ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS SECOND AMENDED COMPLAINT
[Dkt. 61, 64]
DEAN D. PREGERSON, District Judge.
Presently before the court are two separate, but similar, motions to dismiss filed by Defendants UGI Corporation, Amerigas Propane, Inc., Amerigas Propane, L.P., Americas Partners, L.P. (collectively, "Amerigas") and Ferrellgas, L.P., Ferrellgas Partners, L.P., Ferrellgas, Inc., Ferrellgas Partners Finance Corp., and Ferrellgas Finance Corp. (collectively, "Ferrellgas"). Having considered the submissions of the parties and heard oral argument, the court grants the motions to dismiss the Second Amended Complaint ("SAC") and adopts the following order.
Amerigas and Ferrellgas (collectively, "Defendants") sell pre-filled propane cylinders to the public at locations such as hardware stores, supermarkets, and gas stations.
Plaintiffs allege, on behalf of a putative class, that Defendants fill propane cylinders with fifteen pounds of propane, even though standard steel propane cylinders can hold over seventeen pounds. (SAC ¶ 20.) Plaintiffs further allege that Defendants' pre-filled propane cylinders bear labels identifying the "net weight" of the cylinders as fifteen pounds. (
Plaintiffs further allege that Defendants' propane cylinders are not capable of being truly emptied, and that at the time propane-fueled appliances cease to ignite, the cylinders remain, on average, ten percent full. (SAC ¶ 38.) Plaintiffs allege that they did not know that they might not be able to extract the entirety of the fifteen pounds of propane purchased, or that factors such as outside air temperature might affect their ability to extract propane from Defendants' tanks. (
Defendants now move to dismiss all twelve causes of action alleged in the SAC.
II. Legal Standard
A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."
"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief."
A. Procedural History and New Allegations
In granting Defendants' motions to dismiss an earlier iteration of the SAC, this court found Plaintiffs' claims implausible. Specifically, the court found that, given Defendants' up-front, explicit, and undisputedly accurate representation that Defendants' propane cylinders contain fifteen pounds of propane, Plaintiffs could not plausibly allege that consumers were misled as to the amount of propane within the cylinders. (Dkt. 54 at 5.) The court was not persuaded by Plaintiffs' emphasis on
The allegations of the SAC are not materially different from Plaintiffs' earlier allegations. The SAC does now include allegations about Plaintiffs' subjective state of mind at the time of purchase, including a lack of awareness that they would not be able to use all of the propane they purchased. Although the SAC acknowledges that the average amount of propane remaining in a spent cylinder will vary as a result of environmental factors, it also alleges that this fact is not generally known to consumers, and that consumers have no way to "observe" the amount of propane left in a spent tank. (SAC ¶¶ 31, 45 n. 2.)
The bulk of the new allegations, however, concern Defendants' business practices. Plaintiffs allege, for example, that Defendants have pared back their refilling, as opposed to cylinder exchange, operations. Plaintiffs further allege that Defendants could install a "weighing scale or gage [sic] that would tell the consumers how much propane is left in the `empty' tanks they are exchanging." (SAC ¶ 33.) The SAC also now alleges that Defendants could utilize new technology to improve the cylinders themselves to allow more complete discharge of propane, or could inform consumers that spent tanks do still contain some propane. (SAC ¶¶ 37, 39, 41.)
B. Plausibility of Fraud-Based Claims
As an initial matter, Plaintiffs' new allegations do little to bolster the plausibility of the previously-dismissed, misrepresentation-based claims. The SAC continues to acknowledge that Defendants' cylinders accurately state, as they must, the net weight of the propane contained therein. The SAC contains no new material allegations regarding Defendants' "empty" cylinder drop-off instructions. As this court explained, the word "empty" appears only in the context of instructing consumers how to complete a tank exchange. It remains implausible that a consumer would interpret instructions regarding what to do with the propane tank in his possession, which may or may not retain sufficient gas pressure to dispense propane, as a representation that he would be able to utilize every last ounce, or any particular percentage, of the new, pre-filled tank he intended to purchase.
Further, and as explained by this court by reference to toothpaste, peanut butter, shampoo, and many other products, the general consumer is generally aware that she may not be able to extract every bit of a product from its packaging. The same reasoning underpinned the court's decision in
Plaintiffs attempt to distinguish the Ninth Circuit's holding in
C. Unfair Business Practices
Plaintiffs contend that, even if their fraud-based claims fail, they have adequately pleaded a claim for unfair competition under California Business & Professions Code § 17200, which proscribes "unfair" acts as well as unlawful or fraudulent ones.
California courts have applied differing tests in determining whether a business practice is "unfair."
Plaintiffs point to two alleged harms to consumers. First, although contending that they are "well tethered to the reality that products often adhere to the inside of their containers," Plaintiffs nevertheless argue that an alleged ten percent rate of unusable propane is an "exorbitant amount."
Second, and in Plaintiffs' minds, more importantly, Plaintiffs assert that they are harmed by their inability to "see how much propane remains in the tank when it was no longer able to start a fire." (Opp. to Amerigas mot. at 17.) As also explained above, consumers' ability to determine whether, or even how much, propane remains in a cylinder is not dependent upon visual observation. The harms alleged here are not particularly severe.
Nor do the justifications for Defendants' business practices strike this court as particularly nefarious. At present, consumers drop their tanks off outside Defendants' cylinder cages. A retail store employee then unlocks the cage and hands the consumer a filled cylinder, for which the consumer later pays at a point of sale. Plaintiffs request that Defendants implement a measurement and credit system whereby the retail store employee would first weigh or otherwise assess consumers' old cylinder, determine the weight of any remaining propane, calculate the value of that propane, and then issue a credit, specific to that cylinder, to the consumer, who presumably would later seek to apply that credit to the newly purchased cylinder at a point of sale, or perhaps "cash out" instead. The justifications for, and utility of, Defendants' relatively streamlined system appear obvious when contrasted with the more complicated, time-consuming, and likely costly mechanism Plaintiffs propose. Given the balance of the relevant factors, Plaintiffs have not plausibly alleged an unfair business practice.
D. Other Claims
Among the claims Defendants move to dismiss are Plaintiffs' claims for "Violation of Consumer Fraud Laws of Several States Except for California," breach of contract and "Breach of Express Warranties of Each State," violation of the Magnuson-Moss Warranty Act, violation of California's Song-Beverly Consumer Warranty Act, unjust enrichment, and money had and received. Although Plaintiffs refer to Defendants' arguments in passing, they provide no substantive opposition or arguments of their own. The court construes this failure as a waiver of those claims.
For the reasons stated above, Defendants' Motions to Dismiss are GRANTED. The Second Amended Complaint is DISMISSED, with prejudice.
This is not to say, and, contrary to Plaintiffs' characterization, Defendants do not argue, that the safe harbor doctrine immunizes Defendants from any and all possible claims under the CLRA, FAL, or UCL.