Blaszkowski et al v. Mars Inc. et al

Filing 528

RESPONSE in Opposition re 515 MOTION for Summary Judgment and Supporting Memorandum of Law filed 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)

Exhibit "A" Allegations of the Non-Natura Plaintiffs from the Fourth Amended Complaint (emphasis added)

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was manufactured and marketed by Defendants, Mars and Mars Pet Care, Iams, Hill's, Del Monte, Nestlé Purina Petcare, Nutro, Natura, Wal-Mart, Target, Petsmart and on information and belief Kroger and/or Menu Foods. Defendants, Kroger, Petco, Pet Supermarket, Pet Supplies Plus, Petsmart, Target and Wal-Mart marketed and sold Plaintiff Blaszkowski pet food from the above-referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 4. Plaintiff/Class Representative, Patricia Davis, is a resident of Florida during the

class period. Plaintiff Davis regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Florida, which was manufactured and marketed by Defendants, Mars and Mars Petcare, Nestlé Purina Petcare, Iams, Del Monte, Natura, and on information and belief Menu Foods. Defendants, Publix and Petsmart marketed and sold Plaintiff Davis pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 5. Plaintiff/Class Representative, Susan Peters, is a resident of Oklahoma during the

class period. Plaintiff Peters regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Oklahoma, which was manufactured and marketed by Defendants, Mars, Mars Petcare, Nestlé Purina Petcare, Iams, Hill's, Del Monte and on information and belief Wal-Mart and/or Menu Foods. Defendants, Petsmart, Wal-Mart and Petco marketed and sold Plaintiff Peters pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 6. 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 3 CASE NO. 07-21221 CIV ALTONAGA/Brown
MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

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Defendants, Nestlé 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. 7. Plaintiff/Class Representative, Deborah Hock, is a resident of California during

the class period. Plaintiff Hock regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in California, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Iams, Nestlé Purina Petcare, Hill's, Nutro and on information and belief Menu Foods. These products were purchased based upon the above referenced Defendants' marketing. 8. Plaintiff/Class Representative, Beth Wilson, is a resident of Indiana during the

class period. Plaintiff Wilson regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Indiana, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Nestlé Purina Petcare, Hill's, Iams, Del Monte, and on information and belief Menu Foods. Defendants, Kroger and Wal-Mart marketed and sold Plaintiff Wilson pet food from the above-referenced manufacturers and marketers, which purchases were made based upon the above referenced Defendants' marketing. 9. Plaintiff/Class Representative, Claire Kotzampaltiris, is a resident of

Massachusetts during the class period. Plaintiff Kotzampaltiris regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Massachusetts, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Iams, and Nestlé Purina Petcare, Hill's, Nutro and on information and belief Menu Foods. Defendants, Wal-Mart, Target, Petco and Petsmart marketed and sold Plaintiff Kotzampaltiris pet food from the above4 CASE NO. 07-21221 CIV ALTONAGA/Brown
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referenced manufacturers and marketers, which purchases were made based upon the above referenced Defendants' marketing. 10. Plaintiff/Class Representative, Donna Hopkins-Jones, is a resident of

Massachusetts during the class period. Plaintiff Hopkins-Jones regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Massachusetts, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Nestlé Purina Petcare, Del Monte and on information and belief Wal-Mart and/or Menu Foods. Defendants, Petsmart and Wal-Mart marketed and sold Plaintiff Hopkins-Jones pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 11. period. Plaintiff/Class Representative, Marian Lupo, is a resident of Ohio during the class

Plaintiff Lupo regularly purchased pet food during the class period for daily

consumption for her cat(s)/dog(s) in Ohio, which was manufactured and marketed by Defendants, Mars and Mars Petcare, Nutro, Nestlé Purina Petcare, Iams, Hill's, Del Monte and on information and belief Petsmart, Wal-Mart and/or Menu Foods. Defendants, Petsmart, Kroger, Wal-Mart and Target marketed and sold Plaintiff Lupo pet food from the above referenced manufacturers and marketers, which purchases were made based upon the abovereferenced Defendants' marketing. 12. Plaintiff/Class Representative, Jane Herring, a resident of South Carolina during

the class period. Plaintiff Herring regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in South Carolina, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Nestlé Purina Petcare, Iams and Del Monte and on information and belief Wal-Mart and/or Menu Foods. Defendants, Wal-Mart marketed and sold 5 CASE NO. 07-21221 CIV ALTONAGA/Brown
MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

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Plaintiff Herring pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 13. Plaintiff/Class Representative, Jo-Ann Murphy, is a resident of Tennessee during

the class period. Plaintiff Murphy regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Tennessee, which was manufactured and marketed by Defendants, Nutro and on information and belief Wal-Mart and/or Menu Foods. Defendants, Petco, Petsmart and Wal-Mart marketed and sold Plaintiff Murphy pet food from the above referenced manufacturers and marketers, which purchases were made based upon the abovereferenced Defendants' marketing. 14. Plaintiff/Class Representative, Stephanie Stone, is a resident of Virginia during

the class period. Plaintiff Stone regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Virginia, which was manufactured and marketed by Defendants, Nestlé Purina Petcare, Hill's, Del Monte and on information and belief Petsmart and/or Menu Foods. Defendants, Petsmart, Wal-Mart and Pet Supplies Plus marketed and sold Plaintiff Stone pet food from the above-referenced manufacturers and marketers, which purchases were made based upon the above referenced Defendants' marketing. 15. Plaintiff/Class Representative, Patricia Hanrahan, is a resident of Washington

during the class period. Plaintiff Hanrahan regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Washington, which was manufactured and marketed by Defendants, Nutro and on information and belief Menu Foods. Defendants, Petsmart marketed and sold Plaintiff Hanrahan pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 6 CASE NO. 07-21221 CIV ALTONAGA/Brown
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16.

Plaintiff/Class Representative, Debbie Rice, is a resident of Wisconsin during the

class period. Plaintiff Rice regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Wisconsin, which was manufactured and marketed by Defendants, Nestlé Purina Petcare and on information and belief Menu Foods. Defendants, Petsmart and Wal-Mart marketed and sold Plaintiff Rice pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 17. Plaintiff/Class Representative, Ann Quinn, is a resident of Nevada during the

class period. Plaintiff Quinn regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Nevada, which was manufactured and marketed by Defendants, Hill's, Del Monte, Nutro, Iams and Nestlé Purina Petcare and on information and belief Kroger and/or Menu Foods. Defendants, Petsmart, Albertson's, New Albertson's, Kroger and Target marketed and sold Plaintiff Quinn pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 18. Plaintiff/Class Representative, Sharon Mathiesen, is a resident of Kansas during

the class period. Plaintiff Mathiesen regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Kansas, which was manufactured and marketed by Defendants, Iams, Nutro, Nestlé Purina Petcare, Del Monte and Hill's and on information and belief Menu Foods. Defendants, Petsmart, Wal-Mart and Petco marketed and sold Plaintiff Mathiesen pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing.

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19.

Plaintiff/Class Representative, Sandy Shore, is a resident of Arizona during the

class period. Plaintiff Shore regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Arizona, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Nestlé Purina Petcare and Iams and on information and belief Menu Foods. Defendants, Petsmart, Wal-Mart and Kroger marketed and sold Plaintiff Shore pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 20. Plaintiff/Class Representative, Carolyn White, is a resident of West Virginia

during the class period. Plaintiff White regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in West Virginia, which was manufactured and marketed by Defendants, Hill's and on information and belief Wal-Mart and/or Menu Foods. Defendants, Wal-Mart marketed and sold Plaintiff White pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 21. Plaintiff/Class Representative, Lou Wiggins, is a resident of Nebraska during the

class period. Plaintiff Wiggins regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Nebraska, which was manufactured and marketed by Defendants, Nestlé Purina Petcare, Nutro, Hill's, Iams and on information and belief Menu Foods. Defendants, Wal-Mart, Petco and Petsmart marketed and sold Plaintiff Wiggins pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 22. Plaintiff/Class Representative, Michelle Lucarelli, is a resident of Pennsylvania

during the class period. Plaintiff Lucarelli regularly purchased pet food during the class period 8 CASE NO. 07-21221 CIV ALTONAGA/Brown
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for daily consumption for her cat(s)/dog(s) in Pennsylvania, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Nestlé Purina Petcare, Hill's, Del Monte, and on information and belief Wal-Mart and/or Menu Foods. Defendant, Wal-Mart marketed and sold Plaintiff Lucarelli pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 23. Plaintiff/Class Representative, Raul Isern, is a resident of Florida during the class

period. Plaintiff Isern regularly purchased pet food during the class period for daily consumption for his cat(s)/dog(s) in Florida, which was manufactured and marketed by Defendants, Mars and Mars Petcare, Iams, Nestlé Purina Petcare and Del Monte. Defendants, Publix, Petco, Pet Supermarket, Petsmart, Target and Wal-Mart marketed and sold Plaintiff Isern pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 24. Plaintiff/Class Representative, Danielle Valoras, is a resident of North Carolina

during the class period. Plaintiff Valoras regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in North Carolina, which was manufactured and marketed by Defendants, Hill's, Iams, Nestlé Purina Petcare and on information and belief Menu Foods. Defendants, Petsmart, Target and Petco marketed and sold Plaintiff Valoras pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 25. Plaintiff/Class Representative, Lisa MacDonald, is a resident of Georgia during

the class period. Plaintiff MacDonald regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Georgia, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Iams, Nestlé Purina Petcare, Hill's, Nutro and on 9 CASE NO. 07-21221 CIV ALTONAGA/Brown
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information and belief Petsmart and/or Menu Foods. Defendants, Petsmart marketed and sold Plaintiff MacDonald pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 26. Plaintiff/Class Representative, Cindy Tregoe, is a resident of Maryland during the

class period. Plaintiff Tregoe regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Maryland, which was manufactured and marketed by Defendants, Mars and Mars Pet Care, Iams, Hill's, Nestlé Purina Petcare, Nutro, Del Monte and on information and belief Petsmart and/or Menu Foods. Defendants, Target, Wal-Mart, Petco and Petsmart marketed and sold Plaintiff Tregoe pet food from the above-referenced manufacturers and marketers, which purchases were made based upon the above referenced Defendants' marketing. 27. Plaintiff/Class Representative, Jennifer Damron, is a resident of Kentucky during

the class period. Plaintiff Damron regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Kentucky, which was manufactured and marketed by Defendants, Iams, Hill's, Nestlé Purina Petcare, Nutro, and on information and belief Menu Foods. Defendants, Wal-Mart, Petsmart, Target and Pet Supplies Plus marketed and sold Plaintiff Damron pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 28. Plaintiff/Class Representative, Marlena Rucker, is a resident of Arizona during

the class period. Plaintiff Rucker regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Arizona, which was manufactured and marketed by Defendants, Nestlé Purina Petcare, Iams, Hill's and on information and belief Menu Foods. Defendants, Petsmart, Petco, Albertson's, New Albertson's and Target marketed and sold 10 CASE NO. 07-21221 CIV ALTONAGA/Brown
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Plaintiff Rucker pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 29. Plaintiff/Class Representative, Julie Nelson, is a resident of Kentucky during the

class period. Plaintiff Nelson regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Kentucky, which was manufactured and marketed by Defendants, Iams, Nestlé Purina Petcare, Hill's and on information and belief Menu Foods. Defendants, Petsmart and Wal-Mart marketed and sold Plaintiff Nelson pet food from the abovereferenced manufacturers and marketers, which purchases were made based upon the above referenced Defendants' marketing. 30. Plaintiff/Class Representative, Yvonne Thomas, is a resident of New York during

the class period. Plaintiff Thomas regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in New York, which was manufactured and marketed by Defendants, Nestlé Purina Petcare and Natura and on information and belief Menu Foods. Defendants, Petsmart and Wal-Mart marketed and sold Plaintiff Thomas pet food from the above referenced manufacturers and marketers, which purchases were made based upon the abovereferenced Defendants' marketing. 31. Plaintiff/Class Representative, Debbie McGregor, is a resident of Illinois during

the class period. Plaintiff McGregor regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in Illinois, which was manufactured and marketed by Defendants, Iams, Nestlé Purina Petcare and Hill's and on information and belief Menu Foods. Defendants, Petsmart, Petco and Wal-Mart marketed and sold Plaintiff McGregor pet food from the above referenced manufacturers and marketers, which purchases were made based upon the above-referenced Defendants' marketing. 11 CASE NO. 07-21221 CIV ALTONAGA/Brown
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32.

Plaintiff/Class Representative, Tone Gaglione, is a resident of New Jersey during

the class period. Plaintiff Gaglione regularly purchased pet food during the class period for daily consumption for her cat(s)/dog(s) in New Jersey, which was manufactured and marketed by Defendants, Nestlé Purina Petcare and on information and belief Menu Foods. These products were purchased based upon the above-referenced Defendants' marketing. DEFENDANTS Defendant Manufacturers 33. Defendant, Mars, Inc. ("Mars"), is a Delaware corporation with its principal place

of business in Virginia and is affiliated with Defendants, Mars Petcare U.S. Inc. and Nutro Products, Inc. Mars is in the business of manufacturing, producing, marketing, advertising and/or selling dog and cat food and treats for purchase and use by the Plaintiffs and the Class in Florida and nationwide. Mars markets and advertises pet food and/or treats which have injured the Plaintiffs and the Class as described more fully below. Mars regularly conducts business in Florida, directly and/or through agents, and places pet food products in the stream of commerce that reach Florida consumers. Mars has spent millions of dollars in acquiring trusted pet food brand(s) and/or promoting and developing consumer trust and confidence in its brands with the intent that the Plaintiffs and the Plaintiff Class will rely upon this trust and confidence in the Mars' family of brands to purchase Mars' brand pet food and treats ("Whether it's the simple pleasure of savouring the world's best-loved chocolate and confectionery, the satisfaction of a drink delivered efficiently from a vending machine, a contented pet or the reward of a delicious hot meal, Mars is the name behind the brands they've grown to know and trust."). See Exhibit "1."

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