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Florida pair’s Quarter Pounder with Cheese lawsuit against McDonald’s is over

A McDonald's Quarter Pounder, left, and Double Quarter Pound burger.
A McDonald's Quarter Pounder, left, and Double Quarter Pound burger. AP

Two South Florida McDonald’s customers learned Friday how difficult it is to win a lawsuit against a major fast-food chain. The two filed a $5 million class action lawsuit in May against McDonald’s over how it charges for one of its signature items: the Quarter Pounder with Cheese.

On Friday, U.S. District Judge William Dimitrouleas dismissed a suit filed by Cynthia Kissner of Broward and Leonard Werner of Miami-Dade in the U.S. District Court in Fort Lauderdale.

In that suit, the customers complained that they had been charged the full price of a Quarter Pounder with Cheese, even after they asked that the burger be modified to hold the cheese.

Dimitrouleas granted McDonald’s’ motion to dismiss Kissner and Werner’s amended class action complaint — and he did so “with prejudice,” meaning the two plaintiffs cannot file this suit again.

Kissner and Werner failed to “state a claim” for their damages, one of the main hurdles they would have had to clear to make headway in their lawsuit.

Citing a federal rule of civil procedure, Dimitrouleas’ decision said “a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’ This pleading standard ‘does not require detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed me accusation.”

In layman’s language: Kissner and Werner didn’t say, or couldn’t prove, they were harmed by having to pay more for a plain Quarter Pounder, as they alleged.

In stronger language, Friday’s decision called Kissner and Werner’s attempt to tie a Quarter Pounder and a Quarter Pounder with Cheese as one “tied” product “absurd and fails.”

Dimitrouleas’ ruling says “a Quarter Pounder with no cheese and cheese are separate and distinct products, both of which are offered for sale and can be purchased separately in McDonald’s restaurants.”

The class action suit was filed by Andrew Lavin of the Miami-based Lavin Law Group in May.

Lavin had argued that customers can order a cheese-less Quarter Pounder at reduced cost (about .30 cents or so depending on the franchise) via the McDonald’s app even if the menu board inside a franchise only shows the cheese option.

McDonald’s successfully refuted this argument.

“The McDonald’s App does not constitute advertising because product availability and pricing on the App varies as a customer changes location and the App clearly states the same,” according to McDonald’s reply in support of a motion to dismiss. That dismissal request was filed by Jennifer Olmedo-Rodriguez and attorneys at the Miami-based Buchanan Ingersoll & Rooney on Oct. 24.

The court also agreed with McDonald’s that while cheese is a component of several menu items — that includes the Big Mac and Filet-o’-Fish, for instance — Kissner and Werner can’t allege that “a slice of ‘cheese’ is a separate and distinct menu item with a separate and independent market that is being tied to the purchase of the Quarter Pounder or Double Quarter Pounder.”

The dismissal added: “Under any common sense analysis, there is no market for a customer to come into a McDonald’s restaurant and order a slice or two of ‘cheese’ as a product that is separate, distinct, and independent from any other product or menu item. Nor is there a separate product market for a customer to order a slice of tomato, or a slice of lettuce, or a slice of pickle, etc.”

As a result, Dimitrouleas’ dismissal affirmed that Kissner and Werner “failed to state any viable claims after two attempts. Moreover, it is clear that additional amendments would be futile.” The Fort Lauderdale court ordered the clerk to close the case.

Earlier, McDonald’s argued that if this case was allowed to proceed it would create “utter chaos” for the retail food industry.

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