UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Ow en F . Silvi ous, P laintif f,
v. Civil Action No. 11-0630 (JD B) Snap ple Beverage Corporat ion, Defendan t.

MEMORAN DUM OP INION This action, re moved from the Superior Court of the District of Columbia, is befor e the Court on defe ndant’s motion to dism iss pursuant to Fede ral Rules of Civil Procedure 12(b)( 1) for lack of subject matter jur isdiction, 12(b)(5) f or insufficie nt service of proc ess, and 12(b)(6) for failure to state a c laim upon which re lief ca n be grante d. Def

endant c orre ctly

argues that the complaint is barre d by

the District of Columbia’s three -year statute of limitations. Hence, the Court, finding that it has jurisdiction over the ca se, will g rant de fenda nt’s motion to di smiss under Rule 12(b)(6)
. 1 I. BACKG ROUND The re levant fa cts areas follows. On Mar ch 1, 2011, plaintiff, pr ocee ding pro se , filed his complaint in the Superior Court of the District of Columbia from the F eder al Corre ctional Institut ion in Butner, N orth Carolina. He alleg es that def endant, Snapple B ever ag e Corporation, “violated a

‘trade prac tice law’ of the District of Columbia . . . ,” Compl. ¶ 1, name ly , the

The Court would not dismiss t he ca se under Rule 12(b)(5) for insuff

icient servic e of 1 proce ss without first providing plaintiff the oppor tunity to cure any

service defic iencies. B eca use the ca se will be dismissed as time-bar red, the Court will not address the conte sted servic e issue.District of Columbia Consumer Protection Procedur es Ac t (“CPPA”), D.C. Code §§ 28-3901 et

seq. . Specifica lly , plaintiff alleg es that betwe en August 31, 2003 and J anuar y 31, 2005, he purcha sed def

endant’ s products on at lea st 50 separate occ asions in the District of Columbia that “he thought” wer e “A ll Natural produc ts when in fac t [ they] were not all natur al.” Id . ¶¶ 3, 9. Although pla intiff does not identify the spec ific produc ts he purcha sed, he a lleg es g ener ally that defe ndant adve rtised its fruit drinks and ice tea drinks as all natura l “when in f act they
. . . contained H igh F ructose Corn Sy rup (HF CS), a highly

proce ssed sug ar substitute.” Id
. ¶ 6. Plaintiff alleg es that, at the time of his purc hases, “ he did not know that HF CS was not an all natura l ingr edient” a

nd that he “only

discovere d the [statutory ] vi olations . . . in Dece mber 2010 when he rea d” a de cision issued by the Easter

n District of California. Id . ¶ 9 (c iting Von Koenig v. Snapple , 713 F. Supp. 2d 1066 (E.D. Ca l. 2010)). He alleg es that “he rec eived something le ss than what he a ctually paid for at the time he purc hased de fenda nts’ products in the District of Columbia.” Id . ¶ 3. Def endant r emoved the c ase to this Court on March 28, 2011, a nd filed the instant motion to dismi ss on April 4, 2011. On April 14, 2011, plaintiff filed a n amende d pleadingto “[a]mend[ ] certain portions of the O rig inal Complaint . . . .” Amended Pleading(Complaint) [Dkt. # 8] at 1. He substituted, inter alia , para g raph 17 of the orig inal complaint as follows: Plaintiff ask [si c] t h i s court to enter judgme nt ag ainst [S napple] for statutory civil penalties for violation of the [C PPA] in the amount of $225,000.00 in favor of plaintiff
. . . . The statutory civil penalties are payable beca use defe ndant violated the Act, not be cause plaintiff might have be en injured or suffe red any actua l da mag es. In fac t plaintiff does not have to be injured or suffe r any actua l damag es for an awa rd of dama g es. Am. Compl. ¶ 6. Pl aintiff see ks to have a ny awa rd of da mag es distributed as follows: 20 per cent
eac h to the District of Columbia branc hes of the Salvation Army , United Way , and the Ame rica n 2Red Cross, 20 perc ent to the Mayor’s Of fice for distribution to homeless shelters in the District, 10 perc ent to the District of Columbia Consumer Protection Fund, a nd 10 perc ent to himself “af ter pa y ment of all fe es, costs and e x penses of this action. Id . ¶ 5. II. DISCUSS ION As an initial matter, plaintiff a sserts that def endant’ s motion t o dismiss should be denied as moot in light of his filing of the amende d complaint. See ge nerally Pl.’s Reply to Def.’ s Mot. to Dismiss Pl.’s Orig inal Compl. [ Dkt. # 9]. Given that plaintiff made it clea r that he w as amending“ce rtain portions” of the orig inal complaint and prof fer ed no super sedingamende d complaint, his assertion is baseless. The Court considers the or igina l complaint and the ame nded pleadingtoge ther a s the opera tive complaint. See R ichardson v. United States , 193 F.3d 545, 548-49 (D.C. Cir. 1999) ( in construing pro se filings liber ally , courts should rea d all of the pro se party ’s filing s toge ther). 1. Subject Matter Jurisdiction Def endant a rgues that dismissal is warra nted under

Rule 12(b)(1) beca

use plaintiff lac ks standingto sue. Be cause "[t]he defec t of standingis a defe ct in subject matter jur isdiction," Haase v . Sessions , 835 F.2d 902, 906 ( D.C. Cir. 1987), the Court must resolve this issue first. AT& T Corp. v. FCC , 317 F.3d 227, 237 ( D.C. Cir. 2003). Article I I I of the U.S. Constitut ion “limits the ‘judicial powe r’ of the United States to the resolution of ‘c ases' and ‘c ontroversie s,’ ” Valley ForgeChrist ian Coll . v. Am. U nited for Separation of Church and State, Inc. , 454 U.S. 464, 471 (1982), and the doctrine of standing
serve s to identify

those “ ‘Ca ses' and ‘Controve rsies' that are of the justiciable sort r efe rre d to in Article I I I ,” Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 560 (1992). To e stablish the

3“irre ducible constitutional minim um of standing ,” a pla intiff must alleg e (1) an “injury in fac t,” define d as “a

n invasion of a leg ally

protec ted intere st which is (a) c oncre te and pa rticularized,” and (b) “ac tual or imminent, not conjectura l or hy pothetical”; ( 2) “a

causa l connec tion between the injury and the c onduct complained of ”; and ( 3) a likelihood “tha t the injury

will be redr essed by a fa vorable decision.” Id. at 560–61 (interna l quotation marks and citations omitted). In order for a n injury to be “c oncre te and pa

rticularized,” it must “af

fec t the plaintiff in a per sonal and individual way .” Id . at 560 n.1. In his amended c omplaint, plaintiff sugg ests that he has suf fer ed no ac tual injury , seeAm. Compl. ¶ 6, but, contrary

to his appare nt belief, “ a lawsuit under the CPP A does not re lieve a plaintiff of the r equire ment to show a conc rete injury -in-fa ct to himself.” Grayson v. A T& T Corp ., 15 A.3d 219, 244 (D.C. 2011); see M uldrow v. EMC Mortgage Corp . --- F. Supp. 2d --- ,

--- , 2011 WL713681, at *3 (D.D .C., Mar. 2, 2011) ( quoting Osbourne v. Capital City Mortgage Corp. , 667 A.2d 1321, 1330 (D.C. 1995)) (“To obta in standing to sue f or a violation of the DCCPP A, a plaintiff ‘ must have suffe red da mag e as a result of the use or employ ment of an unlawful tra de pra ctice.’ ”) ( quoting D.C. Code § 28- 3905(k)( 1)) ( citing c ases) ; Grayson , 15 A.3d at 238 (c onfirming“that the 2000 amendments [to t he CPPA] , viewed in the c ontextof the leg islative and dra ftinghistory of those ame ndments, do not revea l an explicit i ntent of the Council to erase the constitutional standing r equire ment to which [the D.C. Court of Appeals] has adhe red dur ing the past sever al dec ades” ). Acc epting , as it must on a motion t o dismiss , that plaintiff made the alleg ed purc hases of Snapple produc ts at issue, the Court finds that plaintiff, as a c onsumer of pr oducts in the District of Columbia alleg ing a

n unlawful tra de pra ctice, ha s Article I I Istanding
. See Shaw v . Marriott

4Intern., Inc

. , 605 F.3d 1039, 1042- 43 (D.C. Cir. 2010) (c oncludingthat “Ar ticle I I Irequire s no more” than pay

ment for se rvice s and pec uniary harm a s a re sult of pricingprac tices). He nce, defe ndant’s motion to dism iss under Rule 12(b)( 1) will be denie d. 2. Statute of L imitations Claims under the CPPA mus t be brought within three year s of ac crua l. See J ohnson v. Long Beach Mortg. Loan Trust 2001-4 , 451 F. Supp. 2d 16, 48 (D.D .C. 2006) (quotingD.C. Code § 12-301(8) ) (c iting ca ses). As a g ener al rule, a

n action ac crue s upon injury or whe n a
rea sonable pe rson knew or should have known a

bout the injury
. See D iamond v. Dav is , 680 A.2d 364, 372 (D.C. 1996). Spec ifically , a cause of action acc rues for purposes of the statute of limit ations when the plaintiff has either actua l notice of [hi s] ca use of action or is de emed to be on inquiry notice beca u s e i f [ h e] had met [hi s] duty to act rea sonably under the circ umstances in investigating matters aff

ecting [hi s] aff

airs, such an investigation, if conducte d, would have le d to actual notice. What is “re asonable under the circ umstances” is a highly fac tual analy sis. The rele vant circ umstances include, but are not limit ed to, the conduct and misrepre sentations of the defe ndant, and the rea s o n ab l eness of the plaintiff' s relianc e on the de fenda nt's c onduct and misrepr esentations . . . . Id.; se e, e.g., Clay Prope rties, Inc. v . W ash. Post Co., 604 A.2d 890, 895 (D.C. 1992) ( “A purcha ser [of re al prope rty] i s held to be on inquiry notice whe re heor she is aw are of circ umstances whic h g ener ate e nough uncer tainty about the state of

title that a person of

ordinary prudenc e would inquire f urther a bout those circumstanc es.”)
. “What constitutes the acc rual of a
cause of ac tion is a question of law . . . . When ac crua l actually occur red in a particula r ca se is a question of fa ct.” Diamond, 680 A.2d at 370. Def endant a rgues that this action is time-barr ed bec ause pla intiff filed it on Marc h 1, 2011, more than six y ear s after his last alleg ed purc hase on January 31, 2005. Plaintiff refute s this argument with two principles. Fir st, he asser ts that he “discove red the violations of the DC 5trade prac tices in Dec ember 2010, when he rea d [t he] decision” issued by the Easter

n District of California in Koenig v. Snapple . Compl. ¶ 9. Second, he asse rts that his incarc eration at the time of discover

y tolls t he running

of the statute of

limit ations. Am. Compl. ¶ 3 (citing D.C. Code § 12-302(a )(3) (“D isability of plaintiff” ).

A. The Discove ry Rule The “ so-ca lled ‘discover

y rule’ a pplies in cases in whic h the injury is not of the sort that
can r eadily

be discove red when it occur s; in such case s, a ca use of a ction acc rues a

nd the limit ations period beg ins to run only when the pla intiff discovers, or with due dilige nce should have disc overe d the injury that is the basis of the ac tion.” W illiams v. Conner , 522 F. Supp. 2d 92, 100 (D.D.C. 2007) ( quoting Sprint Commc’ns Co. v. FCC , 76 F.3d 1221, 1226 ( D.C. Cir. 1996)) ( internal quotation marks a nd other c itation omit ted); see Nader v . Democ ratic Nat. Comm ., 567 F.3d 692, 700 ( D.C. Cir. 2009) (“standa rd is knowledg e of ‘ (1) a

n injury ; (2) its
cause in fac t; and (3) some e vidence of wrong doing,’ . . . and it includes not only what Na der knew, but what he could by rea sonable dilig ence have know n . . .”) ( quoting Diamond, 680 A.2d at 379, 381). At the ve ry

least, the discove ry

rule ne cessa

rily implies the conce alment of mate rial fac ts or a “latent” injury

that “is not manifested until longafte r the unlaw ful ac t.” Kuwait Airways Corp. v. American Se c. Bank , N.A. , 890 F.2d 456, 461 ( D.C. Cir. 1989); see id . (listing
case s applying disc overy

rule a s those involving medica l malprac tice, latent disea se, leg al malprac tice, bre ach of

contra ct and wa

rra nty for de ficient de sign a

nd construction, and f

raudule nt
conce alment or misrepr esentation) (citations omitted); Johnson , 451 F. Supp. 2d at 41 (discove ry rule a pplies “[i] n a re stricted cla ss of ca ses . . . wher e the r elationship betwee n the fa ct of injury and the a lleg ed tortuous conduc t [ is] obscure . . .”) ( citation and interna l quotation marks

6omitted); The Plan Comm. v. Price waterhouse Coopers, LLP , 335 B.R. 234, 252 (D .D.C. 2005)

(same)
. In his amended c omplaint, plaintiff maintains that he “a ctually discovere d that defe ndant violated the statutes” during his inca rce ration, Am. Compl. ¶ 3, but he ac knowledg es that he “could [] have discovere d a violation of the statute [] at least [ by] May 18, 2007, [when] t he state action wa s commended [sic] in t he Superior Court of New Jersey

by Stacy Holk . . . .” Id
. Plaintiff’s knowledg e alleg edly obtained fr om exi sting law suits is of no moment, insofar a s a claim ac crue s from the point that “a plaintiff has knowle dg e of the fac ts that constitute the cause of ac tion, not when he attains knowle dg e of the leg al sig nificanc e of those f acts.” Fleck

v. Cablevision VII, Inc

. , 799 F. Supp. 187, 190 (D.D .C. 1992) (citations omitted). The ingredie nt label on the pur chase d drinks provided plaintiff w ith all of the information he ne eded to
rea sonably

question the vera city

of def endant’ s “all natura l” claim and its sig nificanc e under the applicable D.C. law. See W einer v . Snapple Bev erage Corp. , 2010 WL3119452, at *1 (S.D.N.Y., Aug . 5, 2010) (“ It is undisput ed that Snapple disclosed the inclusion of HFCS in the ingr edient list that appea

rs on the labe l of eve ry

bottle of Snapple that wa s labeled ‘ All Natura l.’ ”); see ge nerally Grayson , 15 A.3d 219 (discussing2000 amendments to the CPPA). Be cause plaintiff had inquiry , even if not actual, notice of a c laim at the time that he purc hased
eac h bever ag e, he c annot re ly on the discover

y rule to save those long -expired claims. See Diamond, 680 A.2d at 372 (“ Once either a ctual or inquiry notice is prese nt . . . the statute of limit ations beg ins to run as a matter of law.” ).

7B. Statutory Toll ing

Plaintiff’s tolling claim applies only if he we re imprisoned “ at the time the right of ac tion
acc rue[d].” D.C. Code § 12-302(a) (3). B ased on the fore g oing disc ussion, the Court finds that plaintiff’s ac tion accr

ued upon his purcha se of e ach drink. Plainti ff ha s supplied only two dates of purc hase: August 31, 2003, and J anuar y 31, 2005, Compl. ¶ 9, and he does not dispute defe ndant’s supposition that he has bee n incar cer ated “ since at least Fe bruar y 11, 2005.” Statement of P. & A . in Supp. of Def.’ s Mot. to Dism iss [ Dkt. # 5] at 5 n.7. Hence , the statutory tolling provision does not apply beca use plaintiff wa s not incarc erated at the time his ca use of action ac crue d. III. CONCLUSION For the fore g oing r easons, the Court c oncludes that this action is barr ed by the District of Columbi a’s thre e-year

statute of limitations. Hence, de fenda nt’s motion to di smiss under Rule 12(b)( 6) is g rante d. A sepa rate Orde r ac companies this Memora ndum Opinion.

s/ J OHN D. B ATES United States District J udg e DATE: June 27, 2011

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