Perkins v. PIM Brands USA Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SUSAN PERKINS, individually and on behalf of
all others similarly situated,
Plaintiff,
-against-
PIM BRANDS USA INC.,
Defendant.
MEMORANDUM & ORDER
25-CV-2280 (NGG) (JAM)
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Susan Perkins ("Plaintiff') initiated this putative class ac-
tion against Defendant PIM Brands, Inc. ("Defendant'') in the
Supreme Court of the State of New York, Kings County. 1 (Veri-
fied Complaint ("Compl.") (Dkt. 1 at ECF p.11) .) Plaintiff brings
one cause of action against Defendant for engaging in deceptive
business practices in violation of the New York General Business
Law ("N.Y. GBL") and seeks actual damages and discretionary
attorneys' fees authorized by that law. (Id. at ECF pp.25-28 '['[ 75-
90, 28 '['[ 1-4.) Plaintiff alleges that the packaging of Defendant's
Real Strawberry Fruit Bars ("Fruit Bars"), (id. at ECF p.14 '[ 17),
tricked her and others similarly situated into paying higher prices
than they otherwise would have had they known that the "main
fruit ingredient was not strawberries," (id. at ECF p.27 '[ 84). 2
1 Defendant identifies as "Promotion in Motion, Inc. d/b/a PIM Brands,
Inc." and states that it was "improperly sued as PIM Brands USA, Inc."
(Not. of Removal (Dkt. 1) at ECF p.1.)
2 When quoting the parties' submissions, unless otherwise noted, all cita-
tions and internal quotation marks are omitted, and all alterations, as well
as any additions of emphasis, are adopted. The same is true when quoting
cases.
1
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Defendant removed Plaintiffs case to this court, asserting that
subject-matter jurisdiction exists under the federal-question stat-
ute, 28 U.S.C. § 1331. Thereafter, Plaintiff filed a motion to
remand and also sought "a hearing for just costs" pursuant to
28 U.S.C. § 1447. (Pl.'s Not. of Mot. to Remand ("Pl.'s Not. of
Mot.") (Dkt. 9) at 1; Pl.'s Mot. to Remand ("Pl.'s Mot.") (Dkt. 10)
at 8 (same).)
Pending before the court is Plaintiffs fully briefed motion to re-
mand this action to state court and to award attorneys' fees and
costs. (Pl.'s Mot.; Def.'s Opp. (Dkt. 14); Pl.'s Reply (Dkt. 15).) The
court referred the motion to Magistrate Judge Joseph A. Maru-
tollo for a report and recommendation. (Order Referring Mot.
Dated 10/14/2025.) Thereafter, Judge Marutollo issued the an-
nexed Report and Recommendation ("R&R"), recommending
that Plaintiffs motion to remand be granted and that her request
for attorneys' fees be denied. (R&R (Dkt. 19) at 1-2, 19-20 & n.8.)
For the reasons set forth below, the R&R is ADOPTED IN PART
and REJECTED IN PART. The court ADOPTS Judge Marutollo's
first recommendation to grant Plaintiffs motion to remand, albeit
for 	different 	reasons. 	The 	court 	respectfully 	REJECTS
Judge Marutollo's second recommendation and AWARDS Plain-
tiff attorneys' fees and costs under 28 U.S.C. § 1447. Accordingly,
the case is REMANDED to the Supreme Court of the State of
NewYork, Kings County and the calculation of attorneys' fees
and costs is respectfully REFERRED to Judge Marutollo for a re-
port and recommendation. 3
3 See Bryant v. Britt, 420 F.3d 161, 165 (2d Cir. 2005) ("[W]e hold that a
district court has jurisdiction to resolve a motion for fees and costs under
§ 1447(c) after a remand order has issued."); McConnell v. ABC-Amega,
Inc., 338 F. App'x 24, 26 (2d Cir. 2009) (summary order) ("Attorneys' fee
determinations are considered 'dispositive' for purposes of Rule 72 of the
Federal Rules of Civil Procedure.") 	(citing Williams v. Beemiller, Inc.,
527 F.3d 259, 265 (2d Cir. 2008)).
2
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I. 	BACKGROUND
The court assumes familiarity with the underlying facts, which
are detailed in the annexed R&R, at 1-5. Therefore, the court pro-
vides a summary of only the pertinent facts and procedural
history here.
A. 	Factual Allegations
Plaintiff alleges that Defendant's "packaging and labeling" of the
Fruit Bars materially misled her and others similarly situated in
two ways: (1) by "caus[ing] purchasers to expect'' that the Fruit
Bars are "made only from strawberries," when they are allegedly
made from strawberries, apples, and grapes; and (2) by convey-
ing (including through the use of "pictures of ripe strawberries")
that the Fruit Bars are at least made from "a predominant and/or
relatively significant amount of strawberries," when strawberries
are, allegedly, the smallest fruit component. (Compl. at ECF p.26
'I 83.)
As a result of the "false and misleading representations and omis-
sions" 	on 	the 	Fruit 	Bars' 	packaging, 	Plaintiff 	claims 	that
Defendant sells the Fruit Bars at a "premium price" that is
"higher" than what the Fruit Bars "would be sold for" if the fruit
ingredients ''were represented in a non-misleading way," and
that she (and others) "suffered economic damages" by payment
of this premium price. (Id. at ECF pp.19 '[ 38, 27 'I 88.)
B. 	Procedural History
Plaintiff commenced this action in state court on February 5,
2025. Defendant removed the case to this court on April 24,
2025. On April 27, 2025, Plaintiff filed her motion to remand-
the motion at issue here.
After receiving the parties' briefs, the court referred the motion
to Judge Marutollo for a report and recommendation on Octo-
ber 14, 2025.
3
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C. 	Report and Recommendation
By report and 	recommendation dated 	November 15, 	2025,
Judge Marutollo recommended that this court grant Plaintiff's
motion to remand because he concluded "that no federal ques-
tion jurisdiction exists" over this case. (R&R at 6, 20.) He did not
recommend an award of attorneys' fees and costs to Plaintiff. (Id.
at 19-20 n.8.)
No party has objected to the R&R, and the time to do so has
passed. 	See 	28 U.S.C. 	§ 636(b)(l); 	Fed. R. Civ. P. 	72(b)(2).
(See also R&R at 20 ("Any objections to this [R&R] must be filed
within fourteen days after service of this [R&R] .... Failure to file
objections within this period ... waives the right to appeal the
district court's order.") (internal citations omitted).)
II. 	LEGAL STANDARDS
A. 	Standard of Review
In reviewing a report and recommendation, a district court may
"accept, reject, or modify, in whole or in part, the findings or rec-
ommendations 	made 	by 	the 	magistrate 	judge." 	28 U.S.C.
§ 636(b)(l). If no objections have been made, the district court
reviews the report and recommendation "only for clear error."
Nambiar v. 	Cent. 	Orthopedic 	Grp., 	LLP, 	158 F.4th 349, 	359
(2d Cir. 2025) (citing Fed R. Civ. P. 72(b) advisory committee's
note to 1983 amendment). Clear error is "found only when, upon
review of the entire record, the [c] ourt is left with 'the definite
and 	firm 	conviction 	that 	a mistake 	has 	been 	committed."'
United States v. Veeraswamy, 765 F. Supp. 3d 168, 180 (E.D.N.Y.
2025) (quoting United States v. Snow, 462 F.3d 55, 72 (2d Cir.
2006)).
B. 	Substantive Law
The federal removal statute, 28 U.S.C. § 1441, authorizes a de-
fendant to remove a case "commenced in state court . . . to
4
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federal district court, if the case could have been brought there
originally." Martin v. Franklin Cap. Corp., 546 U.S. 132, 134
(2005) (citing 28 U.S.C. § 1441); see also City of New York v.
Exxon Mobil Corp. 	(Exxon), 154 F.4th 36, 40 (2d Cir. 2025)
(same). ''The removal statute must be construed narrowly, re-
solving any doubts against removability." Exxon, 154 F.4th at 40
(citing State by Tong v. Exxon Mobil Corp. (Tong), 83 F.4th 122,
132 (2d Cir. 2023)).
After a defendant removes a case to federal court, the plaintiff
"may seek to remand the case back to state court." Id. (citing
28 U.S.C. § 1447). But, as the party asserting federal jurisdiction,
"the defendant always has the burden of establishing that re-
moval is proper." Id. at 40-41 (quoting Tong, 83 F.4th at 132).
The statute also provides for the award of attorneys' fees: "An
order remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a result
of the removal." 28 U.S.C. § 1447(c); see also Exxon, 154 F.4th
at 46 (same). The standard for awarding such fees "turn[s] on
the reasonableness of the removal." Martin, 546 U.S. at 141;
see also Exxon, 154 F.4th at47 (same).
III. DISCUSSION
The court has reviewed the unopposed R&R for clear error. Hav-
ing carefully considered the R&R and the record, the court adopts
the R&R in part and respectfully rejects the R&R in part.
A. 	Plaintiffs Motion to Remand
Judge Marutollo found that the court lacks jurisdiction over
Plaintiff's claim and thus recommended granting Plaintiff's mo-
tion to remand. The court agrees with this recommendation, but
for somewhat different reasons, and on two additional grounds.
5
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For the reasons explained below, no federal-question jurisdiction
exists over this case for four independent (and sufficient) rea-
sons.
1. 	The Grable-Gunn Requirements
"The federal-question statute provides that 'the district courts
shall have original jurisdiction of all civil actions arising under
the laws of the United States."' Tong, 83 F.4th at 132 (quoting
28 U.S.C. § 1331). A court's analysis of whether a case "arises un-
der'' federal law is guided by the "century-old jurisdictional
framework governing removal of federal question cases from
state into federal courts"-the ''well-pleaded complaint rule."
Caterpillar Inc. v. Williams, 482 U.S. 386, 391-92 (1987); see also
Tong, 83 F.4th at 132 (same). Under that rule, federal-question
jurisdiction does not exist "if the complaint does not affirmatively
allege a federal claim." Tong, 83 F.4th at 132 (quoting Beneficial
Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003)). In this context, a
federal claim means a "cause of action created by federal law."
Id. at 133 (quoting New York ex rel. Jacobson v. Wells Fargo Nat'l
Bank, N.A., 824 F.3d 308, 315 (2d Cir. 2016)). The "principal
effect" of the well-pleaded complaint rule is to "'make the plain-
tiff the master of the claim,' meaning that-subject to certain
exceptions-plaintiffs 'may avoid federal jurisdiction by exclusive
reliance on state law."' Id. at 132 (quoting Caterpillar, 482 U.S.
at 392); accord Royal Ganin U.S.A., Inc. v. Wullschleger, 604 U.S.
22, 35 (2025) (''The plaintiff is the master of the complaint, and
therefore controls much about her suit. She gets to determine
which substantive claims to bring against which defendants. And
in so doing, she can establish-or not-the basis for a federal
court's subject-matter jurisdiction.").
Here, the Complaint does not "affirmatively allege" a "federal
claim." Tong, 83 F.4th at 132, 133. Instead, Plaintiff's sole cause
of action "exclusively rel[ies] on state law." Id. at 133 (quoting
Caterpillar, 482 U.S. at 392). As a result, Defendant can establish
6
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federal-question jurisdiction "only by demonstrating that [Plain-
tiff] 's suit falls within an exception to the well-pleaded complaint
rule." Id.
While there are "certain exceptions" to the well-pleaded com-
plaint rule, the Second Circuit has determined that only "three
situations exist in which a complaint that does not allege a fed-
eral cause of action may nonetheless 'arise under' federal law for
purposes of subject-matter jurisdiction." Id. (emphasis omitted)
(first quoting Beneficial, 539 U.S. at 6; and then quoting Fracasse
v. People's United Bank, 747 F.3d 141, 144 (2d Cir. 2014)). Those
exceptions are: "(1) if Congress expressly provides, by statute, for
removal of state-law claims; (2) if the state-law claims are com-
pletely preempted by federal law; and (3) in certain cases if the
vindication of a state-law right necessarily turns on a question of
federal law." Id. Each exception is "tightly circumscribed." Id.
Defendant asserts that the court has subject-matter jurisdiction
under the third exception. (Not. of Removal at ECF pp.4-7 'l'l 12-
23; Def.'s Opp. at 11-17.) Thus, whether Defendant properly re-
moved this case, turns on whether the Complaint asserts "the
vindication of [a] state-law right [that] necessarily turns on a
question of federal law." Tong, 83 F.4th at 139 (quoting Fracasse,
747 F.3d at 144).
To determine whether this action is among the "special and small
category of cases" that fall within the third exception, a court
must follow the framework set forth by the Supreme Court in
Grable and later streamlined in Gunn-the so-called Grable-Gunn
test.4 Tong, 83 F.4th at 135 n.l, 140-41. Under this framework,
4 In Grable, the Supreme Court established that the existence of "a cause
of action created by federal law'' is not a "necessary condition" for federal-
question jurisdiction under 28 U.S.C. § 1331 or for removal jurisdiction un-
der 28 U.S.C. § 144l(a). 545 U.S. at312; Broder v. Cablevision Sys. Corp.,
418 F.3d 187, 194 (2d Cir. 2005). Instead, the Court held that, properly
7
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"federal jurisdiction over a state law claim will lie if," and only if,
"a federal issue is: (1) necessarily raised, (2) actually disputed,
(3) substantial, and (4) capable of resolution in federal court
without disrupting the federal-state balance approved by Con-
gress." Gunn v. Minton, 568 U.S. 251, 258 (2013) (citing Grable
& Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308,
313-14 (2005)); see also Tong, 83 F.4th at 141 (same). "All four
requirements must be met." Sunvestment Energy Grp. NY 64 LLC
v. Nat'l Grid USA Servs. Co., 116 F.4th 106, 115 (2d Cir. 2024)
(citing Gunn, 568 U.S. at 258); see alsoAMTAX Holdings 227, LLC
v. CohnReznickLLP, 136 F.4th 32, 38 (2d Cir. 2025) (same).
To satisfy the first Grable-Gunn requirement, the defendant must
show that a federal issue is a "necessary element" of the plaintiffs
state claim. Tong, 83 F.4th at 140. To meet the second, the de-
fendant must show that the federal issue is the "only'' or "central"
point in dispute. Grable, 545 U.S. at 315; Gunn, 568 U.S. at 259;
see also Jacobson, 824 F.3d at 316 (same). The third requirement
demands that the "federal issue be important to the federal sys-
tem as a whole," AMTAX, 136 F.4th at 39 (citing Gunn, 568 U.S.
at 260-64), and requires the defendant to show that the federal
issue is neither "fact-bound" nor "situation-specific," id. (quoting
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 701
(2006)). Finally, to meet Grable-Gunn's fourth requirement, the
defendant must show that "the nature of the [state] claim, the
traditional forum for such a claim, and the volume of cases that
would be affected" by the case demonstrate that a federal court's
framed, "the question is, does a state-law claim necessarily raise a stated
federal issue, actually disputed and substantial, which a federal forum may
entertain without disturbing any congressionally approved balance of fed-
eral and state judicial responsibilities." Grable, 545 U.S. at 314; see also
Broder, 418 F.3d ati94 (same). In Gunn, the Court further clarified this
standard and established the so-called Grable-Gunn test for "federal juris-
diction over a state law claim." 568 U.S. at 258 (citing Grable, 545 U.S.
at313-14).
8
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adjudication of the claim would not "disturb the accepted bal-
ance of state and federal responsibilities." Id. 	at 40 (quoting
Jacobson, 824 F.3d at 316).
Although Judge Marutollo recognized that ''.jurisdiction is proper
under Grable-Gunn only where 'all four of these requirements are
met,"' 	(R&R 	at8 	(emphasis 	in 	original) 	(quoting AMTAX,
136 F.4th at 38)), he then appeared to treat Grable-Gunn as a
balancing test by examining "each of the Grable-Gunn factors,"
(id. at 8), and deciding whether a particular Grable-Gunn require-
ment ''weighs" in favor of or against removal, (id. at 12 n.6, 18).
The court respectfully rejects these aspects of the R&R because
controlling precedent unequivocally proscribes that approach. 5
Judge Marutollo first found that Plaintiffs claim "necessarily
raised" a federal issue because paragraph 81 of the Complaint
alleges that Defendant's "packaging and labeling of the [Fruit
Bars] violated the [Federal Trade Commission Act ("FTC Act")],
thereby violating the [N.Y.] GBL." (R&R at 8, 9 (quoting Compl.
at ECF p.26 'l 81).) Relying on this allegation, Judge Marutollo
concluded that Plaintiffs N.Y. GBL claim "appears predicated on
a violation of federal law, namely, the [FTC Act]," such that "at
this stage in the litigation, the first Grable-Gunn [requirement] is
satisfied." (Id. at 9, 10.) The court respectfully rejects this finding
because it overlooks the three "necessary elements" of Plaintiffs
claim. Tong, 83 F.4th at 142. As explained below, whether De-
fendant violated the FTC Act is not a "necessary element'' of
5 In AMTAX, the Second Circuit observed that some of its prior decisions
had, incorrectly, "used language suggesting that the Grable-Gunn test in-
volves 'factors' to be 'weighed,' rather than required elements to be met."
136 F.4th at 38 n.6 (first quoting Link Motion Inc. v. DIA Piper LLP, 103
F.4th 905, 917 (2d Cir. 2024); and then citing other examples). It then
observed that since the Supreme Court's 2013 opinion in Gunn, "[the]
Court has made clear that jurisdiction is proper under Grable-Gunn only
'where all four of these requirements are met."' Id. (quoting Gunn, 568 U.S.
at258).
9
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Plaintiffs N.Y. GBL claim, and thus, the first Grable-Gunn require-
ment is not met. Id. at 140. Second, Judge Marutollo found that
a federal issue is "actually disputed" because "Plaintiffs conten-
tion that Defendant 'misbranded' and 'adulterated' its 	[Fruit
Bars] in violation of the [Federal Food, Drug, and Cosmetic Act
("FDCA")], as adopted by the [New York Agriculture and Mar-
kets Law ("N.Y. AGM")], comprises an essential component of
Plaintiffs claim," meaning that Plaintiff "cannot prevail" without
proving that Defendant violated the FDCA. 6 (R&R at 11.) The
court respectfully rejects this finding because, as explained be-
low, whether Defendant violated the FDCA does not qualify as a
"central 	point 	of 	dispute." 	Gunn, 	568 	U.S. 	at 259. 	Third,
Judge Marutollo found that the Complaint does not raise a "suf-
ficiently substantial" federal issue to "justify federal question
jurisdiction." 	(R&R at 15.) 	Having found 	no 	clear error in
Judge Marutollo's substantiality analysis, the court adopts this
finding. See Sunvestment, 116 F.4th at 115 ("[A] substantial fed-
eral issue typically exists only in those exceptional cases that go
beyond the application of some federal law raised in connection
with state-law claims and instead implicate broad consequences
to 	the federal system or the nation as 	a whole."). 	Finally,
Judge Marutollo found that given the absence of a "substantial"
federal issue, "remanding the case to state court will preserve the
6 The court clarifies that whether a plaintiff can "prevail" on the state claim
without proving a defendant's violation of federal law goes to the first-
not the second-Grable-Gunn requirement. See Broder, 418 F.3d at 195
(concluding that the first Grable-Gunn requirement is "clearly met" because
the plaintiff "cannot obtain the declaratory judgment he seeks, stating in
part that [the defendant] violated 47 U.S.C. § 543(d), without prevailing
on the issue of whether [the defendant] 	in fact violated 47 U.S.C.
§ 543(d)"); see also Tong, 83 F.4th at 140 ("[I]f a court could resolve the
case without reaching the federal issues, then the claims do not necessarily
raise a federal issue."). And, as explained below, Plaintiff can prevail on
her N.Y. GBL claim without proving Defendant's violation of the FDCA.
Infra Section III.A.2.
10
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federal-state judicial balance." (R&R at 17, 19 .) Having found no
clear error with this reasoning, the court adopts Judge Maru-
tollo's finding that the fourth Grable-Gunn requirement is not
met. See Link Motion, 103 F.4th at 916 ("[A]s the Supreme Court
has stated, in the absence of a substantial federal issue, ... exer-
cise of federal jurisdiction over a state claim would disrupt the
'appropriate balance of federal and state judicial responsibili-
ties."') (quoting Gunn, 568 U.S. at 264).
2. 	The First Grable-Gunn Requirement
The court concludes that the first Grable-Gunn requirement is not
satisfied because the purported federal issues are not "necessary
elements" of Plaintiffs N.Y. GBL claim. Tong, 83 F.4th at 142.
Plaintiff asserts that no federal issue is "necessarily raised" be-
cause "no judicial interpretation of federal law is required" to
adjudicate her N.Y. GBL claim and because she "does not seek
any ... finding from the [s]tate [c]ourt that [Defendant] violated
the [FDCA] or [FTC Act]." (Pl.'s Mot. at 3.)
In the Notice of Removal, Defendant asserted that Plaintiffs
claim "is presented" as a violation of the N.Y. GBL, but that the
"substance of the claim reveals that the purported [N.Y.] GBL
claim is predicated upon alleged violations of the [FTC Act]."
(Not. of Removal at ECF p.3 'f 8 (citing Compl. at ECF pp.25 'f 79,
26 'f 81).) That is, at the time of removal, Defendant argued that
the Complaint "necessarily raises" a federal issue because Plain-
tiffs N.Y. GBL claim is "premised" on violations of the FTC Act.
Tong, 83 F.4th at 140. However, in its opposition to Plaintiffs
motion to remand, Defendant appears to have abandoned this
argument. (See Def.'s Opp. at 7-12.) Now, Defendant argues that
the first Grable-Gunn 	requirement is met because 	Plaintiffs
N.Y. GBL claim "necessarily tum[s] on the adjudication" of the
definitions and interpretations of the terms "adulteration" and
"misbranding'' under the FDCA and related federal guidance. (Id.
11
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at 7, 11; see also Not. of Removal at ECF p.5 '114 (same).) Ac-
cording to Defendant, "Plaintiff seeks to premise this necessary
element"-Defendant's alleged commission of a "deceptive act''
under the N.Y. GBL-"on a purported failure by [Defendant] to
comply with the controlling rules, and implementing regulations,
of the FDCA." (Def.'s Opp. at 8.) In support of this argument, De-
fendant asserts that "[e]very single allegation of deception in the
Complaint is alleged to arise by reason of [Defendant]'s pur-
ported violation of a specifically enumerated provision of the
FDCA." 7 (Id. at2; see also id. at 1, 9-10 (same).)
In response, Plaintiff does not dispute that she describes the
FDCA and its requirements in her Complaint but claims that
these references serve "merely [to] inform the content of classi-
cally state-law duties" and that they are "only one of multiple
theories that could support [her] claim." (Pl.'s Reply at 6.)
"For a federal issue to be necessarily raised, the mere presence of
a federal issue in a state cause of action is insufficient; the perti-
nent question of federal law must be a necessary element of one
of the well-pleaded state claims." Tong, 83 F.4th at 140 (quoting
City of Rome v. Verizon Comms.J Inc., 362 F.3d 168, 176 (2d Cir.
2004)). Thus, to meet its burden on the first Grable-Gunn re-
quirement, a defendant "must point to a necessary element of
proving liability under [the plaintiffs state-law claim], that is af-
firmatively premised on 	[the defendant's] 	violation of-and
could not be resolved without applying-the federal [law]." Id.
Therefore, the court's analysis of the first Grable-Gunn require-
ment "must start by determining what exactly the necessary
7 Given Defendant's apparent abandonment of the argument that Plaintiffs
N.Y. GBL claim "is predicated" on "alleged violations of the [FTC Act],"
(Not. of Removal at ECF p.3 Cf 8), the court focuses the following discussion
on the federal issue identified in Defendant's opposition to Plaintiffs mo-
tion to remand-that is, Defendant's "purported violation[s] of ... the
FDCA," (Defs.' Opp. at 2).
12
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elements of [the plaintiffs] well-pleaded state claims are." Id.
(quoting City of Rome, 362 F.3d at 176).
Plaintiff brings one cause of action under Sections 349 and 350
of the 	N.Y. GBL. 8 (Compl. 	at ECF 	pp.25-28 	'l'l 75-90.) 	Sec-
tion 349 prohibits "[d]eceptive acts or practices in the conduct of
any business, trade or commerce or in the furnishing of any ser-
vice in this state." N.Y. GBL § 349. Section 350 prohibits "[f]alse
advertising in the conduct of any business, trade or commerce or
in the furnishing of any service in this state." N.Y. GBL § 350. De-
spite the differences in their statutory language, the two sections
employ the same test. "To successfully assert a claim under either
section, 'a plaintiff must allege that a defendant has engaged in
(1) consumer-oriented conduct that is (2) materially misleading
and that (3) plaintiff suffered injury as a result of the allegedly
deceptive act or practice."' Orlanderv. Staples, Inc., 802 F.3d 289,
300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co.,
18 N.Y.3d 940, 941 (N.Y. 2012)).
Plaintiff's state claim centers around the allegation that Defend-
ant has misled and deceived New York consumers about the Fruit
Bars' fruit contents. 	(Compl. at ECF p.26 'l 83.) Accordingly,
Plaintiff pleads the elements of a N.Y. GBL claim by alleging that
Defendant's (1) packaging and labeling of the Fruit Bars involve
"false and deceptive representations and omissions" that are
8 The "scope" and "essential elements" of Sections 349 and 350 are "the
same." Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 346 (S.D.N.Y.
2020) (collecting cases); see also Goshen v. Mut. Life Ins. Co. of N.Y., 98
N.Y.2d 314, 324, n.1 (N.Y. 2002) (''The standard for recovery under
[N.Y. GBL] § 350, while specific to false advertising, is otherwise identical
to [S]ection 349."). A:, a result, New York courts consider Section 349 and
350 claims together and have long treated them as one cause of action. See
Kaplan, Inc. v. Yun, 16 F. Supp. 3d 341, 352 (S.D.N.Y. 2014); B.S.L. One
Owners Corp. v. Key Int'l Mfg., Inc., 225 A.D.2d 643, 644 (2d Dep't 1996)
(concluding the "amended complaint stated a valid cause of action for de-
ceptive practices pursuant to [N.Y. GBL] §§ 349 and 350").
13
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(2) "material in that they [are] likely to influence consumer pur-
chasing decisions" and that, (3) relying on such representations,
she "paid more for the [Fruit Bars] than she would have, had she
known strawberries were not the only, or even the main fruit in-
gredient." (Id. at ECF pp.22 '158, 25 '[ 80.) Since all three of these
allegations must be proven to establish Defendant's liability un-
der 	Sections 	349 	and 	350, 	Koch, 	18 N.Y.3d at 941, 	each
constitutes a "necessary element" of Plaintiff's N.Y. GBL claim for
purposes of the Grable-Gunn test, Tong, 83 F.4th at 141 (quoting
City of Rome, 362 F.3d at 176).
In this case, only the second, materially misleading, element is at
issue. Defendant argues that "Plaintiff seeks to premise this nec-
essary 	element 	of her 	claim[] 	on 	a 	purported 	failure 	by
[Defendant] to comply with the controlling rules, and imple-
menting regulations, of the FDCA." (Def.'s Opp. at 8.) According
to Defendant, "every single allegation of deception alleged is
premised, by Plaintiff, on purported violation, by [Defendant], of
the FDCA or its implementing regulations." (Id. at 9-10; see also
id. at 1, 2 (same).) In other words, Defendant argues that the
necessary element of whether its packaging and labeling of the
Fruit Bars is "materially misleading" under the N.Y. GBL is im-
possible to resolve without applying the FDCA.
Whether a challenged act or practice is "materially misleading"
under the N.Y. GBL, is "governed by the reasonable consumer
standard." Bustamante v. KIND, LLC, 100 F.4th 419,426 (2d Cir.
2024); see also Goshen, 98 N.Y.2d at 324 (" [T] he allegedly de-
ceptive acts, representations or omissions must be misleading to
a reasonable consumer."). This standard is highly contextual and
"limited to [deceptive acts and practices] likely to mislead area-
sonable consumer acting reasonably under the circumstances."
Oswego Laborers' Loe. 214 Pension Fund v. Marine Midland Bank,
N.A., 85 N.Y.2d 20, 25 (N.Y. 1995); see also Fink v. Time Warner
Cable, 714 F.3d 739, 742 (2d Cir. 2013) (per curiam) (observing
14
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that in "determining whether a reasonable consumer would have
been misled ... context is crucial").
Given this standard, it is clear that even if Defendant were found
not to have violated the FTC Act (as Defendant argued at the time
of removal) or the Fruit Bars were found not to be "adulterated"
or "misbranded" under the FDCA (as Defendant argues in oppo-
sition to Plaintiffs motion to remand), Defendant's "packaging
and labeling" of the Fruit Bars could still amount to a "deceptive
act or practice" under the N.Y. GBL because the packaging and
labeling includes "a representation or omission likely to mislead
a reasonable consumer acting reasonably under the circum-
stances." Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330,
344 (N.Y. 1999). As alleged in the Complaint, for example, a
court (or jury) could find that the packaging and labeling is likely
to mislead a reasonable consumer by: (1) "caus[ing]" one "to ex-
pect'' that the Fruit Bars are "made only from strawberries," when
they are made from strawberries, apples, and grapes; (2) convey-
ing that the Fruit Bars are at least made from "a predominant
and/or relatively significant amount of strawberries," when
strawberries are the Fruit Bars' smallest fruit component; or
(3) both. (Compl. at ECF p.26 'f 83.) In other words, while the
FDCA may define deception for purposes of that statute, and
even 	though 	that definition 	may be 	incorporated 	into 	the
N.Y. AGM, "deception" under the N.Y. GBL depends solely on
what a "reasonable consumer''-not the U.S. Food and Drug Ad-
ministration, not Congress, nor the New York State Legislature-
finds misleading "under the circumstances." Oswego, 85 N.Y.2d
at 26. As courts in this Circuit have made clear, violations of the
FDCA are "not per se material misrepresentations under [SJ ec-
tions 349 and 350," and the FDCA's implementing rules and
regulations are ''without consequence" when stating a claim un-
der these sections. Daniel v. Mondelez Int'~ Inc., 287 F. Supp. 3d
177, 189-90 (E.D.N.Y. 2018) (collecting cases); Warren v. Whole
Foods Mkt. Grp., Inc., 574 F. Supp. 3d 102, 113 (E.D.N.Y. 2021)
15
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(same); see also 	Steele 	v. 	Wegmans 	Food Markets, 	Inc., 	472
F. Supp. 3d 47, 49-50 (S.D.N.Y. 2020) (concluding that in an ac-
tion brought under Sections 349 and 350, "extensive discussion
and argument ... with respect to particular federal standards ...
is without consequence"). Thus, whether the Fruit Bars are "adul-
terated" or "misbranded" under the FDCA is a federal issue, but
this issue is not a "necessary element" of Plaintiffs claim under
the N.Y. GBL.
Neither is whether Defendant violated the FTC Act. 9 Although (at
the time of removal) Defendant put much weight on Plaintiffs
allegation that "[Defendant] violated the [FTC Act], thereby vio-
lating 	the 	[N.Y.] GBL," 	(Compl. 	at ECF 	p.26 	'l 81; 	Not. 	of
Removal at ECF p.3 'l 8), this allegation does not "necessarily
raise" a federal issue because Plaintiff is wrong. 10 Nick's Garage,
Inc. v. Progressive Gas. Ins. Co., 875 F.3d 107, 127 (2d Cir. 2017).
In any event, even if Plaintiff were correct, she could prove a vi-
olation of the 	N.Y. GBL without proving a violation of the
9 That is not to say that the FTC Act plays no role. New York courts may
examine the case law interpreting "deceptive acts" under the FTC Act as
"guidelines" to inform the reasonable consumer analysis. State by Lefkowitz
v. Colorado State Christian Coll. of Church of Inner Power, Inc., 346 N.Y.S.2d
482, 488 (Sup. Ct. 1973); see also Bildstein v. MasterCard Int'l Inc., 329
F. Supp. 2d 410, 414 (S.D.N.Y. 2004) (same). However, being "guided" by
interpretations of federal law is not the same as being bound by them. Ra-
ther a court (state or federal) may-but is not required to--refer to the
FTC Act for guidance in applying the "reasonable consumer'' standard.
See, e.g., Braynina v. TJX Cos., Inc., No. 15-CV-5897 (KPF), 2016 WL
5374134, at *6 (S.D.N.Y. Sept. 26, 2016) (surveying FTC guidance for the
"limited purpose of informing its 'reasonable consumer' analysis").
1°For this reason, the court reads the allegations in the Complaint refer-
encing 	the 	FTC Act, 	FDCA, 	and 	state 	and federal 	rules 	defining
"adulterated" and "misbranded" food only as support for the allegation
that Defendant's packaging and labeling of the Fruit Bars is "materially
misleading" under the N.Y. GBL.
16
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FTC Act. 11 Therefore, whether Defendant violated the FTC Act is
not a "necessary element'' of Plaintiff's state claim.
The "necessary elements" of Plaintiffs claim show that no federal
issue is "necessarily raised." Tong, 83 F.4th at 142. Therefore, the
Grable-Gunn exception to the well-pleaded complaint rule does
not apply and the court lacks federal-question jurisdiction over
this case.
3. 	The Second Grable-Gunn Requirement
The court concludes that the second Grable-Gunn requirement is
not satisfied because the purported federal issue is not a "central
point of dispute." Gunn, 568 U.S. at 259.
Plaintiff argues that no federal issue is "actually disputed" be-
cause: 	(1) her sole cause of action can be proven only by
reference to New York law; (2) this case "does not implicate the
[FDCA's] validity''; and (3) she does not seek a judgment declar-
ing that Defendant violated federal law. (See Pl.'s Mot. at 3, 6-8.)
Defendant's response, in its entirety, is as follows:
[T]he federal issues raised by the Complaint are, and can be,
the only issues in dispute in this litigation ... because, under
settled law, if [Defendant] has complied with the federal re-
quirements of the FDCA set forth in the Complaint (it has),
11 Cases finding that a N.Y. GBL claim was adequately alleged (or proven)
under Sections 349 and 350 without reference to the FTC Act (or the
FDCA) abound. See, e.g., B.S.L. One, 225 A.D.2d at 644; Sims v. First Con-
sumers Nat. Bank, 758 N.Y.S.2d 284, 289-90 (1st Dep't 2003); Lazaroff v.
Paraco Gas Corp., 967 N.Y.S.2d 867 (Sup. Ct. 2011), affd, 945 N.Y.S.2d
326 (2d Dep't 2012); Gaidon, 94 N.Y.2d at 345-48; Goshen, 98 N.Y.2d
at 326; Koenig v. Boulder Brands, Inc., 995 F. Supp. 2d 274, 281 (S.D.N.Y.
2014); Orlander, 802 F.3d 289,302 (2d Cir. 2015); Chufen Chen v. Dunkin'
Brands, Inc., 954 F.3d 492, 500-01 (2d Cir. 2020).
17
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then Plaintiff's state law claim(s) premised upon [Defend-
ant]'s labeling of the Fruit Bar[s] would be preempted by the
FDCA.
(Def.'s Opp. at 12.) That is, Defendant asserts that the federal is-
sue is that Plaintiff's N.Y. GBL claim is "premised" on Defendant's
allegedly deceptive "labeling of the Fruit Bar[s]" and that this
claim is "preempted by the FDCA." 12 (Id.)
For a federal issue to be "actually disputed," Grable, 545 U.S.
at 314, it must "qualif[y] as a 'central point of dispute' in [the]
state action." Link Motion, 103 F.4th at 913 (quoting Gunn, 568
U.S. at 259). "[T]he meaning of [a] federal statute is actually in
dispute" when it "appears to be the only legal or factual issue
contested in the case." Grable, 545 U.S. at 315.
Whether Defendant complied with the FDCA is neither "the only''
or "a central" issue in this case because each of the three neces-
sary 	elements 	of 	Plaintiff's 	N.Y. GBL 	claim 	are 	disputed:
(1) whether the packaging and labeling of the Fruit Bars involve
"false and deceptive representations and omissions"; (2) whether
such representations are "material in that they [are] likely to in-
fluence 	consumer 	purchasing 	decisions"; 	and 	(3) whether,
Plaintiff"paid more for the [Fruit Bars] than she would have, had
she known strawberries were not the only, or even the main fruit
ingredient." (Compl. at ECF pp.22 '158, 25 '[ 80.) And as dis-
cussed, each of these three necessary elements is one that a court
could resolve without reaching the FDCA. Supra Section III.A.2.
12 In its opposition to Plaintiffs motion to remand, Defendant identifies
only one federal issue that is "actually disputed"-whether it complied
with the "controlling rules, and implementing regulations, of the FDCA."
(Def.'s Opp. at 8.) Therefore, the court focuses its analysis of the second
Grable-Gunn requirement on this federal issue. That said, the following dis-
cussion and the conclusion that Defendant's compliance with the FDCA is
not "actually disputed," applies to Defendant's alleged violation of the
FTC Act as well.
18
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The conclusion that a federal issue that is not "necessarily raised"
is also not "actually disputed" makes sense because it stands to
reason that something that is not a "necessary element" cannot
be the "only'' or "central" issue in dispute. Grable, 545 U.S.
at 315; Gunn, 568 U.S. at 259. In fact, the finding that the federal
issue is not a "necessary element" of the state claim sufficiently
distinguishes Plaintiffs N.Y. GBL claim from others upon which
courts have found that the federal issue was a "necessary ele-
ment" and 	that the 	issue was "actually disputed." See, e.g.,
Link Motion, 103 F.4th at 912-13; Broder, 418 F.3d at 195.
Moreover, Defendant's federal preemption defense is unavailing.
Whether Defendant has a valid preemption defense under the
FDCA (for the reasons explained in the R&R, it does not) is in-
sufficient to render this federal issue "actually disputed" for
purposes of the Grable-Gunn test. Although Defendant's preemp-
tion defense could in theory be the "only'' or "central" point in
dispute, the Supreme Court has already decided that "a case may
not be removed to federal court on the basis of a federal defense,
including the defense of preemption, even if the defense is antici-
pated in the plaintiffs complaint, and even if . .. the defense is the
only question truly at issue in the case." Franchise Tax Bd. of Cal.
v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 14 (1983)
(emphases added). The Second Circuit has confirmed that an "af-
firmative federal preemption defense" is "entirely irrelevant'' to
the Grable-Gunn analysis because such a defense ((certainly (is not
grounds for federal jurisdiction,'" Tong, 83 F.4th. 	at 140 n.6
(quoting City of New York v. Chevron Corp., 993 F.3d 81, 94
(2d Cir. 2021)). Therefore, Defendant's purported FDCA defense
is not-and cannot be-((actually disputed" under Grable-Gunn.
Here, the federal issue is not ((actually disputed" because any
((controversy'' respecting the FDCA's meaning or effect is not the
((only legal or factual issue contested in the case." Grable, 545
U.S. at 314-15. Thus, the second Grable-Gunn requirement is not
19
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met, and the court lacks federal-question jurisdiction over this
action.
* * *
As explained above, the court adopts Judge Marutollo's findings
that the third and fourth Grable-Gunn requirements are not met.
Supra Section III.A 1.
B. 	Plaintiffs Motion for Attorneys' Fees and Just Costs
The court concludes that Plaintiff is entitled to attorneys' fees and
costs under 28 U.S.C. § 1447(c).
In her motion to remand, Plaintiff requested that the court "set a
hearing for just costs." (Pl.'s Mot. at 8; see also Pl.'s Not. of Mot.
at 1 (same).) Defendant did not address Plaintiffs request in its
opposition to her motion. (See generally Def.'s Opp.) In her Reply,
Plaintiff renewed her request, arguing that Defendant's removal
was "not objectively reasonable." (Pl.'s Reply at 7-8.)
Judge Marutollo did "not recommend the award of attorneys'
fees and costs to Plaintiff," because he found that: (1) Plaintiff
"waived this argument, and thus, her claim to attorneys' fees and
costs, by failing to raise the same in her opening memorandum";
and (2) "Defendant removed on the basis of purported federal
question jurisdiction based on Plaintiffs complaint, which is not
objectively unreasonable for lack of compliance with this Circuit's
'well-pleaded complaint rule."' (R&R at 19-20 n.8 (quoting Bar-
one v. Bausch & Lomb, Inc., 372 F. Supp. 3d 141, 146 (W.D.N.Y.
2019)).) The court respectfully disagrees with these findings and
rejects the recommendation not to award attorneys' fees and
costs to Plaintiff under Section 1447(c).
The federal 	statute 	governing the procedure 	after removal,
28 U.S.C. § 1447, provides that "an order remanding the case
may require payment of just costs and any actual expenses, in-
cluding attorney fees, incurred as a result of the removal." Exxon,
20
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154 F.4th at 41 (quoting 28 U.S.C. § 1447(c)). Thus, when a
plaintiff prevails on a motion to remand, the statute authorizes a
court to award attorneys' fees and 'just costs" incurred as a result
of an improper removal to federal court. 28 U.S.C. § 1447(c). The
standard for awarding these fees "turn[s] on the reasonableness
of the removal." Martin, 546 U.S. at 141. "Absent unusual cir-
cumstances, courts may award attorney's fees under § 1447(c)
only where the removing party lacked an objectively reasonable
basis for seeking removal." Id. A basis for removal is "objectively
reasonable" if the removing party had a "colorable argument that
removal was proper." Capital2Market Consulting, LLCv. Camston
Wrather, LLC, No. 22-CV-7787 (VM), 2023 WL 2366975, at *4
(S.D.N.Y. Mar. 6, 2023) (quoting Nguyen v. Am. Express Co., 282
F. Supp. 3d 677, 683-84 (S.D.N.Y. 2017)); In re Standard &
Poor's Rating Agency Litig., 23 F. Supp. 3d 378, 407 (S.D.N.Y.
2014) (same).
Here, Defendant had one basis for removal-that federal-ques-
tion jurisdiction exists under the Grable-Gunn exception to the
well-pleaded complaint rule. (See Not. of Removal at ECF pp.4-7
'f'f 12-23 (stating that "this court has federal-question jurisdiction
and removal is proper'' under Grable-Gunn) (internal emphasis
omitted); see also Def.'s Opp. at 7-16 (arguing that each Grable-
Gunn requirement is met).)
As Defendant concedes, the Grable-Gunn test has four require-
ments, and federal-question jurisdiction exists only "[i]f each of
these elements is met." (Def.'s Opp. at 7; see also Not. of Removal
at ECF p.4 'f 13 	(enumerating the four Grable-Gunn require-
ments).) 	Consequently, 	for 	Defendant's 	removal 	to 	be
"objectively reasonable," Martin, 546 U.S. at 141, Defendant
must have a "colorable argument," Capital2Market, 2023 WL
2366975, at *4, for why each Grable-Gunn requirement is satis-
fied. The presence of an "objectively reasonable" argument as to
why one Grable-Gunn requirement is met is not sufficient to
21
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demonstrate that removal was "proper" where Defendant does
not have an "objectively reasonable" argument as to why another
Grable-Gunn requirement is satisfied. Exxon, 154 F.4th at SO (in
reviewing a Section 1447(c) award, concluding that the presence
of one "objectively reasonable" ground did not preclude the con-
sideration of several meritless arguments that were contrary to
established law).
As demonstrated, not one Grable-Gunn requirement is met in this
case. In light of the foregoing discussion, the court concludes that
on balance Defendant failed to assert an "objectively reasonable"
basis for removal. For example, it was not "objectively reasona-
ble" for Defendant to disregard the "necessary elements" of
Plaintiff's N.Y. GBL claim or to overlook the extensive case law
finding that these elements were met without reference to either
the FTC Act or the FDCA. See supra Section III.A.2 & n.11. And,
it was not "objectively reasonable" for Defendant to assert its pur-
ported 	federal 	preemption 	defense 	as 	a 	proper 	basis 	for
removal. 13 See supra 	Section III.A.3; 	Savino v. 	Savino, 	590
F. App'x 80, 81 (2d Cir. 2015) (summary order) (citing Martin,
546 U.S. at 141); see also Gandolfo v. Town of Carmel, No. 20-CV-
9060 (CS), 2022 WL 19183, at *2 (S.D.N.Y. Jan. 3, 2022) (simi-
lar); Long Island Roller Rebels v. 	Blakeman, 	No. 24-CV-2721
(ARR) (LGD), 2024 WL 1793635, at *3 (E.D.N.Y. Apr. 25, 2024)
("Given the ample binding authority establishing that a federal
counterclaim or defense cannot render removal proper, as well
13 This is particularly true given that the Supreme Court has recognized
that "since 1887, it has been settled law that a case may not be removed to
federal court on the basis of a federal defense, including the defense of
preemption ... even if ... the defense is the only question truly at issue in
the case." Franchise Tax Bd., 463 U.S. at 14; see also Tong, 83 F.4th at 135-
36 ("[The] Supreme Court has left no doubt that a case may not be re-
moved to federal court, simply because the defendant may raise the
defense of ordinary preemption."), 140 n.6 (observing that an "affirmative
federal preemption defense" is "entirely irrelevant" to the Grable-Gunn
analysis).
22
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as defendants' apparent familiarity with this blackletter law, I
find it difficult to view defendants' removal of this case as any-
thing other than 	a 	delay tactic."). 	The 	Second Circuit has
affirmed Section 1447(c) awards where, as in this case, the de-
fendant attempted to evade Grable-Gunn's requirements "by
raising a federal question in its responsive pleadings and ... at-
tempting to remove on that basis." Calabro v. Aniqa Halal Live
Poultry Corp., 650 F.3d 163, 166 (2d Cir. 2011).
As articulated above, many of Defendant's arguments for why
this court has federal-question jurisdiction under Grable-Gunn
''were plainly meritless." Exxon, 154 F.4th at 50. ''Yet, the parties
were required to litigate these claims," the court was "required
to decide them," and this litigation ''was multiplied and delayed."
Id. Under these circumstances, the court finds it appropriate to
require Defendant to pay just costs and any actual expenses, in-
cluding attorneys' fees, 	incurred by Plaintiff as 	a result of
removal.
N. CONCLUSION
For the above reasons, the R&R is ADOPTED IN PART and RE-
JECTED IN PART. As articulated herein, the court finds that
Defendant failed to meet the first and second Grable-Gunn re-
quirements and agrees with Judge Marutollo that neither the
third nor fourth Grable-Gunn requirements are met in this case.
Accordingly, the court lacks jurisdiction over the case for four in-
dependent reasons. 	Therefore, 	the 	court GRANTS 	Plaintiffs
motion to remand.
Given that Defendant's removal of this state action under Grable-
Gunn was not "objectively reasonable," the court also GRANTS
Plaintiffs request for attorneys' fees and costs, the calculation of
which is REFERRED to Judge Marutollo for a report and recom-
mendation.
23
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s/Nicholas G. Garaufis
The court hereby
REMANDS
this action to the Supreme Court of
the State of New
York, Kings
County, pursuant to 28
U.S.C.
§ 1447(c). The court respectfully directs the Clerk of Court to
send a certified copy of this Memorandum and Order to the Clerk
of the Supreme Court of the State of New York, Kings County.
The court retains jurisdiction over this action for the limited pur-
pose of resolving Plaintiffs motion for fees and costs under
Section 1447(c).
SO ORDERED.
Dated: 	Brooklyn, New York
Februaryi.5: 2026
24
/
NICHOLAS
G.
GARAUF
~ 	•
United States District Ju ge
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
SUSAN PERKINS, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
PIM BRANDS USA, INC.,
Defendant.
--------------------------------------------------------------X
REPORT AND
RECOMMENDATION
25-CV-2280
(Garaufis, J.)
(Marutollo, M.J.)
JOSEPH A. MARUTOLLO, United States Magistrate Judge:
On February 5, 2025, Plaintiff Susan Perkins, individually and on behalf of all others
similarly situated, commenced this lawsuit in the Supreme Court of the State of New York, Kings
County, against Defendant PIM Brands USA, Inc.1 See Dkt.No.1 at 10-29:.2 On April 24, 2025,
Defendant removed this action to the United States District Court for the Eastern District of New
York. See Dkt. No. 1 at 1-8.
Currently pending before the undersigned, on a referral from the Honorable Nicholas G.
Garaufis, United States District Judge, is Plaintiff's motion, pursuant to 28 U.S.C. § 1447, to
remand this action to the Supreme Court of the State of New York, Kings County. See generally
Dkt. Nos. 9, 1O; Referral Order dated October 14, 2025. In support of her motion, Plaintiff argues
that remand is required because federal question jurisdiction is lacking, as Plaintiff only alleges
violations of New York General Business Law ("NY GBL") §§ 349 and 350 in the Complaint. See
Dkt. Nos. 9, 10. For the reasons set forth below, the undersigned respectfully recommends that
1 Defendant states that it is improperly sued as PIM Brands USA, Inc., and that it is actually incorporated
as "Promotion in Motion, Inc., d/b/a PIM Brands, Inc." D.k:t: No.Tat 1.
2 Page citations are to the ECF-stamped pages unless otherwise noted.
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the Court grant Plaintiff's motion to remand this action to the Supreme Court of the State of New
York, Kings County.
I. 	Relevant Background
In deciding a motion to remand, the Court will assume the truth of non-jurisdictional facts
alleged in the Complaint, but the Court "may consider material outside of the Complaint including
'documents appended to a notice of removal or a motion to remand that convey information
essential to the court's jurisdictional analysis' where jurisdictional facts are contested." 	BGC
Partners, Inc. v. Avison Young (Canada), Inc., 919 F. Supp. 2d 310, 312 n.3 (S.D.N.Y. 2013)
(quoting Romanov. Kazacos, 609 F.3d 512,520, 52d n.4 (2d Cir. 2010)); see also Guzman v. First
Chinese Presbyterian Cmty. Affs. Home Attendant Corp., 520 F. Supp. 3d 353, 356 (S.D.N.Y.
2021) ("On a motion to remand for lack of subject matter jurisdiction, courts assume the truth of
non-jurisdictional facts alleged in the complaint, but may consider materials outside of the
complaint, such as documents attached to a notice of removal or a motion to remand that convey
information essential to the court's jurisdictional analysis."). "The nature of plaintiff's claim must
be evaluated on the basis of the record as it stands at the time the petition for removal is filed."
Bruan, Gordon & Co. v. Hellmers, Sd2 F.Supp. 897,901 (S.D.N.Y. 1980).
A. 	Factual Background
Plaintiff, a resident of Kings County, New York, alleges that Defendant, a Delaware
corporation with a principal place of business in New Jersey, sold "adulterated" strawberry fruit
bars ("Real Strawberry Fruit Bars") that have larger proportions of apples and grapes than
strawberries. Dki.No. ladS-16 ,r,r 18-21; 21 ,r,r 48-50. The Complaint lists health benefits of
strawberries such as nutrient density, vitamin C, and polyphenols. Id. at 11-12 ,r,r 4-10. Plaintiff
also includes data from the Bureau of Labor Statistics that compares the per pound prices of apples
2
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and strawberries, with apples ranging from $1.20 to $1.50 while strawberries are typically $2 to
$4. Id. at 13 ,r 14. Plaintiff alleges that Defendant "misbranded" the Strawberry Fruit Bars in a
way that "caus[ ed] purchasers to expect it was made entirely, or at least, in significant part, from
strawberries ... " despite strawberries being the smallest fruit component of the bars. Id. at 16 ,r
21. Plaintiff further alleges that the product is "misbranded" because the bars use the term "Real
Strawberry Fruit Bars" when that term is "not a truthful or non-misleading 'common or usual
name' for fruit bars mainly made from apples and grapes." Id. at 17,r 25.
Plaintiff lists three reasons why strawberries are the "characterizing ingredient" for the
Real Strawberry Fruit Bars, as defined by 21 C.F.R. § 102.S(b). Id. at 18 ,r 28. 	Plaintiff argues
that: first, the proportion of strawberries in the food has a material bearing on the Real Strawberry
Fruit Bars' price; second, the presence of strawberries has a material bearing on consumer
acceptance; and third, the label and appearance of the Real Strawberry Fruit Bars creates an
erroneous impression that the strawberries are present in an amount greater than is actually the
case. 	Id. at 18-19 ,r,r 29-35. 	Plaintiff argues that 21 C.F.R. § 102.5(b)(2) requires that "[t]he
amount of strawberries was required to 'be declared by the words 'containing (or contains)_
percent (or %) ___' or '_ percent (or %) ___ ' with the first blank filled in with the
percentage 	expressed 	as 	a 	whole 	number 	not 	greater 	than 	the 	actual 	percentage 	of
[strawberries] . . . and 	the 	second 	blank 	filled 	in 	with 	the 	common 	or 	usual 	name 	of
[strawberries]."' Id. at 19 ,r 37 (quoting 21 C.F.R. § 102.5(b)(2)) (omissions in original).
Plaintiff argues that these "misleading representations and omissions" caused Plaintiff to
pay a "premium price," of $2.99, higher than it would have sold for if "represented in a non-
misleading way." Id. at 19 ,r 38. Plaintiff affirms that she is a consumer who purchased the Real
Strawberry Fruit Bars at issue and paid more for this product than she would have otherwise based
3
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on Defendant's representations. Id. at 21-22 ,r,r 54-56. Plaintiff claims that her damages are the
difference between the higher cost she paid for the Real Strawberry Fruit Bars and the cost for fruit
bars that contain larger amounts of non-strawberries. Id. at 22 ,r 60.
Plaintiff seeks to represent a class of consumers who are New York citizens and who also
purchased the fruit bars in reliance on Defendant's labeling. 	Id. at 22-23 ,r,r 61-64. 	Plaintiff's
single cause of action is brought under NY GBL §§ 349 and 350, which prohibit deceptive trade
practices and false advertising, respectively. Id. at 25-28 ,r,r 75-90. Plaintiff claims the difference
in price between the strawberries bars as advertised and bars as purchased is "between five ($0.05)
and sixty cents ($0.60) per unit." Id. at 28 ,r 90. 	Finally, Plaintiff only seeks actual damages in
addition to discretionary attorneys' fees, as authorized by GBL §§ 349 and 350. Id. at 28 ,r,r 2-3.
B. 	Procedural History
As noted above, on February 5, 2025, Plaintiff filed this action in the Supreme Court of the
State of New York, Kings County. See Dkt. No. 1 at2 ,r I. Defendant filed a notice ofremoval
on April 24, 2025. See id. 3 This notice argued that this case arises under federal law because it
"implicated significant federal issues." Id. at 4 ,r 12. Defendant contends that resolution of this
action "turns on the definitions and interpretations of 'adulterated' and 'misbranded' under federal
law." Id. at 5 ,r 15. The notice ofremoval also contends that federal jurisdiction is necessary to
"ensure uniform application of the [Federal Trade Commission Act] FTCA and [Federal Food,
3 Defendant's notice of removal included Defendant's basis for removal, all process, and pleadings that
have been served upon them in accordance with the requirements of 28 U.S.C. § 1446(b). See generally
Dkt. No. l. 	Defendant filed the notice of removal within 30 days after it was served, satisfying the
timeliness requirement of 28 l.J.S.C. § 1446(b)(l). See id. ,I 2; Wade v. Burns, 8()3 F. App'x 433, 435 (2d
Cir. 2020) (finding that when a basis for removal is apparent from the face of the complaint, the 30-day
removal period will be enforced).
4
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Drug, and Cosmetic Act] FDCA." Id. at 7 1 22. Defendant did not remove this action based on
diversity jurisdiction.
On April 27, 2025, Plaintiff filed her motion to remand this case to state court. See Dkt.
Nos. 9, 10. 	Defendant filed its opposition to Plaintiffs motion to remand on May 2, 2025, and
Plaintiff filed her reply on May 4, 2025. See Dkt. Nos. 14, 15. The pending motion to remand
was referred to the undersigned by Judge Garaufis on October 14, 2025. See October 14, 2025
Dkt. Order.
II. 	Legal Standards
"The federal district courts, as courts of limited jurisdiction, possess only such authority as
is conferred by an act of Congress." Elliott v. Jaquez, 777 F. Supp. 3d 136, 146 (E.D.N.Y. 2025)
(quoting Portillo v. Bharara, 527F.App'X48, 49 (2d Cir. 2013)). "An action filed in state court
may be properly removed by a defendant to federal court in 'any civil action ... of which the
district courts of the United States have original jurisdiction."' McCulloch Orthopaedic Surgical
Servs., PLLC v. Aetna Inc., 857 F.3d 141, 145 (2d Cir. 2017) (quoting 28 U.S.C. § 144l(a)).
"Original jurisdiction exists where a 'federal question' is presented, 28 U.S.C. § 1331, or
when there is complete diversity of citizenship among the parties and the amount in controversy
exceeds $75,000." 	Schabhuttl v. BJ's Membership Club, Inc., No. 23-CV-782 (NGG) (JMW),
2023 WL3180379, at *1 (E.D.N.Y. May 1, 2023) (Garaufis, J.) (quoting 28 U,S.C. § 1332). "A
defendant may remove 'any civil action brought in a state court' to federal court where 'the district
courts of the United States have original jurisdiction."' Id. (quoting§ 1441(a)).
"[T]he burden of proving that jurisdiction is proper is on the party that removed the action."
Certain Underwriters at Lloyd's London v. Art Crating, Inc., No. 12-CV-5078, 2014 WL 123488,
at *5 (E.D.N.Y. Jan. 10, 2014) (Garaufis, J.) (quoting Montefiore Med. Ctr. v. Teamsters Local
5
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272,642 F.3d 321,327 (2d Cir. 2011)). "The statutes concerning removal are strictly and narrowly
construed, 'resolving any doubts against removability."' Id. (quoting Purdue Pharma L.P. v.
Kentucky, 704 F.3d 208,213 (2d Cir. 2013)).
"If a federal district court determines that it lacks subject matter jurisdiction over a case
removed from state court, the case must be remanded." Cnty. ofNassau v. New York, 724 F. Supp.!
2d 295,301 (E.D.N.Y. 2010) (Bianco, J.) (citing 28 tJ.S.C. § I447(c)); see also Purdue Pharma,
704 F.3d at 220 (noting the "Supreme Court's directive to construe removal statutes strictly and
resolve doubts in favor ofremand."); Levitan v. Gilead Scis., Inc., No. 25-CV-393 (AMD) (JAM),
2025 WL 2782407, at *5 (E.D.N.Y. Sept. 30, 2025) ("If the federal court lacks subject-matter
jurisdiction, it must grant the motion to remand.") (citation omitted).
III. 	Discussion
At issue here is whether Plaintiff's state law claims fall within "a special and small category
of cases" so as to admit federal question jurisdiction. 	See Gunn v. Minton, 568 U.S. 251, 258
(2013); Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308,314
(2005)). The undersigned respectfully recommends a finding that no federal question jurisdiction
exists here.
"It is long settled law that a cause of action arises under federal law only when the
plaintiff's well-pleaded complaint raises issues of federal law." 	Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 63 (1987); Barone v. Bausch & Lomb, Inc., 372 F. Supp. 3d 141, 146
(W.D.N.Y. 2019) ("In determining whether removal based upon federal question jurisdiction is
proper, the 'well-pleaded complaint rule' typically governs, which requires a court to consider
only allegations in the complaint and not matters raised by the defendant in defense.") (citing
Franchise Tax Bd. of the State of Calv. Constr. Laborers Vacaaon Tr., 463 U.S. I, 9-10 (1983)).
6
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Additionally, "the artful-pleading doctrine, [a] corollary to the well-pleaded complaint rule,
prevents a plaintiff from avoiding [federal jurisdiction] by framing in terms of state law a
complaint the real nature of [which] is federal, ... or by omitting to plead necessary federal
questions in a complaint." NASDAQ OMX Grp., Inc. v. UBS Sec., LLC, 770F.3dJ010, 1019 (2d
Cir. 2014) (quoting Marcus v. AT&T Corp., 138 F.3d 46, 55 (2d Cir. 1998)). 	"Plaintiffs invoke
federal-question jurisdiction by pleading causes of action created by federal law." 	AMTAX
Holdings 227, LLC v. CohnReznick LLP, 736 F: Supp. 3d 169, 179-80 (S.D.N.Y. 2024), aff'd, 136
F.4th 32 (2d Cir. 2025) (citing Gunn, 568 U.S. at 251).
"But even in the absence of artful pleading, federal jurisdiction may properly be exercised
over a 'special and small' category of actual state claims that present significant, disputed issues
of federal law." NASDAQ OMXGrp., 170F.3dat 1019 (citing Gunn, 568D.S:af256:57). "The
category, which dates back 'nearly 100 years' in Supreme Court precedent, is rooted in 'the
commonsense notion that a federal court ought to be able to hear claims recognized under state
law that nonetheless turn on substantial questions of federal law, and thus justify resort to the
experience, solicitude, and hope of uniformity that a federal forum offers on federal issues."' Id.
(citing Grable, 545 U.S. af '.312). 	Indeed, "the Supreme Court has been sparing in recognizing
state law claims fitting this criterion." 	Id. ( citations omitted). 	It is well-settled that "the mere
presence of a federal issue in a state cause of action does not automatically confer federal-question
jurisdiction." 	Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 809-10 (1986); see also
Grable, 545 U.S. at 314 (the presence of a federal issue does not operate "as a password opening
federal courts to any state action embracing a point of federal law.").
The Supreme Court has established a four-part test-the Grable-Gunn test-to determine
whether federal question jurisdiction exists. AMTAX Holdings 227, 736 F. Supp. 3d at 180 (citing
7
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Grable, 545 U.S. at 314; Gunn, 568 U.S. at 258). 	"[F]ederal jurisdiction over a state law claim
will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4)
capable of resolution in federal court without disrupting the federal-state balance approved by
Congress." Gunn, 568 U.S. at 258. '~The SuprepiC01.1rth~; 111ad;~iearthafj;;i;dictid~ispidp~aj
un4erGrab!~-Gunntnly'-Vb.;;; 'all four ofthese requirements aretnel"' AMTAX Holdings 227,
LLC v. CohnReznick LLP, f36 r.4th 32~ 38 (2d Cir. 2025) (quoting Gunn, 568 U.S. if 258)
(emphasis in original). "Where all four of these requirements are met, ... jurisdiction is proper
because there is a 'serious federal interest in claiming the advantages thought to be inherent in a
federal forum,"' and these advantages "can be vindicated without disrupting Congress's intended
division of labor between state and federal courts." Gunn, 568 U.S. at 258 (quoting Grable, 545:
U.S. atJD ..14).
~ppiyirigthe four-partGrd_bl~~Gunn te;i;ih~ ~;a;f;igrt~d~~~~iij4~s thitth~ third pr6ngJ
~;1,;fantiality ofthe· fed~t;ri;;;;; i;·1J~~g,.ind acc2~dihgly·Th:t~;· th~t.thi~ C~yrt i~~~;f~4~i;~
~~~~tion j~fi;di~tion. The C6urt;~;qii~~~. e.achGrable-G~~h i~it6f b6lo\:\1, 4
A. 	The First Grable-Gunn Factor
The first Grable-Gunn factor is whether a federal question is necessarily raised by the state
law claim that Plaintiff brings. See Gunn, 568 U.S. at 258. "A state-law claim 'necessarily' raises
federal questions where the claim is affirmatively 'premised' on a violation of federal law." N. Y.
ex rel. Jacobson v. Wells Fargo Nat'! Bank. N.A., 824 F.3d 308, 315-16 (2d Cir. 2016). Indeed,
4 As noted above, Defendant does not seek removal on the grounds of diversity jurisdiction. But even if it
had, "the party seeking removal must show that the plaintiff and defendant are of diverse citizenship and
that the amount-in-controversy exceeds $75,000, the jurisdictional amount provided by 28 U.S.C. §
1332(a);" Lycan Cap. Fund I, LLC v. Barnes, No. 23-CV-4543 (HG) (MMH), 2023 WL 4491651, at *2
(E.D.N.Y. June 30, 2023). "The party seeking to remove the case has the burden of proving that the amount
in controversy exceeds the statutory limit to a "reasonable probability." Scherer v. Equitable Life Assurance
Soc '.Y of the United States, 347 F.3d 394, 397 (2d Cir. 2003). 	No such argument is raised here, thus,
Defendant has not met its burden of demonstrating diversity jurisdiction.
8
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"[f]or a federal issue to be necessarily raised, the mere presence of a federal issue in a state cause
of action is insufficient; the pertinent question of federal law must be a necessary element of one
of the well-pleaded state claims." State by Tong v. Exxon Mobil Corp., 83F.4th122, 140: (2d Cir.
2023). "On the other hand, 'if a court could resolve the case without reaching the federal issues,
then the claims do not necessarily raise a federal issue.'" New York by James v. Sirius XM Radio
Inc., 735 F. Supp.3cl272, 211 (S.D.N.Y. 2024) (quoting State by Tong, 83 F.4th at140).
The undersigned finds that the first factor is satisfied. Plaintiffs claim under GBL §§ 349
and 350 appears predicated on a violation of federal law, namely, the FTCA. Indeed, Plaintiffs
complaint alleges that
[t]he packaging and labeling of the Product violated the [FTCA],
thereby violating the GBL, because the representations, omissions,
design, 	markings, 	and/or 	other 	elements, 	including, 	"Real
Strawberry Fruit Bars," promoted as "Made With Whole Fruit,"
with pictures ofripe strawberries, caused purchasers to expect it was
made only from strawberries, or a predominant and/or relatively
significant amount of strawberries, which was unfair and deceptive
to consumers.
Dkt. No. J at 58 1 81. "Where a federal issue is present as only one of multiple theories that could
support a particular claim ... this is insufficient to create federal jurisdiction." Anghel v. Ruskin
Moscou Faltischek, P.C., 598 F. App"i>8()5, 807 (2d Cir. 2015) (summary order) (citations
omitted). 	Indeed, "[ o]ne of the key characteristics of a mere 'theory,' as opposed to a distinct
claim, is that a plaintiff may obtain the relief he seeks without prevailing on it." Broder v.
Cablevision Sys. Corp., 418 F.3d 187, 195 (2d Cir. 2005).
Here, while the New York's Agriculture and Marketing law ("AGM") "similarly provides
in relevant part that food shall be deemed misbranded '[i]f its labeling is false or misleading in any
particular,' and incorporates the FDCA's labeling provisions found in 21 C.F.R. part 101,"
Ackerman v. Coca-Cola Co., No. 09-CV-395 (JG), 2010 WL 2925955, at *4 (E.D.N.Y. July 21,
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2010), the Court cannot award the relief requested by Plaintiff without reaching the question
whether Defendant violated federal law. 	See Sirius XM Radio, 735 F. Supp. 3d at 277.
Accordingly, at this stage in the litigation, the first Grable-Gunn factor is satisfied. 5
B. 	The Second Grable-Gunn Factor
The second Grable-Gunn factor addresses whether the federal issue is actually disputed.
See Gunn, 568 D.S. at 258. For the issue to be actually disputed, it must "qualifTy] as a 'central
point of dispute' in that state action." Link Motion Inc. v. DLA Piper LLP, 103 F.4th 905, 913 (2d
Cir. 2024) (quoting Gunn, 568 U.S'. at 259); see also Levitan, 1025 WL 2182407, at *11 (finding
that a question about the legality of federal court orders and defendant's compliance with those
orders is actually in dispute). Courts in this Circuit have defined "actually disputed" as the case
when "the parties [] dispute the validity, applicability, construction, or effect of any of the federal
standards referenced in the complaint." Podems v. Cangemi, No. 24-CV-4226 (NRM) (JRC), 2025
WL 934763, at *7 (E.D.N.Y. Mar. 3, 2025), report and recommendation adopted, 2025 WL
1064951 (E.D.N.Y. Apr. 9, 2025); see also New York By James v. DailyPay, Inc., No. 25-CV-
3439 (JGK), 2025 WL 2695712, at *7 (S.D.N.Y. Sept. 19, 2025) (finding that "a federal issue is
'actually disputed' when there is a controversy 'respecting the effect of federal law"') (quoting
Gunn, 568 U.S. at 259).
5 On May 29, 2025, the Court denied Defendant's application for a pre-motion conference for its anticipated
dispositive motion, as the parties agreed that the Court should rule on the pending motion to remand before
setting a briefing schedule for Defendant's anticipated motion to dismiss. The Court is therefore not opining
on the merits of Plaintiff's claim here. The Court notes, however, that "[a]lthough the AGM incorporates
federal regulations 'forbidding the misbranding of food, plaintiffs receive their private rights of action for
the misbranding of food under consumer protection laws,' such as GBL §§ 349 and 350." Frias v. Mars
Wrigley Confectionery US LLC, No. 23-CV-4422 (AT), 2024 WL 3988667, at *4 (S.D.N. Y. Aug. 28, 2024)
(citations omitted). "AGM § 32 makes clear that New York's Commissioner of Agriculture and Markets,
not individual plaintiffs, has the sole right to investigate and bring such actions under the AGM." 	Id.
(quotation omitted).
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Plaintiff argues that federal issues are not in dispute in this litigation because her state law
claims can be proven only by reference to New York's AGM; neither party is attacking the validity
of the FDCA, and the requirements for labelling fruit bars does not implicate a complex federal
regulatory scheme. See Dkt. No. IO at 11-12. Defendant argues that the federal issues raised are
the only issues disputed in this litigation, and further contends that, if it was held to have complied
with the federal requirements of the FDCA, such compliance would operate to preempt and
foreclose recovery on Plaintiff's state law claim. See Dkt. No. 14 at 17.
The undersigned finds that the federal issue of whether Defendant complied with the FDCA
is actually disputed for the purposes of the Grable-Gunn test. As pled, Plaintiff's contention that
Defendant "misbranded" and "adulterated" its Real Strawberry Fruit Bars in violation of the
FDCA, as adopted by the AGM, comprises an essential component of Plaintiff's claim under GBL
§§ 349 and 350. See Dkt. No.J at 2.5-21,r,r 75-90. 	Indeed, Plaintiff cannot prevail in this suit
without proving the same. 	Defendant sharply disputes, "both legally and factually[,]" that its
products were "mislabeled" or "adulterated" as defined under either federal or state law, see DktJ
No. 14 at 14 n.2, and further disputes that strawberries are the "characterizing" ingredient in its
fruit bars. Id. at 20. Because the interpretation of the FDCA standards, as adopted by the AGM,
concerning branding, labeling, and adulteration of Defendant's products is a critical component of
this case, the federal issue is "actually disputed." See Podems, 2025 WL 934763 at *7 (holding
that a dispute about the effect of a federal statute qualifies as an actual dispute); Broder, 418 F.3d
at 195 (finding the "actually disputed" requirement met where the parties disagreed on whether
the defendant's practices violated a federal antitrust statute); but see Kennedy v. UnitedHealth Grp.
Inc., No. 25-CV-432 (PAE), 2025 WL 1725147, at *6 (S.D.N.Y. June 20, 2025) (finding that a
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federal issue raised by Defendant in opposition to remand and not in plaintiff's amended complaint
or motion for remand was "manufactured" and not "actually disputed").
Therefore, the undersigned finds that the federal issues raised in Plaintiff's complaint are
actually disputed. 6
C. 	The Third Grable-Gunn Factor
The third Gunn-Grabel factor mandates that the federal issue presented be "substantial."
See Gunn, 568 U.S. at 260. That the federal issue is substantial to the resolution of the case, or to
the parties 	is 	insufficient; 	"[t]he 	substantiality 	inquiry 	under Grable looks 	instead to the
importance of the issue to the federal system as a whole." Id.; see also AMTAX Holdings 227, 136
F .4th at 39 ("Substantiality requires that the embedded federal issue be important 'to the federal
system as a whole,' not just the private litigants involved.") (citing Gunn, 568 U.S. af 260~64).
"An issue has such importance (1) when a state-law claim would yield an interpretation of federal
law that would be 'controlling in numerous other cases,' ... or (2) when it challenges the 'action
of any federal department, agency, or service."' AMTAX Holdings 227,136 FAth at39 (quoting
Empire Healthchoice Assur., Inc. v. Mc Veigh, 547 U.S. 677, 700 (2006)). Additionally, "an issue
that is 'fact-bound and situation-specific' is not sufficiently substantial to permit federal question
jurisdiction." Id. (quoting Empire Healthchoice Assur., $47 U.S. at 701. 	Moreover, "[a]n issue
tends to be substantial if it is 'a nearly pure issue of law, one that could be settled once and for all
and thereafter would govern numerous [similar] cases."' Tantaros v. Fox News Network, LLC, 12
F.4th 135, 145 (2d Cir. 2021) (quoting Empire Healthchoice Assur., 547 U.S. at 700). 	"Even
6 While this factor weighs in favor of removal, the Supreme Court has cautioned that, "the mere presence
of a [disputed] federal issue in a state cause of action does not automatically confer federal-question
jurisdiction." Link Motion, 103 F.4that 913. (quoting Merrell Dow Pharm., Inc. v. Thompson, 478 CT.Si
804,813 (1986)); see also Arias v. Budget Truck Tr. I, No. 09-CV-0774 (BMC), 2()09 WJ:,497614, at *I
(E.D.N.Y. Feb. 26, 2009) (finding that the existence of a federal defense does not automatically confer
federal question jurisdiction); Isuji v. Frometa! Const., Inc., 927F. Supp. 2d 50, 54 (E.D.N.Y. 2013) (same).
12
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absent federal review, substantiality is not shown by the mere possibility of a state court ruling at
odds with federal law." Link Motion, 103 F. 4th at 914-15 (citing Gunn, 568 U.S. at 263).
While, as discussed supra, this action raises a federal issue that is actually disputed, the
issue is insufficiently substantial to warrant the assertion of federal subject matter jurisdiction.
Indeed, 	"substantiality 	must 	be 	determined 	based on 	a careful, 	case-by-case judgment."
Sunvestment Energy Grp. NY 64 LLC v. Nat'! Grid USA Servs. Co., U6F.4thl06, 116 (2d Cir.
2024) (quoting NASDAQ OMX Grp., 770 F.3d at 1028) (citation omitted). "[I]t is to be expected
that, after such careful, case-specific consideration, most federal law questions raised in connection
with state law claims will not be deemed substantial." Id. (quoting NASDAQ OMX Grp., 710 F.3d
at1029).
Plaintiff argues that this case lacks substantiality because the allegedly "fact-intensive"
consumer deception dispute is only important to the parties, and any court holding would not
govern other cases; thus, its resolution would not have implications for the federal system. 	See
Dkt. Nos. 10 at 9-10; 15 at 7. Defendant contends that Plaintiff's theory ofrecovery "is purely a
question of law with implications for future claims under the FDCA, that should be resolved in
federal court[,]" and does not present fact-intensive inquiries. See bkt. No. 14itl9-20.
The undersigned is inclined to agree as this case presents a fact-specific inquiry (and not a
pure question of law), which lessens its potential precedential value and thus, its importance to the
federal system and substantiality. 	See Empire Healthchoice, 547 U.S. at 701 (finding that fact-
bound and specific claims are not substantial questions of federal law as they would not "govern
numerous [similar] cases"). 	To assess the merits of Plaintiff's claim, the Court would have to
investigate the ingredients of the Real Strawberry Fruit Bars; assess the relative value of the Real
Strawberry Fruit Bars compared with other bars; and arrive at a determination as to whether the
13
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Real Strawberry Fruit Bars had false or misleading labels, or otherwise contained fruits of poorer
quality from the perspective of consumers. 7 See Dkt. No.lat 11-14 ,r,r 1-17. Though such factual
determinations would involve interpreting the FDCA and regulations promulgated thereunder, the
same would likely only lead to resolution of this controversy. See DailyPay, 2025 WL 2695712,
at *7 (finding that a case applying the Consumer Financial Protection Act to a particular set of
facts was the type of fact-bound inquiry that is not sufficiently substantial); see also Sunvestment,
116 F .4th at 116-17 (finding the substantiality requirement was "not met" where a court's decision
would turn on, among other things, the practices of a particular utility company).
Additionally, as Plaintiff contends, neither party is seeking to challenge the actions of the
U.S. Food and Drug Administration or the Federal Trade Commission, which weighs against a
finding of substantiality. bkt.No.H)aflO; see AMTAX Holdings 227, 136F.4that 39 (noting the
importance to the federal system, and thus, substantiality, of actions challenging federal agencies
or regulations); see also Empire Healthchoice Assurance, 547 U.S. at 700.
Defendant cites Broder for the mistaken proposition that a federal issue is substantial and
warrants an exercise of federal question jurisdiction, so long as it is "not clearly insubstantial."
418 F.3d afl95; see bk.t. No. 14 af17. However, since Broder, the Second Circuit has clarified
that substantiality "typically exists only in those exceptional cases that go beyond the application
7 As stated in Ackerman,
In order to show that Plaintiff is entitled to relief for a violation of New
York General Business Law ("GBL") § 349, relating to deceptive business
practices, or§ 350, relating to false advertising, a plaintiff must show: (1)
that the act, practice, or advertisement was consumer-oriented; (2) that the
act, practice, or advertisement was misleading in a material respect, and
(3) that the plaintiff was thereby injured. See Stutman v. Chem. Bank, 95
N.Y.2d 24, 29: (2000) (§ 349); Horowitz v. Stryker Corp., 613 F. Supp.2d
271,287 (E.D.N.Y. 2009) (§ 350) (citation omitted).
2010 WL 2925955, at *22.
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of some federal law raised in connection with state-law claims and instead implicate broad
consequences to the federal system or the nation as a whole." Sunvestment, 116 F.4th at 115 (citing
Gunn, 568 U.S. at 263-64); see also AMTA){ Holdings 227, 136 F.4th at 39 (holding that a federal
issue is substantial if it raises issues of law that can affect the cases of other litigants besides the
parties in this case); Tantaros, 12 F.4th at 145 (finding that a case would "be substantial if it is 'a
nearly pure issue of law, one that could be settled once and for all and thereafter would govern
numerous [similar] cases"').
Defendant further contends that this case will compel the court to "review, construe and
apply various general and specific, interconnected regulations of [the FDCA's] complex federal
regulatory scheme," thus increasing its importance to the federal system and its substantiality. See
bkt. No.14 at 18. 	But "absent special circumstances,[] there is no federal question jurisdiction
over 	garden-variety 	state-law 	claims 	'resting 	on 	federal 	mislabeling 	and 	other 	statutory
violations."' Caggiano v. Pfizer, Inc., 384 F. Supp . .2d 689, 691 (S.D.N.Y. 2005) (finding no
federal question jurisdiction, despite plaintiffs' expressed intention to have a state court determine
whether "certain federal law violations constitute negligence per se under state law.") (citing
Grable, 54-5 US; a1:319). Additionally, the argument that federal question jurisdiction is necessary
to promote uniformity in interpretation of the standards created by the FDCA has been
"specifically rejected by the Supreme Court in Merrell Dow Pharms. Inc. v. Thompson, 478 U.S.
804, 815-16 (1986)." Id. at 691 n.2.
Furthermore, Defendant's contention that Congress's decision, via the FDCA, "to impose
uniform, national requirements, to be dictated by a federal agency, which cannot be upset or
disturbed by any competing state law, 21 U.S.C. 	§ 343-l(a)(2)[,]" compels a finding of
substantiality, see Dkt. No. 14 at 18, is without merit and undermined by the FDCA's lack of a
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private cause of action. 	To be sure, "since Merrell Dow[,] the Supreme Court has clarified that
the absence of a federal cause of action is a factor relevant to, but not dispositive of, the question
of whether a federal law dispute raised by a state law claim can properly be deemed substantial."
NASDAQ OMX Grp., 770 F.3d at 1028 (citing Grable, 545 U.S. at 310, 318). Nevertheless, in
Merrell Dow, the absence of a federal cause of action was held to be probative of whether federal
question jurisdiction was intended at all. See 418 U.S. at 812 ("The significance of the necessary
assumption that there is no federal private cause of action thus cannot be overstated."). Here, the
dearth of a federal private cause of action suggests that this case lacks importance "to the federal
system as a whole[,]" and thus, substantiality, and the exclusivity of federal standards, as adopted
by the states, does not alter this conclusion. See Gunn, 568 U.S. at 260; Pritika v. Moore, 9LF.'
Supp. 3d 553, 559 (S.D.N.Y. 2015) ("[T]he missing cause of action [is seen] not as a missing
federal door key, always required,[] but as a missing welcome mat, required ... when exercising
federal jurisdiction over a state [claim] would ... attract[] a horde of original filings and removal
cases raising other state claims with embedded federal issues.") (quoting Grable, 545 U.S. at3l8);
see also Merrell Dow, 478 U.S. at 815-16; 21 U.S.C. § 343-l(a)(5).
Accordingly, the undersigned finds that Plaintiffs claims are not sufficiently substantial
under Grable-Gunn to justify federal question jurisdiction.
D. 	The Fourth Grable-Gunn Factor
Although it is not necessary for the undersigned to consider the remaining Grable-Gunn
factor in light of the above, he will do so for the sake of completeness. The fourth Grable-Gunn
factor is that "the claim must be one "which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial responsibilities." Grable, 545 U.S.:
at 314; see also Gunn, 568 U.S. at 264 (Grable's fourth requirement "is concerned with the
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appropriate "balance of federal and state judicial responsibilities."). The Supreme Court in Gunn
added that "in the absence of a substantial federal issue, '[i]t follows' that exercise of federal
jurisdiction over a state claim would disrupt the [appropriate federal and state balance]." 	Link
Motion, 103 F.4th at 916 (quoting Gunn, 568 U.S. at264). Courts typically look to "the nature of
the claim, the traditional forum for such a claim, and the volume of cases that would be affected."
AMTAX Holdings 227, 136 F.4th at 40 (quoting Jacobson, 824 F.3cLat 316) (the "Jacobson"
factors).
In arguing for remand, Plaintiff argues that the "misbranding" and "adulteration" alleged
in the complaint is "of peculiarly local concern," and falls within the ambit of a state's traditional
police powers. 	See Dkt. No. 10 at 9. 	Defendant, alternatively, cites Broder for the idea that
allowing federal courts to adjudicate GBL § 349 claims that turn on federal law standards preserves
the federal-state balance. See Dkt. No.14 at2l (citing Broder, 418 F.3d at196). Additionally,
Defendant suggests that Plaintiffs counsel drives most of the litigation in this field, thus, any
decision to hear this case in federal court would not meaningfully affect food labeling litigation.
Id. at 21.
Despite the lack of a substantial federal issue, as outlined supra, the undersigned will
consider the Jacobson factors to determine if exercising federal jurisdiction would upset the
balance between federal and state judiciaries. Gunn, 586 U.S. at264; Jacobson, 824 F .3d at 316.
Looking first at the nature of the claim, Plaintiffs cause of action comes from the New York
General Business Laws, see Dkt. No. 1 at 25-27,r,r 75-90, and though its resolution would require
interpretation of federal law, state courts are competent to do so. 	See Tantaros, 12 FAth at 146
(finding state courts competent to apply the Federal Arbitration Act); but see State ex rel. Am.
Advisory Servs., LLC v. Egon Zehnder Int'!, Inc., 592 F. Supp. 3d 183, 211 (S.D.N.Y. 2022)
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(finding that Tax Bar to the federal False Claims Act demonstrates a clear legislative preference
to leave discretion to pursue tax violations to the IRS and denying remand to state court).
Here, the relevant federal law clearly allows for parallel state enforcement, as evidenced
by Congress's refusal to preempt state regulations that mirror the federal standard. See 21 U.S.C.
§ 343-l(a)(2); Ward v. Pepperidge Farm, Inc., 773 F. Supp. 3d 10, 23 (S.D.N.Y. 2025) (finding
that federal regulations for food labeling do not preempt parallel state laws). Despite Congress's
passage of the FDCA and the federal government's exclusive authority over such regulations, see
21 U.S.C. § 343-l(a)(2), Plaintiffs cause of action for violation of GBL §§ 349 and 350 is
"formulated as [a] state law claim[] frequently resolved by New York State courts." See Barone,
372 F. Supp. 3d at159. This accordingly weighs against federal question jurisdiction.
Moreover, because such claims are not preempted, New York state courts have long heard
cases regarding the adulteration and/or misleading labeling of foods. See, e.g., Animal Legal Def
Fund, Inc. v. Aubertine, 119A.D.3d 1202, 1203 (3d Dep't 2014) ("Petitioners seek, among other
things, a declaration that force-fed foie gras[] is an adulterated food product."); Langiulli v. Bumble
Bee Seafood, Inc., 604 N.Y.S.2d 1020, 1021 (Sup. Ct. West. Cnty. 1993) ("It is apparent to this
Court that the thrust and intent of these [AGM] sections is to prohibit the sale of impure or
contaminated products .... "); People v. Coney Island Soda Water Co., '.256N.Y.S. 639,639 (1st
Dep't 1932) (addressing a case involving the "true fruit flavors" of a product); People v. Wyman,
226 A.D. 220, 222 (4th Dep't 1929) (finding that a liquid labeled as "Cherry Soda" that contained
no cherry fruit flavor was mislabeled); People v. Durkee, 189 A.D. 276, 278 (3rd Dep't 1919)
(holding that a sauce sold under a "secret formula" that contained no dangerous ingredients was
not adulterated); People v. Park, 60 A.D.255, 258 (1st Dep't 1901) (finding that a beverage sold
as lemonade that contained no lemon juice and instead contained inferior and cheaper fruits was
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adulterated). These cases indicate a federal acceptance of New York's regulatory regime and that
similar adulteration and mislabeling cases may be handled in state court. Accordingly, finding no
federal question jurisdiction here "would not materially affect, or threaten to affect, the normal
currents of litigation." Grable, 545 U.S. at 319.
To consider the volume of cases that would be affected, it is worth considering Defendant's
assertion that Plaintiffs counsel has brought myriad mislabeling and adulteration cases in federal
and state court. Dkt. No. 14 at21~22. Neither party puts forward an argument about how this case
could affect future cases of this type, but Plaintiffs choice of forum was made intentionally, and
the Court will respect this choice of forum here. See In re Lehman Bros. Holdings Inc., 594 B.R)
33, 73 (Bankr. S.D.N.Y. 2018); see also At!. Marine Const. Co. v. US. Dist. Ct. for W. Dist. of
Texas, 571U.S.A-9, 62 n.6 (2013).
Though the lack of substantiality alone counsels against the exercise of federal jurisdiction
here, the Jacobson factors also suggest that remanding the case to state court will preserve the
federal-state judicial balance and respect both Congress's legislative decisions and Plaintiffs
original choice of forum. Gunn, 568 U.S. at 264; Jacobson, 824 F.3d at 316. 8
8 In her reply memorandum of law, Plaintiff asserts, for the first, time, that she is entitled to an award of
attorneys' fees and 'just costs" because Defendant removed this case to federal court without an objectively
reasonable basis for doing so. See Dkt. No. 15 at 11 (citing Williams v. Int'! Gun-A-Rama, 416 F. App'x
97, 99 (2d Cir. 2011 )). Plaintiff points to the lack of a federal claim in her Complaint as evidence of the
removal's allegedly unreasonable nature. Id.
As a preliminary matter, Plaintiff has waived this argument, and thus, her claim to attorneys' fees and costs,
by failing to raise the same in her opening memorandum. See Tutor Time Learning Ctrs,, LL<;v. (]KQ
(Jrp., Inc,, No. 13-CV-298.0 (JMF), 2013 VIL 5637676, at *1 (S.D.N.Y .. Oct. 15, 2013) ("arguments}aisecl
for the first time in a reply mern<>randum are waiv(!d andneed not b~ considered.."); see also, e.g.,
Connecticut Bar Ass'n V. United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010). 	Additionally, Calabro V.
Aniqa Halal Live Poultry Corp., cited by Plaintiff, is inapposite, as that case was removed on the basis of
federal question jurisdiction arising from a federal claim posed in a third-party complaint. See 650 F.3d
163, 166 (2d Cir. 2011). Here, Defendant removed on the basis of purported federal question jurisdiction
based on Plaintiffs complaint, see Dkt. No.I, which is not objectively unreasonable for lack of compliance
with this Circuit's "well-pleaded complaint rule." See Barone, 372 F. Supp. 3d at 146 ("In determining
whether removal based upon federal question jurisdiction is proper, the 'well-pleaded complaint rule'
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IV. 	Conclusion
Accordingly, the undersigned respectfully recommends that the Court grant Plaintiff's
motion to remand this case to the Supreme Court of the State of New York, Kings County.
A copy of this Report and Recommendation is being electronically served on counsel. Any
objections to this Report and Recommendation must be filed within fourteen days after service of
this Report and Recommendation. See 28 lJ.S.C. § 6.36(b)(l); Fed. R.. Civ. P. 72(b)(2); see also
Fed. R.Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time
for filing objections must be directed to Judge Garaufis. Failure to file objections within this period
designating the particular issues to be reviewed waives the right to appeal the district court's order.
See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins,
Nellis, Brittingham, Gladd & Carwile, P. C., 596 F.3d 84, 92 (2d Cir. 201 0); Kotlyarsky v. United
States Dep't of Just., No. 22-2750, 2023 WL7648618 (2d Cir. Nov. 15, 2023); see also Thomas
v. Arn, 474U.S.140 (1985).
Dated: 	Brooklyn, New York
November 15, 2025
SO ORDERED.
Isl Joseph A. Marzttollo
JOSEPH A. MARUTOLLO
United States Magistrate Judge
typically governs, which requires a court to consider only allegations in the complaint and not matters raised
by the defendant in defense.") (citation omitted).
Accordingly, Defendant's removal of this action on the basis of federal question jurisdiction was
not objectively unreasonable, and the undersigned will not recommend the award of attorneys' fees and
costs to Plaintiff.
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