d 1189, 1206 (11th Cir. 2007) (citation omitted). Here, the label incorporated into the 

Complaint, is “to be treated as part of the complaint for all purposes under Rule 10(c),” and because 

the label reveals adverse “facts which foreclose recovery as a matter of law, dismissal is 

appropriate.” Id. (citation omitted). Stated otherwise, the truth of the label sinks Plaintiff’s claim. 

The Complaint should be dismissed because the only representation that Folgers actually 

makes is clearly disclosed on the package and not even challenged. See Kuenzig, 2011 WL 

4031141, at *9 (“Because the number of calories that come from fat is clearly disclosed in the 

nutrition panel on Kraft’s labels, the Court finds that as a matter of law, Kraft’s labeling is not 

misleading regarding the number of calories that come from fat in its products.”) (collecting cases). 

Beyond that, the Complaint should be dismissed because Plaintiff has offered no plausible 

explanation why or how her “injury” was caused by Folgers’ recommendations, as opposed to 

other, innocuous “obvious alternative explanations,” see Twombly, 550 U.S. at 567—like the fact 

that the recommendations do not say that that a 1:1 ratio is needed to make the 380 suggested 

servings. Indeed, consumers can vary the level of dilution of their coffee. That is why the Product 

label states that “this canister makes up to 380 suggested strength 6 fl oz servings”—not 380 under 

all circumstances at the highest strength (Plaintiff’s 1:1 ratio) that a consumer may prefer. 

Plaintiff provides nothing to explain how Folgers’ suggestions are wrong. She just expects 

this Court to speculate that Folgers’ recommendations must have harmed her. “But [this Court is] 

not permitted to engage in speculation, even at the pleading stage.” Auto Alignment, 953 F.3d at 

729. Thus, this case should be dismissed on the merits because it is implausible on its face. See id. 

at 728–29 (dismissing case with this explanation: “The body shops offer no allegations that explain 

why the loss . . . they allege is plausibly explained by steering instead of other ‘obvious alternative 

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explanation[s].’ They instead invite us to speculate that steering caused this loss in business. But 

we are not permitted to engage in speculation, even at the pleading stage.”).6

C. Based on the Complaint’s flaws, Plaintiff’s FDUTPA claim fails on its face. 

In light of these pleading failures, the Complaint clearly fails to state a claim under 

FDUTPA. “A consumer claim for damages under FDUTPA has three elements: (1) a deceptive 

act or unfair practice; (2) causation; and (3) actual damages.” World Fuel Servs., Inc. v. Thrifty 

Propane, Inc., 2016 WL 11547771, at *10 (S.D. Fla. July 15, 2016) (citation omitted). 

Plaintiff has failed to allege a deceptive or unfair trade practice. Deception occurs when 

there is “a material representation or omission that is likely to mislead consumers acting reasonably 

under the circumstances.” In re Motions to Certify Classes Against Court Reporting Firms for 

Charges Relating to Word Indices, 715 F. Supp. 2d 1265, 1281 (S.D. Fla. 2010) (quotations and 

citation omitted), aff’d, 2011 WL 3822001 (11th Cir. Aug. 31, 2011). By contrast, an “unfair” 

practice is one that “causes or is likely to cause substantial injury to consumers which is not 

reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to 

consumers or to competition.” Id. at 1277 (quotations and citation omitted). Neither is present here. 

“FDUTPA does not require companies to be wholly transparent or prohibit them from 

publishing facts in the light most conducive to business, as long as the publication is not probably 

deceptive and likely to cause injury to a reasonably relying consumer.” Casey v. Fla. Coastal Sch. 

of Law, Inc., 2015 WL 10096084, at *15 (M.D. Fla. Aug. 11, 2015). A deceptive practice is one 

 6 See also Iqbal, 556 U.S. at 679, 682 (“Determining whether a complaint states a plausible 

claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its 

judicial experience and common sense” and choose “between [an] ‘obvious alternative 

explanation’ for [conduct] and the [conduct a plaintiff] asks us to infer”) (citation omitted); 

Twombly, 550 U.S. at 567–68, 570 (accepting “an obvious alternative explanation” when, as here, 

“the complaint itself gives reasons to believe” the alternative explanation, and dismissing case 

because the plaintiff had not pleaded “enough facts to state a claim to relief that is plausible on its 

face”); see also Carruth v. Bentley, 942 F.3d 1047, 1062 (11th Cir. 2019). 

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that is “likely to mislead.” Davis v. Powertel, Inc., 776 So. 2d 971, 974 (Fla. Dist. Ct. App. 2000). 

The Florida Supreme Court has noted that “deception occurs if there is a representation, omission, 

or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the 

consumer’s detriment.’” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003). 

(internal quotation marks and citation omitted) (emphasis added). “This standard requires a 

showing of ‘probable, not possible, deception’ that is ‘likely to cause injury to a reasonable relying 

consumer.’” Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007) (citation 

omitted) (emphasis added). This Court is not concerned about the hypersensitive or litigationdriven plaintiff like Plaintiff in this case. 

Here, Plaintiff fails to allege a deceptive or unfair trade practice because the Complaint 

does not show that any labeling representation is false or misleading—especially to a reasonable 

consumer. There is no deception here and Plaintiff would know that had she just read the full label. 

See Kuenzig, 2011 WL 4031141, at *9 (“Because the number of calories that come from fat is 

clearly disclosed in the nutrition panel on Kraft’s labels, the Court finds that as a matter of law, 

Kraft’s labeling is not misleading . . . .”); cf. Savalli, 2016 WL 5390223, at *1 (“harbor[ing] serious 

doubts about the plausibility of Plaintiff’s claims (that is, whether a reasonable consumer would 

likely be confused by the labeling on Defendant’s product)” because “to understand what they are 

purchasing, reasonable consumers should—well, read the label”). 

Nothing in the Complaint plausibly alleges that the Product is incapable of producing “up 

to” 380 cups of coffee. Instead, the full extent of Plaintiff’s claim is a single allegation that “if the 

back-panel instructions are followed, the canister only produces approximately 265-275 six fluidounce servings.” Compl. ¶ 4. But, as discussed above, Plaintiff does not provide any further factual 

allegations to explain how she reaches this conclusion. She does not allege that she (or anyone 

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else) tested the Product and discovered that it is incapable of producing “up to” 380 cups of coffee. 

Nor does she allege that she used the Product and was unable to obtain 380 servings. Moreover, 

Plaintiff does not allege that a reasonable consumer would fail to understand that, given the “up 

to” language, varying methods of brewing the Product and differing batch sizes could create more 

cups of coffee per package. Plaintiff does not allege how or why a reasonable consumer would fail 

to read the label and think a 1:1 ratio was required to make the suggested 380 cups of coffee. She 

does not allege how or why a reasonable consumer would materially care—let alone fail to 

understand—that the “up to” language indicates a range based on consumer preference. After all, 

as the label explains, consumers have the ability to choose how they make coffee at their preferred 

level of coffee strength. It makes recommendations so consumers can vary the level of dilution for 

how they like their coffee. See Compl. ¶ 6. Plaintiff provides absolutely no explanation why a 

reasonable consumer would interpret “this canister makes up to 380 suggested strength 6 fl oz 

servings” to somehow mean 380 under all circumstances at the highest strength. 

In short, Plaintiff’s conclusory allegations that Folgers engaged in deceptive, unfair, or 

unconscionable actions are insufficient to state a claim under FDUTPA. See Merrill Lynch Bus. 

Fin. Serv., Inc. v. Performance Mach. Sys. U.S.A., Inc., 2005 WL 975773 at *9 (S.D. Fla. 2005) 

(“To reiterate for emphasis, [plaintiffs] must do more than merely recite conclusory allegations; 

they must allege facts which properly raise recognizable FDUTPA claims.”). “To state a cause of 

action under FDUTPA, a plaintiff must do more than merely allege in a conclusory fashion that a 

defendant’s actions constituted an ‘unfair or deceptive act’ or that the defendant acted ‘wrongfully, 

unreasonably and unjustly’ and for a ‘deceptive and improper purpose.’” Infinity Global, LLC v. 

Resort at Singer Island, Inc., 2008 WL 1711535 at *4 (S.D. Fla. Apr. 10, 2008) (citation omitted). 

Plaintiff’s FDUTPA claim does not do so, is inadequately pleaded, and should be dismissed. 

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Finally, even if she had pleaded deception, FDUTPA only allows recovery for actual 

damages. See, e.g. Fla. Stat. § 501.211; Smith v. 2001 S. Dixie Highway, Inc., 872 So. 2d 992, 993 

(Fla. Dist. Ct. App. 2004); City First Mortg. Corp. v. Barton, 988 So. 2d 82 (Fla. Dist. Ct. App. 

2008). “Actual damages” is a “term of art.” QSGI, 2012 WL 1150402, at *4 (citation omitted). It 

refers to “the difference in the market value of the product . . . in the condition in which it was 

delivered and its market value in the condition in which it should have been delivered.” Smith, 872 

So. 2d at 994. As discussed above, Plaintiff’s loss is speculative and based on her disappointment 

and therefore unrecoverable. See Marketran, 2017 WL 1292983, at *3 (no recovery for “subjective 

feelings of disappointment”). And when, as here, a plaintiff “fails to allege a recoverable loss under 

FDUTPA, the complaint fails to state a claim.” Rodriguez v. Recovery Performance & Marine, 

LLC, 38 So. 3d 178, 180 (Fla. Dist. Ct. App. 2010). 

III. Dismissal Should Be with Prejudice 

Dismissal with prejudice is warranted. When, as here, “a more carefully drafted complaint 

could not state a claim, amendment is futile and not required.” Colston v. Schiller, 2020 WL 

687599, at *2 (N.D. Fla. Jan. 8, 2020) (citing Johnson v. Boyd, 568 F. App’x 719, 723 (11th Cir. 

2014)). Given the facts alleged, even with a more carefully drafted Complaint, Plaintiff cannot 

state a claim against Folgers because she cannot make an otherwise true statement false. Thus, 

dismissal should be with prejudice because any amendment to the Complaint would be futile. 

CONCLUSION 

For these reasons, the Complaint should be dismissed in its entirety with prejudice. 

REQUEST FOR TELEPHONIC HEARING 

Folgers respectfully requests a telephonic hearing of approximately 30 minutes to one hour 

on this motion to address the Court’s questions. 

Case 9:20-cv-80897-WPD Document 17 Entered on FLSD Docket 07/29/2020 Page 26 of 27
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Date: July 29, 2020 Respectfully submitted, 

/s/ Cristina Calvar 

Cristina Calvar (Florida Bar No. 114201) 

WINSTON & STRAWN LLP

200 Park Avenue 

New York, NY 10166-4193 

Telephone: (212) 294-5331 

Facsimile: (212) 294-4700 

ccalvar@winston.com 

Ronald Y. Rothstein (pro hac vice) 

Sean H. Suber (pro hac vice) 

WINSTON & STRAWN LLP 

35 W. Wacker Drive 

Chicago, IL 60601 

Telephone: (312) 558-5600 

Facsimile: (312) 558-5700 

rrothste@winston.com 

ssuber@winston.com 

Megan L. Whipp (pro hac vice) 

WINSTON & STRAWN LLP 

333 S. Grand Avenue 

Los Angeles, CA 90071-1543 

Telephone: (213) 615-1700 

Facsimile: (213) 615-1750 

mwhipp@winston.com 

Counsel for Defendant 

The Folger Coffee Company 

Case 9:20-cv-80897-WPD Document 17 Entered on FLSD Docket 07/29/2020 Page 27 of 27