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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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TAMARA MOORE, et al.,
Plaintiffs,

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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

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Before the Court are the following two motions, both filed September 11, 2017: (1)

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“Motion to Dismiss Plaintiffs’ Second Amended Complaint Claim Under § 1 of the

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Sherman Act” (“Antitrust Motion”), brought collectively by defendants Mars Petcare US,

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Inc. (“Mars”), Royal Canin U.S.A., Inc. (“Royal Canin”), Nestle Purina Petcare Company

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(“Purina”), Hill’s Pet Nutrition, Inc. (“Hills”), Petsmart, Inc. (“Petsmart”), Medical

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Management International, Inc. d/b/a Banfield Pet Hospital (“Banfield”), and Bluepearl

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Vet, LLC (“Bluepearl”); and (2) “Motion to Dismiss Plaintiffs’ State Law Claims” (“State

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Law Motion”), brought collectively by defendants Mars, Royal Canin, Purina, and Hills

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(hereinafter, “Manufacturer Defendants”). Both motions have been fully briefed.

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The matters came on regularly for hearing on November 17, 2017. Daniel

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Shulman of Gray, Plant, Mooty, Mooty, & Bennett, P.A.; Edward J. Coyne III of Ward and

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Smith, P.A.; Michael A. Kelly and Matthew D. Davis of Walkup, Melodia, Kelly &

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Schoenberger; and Michael L. McGlamry and Wade H. Tomlinson of Pope McGlamry,

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P.C. appeared on behalf of plaintiffs. John E. Schmidtlein and Xiao Wang of Williams &

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Connolly LLP appeared on behalf of Mars, Royal Canin, Banfield, and Bluepearl. Jeffrey

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E. Faucette of Skaggs Faucette LLP appeared on behalf of Mars and Royal Canin.

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Hannah Y. Chanoine and Michael F. Tubach of O’Melveny & Myers LLP appeared on

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behalf of Hills. Christopher Curran, Bryan Merryman, and J. Frank Hogue of White &

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Case LLP appeared on behalf of Purina. Megan O. Curran of Foley & Lardner LLP

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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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The Court, for the reasons stated on the record at the hearing, finds plaintiffs again

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have failed to plead facts sufficient to “nudge[] their claim[] across the line from

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conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

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Name.Space, Inc. v. Internet Corp. for Assigned Names & Numbers, 795 F.3d 1124,

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1130 (9th Cir. 2015) (affirming dismissal of Section 1 claim under Sherman Act where

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“factual allegations just as easily suggest[ed] rational, legal business behavior”) (internal

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quotation and citation omitted).

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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

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To the extent plaintiffs’ state law claims, all of which challenge an alleged

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deceptive practice (see Opp. to State Law Motion at 1:2-3), are based on Manufacturer

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Defendants’ sale of the subject products exclusively through veterinarians or with

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veterinarian approval, the Court, for the reasons stated on the record at the hearing, finds

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such claims are subject to dismissal, without further leave to amend, for the reason that

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plaintiffs again have failed to show such practice is itself deceptive or otherwise
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misleading.

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To the extent plaintiffs’ state law claims are based on an allegation that

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Manufacturer Defendants misrepresent the content of the subject products as being

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materially different than products for which veterinary intervention is not required, the

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Court, for the reasons stated on the record at the hearing, finds such claims are subject

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to dismissal, without further leave to amend, for the reason that plaintiffs again have

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failed to plead facts sufficient to show the two types of products are not materially

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different.

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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

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United States District Court
Northern District of California

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Court, for the reasons stated on the record at the hearing, finds plaintiffs have failed to

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adequately allege such use caused any plaintiff’s claimed loss. Although plaintiffs’ failure

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to plead causation was raised at the July 7, 2017, hearing on defendants’ motions to

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dismiss plaintiffs’ First Amended Complaint, the Court, in light of counsel’s representation

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to the Court that plaintiffs, if given a further opportunity, likely would be able to plead such

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element, will afford plaintiffs limited leave to amend to cure said deficiency. In particular,

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plaintiffs will be afforded leave to add, if they can do so, specific factual allegations

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describing how each Manufacturer Defendant’s use of the term or symbol on its products

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or in its advertising affected each plaintiff’s decision to purchase such product(s).

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Accordingly, the State Law Motion is hereby GRANTED, Causes of Action II-XIII

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are hereby DISMISSED, and, with the one exception discussed below, such dismissal is

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with limited leave to amend to plead causation.

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2. Cause of Action VI: Purina
Purina moves to dismiss Cause of Action VI on the additional ground that plaintiffs

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have failed to plead sufficient facts to support extraterritorial application of the Missouri

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Merchandising Practices Act (“MMPA”), the statute under which such cause of action is

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brought. The Court, for the reasons stated on the record at the hearing, agrees. See

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Perras v. H & R Block, 789 F.3d 914, 918 (8th Cir. 2015) (holding plaintiff’s claims not
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covered by MMPA; finding plaintiff failed to allege sufficient “ties between the allegedly

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fraudulent transactions and Missouri” where “every part of the transactions . . . occurred

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in each [putative] class member’s home state”); see also id. at 917-18 (distinguishing

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State ex rel. Nixon v. Estes, 108 S.W.3d 795 (Mo. Ct. App. 2003)).

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Accordingly, for such additional reason, Cause of Action VI, as brought against
Purina, is hereby DISMISSED without further leave to amend.

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Conclusion

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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

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United States District Court
Northern District of California

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12, 2017.

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IT IS SO ORDERED.

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Dated: November 21, 2017
MAXINE M. CHESNEY
United States District Judge

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