IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CHRISTOPHER HAMILTON,

individually and on behalf of all others 

similarly situated,

Plaintiff, Civ. No. 6:16-cv-382-MC

v. OPINION AND ORDER

GENERAL MILLS, INC.,

GENERAL MILLS SALES, INC. 

Defendants.

_____________________________

MCSHANE, Judge:

Plaintiff Christopher Hamilton, an Oregon citizen, alleged that defendants, General Mills, 

Inc. and General Mills Sales, Inc. (“General Mills”): (1) violated the Oregon Uniform trade 

Practices Act (“UTPA”), Or. Rev. Stat. § 646.605, et seq.; (2) received unjust enrichment; and 

(3) engaged in unfair and deceptive acts and practices under various states’ laws. Pl.’s Compl. ¶¶ 

60-122, ECF No. 1.

Plaintiff’s original Complaint was dismissed by this Court on July 27, 2016, for lack of 

standing and for failure to state a claim upon which relief can be granted. Opinion & Order

(“Order”), ECF No. 39. The Court ruled that Article III and statutory standing had not been 

established because the complaint did not allege that plaintiff had suffered an injury-in-fact, 

either physical or economical, required to invoke subject matter jurisdiction. Lujan v. Defenders 

of Wildlife, 504 U.S. 555, 560 (1992). The Court also found that the complaint failed to state a 

claim under Oregon’s UTPA, because there no allegation of an “ascertainable loss.” Pearson v. 

Case 6:16-cv-00382-MC Document 52 Filed 11/02/16 Page 1 of 6
Philip Morris, Inc., 358 Or. 88, 117 (2015). Finally, plaintiff had not shown he would be entitled 

to statutory damages, because there was no allegation that defendants had engaged in “reckless 

or knowing” misconduct. See ORS 646.638(8)(a). 

In granting dismissal, the Court gave Plaintiff leave to amend with respect to his UTPA 

claims should he be able to allege an injury-in-fact, an ascertainable loss, and/or that General 

Mills recklessly or knowingly engaged in misconduct. Order 10, 13, ECF No. 39. On August 15, 

2016, Hamilton filed a First Amended Complaint (“FAC”). ECF No. 40. Defendants have since 

moved to dismiss Plaintiff’s FAC pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)6) arguing the 

amended complaint has not cured any of the claims’ original defects. Def.’s Br. 6-7, ECF No. 47. 

This Court agrees. Because the First Amended Complaint does not establish standing and fails to 

state a claim upon which relief can be granted, General Mills’ Motion to Dismiss, ECF No. 47, is 

GRANTED. 

During the pendency of Defendants’ Motion to Dismiss, Plaintiff filed a Motion for leave 

to File a Second Amended Complaint (“SAC”). ECF No. 50. Because the proposed SAC does 

not the resolve any of the fundamental defects, Plaintiff’s Motion, ECF No. 50, is DENIED. The 

case is to be dismissed with prejudice.

DISCUSSION

I. Motion to Dismiss Pursuant to Rule 12(b)(1), lack of subject matter jurisdiction

Plaintiff’s First Amended Complaint continues to allege only a loss of $15.98, the 

purchase price for the mislabeled Cheerios. FAC ¶¶ 47-48, ECF No. 40. As discussed in the 

Court’s prior Order, Defendants have offered and continues to offer to refund the purchase 

amount. Order 7-9, ECF No. 39. Plaintiff has simply refused to participate in General Mills’ 

recall efforts or to accept the offered refund. In this manner, Plaintiff has failed to mitigate his 

Case 6:16-cv-00382-MC Document 52 Filed 11/02/16 Page 2 of 6
damages. Oregon’s UTPA requires a plaintiff to establish an “ascertain loss.” Again, Hamilton 

does not allege any injury other than his reliance on General Mills’ “misrepresentation” to 

purchase the cereal. Because Hamilton’s loss of $15.98 is mooted by General Mills’ refund 

program, he does not have standing to sue. There is no allegation of a concrete and particularized 

injury. 

Plaintiff argues that statutory damages under ORS § 646.638(1) is an ascertainable loss 

sufficient to maintain standing under Oregon’s UTPA. Pl.’s Opp’n 9-11, ECF No. 49. This logic 

ignores the statute’s plain language distinguishing between actual loss and statutory damages. To 

suffer an “ascertainable loss of money or property, real or personal” is a prerequisite to recover 

actual damages or statutory damages of $200. ORS § 646.638(1). Here, Hamilton failed to allege 

that prerequisite.

Hamilton has the burden to establish that subject matter jurisdiction exists. Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 561 (1992). Plaintiff must prove that he has suffered an 

injury-in-fact, which is a concrete and particularized invasion of a legally protected interest. Id. 

at 560. Hamilton has not met his burden. General Mill’s Rule 12(b)(1) Motion to Dismiss is 

GRANTED. Hamilton’s claims are DISMISSED for lack of subject matter jurisdiction. 

II. Motion to Dismiss Pursuant to Rule 12(b)(6)

A complaint must allege facts sufficient to “state a claim to relief that is plausible on its 

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 

when the factual allegations give rise to a reasonable inference that the defendant is liable for the 

alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). However, the factual 

allegations must allow the court to infer more than a “mere possibility of misconduct.” Id. at 679.

Case 6:16-cv-00382-MC Document 52 Filed 11/02/16 Page 3 of 6
In order to recover statutory damages, plaintiff must establish “an ascertainable loss of 

money or property as a result of a reckless or knowing misconduct. ORS § 646.638(1). As 

previously ruled, a onetime mistake does not amount to “reckless” or “knowing” conduct. Order 

9, 12, ECF No. 39. Similarly to the original complaint, Plaintiff’s FAC expressly acknowledges 

the “inadvertent” nature of the contamination, which was an isolated incident. FAC ¶ 41, ECF 

No. 40. Plaintiff’s FAC continues to fail to allege any facts that defendants’ misconduct was 

“reckless or knowing.” General Mills’ Motion to Dismiss pursuant to Rule 12(b)(6) is 

GRANTED. Hamilton’s claims are DISMISSED for failure to state a claim upon which relief 

can be granted. 

III. Hamilton’s Motion for Leave to File Second Amended Complaint

During the pendency of General Mills’ Motion to Dismiss Plaintiff’s FAC, Hamilton

requested from the Court leave to file a Second Amended Complaint. Pl.’s Mot., ECF No. 50. 

The allegations are the same, with one exception; the proposed SAC seeks to allege sufficient 

facts that Defendants’ misconduct was reckless or knowing. SAC ¶¶ 47-61, ECF No. 50, Ex. A. 

The SAC identifies a gluten-free dietician of a Gluten Free Watchdog group (“GFW”). GFW has 

a website where the organization posts its position and viewpoints on Cheerios and its 

manufacturing process. SAC ¶¶ 47-61. GFW takes the position that Cheerios is made from oats 

known to be contaminated with wheat and barley. SAC ¶ 50. Allegedly, on July 31, 2015, a 

General Mills employee posted on GFW’s website commenting about problems with producing 

Gluten-Free Cheerios. SAC ¶ 51. GFW also considers the testing methodology used by General 

Mills to be deficient. SAC ¶¶ 52-53. GFW’s website contains customer complaints regarding 

Gluten-Free Cheerios, dated from July 30, 2015, August 8, 2015, August 19, 2015, September 2, 

Case 6:16-cv-00382-MC Document 52 Filed 11/02/16 Page 4 of 6
2015, and October 6, 2015, during the period covered by the recall and refund program. SAC ¶ 

54.

The Plaintiff is in this case is Christopher Hamilton. The alleged misconduct is specific to 

an isolated occurrence, where, due to a transportation breakdown, gluten-free oat flour was 

contaminated with traces of wheat flour, and then used to make Cheerios mislabeled as glutenfree. Hamilton’s only alleged injury is the economic loss of $15.98, an alleged injury that has 

been dispelled through defendant’s voluntary recall program. There is no allegation he consumed

the cereal or that he suffered any physical ailments from having consumed the cereal.

Non-party commentary on an issue-driven website bulletin board, while interesting, 

allows the court to do no more than engage in speculative gossip. Neither GFW nor the 

individuals commenting are part of this suit. The policy position or viewpoint of an interest 

group has no nexus to the specific conduct alleged in the complaint before the court. Nor do such 

views alter the reality that Hamilton has not alleged an injury-in-fact. The court is not an 

administrative agency charged with the policing of the general production practices of the cereal 

industry. Plaintiff’s Motion for leave to file a second amended complaint, ECF No. 50, is 

DENIED.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss, ECF No. 47, is GRANTED 

/ / /

/ / /

/ / /

/ / /

Case 6:16-cv-00382-MC Document 52 Filed 11/02/16 Page 5 of 6
with prejudice. The additional issues in Defendant’s Motion are DENIED as moot.

Plaintiff’s Motion for Leave to File Second Amended Complaint, ECF No. 50, is 

DENIED. Any additional amended complaint is unlikely to cure the allegations’ deficiencies. 

IT IS SO ORDERED.

DATED this 2nd day of November, 2016.

_________________________

Michael J. McShane

United States District Judge

Case 6:16-cv-00382-MC Document 52 Filed 11/02/16 Page 6 of 6