Blaszkowski et al v. Mars Inc. et al
Filing
375
ANSWER to Amended Complaint (Fourth Amended Class Action Complaint) by Wal-Mart Stores, Inc..(Litten, Barbara)
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Blaszkowski et al v. Mars Inc. et al
Doc. 375
Case 1:07-cv-21221-CMA
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21221-CIV-ALTONAGA/BROWN RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs, vs. MARS, INCORPORATED, et al., Defendants. ___________________________________/ DEFENDANT WAL-MART STORES, INC.'S ANSWER AND DEFENSES TO PLAINTIFFS' FOURTH AMENDED CLASS ACTION COMPLAINT Defendant Wal-Mart Stores, Inc. ("Wal-Mart"), by and through its undersigned counsel, responds to Plaintiffs' unverified Fourth Amended Class Action Complaint ("Complaint") as follows: INTRODUCTION 1. Wal-Mart admits that the Plaintiffs purport to bring this action as a class action
against Wal-Mart, but denies that this case can be properly certified as a class action, and denies that any class-wide or other relief is appropriate against Wal-Mart in this action. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 1. 2. Wal-Mart admits that the Plaintiffs have brought this action for injunctive relief,
restitution, and damages, but denies that Plaintiffs are entitled to any such relief. Wal-Mart denies the remaining allegations in Paragraph 2.
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PARTIES Plaintiffs/Class Representatives 3. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 3. 4. The allegations in Paragraph 4 are not directed to Wal-Mart and therefore require
no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 4. 5. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 5. 6. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 6. 7. The allegations in Paragraph 7 are not directed to Wal-Mart and therefore require
no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 7. 8. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 8. 9. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 9. 10. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 10. 11. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 11. 12. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 12. 2 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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13.
Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 13. 14. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 14. 15. The allegations in Paragraph 15 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 15. 16. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 16. 17. The allegations in Paragraph 17 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 17. 18. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 18. 19. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 19. 20. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 20. 21. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 21. 22. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 22.
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23.
Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 23. 24. The allegations in Paragraph 24 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 24. 25. The allegations in Paragraph 25 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 25. 26. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 26. 27. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 27. 28. The allegations in Paragraph 28 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 28. 29. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 29. 30. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 30. 31. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 31.
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32.
The allegations in Paragraph 32 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 32. DEFENDANTS Defendant Manufacturers 33. The allegations in Paragraph 33 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 33. Further, Wal-Mart states that the exhibits cited in Paragraph 33 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 34. The allegations in Paragraph 34 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 34. Further, Wal-Mart states that the exhibits cited in Paragraph 34 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 35. The allegations in Paragraph 35 and Footnote 1 are not directed to Wal-Mart and
therefore require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 35 and Footnote 1. Further, Wal-Mart states that the exhibits cited in Paragraph 35 and Footnote 1 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 36. The allegations in Paragraph 36 and Footnote 2 are not directed to Wal-Mart and
therefore require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in 5 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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Paragraph 36 and Footnote 2. Further, Wal-Mart states that the exhibits cited in Paragraph 36 and Footnote 2 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 37. The allegations in Paragraph 37 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 37. Further, Wal-Mart states that the exhibits cited in Paragraph 37 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 38. The allegations in Paragraph 38 and Footnote 3 are not directed to Wal-Mart and
therefore require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 38 and Footnote 3. Further, Wal-Mart states that the exhibits cited in Paragraph 38 and Footnote 3 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 39. The allegations in Paragraph 39 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 39. Further, Wal-Mart states that the exhibits cited in Paragraph 39 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 40. The allegations in Paragraph 40 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 40.
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Further, Wal-Mart states that the exhibits cited in Paragraph 40 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. Defendant Co-Packers 41. The allegations in Paragraph 41 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 41. 42. The allegations in Paragraph 42 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 42. 43. The allegations in Paragraph 43 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 43. 44. Wal-Mart admits that one or more of the Menu Foods Defendants manufactures
pet food for Wal-Mart and denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 44. 45. The allegations in Paragraph 45 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 45. 46. The allegations in Paragraph 46 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 46.
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Defendant Retailers 47. The allegations in Paragraph 47 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 47. 48. Wal-Mart admits that it is a Delaware corporation with its principal place of
business in Arkansas, that it operates stores in Florida, and that it markets and sells its own brands of pet food and treats and those of certain Defendant Manufacturers. Wal-Mart denies the remaining allegations in Paragraph 48. 49. The allegations in Paragraph 49 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 49. 50. The allegations in Paragraph 50 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 50. 51. The allegations in Paragraph 51 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 51. 52. The allegations in Paragraph 52 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 52.
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Defendant Pet Specialty Retailers 53. The allegations in Paragraph 53 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 53. 54. The allegations in Paragraph 54 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 54. 55. The allegations in Paragraph 55 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 55. 56. The allegations in Paragraph 56 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 56. JURISDICTION AND VENUE 57. 58. Paragraph 57 states a legal conclusion to which no response is required. The allegations in Paragraph 58 are not directed to Wal-Mart and state legal
conclusions to which no response is required. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 58. 59. Paragraph 59 states a legal conclusion to which no response is required. To the
extent a response is required, Wal-Mart denies that it committed a tortious act within the State of Florida or caused injury to persons or property within the State. To the extent the allegations of
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Paragraph 59 are not directed to Wal-Mart, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 59. 60. Paragraph 60 states a legal conclusion to which no response is required. To the
extent a response is required and the allegations are directed to Wal-Mart, Wal-Mart admits that it markets and sells commercial pet food in this District, and denies the remaining allegations. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 60. FACTS GIVING RISE TO THE CLAIMS 61. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 61. 62. The allegations contained in Paragraph 62 are not directed to Wal-Mart and
therefore require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 62. 63. Wal-Mart admits that it markets and sells pet food. To the extent the remaining
allegations in Paragraph 63 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 63. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 63. 64. To the extent the allegations in Paragraph 64 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 64. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 64. 65. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 65. 10 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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66.
To the extent the allegations in Paragraph 66 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 66. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 66. 67. To the extent the allegations in Paragraph 67 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 67. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 67. 68. To the extent the allegations in Paragraph 68 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 68. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 68. 69. To the extent the allegations in Paragraph 69 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 69. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 69. Further, Wal-Mart states that the exhibits cited in Paragraph 69 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 70. To the extent the allegations in Paragraph 70 are directed To Wal-Mart, Wal-Mart
denies the allegations in Paragraph 70. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 70. 71. To the extent the allegations in Paragraph 71 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 71. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 71. 72. The allegations in Paragraph 72 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 72. 11 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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Further, Wal-Mart states that the exhibits cited in Paragraph 72 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 73. The allegations in Paragraph 73 and Footnotes 4 and 5 are not directed to Wal-
Mart and therefore require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 73 and Footnotes 4 and 5. Further, Wal-Mart states that the exhibits cited in Paragraph 73 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 74. The allegations in Paragraph 74 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 74. Further, Wal-Mart states that the exhibits cited in Paragraph 74 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 75. The allegations in Paragraph 75 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 75. 76. The allegations in Paragraph 76 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 76. Further, Wal-Mart states that the exhibits cited in Paragraph 76 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 77. The allegations in Paragraph 77 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for 12 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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lack of knowledge or information sufficient to form a belief the allegations in Paragraph 77. Further, Wal-Mart states that the exhibits cited in Paragraph 77 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 78. The allegations in Paragraph 78 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 78. 79. The allegations in Paragraph 79 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 79. Further, Wal-Mart states that the exhibits cited in Paragraph 79 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 80. The allegations in Paragraph 80 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 80. Further, Wal-Mart states that the exhibits cited in Paragraph 80 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 81. The allegations in Paragraph 81 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 81. Further, Wal-Mart states that the exhibits cited in Paragraph 81 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 82. The allegations in Paragraph 82 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for 13 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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lack of knowledge or information sufficient to form a belief the allegations in Paragraph 82. Further, Wal-Mart states that the exhibits cited in Paragraph 82 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 83. The allegations in Paragraph 83 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 83. Further, Wal-Mart states that the exhibits cited in Paragraph 83 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 84. The allegations in Paragraph 84 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 84. Further, Wal-Mart states that the exhibits cited in Paragraph 84 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 85. The allegations in Paragraph 85 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 85. Further, Wal-Mart states that the exhibits cited in Paragraph 85 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 86. The allegations in Paragraph 86 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 86. Further, Wal-Mart states that the exhibits cited in Paragraph 86 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 14 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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87.
The allegations in Paragraph 87 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 87. 88. Wal-Mart admits that it is a retailer of pet products, including cat and dog food,
and that from time to time it displays information relating to cat and dog food. To the extent the remaining allegations in Paragraph 88 are directed to Wal-Mart, Wal-Mart denies the remaining allegations in Paragraph 88. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 88. 89. Wal-Mart admits that it markets and sells pet food manufactured by Menu Foods.
To the extent the remaining allegations in Paragraph 89 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 89. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 89. 90. The allegations in Paragraph 90 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 90. 91. To the extent the allegations in Paragraph 91 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 91. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 91. 92. To the extent the allegations in Paragraph 92 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 92. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 92. 93. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 93. 15 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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94.
To the extent the allegations in Paragraph 94 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 94. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 94. 95. To the extent the allegations in Paragraph 95 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 95. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 95. 96. The allegations in Paragraph 96 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 96. Further, Wal-Mart states that the exhibits cited in Paragraph 96 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 97. To the extent the allegations in Paragraph 97 and Footnote 7 are directed to Wal-
Mart, Wal-Mart denies the allegations in Paragraph 97 and Footnote 7. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 97 and Footnote 7. Further, Wal-Mart states that the exhibits cited in Paragraph 97 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 98. To the extent the allegations in Paragraph 98 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 98. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 98. Further, Wal-Mart states that the exhibits cited in Paragraph 98 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be.
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99.
To the extent the allegations in Paragraph 99 are directed to Wal-Mart, Wal-Mart
denies the allegations in Paragraph 99. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 99. 100. The allegations in Paragraph 100 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 100. Further, Wal-Mart states that the exhibits cited in Paragraph 100 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 101. To the extent the allegations in Paragraph 101 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 101.
information sufficient to form a belief the remaining allegations in Paragraph 101. 102. To the extent the allegations in Paragraph 102 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 102.
information sufficient to form a belief the remaining allegations in Paragraph 102. Further, WalMart states that the exhibits cited in Paragraph 102 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 103. Wal-Mart admits that Ol' Roy is a Wal-Mart brand dog food and that various pet
food products, including Ol' Roy, have been the subject of recalls over the years, but denies the remaining allegations in Paragraph 103 to the extent that they are directed to Wal-Mart. WalMart denies for lack of knowledge or information to form a belief the remaining allegations in Paragraph 103. Further, Wal-Mart states that the exhibits cited in Paragraph 103 are the best
evidence of their terms to the extent that they are what Plaintiffs purport them to be.
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104.
To the extent the allegations in Paragraph 104 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 104.
information sufficient to form a belief the remaining allegations in Paragraph 104. 105. To the extent the allegations in Paragraph 105 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 105.
information sufficient to form a belief the remaining allegations in Paragraph 105. 106. The allegations in Paragraph 106 are not directed to Wal-Mart and therefore
require no response from Wal-Mart. To the extent a response is required, Wal-Mart denies the allegations in Paragraph 106. 107. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 107. 108. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the remaining allegations in Paragraph 108. 109. To the extent the allegations in Paragraph 109 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 109.
information sufficient to form a belief the remaining allegations in Paragraph 109. 110. The first and last sentences in Paragraph 110 call for legal conclusions to which
no response is required. To the extent a response is required and to the extent the allegations are directed at Wal-Mart, Wal-Mart denies the allegations in Paragraph 110. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 110.
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CLASS ACTION ALLEGATIONS Plaintiffs' Purported Class Action 111. Wal-Mart admits that the Plaintiffs purport to bring this action as a class action
against Wal-Mart, but denies that this case can be properly certified as a class action, denies that any class-wide or other relief is appropriate against Wal-Mart in this action, and denies the remaining allegations in Paragraph 111. Alleged Injunctive Relief 112. Wal-Mart admits that Plaintiffs purport to bring this action as a class action, but
denies that this action can be properly certified under Rule 23(b)(2), and denies the remaining allegations in Paragraph 112. Alleged Numerosity 113. The allegations in Paragraph 113 contain legal conclusions to which no response
is required. To the extent a response is required, Wal-Mart denies the allegations that it would be virtually impossible for individual Class Members to bring suit against the Defendants and that the Class has no viable remedy other than class certification, and denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 113. Alleged Commonality 114. Wal-Mart denies the allegations in Paragraph 114. Alleged Typicality 115. Wal-Mart denies the allegations in Paragraph 115. Alleged Adequacy 116. Wal-Mart denies the allegations in Paragraph 116. Alleged Predominance and Superiority 117. Wal-Mart denies the allegations in Paragraph 117. 19 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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118.
Paragraph 118 is a demand for relief to which no response is required. To the
extent a response is required, Wal-Mart denies the allegations and prayer for relief in Paragraph 118. Alleged Defendant Class 119. Wal-Mart admits that Plaintiffs seek to certify a class of Defendants, but denies
that a Defendant class can be appropriately certified, and denies the remaining allegations in Paragraph 119. Alleged Numerosity 120. Wal-Mart denies the allegations in the first sentence of Paragraph 120, and denies
for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 120. Alleged Commonality 121. Wal-Mart denies the allegations in Paragraph 121. Alleged Typicality 122. Wal-Mart denies the allegations in Paragraph 122. Alleged Adequacy 123. Wal-Mart admits that it is represented by competent and diligent counsel, but
denies the remaining allegations in Paragraph 123. Alleged Predominance and Superiority 124. 125. Wal-Mart denies the allegations in Paragraph 124. Paragraph 125 is a demand for relief to which no response is required. To the
extent a response is required, Wal-Mart denies the allegations and prayer for relief in Paragraph 125. 20 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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COUNT I Fraudulent Misrepresentation and Concealment As to All Defendants 126. herein. 127. Wal-Mart admits that it markets and sells pet food. To the extent the remaining Wal-Mart incorporates its responses to Paragraphs 1-125 as if set forth fully
allegations in Paragraph 127 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 127. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 127. 128. Wal-Mart admits that it markets and sells pet food. To the extent the remaining
allegations in Paragraph 128 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 128. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 128. 129. To the extent the allegations in Paragraph 129 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 129.
information sufficient to form a belief the remaining allegations in Paragraph 129. 130. To the extent the allegations in Paragraph 130 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 130.
information sufficient to form a belief the remaining allegations in Paragraph 130. 131. To the extent the allegations in Paragraph 131 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 131.
information sufficient to form a belief the remaining allegations in Paragraph 131.
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132.
To the extent the allegations in Paragraph 132 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 132.
information sufficient to form a belief the remaining allegations in Paragraph 132. 133. To the extent the allegations in Paragraph 133 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 133.
information sufficient to form a belief the remaining allegations in Paragraph 133. 134. To the extent the allegations in Paragraph 134 are directed to Wal-Mart, Wal-
Mart denies the allegations and prayer for relief in Paragraph 134. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 134. COUNT II Negligent Misrepresentation As to All Defendants 135. herein. 136. Wal-Mart admits that it markets and sells pet food. To the extent the remaining Wal-Mart incorporates its responses to Paragraphs 1-125 as if set forth fully
allegations in Paragraph 136 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 136. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 136. 137. Wal-Mart admits that it markets and sells pet food. To the extent the remaining
allegations in Paragraph 137 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 137. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 137.
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138.
To the extent the allegations in Paragraph 138 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 138.
information sufficient to form a belief the remaining allegations in Paragraph 138. 139. To the extent the allegations in Paragraph 139 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 139.
information sufficient to form a belief the remaining allegations in Paragraph 139. 140. To the extent the allegations in Paragraph 140 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 140.
information sufficient to form a belief the remaining allegations in Paragraph 140. 141. To the extent the allegations in Paragraph 141 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 141.
information sufficient to form a belief the remaining allegations in Paragraph 141. 142. To the extent the allegations in Paragraph 142 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 142.
information sufficient to form a belief the remaining allegations in Paragraph 142. 143. To the extent the allegations in Paragraph 143 are directed to Wal-Mart, Wal-
Mart denies the allegations and prayer for relief in Paragraph 143. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 143. COUNT III Violation of the Florida Deceptive and Unfair Trade Practices Act (FDUPTA), Fla. Stat. §501.201 As to All Defendants 144. herein. Wal-Mart incorporates its responses to Paragraphs 1-125 as if set forth fully
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145.
Wal-Mart admits that it markets and sells pet food. To the extent the remaining
allegations in Paragraph 145 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 145. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 145. 146. Wal-Mart admits that it markets and sells pet food. To the extent the remaining
allegations in Paragraph 146 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 146. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 146. 147. Paragraph 147 states a legal conclusion to which no response is required. To the
extent a response is required, Wal-Mart denies the allegations in Paragraph 147, denies that it is liable for any damages, and denies that any relief as requested in the Complaint should be granted against Wal-Mart. 148. To the extent the allegations in Paragraph 148 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 148.
information sufficient to form a belief the remaining allegations in Paragraph 148. 149. Paragraph 149 states a legal conclusion to which no response is required. To the
extent a response is required, Wal-Mart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 149. 150. Paragraph 150 states a legal conclusion to which no response is required. To the
extent a response is required and to the extent the allegations in Paragraph 150 are directed to Wal-Mart, Wal-Mart admits that it markets and sells pet food, but denies the remaining allegations in Paragraph 150. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 150. 24 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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151.
Paragraph 151 states a legal conclusion to which no response is required. To the
extent a response is required and to the extent the allegations in Paragraph 151 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 151. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 151. 152. Paragraph 152 and Footnote 11 state legal conclusions to which no response is
required. To the extent a response is required and to the extent the allegations in Paragraph 152 and Footnote 11 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 152 and Footnote 11. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 152 and Footnote 11. 153. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegations in Paragraph 153. 154. To the extent the allegations in Paragraph 154 are directed to Wal-Mart, Wal-
Mart denies the allegations and prayer for relief in Paragraph 154. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 154. COUNT IV Negligence As to Defendant Manufacturers and Co-Packers and PetSmart 155. This cause of action is not brought against Wal-Mart so no response is required.
To the extent a response is required, Wal-Mart incorporates its responses to Paragraphs 1-125 as if set forth fully herein. 156. This cause of action is not brought against Wal-Mart so no response is required.
To the extent a response is required and to the extent the allegations in Paragraph 150 are directed to Wal-Mart, Wal-Mart admits that it markets and sells pet food, but denies the
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remaining allegations in Paragraph 156.
Wal-Mart denies for lack of knowledge or information
sufficient to form a belief the remaining allegations in Paragraph 156. 157. This cause of action is not brought against Wal-Mart so no response is required.
To the extent a response is required and to the extent the allegations in Paragraph 157 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 157. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 157. 158. This cause of action is not brought against Wal-Mart so no response is required.
To the extent a response is required and to the extent the allegations in Paragraph 158 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 158. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 158. 159. This cause of action is not brought against Wal-Mart so no response is required.
To the extent a response is required and to the extent the allegations in Paragraph 159 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 159. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 159. 160. This cause of action is not brought against Wal-Mart so no response is required.
In addition, Paragraph 160 states a legal conclusion to which no response is required. To the extent a response is required and to the extent the allegations in Paragraph 160 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 160. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 160.
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161.
This cause of action is not brought against Wal-Mart so no response is required.
To the extent a response is required and to the extent the allegations in Paragraph 161 are directed to Wal-Mart, Wal-Mart denies the allegations and prayer for relief in Paragraph 161. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 161. COUNT V STRICT LIABILITY As to All Defendants 162. herein. 163. Wal-Mart denies for lack of knowledge or information sufficient to form a belief Wal-Mart incorporates its responses to Paragraphs 1-125 as if set forth fully
the allegations in Paragraph 163. 164. To the extent the allegations in Paragraph 164 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 164.
information sufficient to form a belief the remaining allegations in Paragraph 164. 165. To the extent the allegations in Paragraph 165 are directed to Wal-Mart, Wal-
Mart denies the allegations and prayer for relief in Paragraph 165. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 165. COUNT VI Breach of Implied Warranty As to Retailers and Pet Specialty Retailers 166. herein. 167. Wal-Mart admits that it markets and sells pet food. To the extent the remaining Wal-Mart incorporates its responses to Paragraphs 1-125 as if set forth fully
allegations in Paragraph 167 are directed to Wal-Mart, Wal-Mart denies the allegations in 27 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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Paragraph 167. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 167. 168. Paragraph 168 states a legal conclusion to which no response is required. To the
extent a response is required and the allegations in Paragraph 168 are directed to Wal-Mart, WalMart admits that it sold pet food of merchantable quality that was safe and fit for consumption by pets, but denies the remaining allegations in Paragraph 168. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 168. 169. To the extent the allegations in Paragraph 169 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 169.
information sufficient to form a belief the remaining allegations in Paragraph 169. 170. Without intending to deny that Wal-Mart sells pet food, to the extent the
allegations in Paragraph 170 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 170. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 170. 171. To the extent the allegations in Paragraph 171 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 171.
information sufficient to form a belief the remaining allegations in Paragraph 171. 172. To the extent the allegations in Paragraph 172 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 172.
information sufficient to form a belief the remaining allegations in Paragraph 172. 173. Paragraph 173 states a legal conclusion to which no response is required. To the
extent a response is required and the allegations in Paragraph 173 are directed to Wal-Mart, Wal-
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Mart denies the allegations and prayer for relief in Paragraph 173. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 173. COUNT VII Breach of Express Warranty As to Defendant Retailers 174. herein. 175. Wal-Mart admits that it markets and sells pet food. To the extent the remaining Wal-Mart incorporates its responses to Paragraphs 1-125 as if set forth fully
allegations in Paragraph 175 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 175. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 175. 176. Paragraph 176 states a legal conclusion to which no response is required. To the
extent a response is required and the allegations in Paragraph 176 are directed to Wal-Mart, WalMart denies the allegations in Paragraph 176. Wal-Mart denies for lack of knowledge or
information sufficient to form a belief the remaining allegations in Paragraph 176. 177. To the extent the allegations in Paragraph 177 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 177.
information sufficient to form a belief the remaining allegations in Paragraph 177. 178. Paragraph 178 states a legal conclusion to which no response is required. To the
extent a response is required and the allegations in Paragraph 178 are directed to Wal-Mart, WalMart denies the allegations in Paragraph 178. Wal-Mart denies for lack of knowledge or
information sufficient to form a belief the remaining allegations in Paragraph 178.
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179.
To the extent the allegations in Paragraph 179 are directed to Wal-Mart, Wal-
Mart denies the allegations and prayer for relief in Paragraph 179. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 179. COUNT VIII Unjust Enrichment As to All Defendants 180. herein. 181. Paragraph 181 states a legal conclusion to which no response is required. To the Wal-Mart incorporates its responses to Paragraphs 1-125 as if set forth fully
extent a response is required, Wal-Mart denies the allegations in Paragraph 181. 182. Wal-Mart admits that it markets and sells pet food. To the extent the remaining
allegations in Paragraph 182 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 182. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 182. 183. Wal-Mart admits that it markets and sells pet food. To the extent the remaining
allegations in Paragraph 182 are directed to Wal-Mart, Wal-Mart denies the allegations in Paragraph 182. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 182. 184. Wal-Mart denies for lack of knowledge or information sufficient to form a belief
the allegation that Plaintiffs purchased the pet food for the reasons alleged in the Complaint. To the extent the remaining allegations in Paragraph 184 are directed to Wal-Mart, Wal-Mart denies the remaining allegations in Paragraph 184. Wal-Mart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 184.
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185.
To the extent the allegations in Paragraph 185 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 185.
information sufficient to form a belief the remaining allegations in Paragraph 185. 186. To the extent the allegations in Paragraph 186 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 186.
information sufficient to form a belief the remaining allegations in Paragraph 186. 187. To the extent the allegations in Paragraph 187 are directed to Wal-Mart, WalWal-Mart denies for lack of knowledge or
Mart denies the allegations in Paragraph 187.
information sufficient to form a belief the remaining allegations in Paragraph 187. 188. Wal-Mart denies that Plaintiff is entitled to any legal remedy against Wal-Mart,
and therefore denies the allegations and prayer for relief in Paragraph 188. ADDITIONAL DEFENSES First Defense 1. Plaintiffs' Complaint fails, in whole or in part, to state a claim against Wal-Mart
upon which relief may be granted. Second Defense 2. Plaintiffs lack standing to assert the claims alleged in the Complaint. Third Defense 3. This Court lacks subject matter jurisdiction over Plaintiffs' alleged claims. Fourth Defense 4. Venue for Plaintiffs' claims is improper in this District.
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Fifth Defense 5. Plaintiffs' claims are barred, in whole or in part, under the applicable statutes of
limitations or repose, or are otherwise untimely. Sixth Defense 6. Plaintiffs' claims are barred, in whole or in part, because Plaintiffs have made
statements or taken actions that preclude them from asserting claims or constitute estoppel or waiver of their claims. Seventh Defense 7. Plaintiffs' claims are barred, in whole or in part, by the doctrine of laches. Eighth Defense 8. Plaintiffs' claims are barred, in whole or in part, by the doctrine of unclean hands. Ninth Defense 9. satisfaction. Tenth Defense 10. Plaintiffs' claims are barred, in whole or in part, by the doctrine of release. Eleventh Defense 11. Plaintiffs' claims are barred, in whole or in part, by the doctrines of res judicata, Plaintiffs' claims are barred, in whole or in part, by the doctrine of accord and
collateral estoppel, issue preclusion, and/or claim preclusion. Twelfth Defense 12. Plaintiffs' claims are barred, in whole or in part, because the claims are not
recognized as separate causes of action under applicable law.
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Thirteenth Defense 13. Plaintiffs' claims are barred, in whole or in part, by reason of the Plaintiffs'
failure to join any and all necessary and/or indispensable parties to this action. Fourteenth Defense 14. Plaintiffs' claims are barred, in whole or in part, because Plaintiffs and/or
Plaintiffs' claims have been improperly joined in this action. Fifteenth Defense 15. Plaintiffs' claims are barred, in whole or in part, by the economic loss doctrine. Sixteenth Defense 16. Plaintiffs' claims are preempted in accordance with the Supremacy Clause of the
United States Constitution and by federal law. Seventeenth Defense 17. Plaintiffs' claims are barred, in whole or in part, because the conduct at issue
(including any and all alleged advertising, marketing, and labeling) was required or specifically authorized by federal and/or state law, codes, statutes, rules, regulations and/or standards. Eighteenth Defense 18. Plaintiffs' claims are barred, in whole or in part, because the products at issue
(including any and all labels and/or warnings) complied with federal and/or state law, codes, statutes, rules, regulations, and/or standards. Nineteenth Defense 19. Plaintiffs' claims are barred, in whole or in part, by Wal-Mart's First Amendment
right to commercial speech.
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Twentieth Defense 20. Plaintiffs fail to allege fraud with particularity and fail to allege sufficient facts to
support any finding that Wal-Mart, its officers, agents, servants, employees, contractors, or others for whom it was responsible, made any fraudulent misrepresentations or omissions or engaged in any conduct with the requisite scienter or state of mind. Twenty First Defense 21. Any alleged representations made by Wal-Mart forming the basis of Plaintiffs'
Complaint were true and honest at the time made. Said representations, if any, were made without knowledge of any falsity, and were not made with the intent to deceive Plaintiffs and therefore Plaintiffs are barred from recovery. Twenty Second Defense 22. The injuries complained of by Plaintiffs and the alleged resulting damages, if any,
were caused solely and proximately in whole or in part by Plaintiffs' own negligence and fault and thus, under the doctrine of contributory negligence, are not recoverable. Twenty Third Defense 23. Plaintiffs' recovery should be diminished by that percentage of fault attributable
to Plaintiffs and/or persons or entities other than Wal-Mart for those injuries sustained by Plaintiffs upon which the damages complained of in this action are based. Thus, Wal-Mart's liability, if any, is limited to its percentage of responsibility for the injuries of Plaintiffs, if any, regardless of whether or not other persons or entities are named as co-Defendants. Twenty Fourth Defense 24. Wal-Mart is entitled to a set-off from any recovery against it to the extent each
item of economic loss alleged in the Complaint was, or with reasonable certainty will be, 34 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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replaced or indemnified, in whole or in part, by collateral sources, including any settlements of future settlements between Plaintiffs and any person or entity. Twenty Fifth Defense 25. If Plaintiffs sustained injuries or incurred expenses as alleged, these damages and
expenses were not caused by Wal-Mart. To the extent that Wal-Mart is held liable for any damages to Plaintiffs, it may have statutory or contractual rights to contribution or indemnification. Twenty Sixth Defense 26. Plaintiffs' claims are barred by the doctrine of assumption of risk. Upon
information and belief, Plaintiffs had full knowledge of the risks and possible adverse effects pertaining to the pet food products their pets allegedly consumed, and all or part of the alleged injuries, damages, and/or losses, if any, sustained by Plaintiffs arose from and were caused by risks of which Plaintiffs were aware, and such risks were accepted and assumed by the Plaintiffs. Twenty Seventh Defense 27. Plaintiffs' alleged damages were due to, and proximately caused by, in whole or
in part, other events, conditions, instrumentalities, products and/or acts or omissions of an individual or entity over whom or which Wal-Mart exercised no control. Twenty Eighth Defense 28. Plaintiffs' alleged damages were due to, and proximately caused by, in whole or
in part, by intervening or superseding causes, included but not limited to: the pets' preexisting and/or unrelated medical, genetic and/or environmental conditions, diseases, or illnesses; subsequent medical conditions; or natural courses of conditions for which Wal-Mart is not 35 CASE NO. 07-21221 CIV ALTONAGA/BROWN
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responsible. Plaintiffs' pets' alleged illness or death, if any, was the result of natural health processes and would have occurred just as they did irrespective of Wal-Mart's alleged actions or conduct. Twenty Ninth Defense 29. To the extent Plaintiffs may have modified, altered or changed the pet food
referred to in the Complaint, such changes in any said pet food proximately caused Plaintiffs' injuries, loss and damages, if any. Thirtieth Defense 30. To the extent Plaintiffs have failed to follow the use instructions on the pet food
and/or have combined the pet food with others and/or misused the pet food in ways that were not reasonably foreseeable to Wal-Mart, it was the failure to follow instructions/product combination and/or other misuse which caused or contributed to Plaintiffs' damages, if any. Thirty First Defense 31. damages. Thirty Second Defense 32. Plaintiffs' claims are barred, in whole or in part, by the defenses available under Plaintiffs' claims are barred, in whole or in part, by their failure to mitigate
the consumer protection, deceptive practices, products liability, strict liability statutes and/or the uniform commercial codes of the several states. Thirty Third Defense 33. Plaintiffs' claims for product defect are barred to the extent the pet food was
consumed beyond the expiration date.
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Thirty Fourth Defense 34. Plaintiffs' claims are barred, in whole or in part, due to spoliation of evidence. Thirty Fifth Defense 35. Plaintiffs' claims are barred, in whole or in part, because Wal-Mart acquired the
pet food in a sealed container and was afforded no reasonable opportunity to inspect the product before it was sold. Thirty Sixth Defense 36. Plaintiffs' claims are barred, in whole or in part, because Wal-Mart is an
"innocent" seller of the product and a proper, solvent manufacturer has been named in the lawsuit and jurisdiction has been maintained. Thirty Seventh Defense 37. The actions of Wal-Mart were in compliance with all existing safety standards
and precautions then consistent with the state of the art. Thirty Eighth Defense 38. The claims asserted in the Complaint are barred because the pet food was
designed, tested, manufactured, and labeled in accordance with the state-of-the-art industry standards existing at the time of the sale. Wal-Mart asserts that as of the relevant times alleged in the Complaint, it did not know and, in light of the then existing reasonable available scientific and technological knowledge, could not have known of: (1) the design characteristics, if any, that allegedly caused the injuries and damages complained of in the Complaint;
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