Moore v. Mars Petcare US, Inc. et al

Filing 106

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS; AFFORDING PLAINTIFFS LEAVE TO AMEND. Plaintiffs' Second Amended Complaint shall be filed no later than July 31, 2017. Signed by Judge Maxine M. Chesney on 07/10/17. (mmclc2, COURT STAFF) (Filed on 7/10/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TAMARA MOORE, et al.,
Plaintiffs,

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v.

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ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS; AFFORDING
PLAINTIFFS LEAVE TO AMEND

MARS PETCARE US, INC., et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-07001-MMC

Re: Dkt. Nos. 92, 93, 95

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Before the Court are the following three motions, each filed April 3, 2017: (1)

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“Motion to Dismiss Plaintiffs’ Claims Under § 1 of the Sherman Act” (“Antitrust Motion”),

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brought collectively by defendants Mars Petcare US, Inc. (“Mars”), Royal Canin U.S.A.,

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Inc. (“Royal Canin”), Nestle Purina Petcare Company (“Purina”), Hill’s Pet Nutrition, Inc.

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(“Hills”), Petsmart, Inc. (“Petsmart”), Medical Management International, Inc. d/b/a

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Banfield Pet Hospital (“Banfield”), and Bluepearl Vet, LLC (“Bluepearl”); (2) “Motion to

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Dismiss Plaintiffs’ State Law Claims” (“State Law Motion”), brought collectively by

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defendants Mars, Royal Canin, Purina, and Hills (hereinafter, “Manufacturer

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Defendants”); and (3) “Motion to Dismiss Plaintiffs’ Sixth Cause of Action” (“MMPA

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Motion”),1 brought by defendant Purina, to the extent such claim is asserted against said

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defendant. All three motions have been fully briefed.

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The matter came on regularly for hearing on July 7, 2017. Michael A. Kelly and
Matthew D. Davis of Walkup, Melodia, Kelly & Schoenberger; Daniel Shulman and Julia

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Plaintiffs’ Sixth Cause of Action is brought under the Missouri Merchandising
Practices Act (“MMPA”).

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Dayton Klein of Gray, Plant, Mooty, Mooty, & Bennett, P.A.; Michael L. McGlamry, Wade

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H. Tomlinson III, and Caroline G. McGlamry of Pope McGlamry, P.C.; and Edward J.

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Coyne III of Ward and Smith, P.A. appeared on behalf of plaintiffs. John E. Schmidtlein,

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Benjamin M. Greenblum, and Xiao Wang of Williams & Connolly LLP appeared on behalf

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of Mars, Royal Canin, Banfield, and Bluepearl. Christopher M. Curran and J. Frank

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Hogue of White & Case LLP appeared on behalf of Purina. Michael F. Tubach and

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Hannah Y. Chanoine of O’Melveny & Myers LLP appeared on behalf of Hills. Eileen R.

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Ridley of Foley & Lardner LLP appeared on behalf of Petsmart.

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The Court, having considered the parties’ respective written submissions and the
arguments of counsel at the hearing, rules as follows.

United States District Court
Northern District of California

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A. Antitrust Motion

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All defendants move to dismiss Count I of plaintiffs’ First Amended Complaint

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(“FAC”), for failure to allege facts evidencing an agreement in violation of the Sherman

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Act, 15 U.S.C. § 1. For the reasons stated on the record at the hearing, the Court

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agrees.

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Accordingly, the Antitrust Motion is hereby GRANTED, with leave to amend to

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allege facts sufficient to plead parallel conduct, see Bell Atlantic Corp. v. Twombly, 555

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U.S. 544, 556-57 (2007), and “plus factors,” see In re Musical Instruments & Equip.

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Antitrust Litig., 798 F.3d 1186, 1194 (9th Cir. 2015).

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B. State Law Motion

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Manufacturing Defendants move to dismiss Counts II-XIII of the FAC, plaintiffs’

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state law claims, on the following grounds: (1) failure to plead fraud with sufficient

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particularity under Rule 9(b) of the Federal Rules of Civil Procedure; (2) failure to allege

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reliance and causation; (3) lack of standing to seek injunctive relief; (4) lack of standing to

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bring a claim based on products not purchased by plaintiffs; and (5) failure to plead

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entitlement to equitable relief.

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For the reasons stated on the record at the hearing, the Court finds:

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(1) Plaintiffs’ state law claims, to the extent based on an alleged
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misrepresentation, have not been pleaded with the particularity required by Rule 9(b),

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namely, identification of the false or misleading statement, by whom it was

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communicated, to whom it was communicated, and “what is false or misleading about

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[the] statement.” See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.

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2003).

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(2) Plaintiffs have not alleged facts sufficient to plead reliance where required

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under the relevant state consumer protection law, nor have they alleged facts sufficient to

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plead proximate causation under any such law.
(3) Plaintiffs have failed to allege facts sufficient to plead Article III standing to

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bring a claim for injunctive relief, in particular, facts demonstrating plaintiffs’ intent to

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United States District Court
Northern District of California

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purchase the accused products in the future despite their allegation that such products

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are more expensive than products having the same composition.

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(4) Plaintiffs have failed to allege facts sufficient to plead Article III standing to
bring a claim for any product not alleged to have been purchased by a named plaintiff.
(5) Given that plaintiffs’ unjust enrichment claims are based on their allegations of

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misrepresentation, and given the insufficiency of those claims as pleaded, plaintiffs

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likewise fail to plead a claim for unjust enrichment. Further, as to their unjust enrichment

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claims under Florida and North Carolina law, plaintiffs fail to allege facts sufficient to

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show they directly conferred a benefit on any Manufacturer Defendant. See Am. Safety

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Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331 (Fla. Dist. Ct. App. 2007); Effler v. Pyles,

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380 S.E. 2d 149, 152 (N.C. Ct. App. 1989).

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Accordingly, the State Law Motion is hereby GRANTED, with leave to amend to
cure the deficiencies identified above.

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C. MMPA Motion

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Purina moves to dismiss Count VI of the FAC for failure to plead Article III standing

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and failure to state a claim.2 For the reasons stated on the record at the hearing, the

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To the extent Purina also moves to dismiss on due process and choice-of-law
grounds, the Court finds such issues are more appropriate for resolution after the
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Court is not persuaded by the first argument, but is persuaded by the second.
Accordingly, the MMPA Motion is hereby GRANTED, with leave to amend to

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allege facts demonstrating sufficient “ties between the allegedly fraudulent

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[Massachusetts] transactions and Missouri.” See Perras v. H & R Block, 789 F.3d 914,

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918 (8th Cir. 2015).

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CONCLUSION

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Defendants’ motions are hereby GRANTED, with leave to amend as set forth

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above. Plaintiffs’ Second Amended Complaint shall be filed no later than July 31, 2017.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: July 10, 2017
MAXINE M. CHESNEY
United States District Judge

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pleadings are settled as to the named plaintiff’s claim.
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