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US District Court : CIVIL PROCEEDURE - Minnesota private Attorney General statute not applicable to plaintiff seeking only damages; claims dismissed

Shannon Overen, as mother and
natural guardian for minor, A.G.,
Civ. No. 07-1430 (RHK/JSM)
Hasbro, Inc., a Rhode Island
Stuart L. Goldenberg, Goldenberg & Johnson, PLLC, Minneapolis, Minnesota, for
Patrick D. Reilly, Kristy A. Saum, Erstad & Riemer, P.A., Minneapolis, Minnesota for
Plaintiff Shannon Overen filed this products-liability action on behalf of her
daughter, A.G., against Defendant Hasbro, Inc. (Hasbro), after her daughters hand
allegedly became trapped and seriously burned inside an Easy-Bake Oven manufactured
by Hasbro. Plaintiff has alleged, among other claims, that Hasbro violated certain
Minnesota consumer protection statutes and the reporting requirements of the Consumer
Product Safety Act, 16 C.F.R. pt. 1115. Hasbro has moved for judgment on the pleadings
as to these claims. For the reasons set forth below, the Court will grant Hasbros Motion.
On December 16, 2006, Plaintiffs daughter, A.G., was injured when her left hand
became trapped and seriously burned inside a Model 65805 Easy-Bake Oven. (Compl. at
2.) Plaintiff filed this products-liability action in Minnesota state court, which Hasbro
removed to this Court.
Plaintiff has alleged several claims against Hasbro: negligence (Count One), strict
liability (Count Two), breach of express warranties (Count Three), breach of implied
warranties (Count Four), false representation (Count Five), violation of the Minnesota
False Advertising Act (Minn. Stat. 325F.67) (Count Six), violation of the Minnesota
Consumer Fraud Act (Minn. Stat 325F.68, 325F.69) (Count Seven), and violation of
the United States Consumer Product Safety Act Reporting Requirement (16 C.F.R. pt.
1115) (Count Eight). (See Compl. at 2-8.)
Hasbro now seeks judgment on the pleadings as to Counts Six, Seven, and Eight in
the Complaint.
The Court reviews a motion for judgment on the pleadings under the same
standard as a motion to dismiss under Rule 12(b)(6). Westcott v. City of Omaha, 901
F.2d 1486, 1488 (8th Cir.1990). However, the Supreme Court recently altered the legal
landscape for evaluating a motion to dismiss. Bell Atlantic Corp. v. Twombly, __ U.S.
__, 127 S. Ct. 1955 (2007).
To avoid dismissal under Rule 12(b)(6), a complaint must include enough facts to
state a claim to relief that is plausible on its face. Id. at 1974. While Rule 8 of the
Federal Rules of Civil Procedure does not require the pleading of detailed factual
allegations, a plaintiff nevertheless must plead sufficient facts to provide the grounds
of his entitle[ment] to relief, [which] requires more than labels and conclusions, and
[for which] a formulaic recitation of the elements of a cause of action will not do. Id. at
1964-65 (citation omitted). Thus, a complaint cannot simply le[ave] open the possibility
that a plaintiff might later establish some set of undisclosed facts to support recovery.
Id. at 1968 (citation omitted). Rat her, the facts set forth in the complaint must be
sufficient to nudge the[] claims across the line from conceivable to plausible. Id. at
1974. When a court reviews a motion to dismiss, the complaint must be liberally
construed, assuming the facts alleged therein as true and drawing all reasonable
inferences from those facts in the plaintiffs favor. Id. at 1964-65. A complaint should
not be dismissed simply because the court is doubtful that the plaintiff wi ll be able to
prove all of the factual allegations contained therein. Id. Accordingly, a well-pleaded
complaint will survive a motion to dismiss even if it appears that a recovery is very
remote and unlikely. Id. at 1965 (citation omitted).
Hasbro has moved for judgment on the pleadings on Counts Six, Seven, and Eight
of Plaintiffs Complaint. Plaintiff concedes that the Court should dismiss Count Eight of
her Complaint.1 (Pl.s Oppn Mem at 9.) Thus, the Court need only address whether
Hasbro is entitled to judgment on the pleadings as to Counts Six and Seven.
I. Counts Six and Seven of Plaintiffs Complaint Fail as a Matter of Law
Count Six of Plaintiffs Complaint alleges that Hasbros advertisements for the
Easy-Bake Oven contained false statements and misrepresentations, which led to
Plaintiffs injury and violated Minnesota Statute Section 325F.67 (False Advertising
Act). (Compl. at 6.) Count Seven alleges that Hasbro made false and misleading
statements regarding the Easy-Bake Oven and sold it under the pretense that it was safe
to use by children under parental supervision, which led to Plaintiffs injury and violated
Minnesota Statute Section 325F.69 (Consumer Fraud Act). ( Id. at 6-7.) In both Counts,
Plaintiff seeks costs, disbursements, and attorneys fees. ( Id.)
Under Minnesota law, the attorney general has the authority to prosecute
consumer fraud and similar statutory violations by seeking injunctive relief and civil
penalties. Minn. Stat. 8.31, subd. 1. In limited circumstances, however, private
remedies may be available to individuals, through the Private Attorney General Statute
(Private AG Statute). Id. at subd. 3a. The Private AG Statute provides for recovery of
attorneys fees and other costs in statutory consumer-fraud actions. An individual who
pursues a claim as a private attorney general must assume the role and duties of the
attorney general position as it relates to the enforcement of the law. See Ly v. Nystrom,
615 N.W.2d 302, 313 (Minn. 2000) (stating that the sweep of the [Private AG] statute
1 Plaintiff, however, argues that she should be able to use the U.S. Consumer Product Safety Act
as a standard of care. The issue of the appropriate standard of care is not before the Court on this
Motion, and therefore it will not be addressed.
can be no broader than the source of its authority -- that of the attorney general -- whose
duties are to protect public rights in the interest of the state.). Thus, individuals who
bring a cause of action pursuant to the Private AG Statute must show that the action is
brought to benefit the public. Id. at 314.
Hasbro argues that Plaintiff cannot show a public benefit and in support relies on
two decisions of this Court: Pecarina v. Tokai Corp., No. 01-1655, 2002 WL 1023153, at
*5 (D. Minn. May 20, 2002) (Montgomery, J.) (dismissing the plaintiffs claims under
the Consumer Fraud Act and False Advertising Act because the plaintiffs were merely
seeking damages for their sons personal injury, and therefore such damages did not
benefit the public), and Behrens v. United Vaccines, Inc., 228 F. Supp. 2d 965, 971-72
(D. Minn. 2002) (Erickson, M.J.) (following Pecarina and dismissing the plaintiffs claim
under the Minnesota Consumer Fraud Act because the pl aintiffs only sought damages to
their personal business).
Plaintiff relies on Collins v. Minnesota School of Business, Inc., 655 N.W.2d 320
(Minn. 2003), for support that her claims serve a public benefit. In Collins, a group of
students sued their school for damages arising from their enrollment in a sports-medicine
technician program, in which they claimed the school induced them to enroll in that
program by a false and misleading advertisement. Id. at 322. The parties settled the
case, and the plaintiffs then sought an award of costs and fees, including attorneys fees,
under the Private AG Act. Id. at 323. The Minnesota Supreme Court held that the
former students were entitled to attorneys fees under the Private AG Statute for their
false advertising and consumer fraud claims because the school had made
misrepresentations to the public at large. Id. at 329-30.
Plaintiff argues that, like Collins, her claims serve a public benefit because Hasbro
misrepresented the safety of the Easy-Bake Oven to the public at large and hundreds of
thousands of children will continue to be exposed to the entrapment-and-burn hazard
posed by the defective product unless Hasbro initiates a far more aggressive recall
campaign to retrieve the remaining toys from the public.2 (Pl.s Oppn Mem at 8-9.)
To determine whether a lawsuit is brought for the public benefit the Court must
examine not only the form of the alleged misrepresentation, but also the relief sought by
the plaintiff. Zutz v. Case Corp., No. Civ. 02-1776, 2003 WL 22848943, at *4 (D.
Minn. Nov. 21, 2003) (Magnuson, J.). The Court finds that this case is more like the
facts in Pecarina than the facts in Collins. In Pecarina, the plaintiffs alleged that their
sons injuries were caused by a non-child-resistant cigarette lighter. 2002 WL 1023153,
at *3. The plaintiffs filed claims for negligence, strict liability, breach of warranty, duty
2 To support these arguments, Plaintiff has submitted a number of exhibits, including news
articles from various sources, discussing the history of the Easy-Bake Oven models, the recalls
that were issued for it, and the reports of children getting their hands and fingers caught in the
ovens opening, many of whom suffered serious burns. (See Goldenberg Aff. Exs. 1-4.)
Yet, Rule 12(c) of the Federal Rules of Civil Procedure provides that if, on a motion for
judgment on the pleadings, matters outside the pleadings are presented to and not excluded by
the court, the motion shall be treated as one for summary judgment and disposed of as provided
in Rule 56. Fed. R. Civ. P. 12(c).
Here, the exhibits submitted by Plaintiff were not attached to the Complaint or any other
pleadings in this action, but were merely supplied to the Court in response to Hasbros Motion.
At this early stage in the litigation, the Court will not take into account the outside evidence
submitted by Plaintiff and convert the Motion into a motion for summary judgment, but instead
will treat the Motion as a motion for judgment on the pleadings, as filed by Hasbro.
to warn, and violations of the Minnesota Consumer Fraud Act and False Advertising Act.
Id. at *1. The court dismissed the plaintiffs claims under the Consumer Fraud Act and
False Advertising Act because the plaintiffs had failed to demonstrate that such claims
were brought for the public benefit. Id. at *5. The court reasoned that even though the
plaintiffs claims centered on an allegedly defective lighter that was mass-produced and
mass-marketed, the plaintiffs were merely seeking monetary damages for their sons
personal injury, including past and future medical expenses, pain and suffering, wage
loss, and emotional distress. The Court found that [s]uch damages do not benefit the
public. Id.
Likewise, t he essence of Plaintiffs lawsuit here is to compensate her for her
daughters personal injury. Indeed, Plaintiffs claim for relief merely seeks money
damages for past, present, and future economic expenditures, pain, suffering, and
disfigurement . . . in connection with Hasbro, Inc.s defective Easy-Bake Oven. (See
Compl. at 8.) The Court finds that such damages do not serve a public benefit, but
simply provide an exclusive remedy for Plaintiff. In requiring a public benefit, the
Minnesota Supreme Court reasoned, in part, as follows:
[T]he legislature could not have intended to sweep every private dispute
based on fraud, and falling within the [Cons umer Fraud Act], into a statute
where attorney fees and additional costs and expenses would be awarded,
because to do so would substantially alter a fundamental principle of law
deeply ingrained in our common law jurisprudence -- that each party bears
his own attorney fees in the absence of a statutory or contractual exception.
Ly, 615 N.W.2d at 314. Thus, [w]here recovery is sought for the exclusive benefit of
the plaintiff, there is no public benefit. Zutz, 2003 WL 22848943, at *4.
In response, Plaintiff contends that the advertising materials at issue in this case
were held out to the public at large and that there is a public benefit to advocating the
safety of children. (Pl.s Oppn Mem. at 9.) But, the product at issue in this case is no
longer being sold, and the advertising used to support that product is likewise no longer
being used. (Pl.s Oppn Mem. at 4.) Notably, Plaintiff is not seeking any sort of
injunctive relief that would alter the practices or actions of Hasbro such that it would
serve a public benefit. Indeed, Plaintiff is merely seeking money damages. Accordingly,
the Court will dismiss Plaintiffs claims under the Consumer Fraud Act and the False
Advertising Act because she has failed to demonstrate that her suit was brought to benefit
the public.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants Motion for Judgment on the Pleadings (Doc. No. 9) is
GRANTED as follows:
1. Counts Six and Seven of Plaintiffs Complaint are DISMISSED WITHOUT
2. Count Eight of Plaintiffs Complaint is DISMISSED WITH PREJUDICE.
Date: September 12 , 2007
s/Richard H. Kyle
United States District Judge


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