MIAMI (Legal Newsline) - A Florida federal judge has thrown out a lawsuit that complained honey and lemon-flavored lozenges did not contain real lemon.
Publix told Judge Robert Scola in its motion to dismiss that the list of ingredients didn't include lemon, so reasonable consumers couldn't have possibly been misled. The hint of lemon came from artificial and natural flavors.
The lawsuit had said customers purchase lemon products because of their nutritional benefits. Will Wright and Spencer Sheehan are representing plaintiff Heriberto Valiente.
Publix had also pointed at a Chicago decision that dismissed a lawsuit over lemon in flavored seltzer water. It also noted a money-back guarantee on the product that dooms Valiente's lawsuit, as he had a more adequate economic remedy other than filing in federal court.
"Valiente does not address Publix's offer either in his amended complaint or in his response to Publix's motion to dismiss: for example, he does not state that he never in fact received a refund for the cough drops, that he attempted to return the product for a refund and that Publix refused, or even that he was unaware of the possibility for a refund," Scola wrote My 24.
"(T)he Court concludes that the only injury Valiente actually alleges his essentially been mooted by Publix's money-back guarantee."
Besides that, Valiente faied to show the cough drops didn't function as advertised or that he paid a price premium for lemon.
Sheehan and Wright were not given a chance to refile the case, either.
"Valiente requests leave to amend as an afterthought, at the end of his response in opposition to Publix's motion to dismiss, making the request both procedurally defective and lacking in substance support under Eleventh Circuit precedent," Scola wrote.
"The Court will not now afford Valiente another bite at the apple where he declined 'to follow the well-trodden procedural path toward amendment.'"