18

‐ 1748

Manuel, et al. v. Pepsi

‐ Cola Co.



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 15 th day of March, two thousand nineteen.

PRESENT: DENNIS JACOBS,

GUIDO CALABRESI,

Circuit Judges,

JED S. RAKOFF, * 1

District Judge.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

Elizabeth Manuel, on behalf of themselves,

all others similarly situated, and the general

public, Vivien Grossman, on behalf of themselves,

all others similarly situated, and the general public,

Plaintiffs

‐ Appellants,

‐ v. ‐ 18

‐ 1748

* 1 Judge Jed S. Rakoff, United States District Court for the Southern District of New York, sitting by designation.2 PEPSI

‐ COLA COMPANY,

Defendant

‐ Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

FOR PLAINTIFFS

‐ APPELLANTS: JACK FITZGERALD, The Law Office of

Jack Fitzgerald, PC, San Diego, CA (Trevor

M. Flynn, Melanie Persinger, The Law

Office of Jack Fitzgerald, PC, San Diego,

CA; Abraham Z. Melamed, Derek Smith

Law Group, PLLC, New York, NY; John K.

Weston, Sacks Weston Diamond LLC,

Philadelphia, PA, on the brief).

FOR DEFENDANT

‐ APPELLEE: ANDREW S. TULUMELLO, Gibson, Dunn

& Crutcher LLP, Washington, D.C.

(Chantale Fiebig, Gibson, Dunn & Crutcher

LLP, Washington, D.C., on the brief).

Appeal from a judgment of the United States District Court for the Southern

District of New York (Engelmayer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED

.

Plaintiffs Elizabeth Manuel and Vivien Grossman, on behalf of themselves and

all others similarly situated, appeal from a May 17, 2018 order granting Defendant

Pepsi

‐ Cola Company’s motion to dismiss. The complaint alleged that the use of the

word “diet” to market Diet Pepsi is false or misleading because it implies that the

beverage will assist in weight loss. Unlike Pepsi

‐ Cola, which is sweetened with sugar,

Diet Pepsi is sweetened with non

‐ nutritive sweeteners which, Plaintiffs allege,

“interfere with the body’s ability to properly metabolize calories, leading to weight

gain,” among other things. App’x 10. On appeal, Plaintiffs argue that the district court

erred by (1) holding that the complaint failed to state a claim and (2) failing to provide3 leave to amend the complaint. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

This Court reviews de novo a dismissal of a complaint for failure to state a

claim upon which relief may be granted. Chambers v. Time Warner, Inc., 282 F.3d 147,

152 (2d Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face. A

claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and

citations omitted).

Denial of leave to amend is reviewed for abuse of discretion. See Holmes v.

Grubman, 568 F.3d 329, 334 (2d Cir. 2009). Although “[a] court should freely give leave

[to amend] where justice so requires,” Fed.R.Civ.P. 15(a)(2), this “must be balanced

against the requirement under Rule 16(b) that the Court’s scheduling order shall not be

modified except upon a showing of good cause.” Holmes, 568 F.3d at 334–35 (citation

and internal quotation marks omitted); see also Fed.R.Civ.P. 16(b)(4).

1. Plaintiffs argue that, in the time since Diet Pepsi was introduced in 1963,

research has demonstrated that non

‐ nutritive sweeteners likely cause weight gain and

that the use of the word “diet” has therefore become misleading. 1 But even assuming

(without deciding) that a reasonable consumer would understand the word “diet” to

connote a weight

‐ loss product, Plaintiffs cannot state a claim. The studies cited by the

complaint establish, at most, that people who drink beverages containing non

‐ nutritive

sweeteners continue to gain weight. None of the studies purports to establish a causal

1 Whether a once

‐ accurate term that has become inaccurate gives rise to a false advertising claim would be a

question of New York law if, as the district court concluded, the Nutrition Labeling and Education Act does not

preempt applicable state law. But we deem it inappropriate to reach the complex question of whether the NLEA

in fact preempts New York law. Accordingly, as this case is before us today, the above state law question is not

“determinative,” and thus under the New York State Court of Appeals Rules of Practice certification is

unavailable. 22 N.Y.C.C.R. § 500.27(a); cf. Joseph v. Athanasopoulos, 648 F.3d 58, 67–68 (2d Cir. 2011) (“[T]he

answer to the question we certify will fully resolve our disposition of this appeal.”).4 relationship between non

‐ nutritive sweeteners and weight gain to a degree that is

sufficiently strong. Therefore, Plaintiffs cannot raise a plausible inference that the use

of the word “diet” is false, inaccurate, or misleading. Accordingly, the district court

properly dismissed the complaint.

2. Plaintiffs contend that the court should have allowed an opportunity to amend

before it dismissed the first amended complaint with prejudice on May 17, 2018. But

the court entered a civil case management plan and scheduling order on February 2,

2018, providing that “[a]ny motion to amend

. . . shall be filed within 30 days from the

date of this Order.” App’x 6. Plaintiffs made no further request to amend. In the

absence of any indication that Plaintiffs intended to amend or could provide additional

allegations that would withstand a motion to dismiss, the court did not err in

dismissing the complaint with prejudice. “[N]o court can be said to have erred in

failing to grant a request that was not made.” Gallop v. Cheney, 642 F.3d 364, 369 (2d

Cir. 2011).

In any event, Plaintiffs have not shown good cause to modify the court’s

scheduling order to adduce studies that predate the original complaint, and the only

other proposed amendment is the inclusion of an April 2018 consumer survey

referenced in a complaint that was recently dismissed in the Northern District of

California. See Becerra v. Dr Pepper/Seven Up, Inc., No. 17

‐ cv

‐ 05921 (WHO), 2018 WL

3995832, at *6–*7 (N.D. Cal. Aug. 21, 2018), appeal docketed, no. 18

‐ 16721 (9th Cir. Sep.

12, 2018). That survey does not render Plaintiffs’ allegations any more plausible since

we find the complaint wanting, even assuming that consumers believe “diet” connotes

weight loss. Accordingly, the amendment would be futile.

We have considered the Plaintiffs’ remaining arguments and find them to be

without merit. The judgment of the district court is AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK