1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 16a0116p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

PAMELLA MONTGOMERY, on behalf of herself and 

for the benefit of all with the common or general 

interest, any persons injured, and all others 

similarily situated, 

Plaintiff-Appellant, 

v. 

KRAFT FOODS GLOBAL, INC., a Delaware 

Corporation; STARBUCKS CORPORATION, a 

Washington Corporation, 

Defendants-Appellees. 

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No. 15-1283 

Appeal from the United States District Court 

for the Western District of Michigan at Grand Rapids. 

No. 1:12-cv-00149—Gordon J. Quist, District Judge. 

Argued: October 14, 2015 

Decided and Filed: May 16, 2016 

 Before: BOGGS, SUTTON, and COOK, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Timothy H. McCarthy, Jr., Okemos, Michigan, for Appellant. Aaron M. Panner, 

KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, Washington, D.C., for Appellees. 

ON BRIEF: Timothy H. McCarthy, Jr., Okemos, Michigan, for Appellant. Aaron M. Panner, 

Caitlin Hall, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, Washington, D.C., 

Dean N. Panos, Thalia L. Myrianthopoulos, JENNER & BLOCK LLP, Chicago, Illinois, for 

Appellees. 

>
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 2 

_________________ 

OPINION 

_________________ 

 COOK, Circuit Judge. Plaintiff Pamella Montgomery bought a Tassimo, a single-cup 

coffee brewer manufactured by Kraft Foods, expecting it to brew Starbucks coffee. After the 

purchase, however, she struggled to find Starbucks T-Discs—single-cup coffee pods compatible 

with the brewer. In fact, the Starbucks T-Disc supply eventually disappeared as Kraft’s business 

relationship with Starbucks soured. Disappointed with her purchase, Montgomery sued Kraft 

and Starbucks (Defendants) on behalf of a class for violations of various Michigan laws. After 

dismissing several claims and denying class certification on the rest, the district court entered 

judgment in Montgomery’s favor when she accepted Defendants’ joint offer of judgment under 

Federal Rule of Civil Procedure 68. Montgomery now appeals the dismissal of her claims for 

breach of express and implied warranties, the denial of class certification on her consumerprotection claims, and the attorney’s fees the district court awarded as part of the Rule 68 

settlement. We AFFIRM the district court’s dismissal of the warranty claims, DISMISS the 

class-certification appeal as moot, and AFFIRM the attorney’s-fees award. 

I. 

Montgomery purchased a Tassimo from her local grocery store that bore a sticker 

reading: “Featuring Starbucks® Coffee.” But as Starbucks T-Discs became “increasingly 

difficult and [later] impossible to find,” she learned that Starbucks had announced its plan to 

terminate its distribution agreement with Kraft and that the two companies were embroiled in 

arbitration over the contract. See Kraft Foods Global, Inc. v. Starbucks Corp., 411 F. App’x 428 

(2d Cir. 2011). In response, Montgomery sued both companies on behalf of a class for violation 

of the Michigan Consumer Protection Act (MCPA), innocent misrepresentation, breach of 

express and implied warranties, and breach of contract. 

Defendants each moved to dismiss the complaint for failure to state a claim, and the 

district court, having first found the innocent misrepresentation claim abandoned, granted the 

motions as to the claims for breach of express warranties, breach of implied warranty, and breach 
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 3 

of contract, but denied the motion as to several MCPA claims. Montgomery then requested class 

certification on those remaining claims, which the district court denied. Seeking a resolution—

encouraged by the district court—Defendants submitted a joint Rule 68 offer of judgment, 

agreeing to pay MCPA statutory damages of $250, Mich. Comp. Laws § 445.911(2), plus 

reasonable attorney’s fees and costs to be determined by the court. Montgomery accepted the 

offer of judgment, and requested $174,786.50 in attorney’s fees plus $5,183.56 in costs. 

Viewing that amount as unreasonable, the district court instead ordered Defendants to pay 

Montgomery $6,767 in fees and costs. She appeals the dismissal of her warranty claims, the 

denial of class certification, and the attorney’s-fees award. 

II. 

A. Jurisdiction over the Warranty-Claim Appeal 

We first respond to Defendants’ position that Montgomery’s agreement to settle her 

individual consumer-protection claims divests this court of jurisdiction to consider her challenge 

to the interlocutory dismissal of her warranty claims. But a confession of judgment by 

defendants on fewer than all claims moots only the claims resolved in the plaintiff’s favor by the 

agreed judgment; other issues remaining in the case may be appealed. See Deposit Guar. Nat’l 

Bank v. Roper, 445 U.S. 326, 333 (1980); see also UAW v. Dana Corp., 697 F.2d 718, 721 (6th 

Cir. 1983) (en banc) (“[T]here are instances ‘in which one issue in a case has become moot, but 

the case as a whole remains alive because other issues have not become moot.’” (quoting Univ. 

of Texas v. Camenisch, 451 U.S. 390, 394 (1981))). 

We read the record as showing that Montgomery settled only her individual consumerprotection claims. Defendants’ Rule 68 offer of judgment reads: 

[Defendants] offer to allow judgment to be taken against them under Plaintiff’s 

First Amended Class Action Complaint and in favor of: 

Plaintiff in the amount of $250.00, inclusive of all damages that may be 

assessed against Defendants under the Michigan Consumer Protection 

Act, M.C.L. § 445.911(2), plus reasonable attorneys’ fees and costs 

actually incurred and attributable to the prosecution of Plaintiff’s 

individual claims, as determined by the Court under applicable law. 
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 4 

Though Defendants now argue that the settlement merged all of Montgomery’s claims, 

when responding to her attorney’s-fees request at the district court, Defendants actually 

distinguished among them, noting that “the great majority of Plaintiff’s claims were dismissed by 

the Court” and that Montgomery “agreed to settle her remaining claims for $250.” Thus, 

because both parties viewed the offer as extinguishing only Montgomery’s consumer-protection 

claims, we maintain jurisdiction over her appeal of the warranty claims’ dismissal. 

B. Dismissal of Warranty Claims 

We review the district court’s dismissal of Montgomery’s warranty claims under Federal 

Rule of Civil Procedure 12(b)(6) de novo, looking for a “short and plain statement . . . showing 

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also Ctr. for Bio-Ethical 

Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (citing City of Monroe Emps. Ret. 

Sys. v. Bridgestone Corp., 399 F.3d 651, 664 (6th Cir. 2005)). The 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)). 

Montgomery alleges that Defendants breached express warranties and the implied 

warranty of merchantability under the Michigan Uniform Commercial Code. Mich. Comp. Laws 

§§ 440.2313, 2314. We examine each claim in turn. 

1. Express Warranty

Montgomery claims that Defendants made and breached several express warranties: 

(1) The Tassimo afforded customers the “present and continued availability” of compatible 

Starbucks T-Discs, (2) the Tassimo was “designed for use” with the Starbucks T-Discs, and 

(3) Starbucks T-Discs were “designed for use” with the Tassimo. Kraft moved to dismiss the 

express-warranty claim because Montgomery failed to plead that she was in privity of contract 

with Defendants, and Montgomery countered that, as a third-party beneficiary of the KraftStarbucks distribution agreement, she met the privity requirement. The district court rejected 

Montgomery’s assertion of third-party-beneficiary status and dismissed the express-warranty 

claim against both Defendants on privity grounds. 
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 5 

 None of Montgomery’s arguments persuade us that the district court erred in its 

dismissal. Though the Michigan Supreme Court has yet to rule on the privity issue regarding 

express-warranty claims, a Michigan Court of Appeals concluded that, because an express 

warranty constitutes a specific contract term, “privity of contract is necessary for a remote 

purchaser to enforce a manufacturer’s express warranty.” Heritage Res., Inc. v. Caterpillar Fin. 

Servs. Corp., 774 N.W.2d 332, 343 n.12 (Mich. Ct. App. 2009). “[D]ecisions by ‘the Michigan 

Court of Appeals are binding authority where the Michigan Supreme Court has never addressed 

the issue decided therein.’” Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604, 608 (6th Cir. 

2012) (quoting Morrison v. B. Braun Med. Inc., 663 F.3d 251, 257 n.1 (6th Cir. 2011)). 

 Montgomery insists, however, that no privity requirement exists for express-warranty 

claims under Michigan law, relying on our statement in Pack v. Damon Corp., 434 F.3d 810, 814 

(6th Cir. 2006), that the Michigan Uniform Commercial Code “does not limit the extension of 

express warranties to direct sellers.” But Pack predated the Michigan Court of Appeals’ 

Heritage decision, and we follow Heritage “until the Michigan Supreme Court or another panel 

of the Michigan Court of Appeals rules otherwise.” Wieczorek v. Volkswagenwerk, A.G., 

731 F.2d 309, 310 (6th Cir. 1984). 

To properly plead a breach-of-express-warranty claim then, Montgomery needed to 

allege that she was in privity with Defendants. She didn’t; her complaint acknowledged that she 

bought her Tassimo from a Fred Meijer grocery store, not directly from Defendants. And 

Montgomery’s appeal abandons the third-party-beneficiary theory she pressed before the district 

court. See Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004) (citing Boyd v. Ford Motor Co., 

948 F.2d 283, 284 (6th Cir. 1991)). Accordingly, we affirm the district court’s dismissal of 

Montgomery’s express-warranty claim. 

2. Implied Warranty of Merchantability

Montgomery also claims that Defendants breached the implied warranty of 

merchantability. Under Michigan law, every seller warrants, among other things, that the sold 

goods (1) “are fit for the ordinary purposes for which [the] goods are used” and (2) “conform to 

the promises or affirmations of fact made on the container or label if any.” Mich. Comp. Laws 
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 6 

§ 440.2314(2)(c), (f). The goods must have been “defective when they left the possession of the 

manufacturer or seller” for a plaintiff to succeed on a breach-of-implied-warranty claim. 

Guaranteed Constr. Co. v. Gold Bond Prods., 395 N.W.2d 332, 336 (Mich. Ct. App. 1986) 

(citing Kupkowski v. Avis Ford, Inc., 235 N.W.2d 324, 330 (Mich. 1975)). 

In Pack, we explained that “Michigan has abandoned the privity requirement for impliedwarranty claims,” 434 F.3d at 820, and Heritage left that proposition unchanged, 774 N.W.2d at 

344 (noting confusion about whether the lack of contractual privity bars implied-warranty claims 

and refusing to address the issue). Thus, Montgomery’s claim for breach of the implied warranty 

of merchantability survives the otherwise-disqualifying lack of contractual privity. 

Yet her claim falls short for other reasons. First, Montgomery’s complaint failed to 

allege that the Tassimo was unfit for its ordinary purpose. “Merchantable is not a synonym for 

perfect,” Guaranteed Constr. Co., 395 N.W.2d at 336, and the goods need only be of “average 

quality within the industry,” Bosway Tube & Steel Corp. v. McKay Mach. Co., 237 N.W.2d 488, 

490–91 (Mich. Ct. App. 1975) (“[T]he warranty of merchantability is that the goods are of 

average quality within the industry, while the warranty of fitness is that the goods are fit for the 

purposes for which they were intended.” (citing Ambassador Steel Co. v. Ewald Steel Co., 

190 N.W.2d 275 (Mich. Ct. App. 1971))).1 Montgomery’s complaint includes no allegation that 

her Tassimo is unfit for its ordinary purpose—brewing coffee and other hot beverages. 

Nor did she plausibly allege that the goods failed to conform to the promises or 

affirmations of fact made on the Tassimo’s container or label. Montgomery directs us to the 

photographs of the Tassimo packaging she attached to her response to Starbucks’s motion to 

dismiss. The complaint referred to these packaging-label photos, making them a cognizable part 

of the record. See Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) 

(citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)). But these don’t help 

Montgomery. The packaging promises that the Tassimo “Featur[es] Starbucks® Coffee,” and 

invites customers to “[e]njoy the rich, full taste of Starbucks® coffee, one perfectly brewed cup 

at a time.” Canvassing the complaint, we find no suggestion that the brewer failed to live up to 

 1

Montgomery brings no claim for breach of the warranty of fitness. 
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 7 

these promises when Montgomery bought it. Instead, she alleged that “[a]fter the system was 

purchased, with time it became increasingly difficult and impossible to find and purchase the 

Starbucks [T-Discs].” 

Montgomery now contends that she meant to say she was unable to brew Starbucks 

coffee at the time of her purchase. But she neither sought to amend her complaint in that manner 

nor did she make this argument below. We therefore decline to consider it. See Scottsdale Ins. 

Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008). Because Montgomery’s Tassimo conformed 

to the promises on its container when she purchased it, she cannot claim it was defective when it 

left the Defendants’ possession. Guaranteed Constr. Co., 395 N.W.2d at 336. And though 

Montgomery insists that the outer-box statements warrant the “continued availability” of 

Starbucks T-Discs, (Am. Compl., R. 31, PID 250), we find no error by the district court in not 

reading that promise into the box-labeling. The district court thus properly dismissed her 

implied-warranty claim. 

C. Jurisdiction over the Class-Certification Appeal 

Montgomery also appeals the district court order denying class certification of her 

consumer-protection claims. Defendants again claim that Montgomery’s acceptance of the Rule 

68 offer of judgment foreclosed her appeal of this issue, and this time we agree. 

Again, “[g]enerally speaking, settlement of a plaintiff’s claims moots an action,” Pettrey 

v. Enter. Title Agency Inc., 584 F.3d 701, 703 (6th Cir. 2009) (brackets omitted) (quoting Brunet 

v. City of Columbus, 1 F.3d 390, 399 (6th Cir. 1993)), because the plaintiff no longer possesses 

“a personal stake—i.e., a legally cognizable interest—in the outcome of the litigation,” id. In the 

class-action context, however, a plaintiff who prevails on her individual claims retains a personal 

stake in the outcome of a denial-of-class-certification appeal if she could potentially “shift[] the 

litigation costs to [her] fellow class members” upon obtaining class certification. Id. at 705; see 

also Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 336–37 (1980). 

In Roper, the district court denied the plaintiffs’ motion for class certification before the 

defendants made a Rule 68 offer of judgment that the plaintiffs refused. 445 U.S. at 329. The 

offer included legal costs but omitted attorney’s fees. Id. Based on the offer, the district court 
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 8 

entered judgment in the plaintiffs’ favor over their objections, and plaintiffs then appealed the 

denial of class certification. Id. at 330. The Supreme Court rejected the defendants’ mootness 

argument because the plaintiffs maintained a personal stake in shifting the unawarded litigation 

costs to the putative class if class certification proved successful on appeal. Id. at 336. The 

Court also emphasized that “[a]t no time did the named plaintiffs accept the tender in settlement 

of the case.” Id. at 332. Indeed, the Court in United States Parole Commission v. Geraghty—

decided the same day as Roper—left open the question of “whether a named plaintiff who settles

the individual claim after denial of class certification may, consistent with Art. III, appeal from 

the adverse ruling on class certification.” 445 U.S. 388, 404 n.10 (1980) (emphasis added) 

(citing United Airlines, Inc. v. McDonald, 432 U.S. 385, 393–94 & n.14 (1977)).2

After Roper and Geraghty, this court held in Pettrey that settlement of the plaintiffs’ 

individual claims foreclosed their class-certification appeal. 584 F.3d at 703–07. The Pettrey

procedural events mimicked this case’s. Following the district court’s denial of class 

certification, the Pettrey parties entered into a settlement agreement that obligated the defendants 

to pay plaintiffs’ costs and attorney’s fees. Id. at 703. The plaintiffs then appealed the denial of 

class certification. Id. We found the appeal moot, distinguishing Roper in two ways. First, no 

“live controversy” existed because the plaintiffs “voluntarily relinquished” their individual 

claims, whereas the Roper plaintiffs’ claims were “involuntarily terminated” by the district court. 

Id. at 705. Second, the plaintiffs lacked “personal stakes” in the outcome of the appeal because 

the defendants, in the settlement, “agreed to pay all attorneys’ fees and costs.” Id. By contrast, 

the district court’s judgment in Roper left the attorney’s-fee issue undecided, preserving 

plaintiffs’ appellate fee-shifting interest. See Roper, 445 U.S. at 329.3

 

 2

After Roper, the Supreme Court held that an “interest in attorney’s fees is . . . insufficient to create an 

Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Continental Bank 

Corp., 494 U.S. 472, 480 (1990) (citing Diamond v. Charles, 476 U.S. 54, 70–71 (1986)). This appears to conflict 

with Roper’s holding. See Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1532 n.5 (2013) (“Because Roper

is distinguishable on the facts, we need not consider its continuing validity in light of our subsequent decision in 

Lewis . . . .”). But because Lewis was not a class action and made no mention of Roper, we must continue to operate 

within Roper’s fee-shifting framework. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 

(1989).

3

The Supreme Court recently rejected a mootness challenge in the context of an unaccepted Rule 68 offer 

of judgment because such an offer “is considered withdrawn” if not accepted within 14 days, providing plaintiff no 

relief and leaving his personal stake in the litigation unchanged. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 9 

Pettrey, not Roper, controls here. Montgomery accepted Defendants’ Rule 68 offer of 

judgment—which included costs and attorney’s fees—thus eliminating any putative benefit from 

class certification. Certification of the class would not have the potential to leave Montgomery 

“in a better position with respect to attorneys’ fees and costs than would the [Rule 68 offer she 

accepted].” Pettrey, 584 F.3d at 706. 

Attempting to sidestep Pettrey, Montgomery points out that Defendants offered costs and 

fees she incurred in pursuing only her individual claims, whereas the Pettrey settlement provided 

costs and fees “incurred by the plaintiffs in pursuing both their individual and class claims.” 

Pettrey, 584 F.3d at 705 (emphasis added). True, but Montgomery makes no argument that she

owes her lawyer these unawarded, class-related attorney’s fees. See Anderson v. CNH U.S. 

Pension Plan, 515 F.3d 823, 827 (8th Cir. 2008) (holding the appeal moot because “[a]n 

additional award of fees from the defendants would accrue to the benefit of plaintiffs’ counsel, to 

be sure, but nothing in the record demonstrates that an additional award would relieve any 

burden presently borne by the named plaintiffs themselves”). 

Last, Montgomery presses her express reservation of her right to appeal the denial of 

class certification. She also complains that Defendants have yet to pay the district court’s 

judgment. Pettrey, as discussed above, answers this: Montgomery’s acceptance of the Rule 68 

offer extinguished her continuing personal interest and rendered her class-certification appeal 

moot. 584 F.3d at 706 & n.3. 

D. Attorney’s Fees 

Finally, Montgomery asks us to “reverse or vacate” the district court’s award of 

attorney’s fees and costs because the district court awarded only 3% of the amount requested. 

By positing only that the modest size of the award (as compared to the request) amounts to a 

“non-award,” she presents the court with a gripe, unaccompanied by legal reasoning in support 

of judicial relief. We therefore agree with Defendants that Montgomery forfeited this issue by 

inadequately briefing it. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) 

 671–72 (2016) (quoting Fed. R. Civ. P. 68(b)). Because Montgomery accepted the Rule 68 offer, Campbell-Ewald

provides little instruction. Moreover, the Court declined to discuss whether the plaintiff’s “claim for class relief 

prevent[ed] th[e] case from becoming moot.” See id. at 679 n.1 (Roberts, C.J., dissenting). 
No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 10 

(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed 

argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument 

in the most skeletal way, leaving the court to . . . put flesh on its bones.” (quoting Citizens 

Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n, 59 F.3d 284, 293–94 (1st 

Cir. 1995))). Accordingly, we affirm the fees aspect of this appeal. 

III. 

We AFFIRM the district court’s dismissal of Montgomery’s claims for breach of express 

and implied warranties, DISMISS the class-certification appeal as moot, and AFFIRM the 

district court’s award of attorney’s fees.