Vineyard v. La Terra Fina USA, LLC

Page 1 of 16
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TRICIA VINEYARD,
individually and on behalf of all
others similarly situated,
Plaintiff,
v.
LA TERRA FINA USA, LLC,
Defendant.
Case No. 3:24-CV-00704-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Welcome to Round Two of Defendant La Terra Fina USA, LLC’s (“La Terra”) effort
to dismiss this putative class action. This case presents a familiar fact pattern: a consumer
alleging a food product label tricked her into buying or paying an inflated price for the
product, even though the product did not conform to the label’s specifications. Here,
Plaintiff Tricia Vineyard (“Vineyard”) on behalf of herself and others similarly situated
alleges that La Terra coaxed her into buying an Everything But The Bagel (“EBB”) Dip &
Spread 	when 	the 	lid 	marketed 	“NO 	ARTIFICIAL 	FLAVORS, 	COLORS 	OR
PRESERVATIVES” (hereinafter “no artificial preservatives”). A closer look at the
ingredient 	list, 	however, 	revealed 	citric 	acid—an 	alleged 	artificial 	preservative,
commonly used in commercial food production.
The Court dismissed Vineyard’s initial complaint on March 31, 2025, but granted
her leave to amend. (Doc. 37) (the “First Dismissal Order”). Vineyard filed an amended
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 1 of 16 Page ID
#<pageID>

Page 2 of 16
complaint (Doc. 42), and La Terra responded by filing another motion to dismiss.
(Doc. 43). This motion is now fully briefed.
B ACKGROUND
Vineyard purchased the EBB dip at Schnucks in Swansea, Illinois, for $3.99.
(Am. Compl. ¶ 9 (Doc. 42)). She was drawn to the product by its claim that it contained
“no artificial preservatives.” (Id.). This claim, according to Vineyard, is false, deceptive,
and misleading because the EBB dip contains citric acid, a “mass-produced” food
“preservative.” (Id. ¶ 3). And the EBB dip is not alone. Vineyard alleges that the following
La Terra dips also falsely claim to have “no artificial preservatives” even though they
contain citric acid: Artichoke & Jalapeno Dip & Spread, Cheesy Artichoke Dip & Spread,
Chili Con Queso Dip, Greek Yogurt Spinach & Parmesan Dip & Spread, Greek Yogurt
Spinach Artichoke & Parmesan Dip & Spread, Green Chile & Cheese Dip & Spread,
Mexicali Dip & Spread, Spinach Artichoke & Parmesan Dip & Spread, and Sriracha Three
Cheese Dip & Spread (collectively “the Dips”). (Id. ¶ 1). The EBB dip’s packaging looks
like this: 1
1 Vineyard’s amended complaint did not include images of the packaging, but La Terra provided these
images as an exhibit to its first motion to dismiss. (Doc. 19, pp. 5-7). Throughout the amended complaint,
Vineyard references the packaging, and it is central to her claims for deceptive consumer practices and
breach of warranty. As such, the Court may consider these images at the motion to dismiss stage.
See Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (describing narrow exception permitting courts
to consider documents attached to a motion to dismiss if they are referred to in the complaint and are
central to plaintiff’s claim).
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 2 of 16 Page ID
#<pageID>

Page 3 of 16
Vineyard claims that citric acid in La Terra’s products is derived from a
“commercial, microbial/chemical manufacturing process,” which produces a “white
powder” that “does not occur in nature.” (Id.). This “industrial process” ferments a
fungus called Aspergillus niger and “chemically convert[s]” it into “citrate salt.” (Id.). The
citrate salt is then reduced to its final white powder form through “reagents like sulfuric
acid.” (Id.). Vineyard claims that 99% of the global production of citric acid occurs
through this or similar fermentation processes. (Id. ¶ 4). Seventy percent of the world’s
citric acid that is produced this way, moreover, “is used in [the] food and beverage
industry as an additive.” (Id.).
It is cheaper for food companies to manufacture citric acid than to extract it from
citrus fruits directly. (Id.). That is why, according to Vineyard, “the vast majority of citric
acid used in food and beverages is manufactured.” (Id.). And, based on these purported
industry statistics and practices, Vineyard claims it is “highly probable” that La Terra
uses manufactured citric acid in its Dips, like “virtually all” other food companies.
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 3 of 16 Page ID
#<pageID>

Page 4 of 16
(Id. ¶ 5). With this, Vineyard concludes that La Terra’s “no artificial preservatives” claim
is false and misleading. (Id. ¶ 6).
Vineyard alleges that she paid a premium price for the EBB dip based on its alleged
misrepresentation that it contained “no artificial preservatives.” (Id. ¶ 8). If she had
known that it did contain artificial preservatives, she would have either paid less for it or
not purchased it at all. (Id.). La Terra’s claim that the Dips contain “no artificial
preservatives,” moreover, leverages consumers’ desire to eat healthy and to “avoid
highly processed foods and chemical additives.” (Id. ¶¶ 16, 51-54).
Citric acid is “artificial,” according to Vineyard, because it is derived from
“an industrial-scale manufacturing process.” (Id. ¶ 33). She avers, on information and
belief, that the citric acid that La Terra uses in the Dips was produced in a manner
consistent with such a process. (Id. ¶ 35). This is so, she claims, because “[e]conomic,
practical and technical” considerations demand the scale and efficiency that industrial
production offers. (Id. ¶ 36). Moreover, the high demand for citric acid in various food
products allegedly far outstrips the available supply of citrus fruits, thus necessitating a
separate production process. (Id. ¶¶ 37-38). And this production process, in addition to
satisfying the global demand for citric acid, is also “significantly more cost effective” for
companies like La Terra compared to direct extraction from citrus fruits. (Id. ¶ 39).
Fermentation-based 	citric 	acid 	production 	also 	offers 	the 	benefit 	of 	year-round
availability, whereas citrus fruit production requires a specific climate and environmental
conditions that may vary based on location and time of year. (Id. ¶ 41). Thus, Vineyard
draws the following conclusion: “strictly as a statistical matter, it is far more likely than
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 4 of 16 Page ID
#<pageID>

Page 5 of 16
not that La Terra uses manufactured citric acid in [the] Dips.” (Id. ¶ 43). She also believes
that, while she paid a “premium” price for the EBB dip, La Terra must have used artificial
citric acid to produce it because she did not pay an “ultra-premium” price—which would
have been necessary if La Terra had used “natural” citric acid. (Id. ¶ 44).
Vineyard’s amended complaint asserts claims for deceptive and unfair practices
in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act
(“ICFA”) (Counts I and II), breach of express warranty (Count III), and unjust enrichment
(Count IV). (Doc. 42 ¶¶ 68-103). She seeks to represent the following nationwide class of
consumers:
All persons who purchased “la terra fina” brand Dips during the five-year
period prior to the original filing of this lawsuit on January 25, 2024,
through the date of preliminary approval (the “Class Period”). The Dips
are: Artichoke & Jalapeño Dip & Spread, Cheesy Artichoke Dip & Spread,
Chili Con Queso Dip, Everything But The Bagel Dip & Spread, Greek
Yogurt 	Spinach 	& 	Parmesan 	Dip 	& 	Spread, 	Greek 	Yogurt 	Spinach
Artichoke & Parmesan Dip & Spread, Green Chile & Cheese Dip & Spread,
Mexicali Dip & Spread, Spinach Artichoke & Parmesan Dip & Spread
and/or Sriracha Three Cheese Dip & Spread. (Id. ¶ 59).
While she appears to assert claims under the ICFA on behalf of herself and other Illinois-
based consumers, Vineyard also seeks to represent the nationwide class by bringing
claims under “all other state consumer protection statutes” on the putative class
members’ behalf. (Id. ¶¶ 68-89).
LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a complaint must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 5 of 16 Page ID
#<pageID>

Page 6 of 16
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). But “[w]here a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). Thus, the plaintiff must offer
“some specific facts to support the legal claims asserted in the complaint.” Bilek v. Fed.
Ins. Co., 8 F.4th 581, 586 (7th Cir. 2021) (quoting McAuley v. City of Chicago, 671 F.3d
611, 616 (7th Cir. 2011) (citation modified)). A reviewing court, in turn, accepts as true the
complaint’s well-pleaded factual allegations and draws all reasonable inferences in the
plaintiff’s favor. Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013).
DISCUSSION
Since this is the second order on a motion to dismiss in this case, the Court finds it
helpful to recount its previous findings from the First Dismissal Order. In that order, the
Court observed the following deficiencies in Vineyard’s complaint:
Vineyard offers no additional factual allegations about the source or
preparation of citric acid as an ingredient in the Dips, or even how it is
unnatural. . . . Instead, she blankly states that food grade citric acid is
manufactured, synthetic, and processed, and La Terra Fina uses such citric
acid in its Dips for various purposes. (Doc. 37, pp. 14-15) (emphasis added).
The Court also found that “Vineyard must provide more support to her empty assertions
that, because La Terra Fina uses food grade citric acid, it uses a variety that does not occur
in nature.” (Id., p. 15). The First Dismissal Order thus made plain that Vineyard had failed
to tie her allegations of artificiality to the citric acid used in the Dips.
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 6 of 16 Page ID
#<pageID>

Page 7 of 16
Now, having carefully examined the amended complaint, the Court finds that it,
too, fails to specify any wrongdoing by La Terra. Thus, Vineyard has again failed to
plausibly allege the presence of “artificial” citric acid in the products that matter in
this case. And while Vineyard offers more detail about the general fermentation process
to produce citric acid from Aspergillus niger, her probability-based assumptions and
claims concerning industry practice say nothing about the Dips themselves. The
following discussion explains why she comes up short on each of her claims this second
time around.
A. Violation of the ICFA (Counts I and II)
The ICFA aims to shield consumers against unfair or deceptive acts or practices,
including but not limited to the use of deception, fraud, false pretense, false promise,
misrepresentation, concealment, or the omission of any material fact. 815 ILCS 505/2.
To state a claim under the ICFA, a plaintiff must allege facts showing: “(1) that the
defendant engaged in a deceptive or unfair practice; (2) with the intent that the plaintiff
(or others) rely on the deception; (3) that the act occurred in the course of trade or
commerce; and (4) that the deception caused actual damages.” Kahn v. Walmart Inc.,
107 F.4th 585, 598 (7th Cir. 2024).
“[A] practice is deceptive if it creates a likelihood of deception or has the capacity
to deceive.” Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019)
(quotation marks omitted). Courts apply a “reasonable consumer” standard when
evaluating whether a statement is deceptive or has the likelihood to deceive, which
factors in the totality of the information available to the consumer at the point of
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 7 of 16 Page ID
#<pageID>

Page 8 of 16
deception. Kahn, 107 F.4th at 598. Under this standard, a plaintiff must show that
“a significant portion of the general consuming public or of targeted consumers, acting
reasonably in the circumstances, could be misled.” Bell v. Publix Super Mkts., Inc., 982 F.3d
468, 474–75 (7th Cir. 2020) (quotation marks omitted).
A plaintiff may also allege that conduct is unfair without alleging that it is
deceptive. Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010). Illinois courts consider
three factors to determine if a practice is unfair: whether it (1) offends public policy, (2) is
immoral, unethical, oppressive, or unscrupulous, or (3) causes substantial injury to
consumers. Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 738-39 (7th Cir. 2019)
(quoting Batson v. Live Nation Ent., Inc., 746 F.3d 827, 830 (7th Cir. 2014)). “A court may
find unfairness even if the claim does not satisfy all three criteria.” Siegel, 612 F.3d at 935.
Ultimately, courts perform a case-by-case analysis to determine whether a practice is
unfair. Id.
“If the claim rests on allegations of deceptive conduct, then [Federal Rule of Civil
Procedure] 9(b) applies and the plaintiff must plead with particularity the circumstances
constituting fraud.” Vanzant, 934 F.3d at 738. That is, the plaintiff must identify the “who,
what, when, where, and how” of the alleged fraud. Id. This heightened pleading standard
discourages plaintiffs from engaging in “sue first, ask questions later” litigation and
demands that they do their “homework” before bringing fraud allegations to court. Pirelli
Armstrong Tire Corp. Retiree Med. Ben. Tr. v. Walgreen Co., 631 F.3d 436, 439, 441 (7th
Cir. 2011) (quotation marks omitted). For unfair conduct, however, Rule 9(b)’s heightened
pleading standard does not apply. Vanzant, 934 F.3d at 739.
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 8 of 16 Page ID
#<pageID>

Page 9 of 16
Vineyard 	advances 	her 	ICFA 	claims 	under 	fraud 	and 	unfairness 	theories.
Consistent with the Seventh Circuit’s approach in Benson, the Court will consider both
“possibilities.” Benson, 944 F.3d at 646. But because Count I is the only ICFA claim
purporting to raise allegations of deception and fraud, the Court will examine Counts I
and II separately to ensure a faithful application of the correct legal standards to the
relevant allegations.
a. 	Fraud and Deception (ICFA) – Count I
Vineyard claims that La Terra “engaged in a deceptive practice by misrepresenting
that the Dips contain ‘no artificial preservatives,’ when the product actually contains
manufactured citric acid.” (Doc. 42 ¶ 71). Both parties agree that this and other allegations
of fraud and deception, which underpin Count I of the amended complaint, are subject
to Rule 9(b)’s heightened pleading standard. Vineyard believes she has met this standard
by alleging that because 99% of the world’s citric acid production occurs through an
“industrial” process, La Terra must have used that process too. And because it probably
did so, its claim that the Dips contain “no artificial preservatives” is deceptive under the
ICFA. Her allegations of fraud, however, fail for a simple reason: the lack of a discernible
nexus between the “industrial” fermenting process she describes generally and the citric
acid production practices of La Terra.
Vineyard’s entire theory of liability as it pertains to the products that matter to
this case 	is 	based 	on 	her 	information 	and 	belief. 	While 	this 	does 	not 	mean 	she
automatically flunks Rule 9(b), “a plaintiff who bases allegations of fraud on information
and belief bears the burden of pleading plausible grounds for suspecting that the
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 9 of 16 Page ID
#<pageID>

Page 10 of 16
defendant was engaged in a fraudulent scheme.” Pirelli, 631 F.3d at 447. Moreover,
allegations of fraud must relate to the defendant being sued—they cannot be based on
speculative probabilities derived from the practices of others. Camasta v. Jos. A. Bank
Clothiers, Inc., 761 F.3d 732, 738-39 (7th Cir. 2014); Pirelli, 631 F.3d at 447; United States ex
rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849 (7th Cir. 2009). In Pirelli, for instance, the
plaintiff alleged it had been defrauded by the defendant, in part based on allegations of
fraud in a separate lawsuit, which had raised a similar theory of liability against the same
defendant. Pirelli, 631 F.3d at 444. The Seventh Circuit rejected this allegation because the
plaintiff was “relying on the mere fact of someone else’s allegations, which evince little
pre-complaint inquiry on [the plaintiff’s] part and which speak to potential fraud in three
other jurisdictions outside of Illinois in any event.” Id.
Vineyard attempts to navigate around Rule 9(b) in a similar way—only with less
information about the defendant she accuses of fraudulent conduct. She admits that her
allegation that La Terra engaged in deceptive conduct is based on nothing more than a
“statistical” likelihood. This likelihood, she explains, is established because “virtually all”
food companies use citric acid derived from a fermentation process. But she has done
nothing to corroborate her suspicion. And while the Court recognized in the First
Dismissal Order that Vineyard was not required to produce “evidence” to support her
claims (Doc. 15), she is not absolved from the obligation to do her “homework” before
accusing La Terra of fraud. Id. at 439. As in Pirelli, Vineyard “needed,” but did not have,
“some firsthand information to provide grounds to corroborate [her] suspicions.”
Id. at 446; see also Barreto v. Westbrae Natural, Inc., 518 F. Supp. 3d 795, 808 (S.D.N.Y 2021)
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 10 of 16 Page ID
#<pageID>

Page 11 of 16
(holding that “general allegations regarding ‘food fraud’ and the flavor industry’s
scheme to use alternatives to natural vanilla . . . fail[ed] to tie these facts to the defendant’s
conduct or intent in any way.”). Vineyard’s allegations of fraud thus do not withstand
scrutiny under Rule 9(b). See, e.g., Hawkins v. Coca-Cola Co., 654 F. Supp. 3d 290, 309
(S.D.N.Y. 2023); Floyd v. Pepperidge Farm, Inc., 581 F. Supp. 3d 1101, 1112 (S.D. Ill. 2022);
Tarzian v. Kraft Heinz Foods Co., No. 18 C 7148, 2019 WL 5064732, at *4 (N.D. Ill.
Oct. 9, 2019).
Vineyard relies on the Seventh Circuit’s decision in Lusby, purportedly to contend
that Rule 9(b) does not require her to prove her case at the pleading stage. She is, of
course, correct that Rule 9(b) contains no such requirement. But that is where Lusby’s
support for Vineyard’s claims ends. In Lusby, the relator in a qui tam action under the
False Claims Act, 31 U.S.C. § 3729, et seq., alleged that his former employer, Rolls-Royce,
had billed the government for certain engine parts even though the parts did not conform
to the government’s specifications. Lusby, 570 F.3d at 850. Because the complaint was
based on allegations of fraud, it was subject to Rule 9(b)’s heightened pleading
requirement. Id. at 853. The relator, who had worked for Rolls-Royce as an engineer, had
alleged that (i) the parts in question did not meet the government’s specifications, (ii) that
internal testing data showed as much, (iii) that Rolls-Royce knew about the issue because
he had flagged it for his superiors, and (iv) that Rolls-Royce nonetheless certified its
compliance with government specifications to receive payment. Id. at 853-54. The court
concluded that these allegations cleared the Rule 9(b) hurdle because Lusby had
“allege[d] the promise, the intent not to keep that promise, and the details of non-
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 11 of 16 Page ID
#<pageID>

Page 12 of 16
conformity.” 	Id. 	at 	854 	(emphasis 	added). 	And 	while 	the 	relator 	did 	not 	submit
documentary evidence of false claims to the government—like an invoice—his complaint
sufficiently alleged fraud with particularity. Id. at 854-55.
Lusby is easily distinguishable. In that case, the nature of the alleged fraud was
explained in detail based on the relator’s personal knowledge, unlike Vineyard who
proceeds solely on information and belief. The relator in Lusby also tied his allegations to
the defendant. Vineyard assigns liability based on unsupported statistical probabilities.
Nothing in her complaint alleges “the details of non-conformity” in La Terra’s products—
a far cry from the relator’s explanation of Rolls-Royce’s nonconformity in Lusby. Perhaps
if Vineyard had tested the EBB dip to identify the chemical make-up of its citric acid and
found that it deviated from that of “natural” citric acid (something other plaintiffs in
similar cases have done at the pleading stage), 2 or if she learned about La Terra’s dip
production process from a current or former employee, or if she had done any other
investigative work to corroborate her suspicions about the Dips, she could have made a
similar 	showing. 	But 	the 	amended 	complaint 	reveals 	no 	such 	information—only
conjecture based on a “statistical” likelihood. Lusby thus does not support Vineyard’s
argument that probabilities—even strong ones—can satisfy Rule 9(b). If anything, Lusby
supports the conclusion that allegations of fraud require a nexus between the alleged
fraud and the defendant who allegedly committed it. See id. at 854-55 (holding that Rule
9(b) demands detailed allegations “so that vague and unsubstantiated accusations of
2 See, e.g., Barreto v. Westbrae Natural, Inc., 518 F. Supp. 3d 795, 800-01 (S.D.N.Y. 2021)
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 12 of 16 Page ID
#<pageID>

Page 13 of 16
fraud do not lead to costly discovery and public obloquy.”).
Vineyard’s allegations of fraud thus fall short of the heightened pleading standard
demanded by Rule 9(b). This is fatal to Count I because it cannot survive La Terra’s
motion to dismiss without them. Accordingly, Count I will be dismissed.
b. 	Unfair Trade Practices (ICFA) – Count II
Count II of the amended complaint alleging “unfair” practices by La Terra is
largely based on the same allegations as Count I. Although these allegations are subject
to the more forgiving standard of Federal Rule of Civil Procedure 8, Count II fails for the
same reason as Count I: the lack of any allegations tied to La Terra.
The Northern District of Illinois’s decision in Tarzian v. Kraft Heinz Foods Co. is on
point. There, the plaintiffs alleged that Capri Sun beverages falsely claimed that they
contained “no artificial preservatives.” Tarzian, 2019 WL 5064732, at *1. Like Vineyard,
the plaintiffs based their allegation of falsity on the presence of citric acid in Capri Sun.
Id. And as Vineyard alleges here, citric acid was the culprit undermining the “no artificial
preservatives” claim because it was “artificially produced on an industrial scale.” Id. The
allegations followed almost an identical playbook: (i) citric acid is “artificial” because it
is 	derived 	from 	the 	fermentation 	of 	Aspergillus 	niger; 	(ii) 	this 	process 	is 	more
“economically 	viable” 	for 	food 	companies 	than 	natural 	citric 	acid 	production;
(iii) therefore Capri Sun beverages contain “artificial” citric acid. Id. Conspicuously
absent from the complaint, however, was any allegation that the defendant “uses citric acid
produced through Aspergillus niger.” Id. The Court dismissed the plaintiffs’ claims based
on common law fraud and New York’s Deceptive and Unfair Trade Practices Act because
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 13 of 16 Page ID
#<pageID>

Page 14 of 16
the plaintiffs’ theory of liability required “too great of an inferential leap.” Id. at * 4.
“To satisfy the pleading standards,” the court explained, “Plaintiffs need to draw a
connection between the common industry practice and the actual practice used by [the
defendant].” Id. So, too, here. Even with the benefit of amendment, Vineyard has done
nothing to substantiate her claim that the citric acid used in the Dips is artificial. 3
Vineyard insists that she has alleged La Terra’s use of artificial citric acid as a
“virtual certainty.” This is so, she argues, because she has alleged that 99% of the world’s
citric acid production occurs through an “industrial” fermentation process. And food
companies, like La Terra, rely on this process for “[e]conomic, practical, and technical
reasons.” But when it comes to La Terra specifically, she has alleged close to nothing. Her
allegations boil down to this: La Terra is a food company; food companies generally use
artificial citric acid to save money; therefore, La Terra uses artificial citric acid in the Dips.
These allegations fail to offer “specific facts” about La Terra’s liability that would be
needed to survive a motion under Rule 12(b)(6). Bilek, 8 F.4th at 586. And, as noted in the
First Dismissal Order, while courts generally accept all well-pleaded facts as true, they
are not obliged to accept as true unsupported conclusions of fact or legal conclusions. Hickey
3 Vineyard attempts to distinguish Tarzian on the basis that the plaintiffs in that case only alleged that food
companies “usually” use citric acid derived from industrial fermentation processes. Tarzian, 2019 WL
5064732, at *4. Vineyard, however, alleges that 99% of the world’s citric acid production occurs by way of
fermentation. Thus, so her argument appears to go, she has alleged a higher likelihood that La Terra uses
artificial citric acid in the Dips than the plaintiffs in Tarzian. This is a distinction without a difference.
Vineyard and the Tarzian plaintiffs assign liability to a specific defendant based on industry practice and
nothing more. A claim that the food industry “usually” derives its citric acid from fermentation and one
that alleges this practice 99% of the time are different only in degree, not in kind. See Valencia Snapple Bev.
Corp., No. 23-CV-1399, 2024 WL 1158476, at *5 (S.D.N.Y. Mar. 18, 2024) (even though plaintiff alleged that
“none” of the citric acid produced today was natural, the “bare claim” that it was generally “made from
mold rather than citrus fruit cannot, absent any allegation specific to the Products and absent any basis for
her assertion about all citric acid, be sufficient.”).
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 14 of 16 Page ID
#<pageID>

Page 15 of 16
v. O’Bannon, 287 F.3d 656, 657-58 (7th Cir. 2002); see also Zablocki v. Merchs. Credit Guide
Co., 968 F.3d 620, 623 (7th Cir. 2020) (courts need not accept as true statements of law or
unsupported 	conclusory 	factual 	allegations); 	Midwest 	Orthodontic 	Assocs., 	Ltd. 	v.
Cincinnati Cas. Co., 564 F. Supp. 3d 663, 668 (S.D. Ill. 2021) (“Well-pleaded facts, however,
include neither legal conclusions nor unsupported conclusions of fact.”). Vineyard’s
allegations fall into the category of unsupported conclusions of fact.
The amended complaint, at its core, is a pleading shortcut. Rule 8 “does not unlock
the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal,
556 U.S. at 678-79. The First Dismissal Order concluded that “[w]ithout a sufficient
allegation that La Terra Fina uses artificial citric acid, there is no plausible inference that
consumers were deceived by a label that claimed the Dips had ‘no artificial flavors, colors
or preservatives.’” (Doc. 37, p 15) (emphasis added). The amended complaint does not
resolve this fundamental deficiency. The Court therefore cannot and will not draw an
inference of liability against La Terra based on the conduct of the industry to which it
belongs. Count II will thus be dismissed. 4
B. The Remaining Claims
As it did in the First Dismissal Order, the Court can make short work of Vineyard’s
remaining claims for breach of express warranty (Count III) and unjust enrichment
(Count IV). (Doc. 37, p. 16). These claims are based on the same allegations that failed to
4 La Terra has also raised other dispositive arguments in support of its motion to dismiss, including the
issue of whether citric acid is an “artificial” substance to begin with, regardless of its preparation. The Court
does not reach this and other issues here because they are unnecessary to the disposition of the instant
motion to dismiss.
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 15 of 16 Page ID
#<pageID>

Page 16 of 16
support Vineyard’s claims under the ICFA. Vineyard’s failure to plausibly allege that the
citric acid used in the Dips is “artificial” necessarily means that Counts III and IV fail to
state a claim upon which relief can be granted. Thus, Counts III and IV will be dismissed.
CONCLUSION
For these reasons, La Terra’s Motion to Dismiss Vineyard’s Amended Complaint
(Doc. 43) is GRANTED. Vineyard’s consent motion for leave to file excess pages (Doc. 46)
is GRANTED.
At this stage, the Court harbors some skepticism about Vineyard’s ability to
advance a cognizable claim against La Terra. Nevertheless, because leave to amend
should be granted freely under Rule 15(a)(2), the Court affords Vineyard a second and
final opportunity to amend her complaint. See Global Tech. & Trading, Inc. v. Tech Mahindra
Ltd., 789 F.3d 730, 733 (7th Cir. 2015). If Vineyard chooses to file a second amended
complaint, she SHALL do so on or before March 30, 2026.
IT IS SO ORDERED.
DATED: February 27, 2026
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
Case 3:24-cv-00704-NJR Document 51 Filed 02/27/26 Page 16 of 16 Page ID
#<pageID>