Blaszkowski et al v. Mars Inc. et al

Filing 527

NOTICEof Filing the Statement of Material Facts in Opposition to Defendants, Natura Pet Products, Inc., Motion for Summary Judgment by Debbie McGregor, Linda Brown, Tone Gaglione, Deborah Hock, Beth Wilson, Claire Kotzampaltiris, Donna Hopkins-Jones, Marian Lupo, Jane Herring, Stephanie Stone, Patricia Hanrahan, Ann Quinn, Sharon Mathiesen, Sandy Shore, Carolyn White, Lou Wiggins, Michelle Lucarelli, Raul Isern, Daniele Valoras, Marlena Rucker, Julie Nelson (Attachments: # 1 Exhibit A)(MacIvor, Catherine) Modified on 10/28/2008 (ail).

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/Class Representatives, vs. MARS INC., et al. Defendants. ______________________________________________/ PLAINTIFFS', LINDA BROWN, ET AL., STATEMENT OF MATERIAL FACTS IN OPPOSITION TO DEFENDANT'S, NATURA PET PRODUCTS, INC., MOTION FOR SUMMARY JUDGMENT Plaintiffs, Linda Brown, et al., pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7.5, and in support of the Plaintiffs' Response to Defendant's, Natura Pet Products, Inc. ("Natura"), Motion for Summary Judgment Against Plaintiffs Linda Brown, et al. ("Motion"), [DE 515], submits this statement of material facts. 1. Linda Brown, Tone Gaglione, Jane Herring, Deborah Hock, Raul Isern, Claire

Kotzampaltiris, Michele Lucarelli, Marian Lupo, Sharon Mathiesen, Deborah McGregor, Julie Nelson, Ann Quinn, Marlena Rucker, Sandy Shore, Stephanie Stone, Beth Wilson, Patricia Hanrahan, Donna Hopkins-Jones, Danielle Valoras, Carolyn White, and Lou Wiggins (the "nonNatura Plaintiffs") have never asserted claims against Natura and have never possessed claims against Natura. [DE 494]. 2. Natura was added as a defendant to this action with the filing of the Second

Amended Complaint. [DE 260-61].

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3.

The non-Natura Plaintiffs never individually pled claims against Natura in the

Second Amended Complaint. [DE 260-61]. 4. Non-Natura Plaintiffs Linda Brown, Tone Gaglione, and Deborah McGregor

joined this action with the filing of the Third Amended Complaint. [DE 533]. 5. The non-Natura Plaintiffs never individually pled claims against Natura in the

Third Amended Complaint. [DE 333 ¶¶3-32] In fact, in the Third Amended Complaint, each Plaintiff, including the non-Natura Plaintiffs, pled individual allegations. [DE 333 ¶¶3-32]. 6. The Fourth Amended Complaint ("FAC") is the operative Complaint in this case

and the only Complaint that, at the time of Natura's filing of this Motion, matters for purposes of this Motion. [DE 349]. 7. The non-Natura Plaintiffs did not individually plead claims against Natura in the

FAC. Plaintiff Linda Brown did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶6]. Plaintiff Tone Gaglione did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶32]. Plaintiff Jane Herring did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶12]. Plaintiff Deborah Hock did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶7]. Plaintiff Raul Isern did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶23]. Plaintiff Claire Kotzampaltiris did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶9]. Plaintiff Michele Lucarelli did not plead any claims against Natura in the FAC, and thus entry of

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summary judgment is not only disputed, but is inappropriate. [DE 349 ¶22]. Plaintiff Marian Lupo did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶11]. Plaintiff Sharon Mathiesen did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶18]. Plaintiff Deborah McGregor did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶31]. Plaintiff Julie Nelson did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶29]. Plaintiff Ann Quinn did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶17]. Plaintiff Marlena Rucker did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶28]. Plaintiff Sandy Shore did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶19]. Plaintiff Stephanie Stone did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶14]. Plaintiff Beth Wilson did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶8]. Plaintiff Patricia Hanrahan did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶15]. Plaintiff Donna Hopkins-Jones did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶10]. Plaintiff Danielle Valoras did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶24]. Plaintiff Carolyn White did

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not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶20]. Plaintiff Lou Wiggins did not plead any claims against Natura in the FAC, and thus entry of summary judgment is not only disputed, but is inappropriate. [DE 349 ¶21]. 8. The claims of the non-Natura Plaintiffs were against only the non-Natura

Defendants, [349 ¶¶6-12, 14-15, 17-24, 28-29, 31-32], and were rendered moot as a consequence of the settlement agreement reached in In re Pet Food Products Liability Litigation, CIV NO.: 07-2867 (NLH/AMD), a Multi-District Litigation case in the United States District Court for the District of New Jersey ("the Multi-District Case"). After the settlement was reached in the Multi-District Case, the non-Natura Plaintiffs entered into joint stipulations with the non-Natura Defendants to dismiss both the non-Natura Plaintiffs' claims as well as the non-Natura Defendants from this case. [DE 480, 481]. 9. The non-Natura Defendants and all of the claims by the non-Natura Plaintiffs

were dismissed with prejudice upon the entry of two Orders by this Court. [DE 482, 483]. As a result, the non-Natura Plaintiffs, who never alleged claims against Natura, no longer possess any claims in this case and are therefore no longer parties to this action because each and every one of their claims were dismissed with prejudice. [DE 494]. 10. 11. This is a multi-plaintiff, multi-defendant case. [DE 349]. Every time the FAC refers to "Plaintiffs" and "Defendants," these words are

generally used for jurisdiction and standing purposes in this multi-plaintiff and multi-defendant case and are nowhere alleged in the FAC to refer to each Plaintiff having a claim against each Defendant, particularly where Paragraphs 3 through 32 of the FAC clearly demonstrate the specific Defendants against which each Plaintiff has a claim.

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12.

Rather, in the FAC, each Plaintiff, Natura and non-Natura alike, pled individual

allegations against the Defendants from whom they sought relief. [DE 349 ¶¶3-32]. For example, non-Natura Plaintiff Linda Brown alleged: Plaintiff/Class Representative, Linda Brown, is a resident of Minnesota during the class period. Plaintiff Brown regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Minnesota, which was manufactured and marketed by Defendants, Nestle Purina Petcare, Hill's, Del Monte, and on information and belief Menu Foods. Defendants, Wal-Mart and Petco marketed and sold Plaintiff Brown pet food from the above-referenced manufacturers and marketers, which purchases were made based upon the above referenced Defendant's marketing. [DE 349 ¶6 (emphasis added)]. All other non-Natura Plaintiffs similarly pled their allegations and did not include Natura in any of them. [DE 349 ¶¶6-12, 14-15, 17-24, 28-29, 31-32]. 13. Paragraphs 3-32 are incorporated into each individual Count alleged by the

Plaintiffs, and these Counts cannot be properly construed without referring to Paragraphs 3-32. [DE 349 ¶¶126, 135, 144, 155, 162, 166, 174, 180]. For example, Count I begins: COUNT I Fraudulent Misrepresentation and Concealment1 As to All Defendants 126. Plaintiffs/Class Representatives hereby adopt and incorporate by reference paragraphs 1-125 as if set forth more fully herein. [FN1] And other state fraudulent misrepresentation and concealment laws of the various states where Plaintiff Class members reside. [DE 349 ¶126]. Thus, the allegations raised in Paragraphs 3-32 are expressly incorporated into every Count of the FAC and, correspondingly, each Count is therefore limited by these allegations. [DE 349 ¶¶126, 135, 144, 155, 162, 166, 174, 180]. 14. For jurisdictional purposes, the Natura Plaintiffs specifically allege that Natura

has caused harm to the Natura Plaintiffs, which, if certified, would be a subclass. [DE 349 ¶40]. 5
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15.

In order to satisfy the requirements of the juridical links doctrine to allege

standing to bring this multi-plaintiff, multi-defendant case, the Plaintiffs alleged, in the joinder section, a description that the Defendants have acted in concert with each other and are bound by a common course of conduct. [DE 349 ¶110]. Paragraph 110 does not allege that each

Defendants' liability is predicated on "conspiracy" with the other Defendants other than alleging standing. [DE 349 ¶110]. The word "conspiracy" is not even contained anywhere in the entire FAC. [DE 349]. Further, Paragraph 110 does not create a separate cause of action as it is not a separate claim and simply is pled for the purposes of standing. [DE 349 ¶110]. By: s/ Catherine J. MacIvor ____________ CATHERINE J. MACIVOR (FBN 932711) [e-mail] MALTZMAN FOREMAN, PA One Biscayne Tower 2 South Biscayne Boulevard -Suite 2300 Miami, Florida 33131 Tel: [phone] / Fax: [phone] PATRICK N. KEEGAN [e-mail] JASON E BAKER [e-mail] KEEGAN & BAKER, LLP 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Tel: [phone] / Fax [phone] Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE WE HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the Court via CM/ECF on this 27th day of October, 2008. We also certify that the foregoing was served on all counsel or parties of record on the attached Service List either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Filing.

s/ Catherine J. MacIvor Catherine J. MacIvor

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SERVICE LIST CASE NO. 07-21221 ALTONAGA/Brown CATHERINE J. MACIVOR [e-mail] JEFFREY B. MALTZMAN [e-mail] JEFFREY E. FOREMAN [e-mail] DARREN W. FRIEDMAN [e-mail] MALTZMAN FOREMAN, PA One Biscayne Tower 2 South Biscayne Boulevard -Suite 2300 Miami, Florida 33131 Tel: [phone] / Fax: [phone] Attorneys for Plaintiffs EDGAR R. NIELD [e-mail] 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Telephone: [phone] Facsimile: 858-552-6749 Attorney for Plaintiffs Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund LONNIE L. SIMPSON E-Mail: [e-mail] S. DOUGLAS KNOX E-Mail: [e-mail] DLA PIPER US LLP 100 N. Tampa Street, Suite 2200 Tampa, Florida 33602-5809 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund WILLIAM C. MARTIN E-Mail: [e-mail] DLA PIPER RUDNICK GRAY CARY US LLP 203 North LaSalle Street Suite 1900 Chicago, Illinois 60601-1293 Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund ALEXANDER SHAKNES E-Mail: [e-mail] AMY W. SCHULMAN E-Mail: [e-mail] DLA PIPER US LLP 1251 Avenue of the Americas New York, New York 10020 Telephone: [phone] PATRICK N. KEEGAN [e-mail] JASON E BAKER [e-mail] KEEGAN & BAKER, LLP 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Telephone: [phone] Facsimile: 858-552-6749 Attorneys for Plaintiffs

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MARK C. GOODMAN [e-mail] SQUIRE, SANDERS & DEMPSEY LLP One Maritime Plaza Suite 300 San Francisco, CA 94111-3492 Telephone: [phone] Facsimile: [phone]

BARBARA BOLTON LITTEN [e-mail] SQUIRE, SANDERS & DEMPSEY LLP 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401-6198 Telephone: [phone] Facsimile: [phone]

Attorneys for Defendants PETCO Animal Attorneys for Defendants PETCO Animal Supplies Stores Inc., PetSmart, Inc., Wal-Mart Supplies Stores Inc., PetSmart, Inc., Wal-Mart Stores, Inc. and Target Corporation Stores, Inc. and Target Corporation JEFFREY S. YORK E-Mail: [e-mail] MICHAEL GIEL E-Mail: [e-mail] McGUIRE WOODS LLP 50 N. Laura Street, Suite 3300 Jacksonville, FL 32202 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Natura Pet Products, Inc. OMAR ORTEGA Email: [e-mail] DORTA & ORTEGA, P.A. Douglas Entrance 800 S. Douglas Road, Suite 149 Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Mars, Inc. and Mars Petcare U.S. and Nutro Products, Inc. KRISTEN E. CAVERLY E-Mail: [e-mail] ROBERT C. MARDIAN III [e-mail] HENDERSON CAVERLY PUM & CHARNEY LLP 16236 San Dieguito Road, Suite 4-13 P.O. Box 9144 (all US Mail) Rancho Santa Fe, CA 92067-9144 Telephone: [phone] x)101 Facsimile: 858-756-4732 Attorneys for Natura Pet Products, Inc. ALAN G. GREER [e-mail] RICHMAN GREER WEIL BRUMBAUGH MIRABITO & CHRISTENSEN 201 South Biscayne Boulevard Suite 1000 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants The Iams Co.

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BENJAMIN REID E-Mail: [e-mail] ANA CRAIG E-Mail: [e-mail] CARLTON FIELDS, P.A. 100 S.E. Second Street, Suite 4000 Miami, Florida 33131-0050 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc. KARA L. McCALL [e-mail] SIDLEY AUSTIN LLP One S. Dearborn Street Chicago, ILL 60633 Telephone: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc.

JOHN J. KUSTER [e-mail] JAMES D. ARDEN [e-mail] SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019-6018 Telephone: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc. RICHARD FAMA E-Mail: [e-mail] JOHN J. McDONOUGH E-Mail: [e-mail] COZEN O'CONNOR 45 Broadway New York, New York 10006 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods

SHERRIL M. COLOMBO E-Mail: [e-mail] COZEN O'CONNOR 200 South Biscayne Boulevard Suite 4410 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods Co.

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JOHN F. MULLEN E-Mail: [e-mail] COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods, Co.

CAROL A. LICKO E-Mail: [e-mail] HOGAN & HARTSON Mellon Financial Center 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 Telephone [phone] Facsimile [phone] Attorneys for Defendants Nestle Purina Petcare Co.

ROBERT C. TROYER E-Mail: [e-mail] HOGAN & HARTSON 1200 17th Street One Tabor Center, Suite 1500 Denver, Colorado 80202 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Nestle Purina Petcare Co. JAMES K. REUSS E-Mail: [e-mail] LANE ALTON & HORST Two Miranova Place Suite 500 Columbus, Ohio 43215 Telephone: [phone] Attorneys for Defendant The Kroger Co. of Ohio

CRAIG A. HOOVER E-Mail: [e-mail] MIRANDA L. BERGE E-Mail: [e-mail] HOGAN & HARTSON L.L.P. 555 13th Street, N.W. Washington, D.C. 20004 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Nestle Purina Petcare Co. D. JEFFREY IRELAND E-Mail: [e-mail] BRIAN D. WRIGHT E-Mail: [e-mail] LAURA A. SANOM E-Mail: [e-mail] FARUKI IRELAND & COX 500 Courthouse Plaza, S.W. 10 North Ludlow Street Dayton, Ohio 45402 Attorneys for Defendant The Iams Co.

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W. RANDOLPH TESLIK CRAIG P. KALIL E-Mail: [e-mail] E-Mail: [e-mail] ANDREW J. DOBER JOSHUA D. POYER E-Mail: [e-mail] E-Mail: [e-mail] AKIN GUMP STRAUSS HAUER & FELD ABALLI MILNE KALIL & ESCAGEDO 2250 Sun Trust International Center LLP 1333 New Hampshire Avenue, NW One S.E. Third Avenue Washington, D.C. 20036 Miami, Florida 33131 Telephone: [phone] Telephone: [phone] Facsimile: [phone] Facsimile: [phone] Attorneys for Defendants New Albertson's Inc. Attorneys for New Albertson's Inc. and and Albertson's LLC Albertson's LLC RALPH G. PATINO E-Mail: [e-mail] DOMINICK V. TAMARAZZO E-Mail: [e-mail] CARLOS B. SALUP E-Mail: [e-mail] PATINO & ASSOCIATES, P.A. 225 Alcazar Avenue Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Pet Supplies "Plus" and Pet Supplies Plus/USA, Inc. HUGH J. TURNER, JR. E-Mail: [e-mail] AKERMAN SENTERFITT & EDISON 350 E. Las Olas Boulevard Suite 1600 Fort Lauderdale, Florida 33301-2229 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Publix Super Markets, Inc. C. RICHARD FULMER, JR. E-Mail: [e-mail] FULMER, LEROY, ALBEE, BAUMANN, & GLASS 2866 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant The Kroger Co. of Ohio ROLANDO ANDRES DIAZ E-Mail: [e-mail] PETER S. BAUMBERGER E-Mail: [e-mail] KUBICKI DRAPER 25 W. Flagler Street, Penthouse Miami, Florida 33130-1712 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Pet Supermarket, Inc.

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