Moore v. Mars Petcare US, Inc. et al

Filing 134

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS; AFFORDING LIMITED LEAVE TO AMEND. Signed by Judge Maxine M. Chesney on 11/21/2017. (mmclc2, COURT STAFF) (Filed on 11/21/2017)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 TAMARA MOORE, et al., Plaintiffs, 12 13 14 15 Case No. 16-cv-07001-MMC v. MARS PETCARE US, INC., et al., Defendants. ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS; AFFORDING LIMITED LEAVE TO AMEND Re: Dkt. Nos. 117, 118 16 17 Before the Court are the following two motions, both filed September 11, 2017: (1) 18 “Motion to Dismiss Plaintiffs’ Second Amended Complaint Claim Under § 1 of the 19 Sherman Act” (“Antitrust Motion”), brought collectively by defendants Mars Petcare US, 20 Inc. (“Mars”), Royal Canin U.S.A., Inc. (“Royal Canin”), Nestle Purina Petcare Company 21 (“Purina”), Hill’s Pet Nutrition, Inc. (“Hills”), Petsmart, Inc. (“Petsmart”), Medical 22 Management International, Inc. d/b/a Banfield Pet Hospital (“Banfield”), and Bluepearl 23 Vet, LLC (“Bluepearl”); and (2) “Motion to Dismiss Plaintiffs’ State Law Claims” (“State 24 Law Motion”), brought collectively by defendants Mars, Royal Canin, Purina, and Hills 25 (hereinafter, “Manufacturer Defendants”). Both motions have been fully briefed. 26 The matters came on regularly for hearing on November 17, 2017. Daniel 27 Shulman of Gray, Plant, Mooty, Mooty, & Bennett, P.A.; Edward J. Coyne III of Ward and 28 Smith, P.A.; Michael A. Kelly and Matthew D. Davis of Walkup, Melodia, Kelly & 1 Schoenberger; and Michael L. McGlamry and Wade H. Tomlinson of Pope McGlamry, 2 P.C. appeared on behalf of plaintiffs. John E. Schmidtlein and Xiao Wang of Williams & 3 Connolly LLP appeared on behalf of Mars, Royal Canin, Banfield, and Bluepearl. Jeffrey 4 E. Faucette of Skaggs Faucette LLP appeared on behalf of Mars and Royal Canin. 5 Hannah Y. Chanoine and Michael F. Tubach of O’Melveny & Myers LLP appeared on 6 behalf of Hills. Christopher Curran, Bryan Merryman, and J. Frank Hogue of White & 7 Case LLP appeared on behalf of Purina. Megan O. Curran of Foley & Lardner LLP 8 appeared on behalf of Petsmart. 9 10 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 11 A. Antitrust Motion 12 The Court, for the reasons stated on the record at the hearing, finds plaintiffs again 13 have failed to plead facts sufficient to “nudge[] their claim[] across the line from 14 conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also 15 Name.Space, Inc. v. Internet Corp. for Assigned Names & Numbers, 795 F.3d 1124, 16 1130 (9th Cir. 2015) (affirming dismissal of Section 1 claim under Sherman Act where 17 “factual allegations just as easily suggest[ed] rational, legal business behavior”) (internal 18 quotation and citation omitted). 19 20 21 22 Accordingly, Defendants’ Antitrust Motion is hereby GRANTED, and Cause of Action I is hereby DISMISSED without further leave to amend. B. State Law Motion 1. Causes of Action II-XIII 23 To the extent plaintiffs’ state law claims, all of which challenge an alleged 24 deceptive practice (see Opp. to State Law Motion at 1:2-3), are based on Manufacturer 25 Defendants’ sale of the subject products exclusively through veterinarians or with 26 veterinarian approval, the Court, for the reasons stated on the record at the hearing, finds 27 such claims are subject to dismissal, without further leave to amend, for the reason that 28 plaintiffs again have failed to show such practice is itself deceptive or otherwise 2 1 misleading. 2 To the extent plaintiffs’ state law claims are based on an allegation that 3 Manufacturer Defendants misrepresent the content of the subject products as being 4 materially different than products for which veterinary intervention is not required, the 5 Court, for the reasons stated on the record at the hearing, finds such claims are subject 6 to dismissal, without further leave to amend, for the reason that plaintiffs again have 7 failed to plead facts sufficient to show the two types of products are not materially 8 different. 9 To the extent plaintiffs’ state law claims are based on an allegation that Manufacturer Defendants’ use of the word “prescription” or “Rx” symbol is deceptive, the 11 United States District Court Northern District of California 10 Court, for the reasons stated on the record at the hearing, finds plaintiffs have failed to 12 adequately allege such use caused any plaintiff’s claimed loss. Although plaintiffs’ failure 13 to plead causation was raised at the July 7, 2017, hearing on defendants’ motions to 14 dismiss plaintiffs’ First Amended Complaint, the Court, in light of counsel’s representation 15 to the Court that plaintiffs, if given a further opportunity, likely would be able to plead such 16 element, will afford plaintiffs limited leave to amend to cure said deficiency. In particular, 17 plaintiffs will be afforded leave to add, if they can do so, specific factual allegations 18 describing how each Manufacturer Defendant’s use of the term or symbol on its products 19 or in its advertising affected each plaintiff’s decision to purchase such product(s). 20 Accordingly, the State Law Motion is hereby GRANTED, Causes of Action II-XIII 21 are hereby DISMISSED, and, with the one exception discussed below, such dismissal is 22 with limited leave to amend to plead causation. 23 24 2. Cause of Action VI: Purina Purina moves to dismiss Cause of Action VI on the additional ground that plaintiffs 25 have failed to plead sufficient facts to support extraterritorial application of the Missouri 26 Merchandising Practices Act (“MMPA”), the statute under which such cause of action is 27 brought. The Court, for the reasons stated on the record at the hearing, agrees. See 28 Perras v. H & R Block, 789 F.3d 914, 918 (8th Cir. 2015) (holding plaintiff’s claims not 3 1 covered by MMPA; finding plaintiff failed to allege sufficient “ties between the allegedly 2 fraudulent transactions and Missouri” where “every part of the transactions . . . occurred 3 in each [putative] class member’s home state”); see also id. at 917-18 (distinguishing 4 State ex rel. Nixon v. Estes, 108 S.W.3d 795 (Mo. Ct. App. 2003)). 5 6 Accordingly, for such additional reason, Cause of Action VI, as brought against Purina, is hereby DISMISSED without further leave to amend. 7 Conclusion 8 9 Defendants’ motions to dismiss are hereby GRANTED, with leave to amend as set forth above. Plaintiffs’ Third Amended Complaint shall be filed no later than December 11 United States District Court Northern District of California 10 12, 2017. 12 13 IT IS SO ORDERED. 14 15 Dated: November 21, 2017 MAXINE M. CHESNEY United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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