UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRYL ALEXANDER and EDNA

ALEXANDER,

Plaintiffs,

v.

DEL MONTE CORPORATION and THE

KROGER COMPANY,

Defendants.

 /

Case No. 09-12303

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on January 11, 2011.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Darryl Alexander and his wife, Edna Alexander, filed this action against Del Monte

Corporation (“Del Monte”) and The Kroger Company (“Kroger”) to recover damages for

injuries Mr. Alexander sustained while opening a jar of fruit. Presently before the Court is

Defendants’ Renewed Motion for Summary Judgment as to Plaintiffs’ Consumer

Protection Act Claim. The matter has been fully briefed, and the Court dispenses with oral

argument pursuant to Eastern District of Michigan Local Rule 7.1f(2). For the reasons

stated below, the Court grants Defendants’ Motion.

I. Procedural Background

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On June 30, 2010, Defendants filed a Motion for Summary Judgment in this matter,

arguing, inter alia, that the Michigan Consumer Protection Act (“MCPA”), Michigan

Compiled Laws § 445.901 et seq., was inapplicable to Plaintiffs’ claims. The Court heard

oral arguments on October 14, 2010, and did not grant summary judgment on the MCPA

claim, but indicated at the hearing that it may still be persuaded before trial that the MCPA

claim should be dismissed. On December 23, 2010, Defendants filed this Renewed

Motion for Summary Judgment, arguing that the MCPA claim should be dismissed

because (1) the alleged conduct is exempt from the MCPA, and (2) Plaintiffs’ claim is

really a product liability action.

II. Standard of Review

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The central inquiry is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as

a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505,

2512 (1986). After adequate time for discovery and upon motion, Rule 56 mandates

summary judgment against a party who fails to establish the existence of an element

essential to that party’s case and on which that party bears the burden of proof at trial. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). The movant

has an initial burden of showing “the absence of a genuine issue of material fact.” Id. at

323, 106 S. Ct. at 2553. 

Once the movant meets this burden, the non-movant must come forward with

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specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). To demonstrate a

genuine issue, the non-movant must present sufficient evidence upon which a jury could

reasonably find for the non-movant; a “scintilla of evidence” is insufficient. Liberty

Lobby, 477 U.S. at 252, 106 S. Ct. at 2512. The court must accept as true the

non-movant’s evidence and draw “all justifiable inferences” in the non-movant’s favor. 

Id. at 255, 106 S. Ct. at 2513. The inquiry is whether the evidence presented is such that a

jury applying the relevant evidentiary standard could “reasonably find for either the

plaintiff or the defendant.” Id., 106 S. Ct. at 2514.

III. Discussion

A. Applicability of the MCPA to Negligence Claims

Defendants argue that the MCPA does not apply to Plaintiffs’ claims, as the

gravamen of Plaintiffs’ case is a product liability or negligence action, citing Woodman v.

Kera, LLC, 280 Mich. App. 125, 155-56, 760 N.W.2d 641, 658 (Mich. App. 2008). 

Defendants conclude that the MCPA applies only to claims of intentional wrongful

conduct, Defs.’ Br. 4, but Woodman imposes no such condition. In Woodman, the court

concluded that the language of a waiver agreement was sufficiently clear that no deception

could have occurred. Id. at 156, 760 N.W.2d at 658. Thus, it was irrelevant whether the

alleged deception was intentional rather than inadvertent. Because Woodman does not bar

MCPA claims based on unintentional actions, the case provides little support for

Defendants’ position. The Court concludes that under Mikos v. Chrysler Corp., 158 Mich.

App. 781, 784-85, 404 N.W.2d 783, 785 (Mich. Ct. App. 1987), an alleged breach of an

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implied warranty states a claim under the MCPA. Plaintiffs have alleged that Defendants

breached implied warranties by selling a defective jar of fruit. Accordingly, the Court

rejects Defendants’ first argument.

B. Exemption From the MCPA

Defendants contend that their activity is exempt from the MCPA’s protections

because it is specifically authorized by state and federal law. The Court notes that the

MCPA is a remedial statute that must be liberally construed to achieve its intended goals. 

DIRECTV, Inc. v. Cavanaugh, 321 F. Supp. 2d 825, 838 (E.D. Mich. 2003). The statute’s

protections, however, do not apply to “[a] transaction or conduct specifically authorized

under laws administered by a regulatory board or officer acting under statutory authority

of this state or the United States.” Michigan Compiled Laws § 445.904(1)(a). “[T]he

relevant inquiry ‘is whether the general transaction is specifically authorized by law,

regardless of whether the specific misconduct alleged is prohibited.’” Liss v. LewistonRichards, Inc., 478 Mich. 203, 210, 732 N.W.2d 514, 518 (Mich. 2007) (quoting Smith v.

Globe Life Ins. Co., 460 Mich. 446, 465, 597 N.W.2d 28, 38 (Mich. 1999)). The burden of

proving an exemption from the MCPA is on the party claiming the exemption. Michigan

Compiled Laws § 445.904(4).

Del Monte contends that its alleged misconduct is exempt from the MCPA, as it was

specifically authorized by the Food and Drug Administration (“FDA”) to engage in the

packaging of food products. The Court agrees. Federal law requires any facility engaged

in the manufacturing, processing, packing, or holding food for consumption in the United

States to register with the FDA. 21 U.S.C. §§ 350d(a)(1), 393. “Facility” includes “any

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factory, warehouse, or establishment . . . that manufactures, processes, packs, or holds

food.” Id. § 350d(b)(1). Thus, federal law specifically authorizes Del Monte’s processing

and packing of food at its plants. This Court has previously held that where the FDA

specifically authorizes the conduct at issue, the MCPA is inapplicable. Peter v. Stryker

Orthopaedics, Inc., 581 F. Supp. 2d 813, 815-16 (E.D. Mich. 2008). The Court concludes

that Del Monte’s conduct is exempt from the MCPA pursuant to Michigan Compiled Laws

§ 445.904(1)(a).

Kroger argues that its alleged misconduct is exempt from the MCPA, as the

Michigan Food Law of 2000 (the “Food Law”), Michigan Compiled Laws § 289.1101 et

seq., specifically authorizes the conduct at issue. The Food Law prohibits the operation of

a “food establishment” unless it is licensed by the Michigan Department of Agriculture. 

Michigan Compiled Laws § 289.4101(1). The statute specifically designates grocery

stores as “food establishments.” Michigan Compiled Laws § 289.1107(j). Thus,

Michigan law specifically authorizes the general transaction at issue here, the sale of food

products in a retail grocery. As conduct specifically authorized by Michigan law,

Kroger’s sale of the fruit is exempt from the MCPA’s protections.

Accordingly,

IT IS ORDERED that Defendants’ Renewed Motion for Summary Judgment is

GRANTED as to Plaintiffs’ Count V, “Michigan Consumer Protection Act.”

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

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Mark F. Miller, Esq.

Mary A. Kalmink, Esq.

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