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United States District Court for the Northern District of Illinois, Eastern Division
March 1, 2022, Decided; March 1, 2022, Filed
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
This putative class action concerns the alleged misleading labeling of toaster pastries. Plaintiff Stacy Chiappetta claims that the packaging for Defendant Kellogg Sales Company's ("Kellogg") Unfrosted Strawberry Pop-Tarts (the "Product") is misleading because it "give[s] consumers the impression the fruit filling contains only strawberries and/or more strawberries than it does." (Complaint ("Compl.") (Dkt. No. 1) ¶ 2.)1 Chiappetta brings claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq.; negligent misrepresentation; breaches of express warranty, implied warranty of merchantability, and the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.; fraud; and unjust enrichment. (Id. ¶¶ 74-100.) Chiappetta asserts that we have jurisdiction under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d)(2). (Id. ¶ 45.)2
Kellogg has moved to dismiss Chiappetta's claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Motion to Dismiss Plaintiff's Class Action Complaint ("Motion") (Dkt. No. 10) at 1.) Kellogg has also moved to dismiss Chiappetta's request for injunctive under Federal Rule of Civil Procedure 12(b)(1) for lack of standing. (Id.) For the reasons set forth below, we grant Kellogg's Motion.
We have taken the following facts from the Complaint and deem them to be true for the purposes of this Motion. See Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
Chiappetta purchased the Product "on one or more occasions . . . at stores including but not necessarily limited to" a Jewel Osco store in Chicago Heights, Illinois, "in or around March 2021." (Compl. ¶ 58.) The Product was "sold at a premium price, approximately no less than $5.49 for 12 Pop-Tarts (20.3 OZ), excluding tax." (Id. ¶ 44.)
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2022 U.S. Dist. LEXIS 35632 *; 2022 WL 602505
STACY CHIAPPETTA, individually and on behalf of all others similarly situated, Plaintiff, v. KELLOGG SALES COMPANY, Defendant.
strawberries, consumer, deceptive, unjust enrichment, filling, packaging, alleges, injunctive relief, quotation, label, marks, warranty, motion to dismiss, claim for breach, advertising, notice, negligent misrepresentation, express warranty, implied warranty, misleading, contends, common-law, scienter, argues, butter, courts, fruit, pled, deceptive practices, footnotes