Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/13

 :'''II. McDonalds’ Motion to Dismiss'''


 * A. Standard of Review

In reviewing a motion to dismiss under Rule 12(b)(6), courts must “accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993)). However, “legal conclusions, deductions, or opinions couched as factual allegations are not given a presumption of truthfulness.” L’Europeenne de Banque v. La Republica de Venezuela, 700 F.Supp. 114, 122 (S.D.N.Y.1988). The complaint may only be dismissed when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitledentitle [sic] him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996); Allen v. West-Point–Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991).

Review must be limited to the complaint and documents attached or incorporated by reference thereto. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). In this context, the Second Circuit has held that a complaint is deemed to “include … documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000).

Plaintiffs, however, in their opposition papers rely on facts outside the pleading. The Court of Appeals has made clear that where a District Court is provided with materials outside the pleadings in the context of a 12(b)(6) motion to dismiss, it has two options: the court may exclude the additional materials and decide the motion on the complaint alone or convert the motion to one from summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material. Fed.R.Civ.P. 12(b). Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir.1991) (quoting Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988)). The Court has not converted this motion to one for summary judgment and thus will not consider statements outside the pleadings in reaching its holding.


 * B. Counts I and II: Plaintiffs Fail to State a Claim Pursuant to N.Y. Gen. Bus. Law §§ 349 and 350

Counts I and II allege that McDonalds violated the New York Consumer Protection Act, N.Y. Gen. Bus. Law §§ 349 and 350, by (1) deceptively advertising their food as not unhealthful and failing to provide consumers with nutritional information (Count I) and (2) inducing minors to eat at McDonalds through deceptive marketing ploys (Count II).

Section 349 of New York General Business Law makes unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349(a). Section