Majerczyk v. Menu Foods, Inc.

Filing 33

MEMORANDUM by Heather Amro in support of motion for miscellaneous relief 19 Supplemental Memorandum in Support of Motion for a Finding of Relatedness (Attachments: # 1 Exhibit A# 2 Exhibit B)(Wallace, Edward)

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Majerczyk v. Menu Foods, Inc. Doc. 33 Att. 1 Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 1 of 15 Exhibit A Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 2 of 15 FIL-ED , APR 2 4 2007 \.71 EASTERN DMSION herself and ) ) ) ~ ~ rl.iftJ7 UNITD STATES DISTRCT COURT -i. Ut -l ao NORTHRN DISTRICT OF ILINOiS SONJA FOXE, on behalf of all others similarly situated, ) Plaintiff v. JUY TRAL DEMANED ) ) ) MENU FOODS, INC., MEU FOODS ) ) ) INCOME FU, SAFW A Y INC. and JOHN DOES 1 through 100, Defendants. ) 07CV2237 JUDGE ST EVE MAG. JUDGE BROWN ) ) CLASS ACTON COMPLAINT Plaintiff Sonja Foxe, through her attorney, John H. Alexander & Associates, LLC, on behalf of herself and all others similarly situated, complains against Defendants, upon personal knowledge as to herself, and as to all other matters upon information and belief based upon, among other things, the investigation made by her attorneys, as follows: INODUCTION 1. lms is a consumer class action seng redress for thousands of consumers who purchased pet food products made by Defendat, Menu Foods Income Fund, and marketed and sold by Defendant Safeway Inc. 2. Many consumers, like Plainti have pets who have died, or suffered kidney failure or other injury from eating Defendant's pet food, Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 3 of 15 PARTIES 3. Plaintiff Sonja Foxe, is a citien of the State of Ilinois and resides in the Northern Distct of Ilinois. Plaintiff purchaed Defendant's pet food products, including but not limted to Priority "cuts and gravy" wet cat food in 22 oz., 13.2 oz. and 5.5 oz. cas and 5.3 oz. and 3 oz. foil pouches in the beef and tuna flavor from a Dominick's grocery store, a subsidiar of Saf way Inc.; Plaintiffs cat, Mojo, developed kidney failure and had to be put to sleep as a reslt of eating the Defendats' pet food at issue. 4.Defendants, Menu Foods Income Fund and Menu Foods, Inc. (collectively, the "Menu Foods Defendants"), manufactured the pet food at issue in this action for the other coDefendants in this action and for a host of other makers, marketers and sellers of pet food including popular brands. Menu Foods Income Fund claims to be the leading North American private-label manufactrer of so-caed wet pet food products sold by supermarket retaiers, mass merchandisers, pet specialty retailers and other retail and wholesae outlets. In 2006, the Fund produce more than one billon containers. 5. Defendant, Safeway Inc. owns severa subsidiar companies including Dominick's grocery store, and is a corporation organzed existing and doing business under and by virte of the laws ofthe State of Delawar, with its principal place of business located at 5918 Stoneridge Ma Road, Pleaanton, California 94588. 6. Defendant, Safeway Inc. and its afiated companes witln their control caused their brads of the consumer products at issue, including Priority US brand "cuts and gravy" wet cat food, to be manufactured, and marketed, distributed and sold to 1 consumers including Plantiff and the Class, in Ilinois and throughout the United States. i The actions attbutable to Safeway Inc. herein are only with respe to the products purchased by the Class that were distbuted, sold, and/or maketed by Safeway Inc. Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 4 of 15 7. The true names and capacities of the Defendants sued in this Complaint as Does 1- I 00, inclusive, are currently unown to Plaintiff who therefore sues such Defendants by such fictitious names. Each of the Defendants designated herein as a Doe Defendat is legaly responsible in some manner for unlawf acts referred to in ths Complaint. Plaintif wi seek leave of Cour to amend this Complaint to reflec the tre names and capacities of the Defndants designated herein as Doe Defendats when such identities become known. Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 5 of 15 JURISDICTON AND VENUE 8. Plaitiff submits to the jurisdiction of the Court. Defendants, or one or more of them, systematicaly and continually do business in this District and in the State of Ilinois. Transactions giving rise, in par, to Plainti s action occurred in this Distct. 9. Plaitiff reasonably believes that milons of units of the pet food products at issue have been purchased by Plaintiff and the Class; the total amount at issue in ths cas excees $5,000,000. lO. This Court ha jurisdiction over Plaitiffs claims pursuat to 28 U.S.C. 1332 ( d)(2). Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 6 of 15 STATEMENT OF FACTS i 1. Defendant, Menu Foods Income Fund, anounced, on March 16,2007, the reca of "cuts and gravy" style pet food in cas and pouches, which it manufactred between November 6,2006 and March 6,2007, at two of its United States facilties, under private.label for a lare varet of pet food brands purchase by Plaintiff and the other Plaitiff Class members, including designated Priority US pet food products - herein, the pet food products at issue or products at issue. 12. Defendant, Menu Foods Income Fund has anounced that the ting of this producton coincides with the introduction of an ingredient from a new supplier. The Menu Foods Defendants have recived complaints about the impact on the renal health of the pets consuming the products at issue manufctued durg this time period. 13. Defendants, Safeway Inc., similarly anounced a voluntar recall in the United States and Canada on specfic 3 oz., 5.5 oz., 6 oz. and 13.2 oz. caed and 3 oz. and 5.3 oz. foil pouch "wet" cat food products, manufactured by Defendat, Menu Foods Inc.'s Emporia, Kansa plant with the coe dates of6339 through 7073 followed by the plant code 4197. 14. In November 2006, Plaitiff purcha pet food products at issue, including, without limitation, pouches and cans of Priority US brand "cuts and gravy" wet cat food Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 7 of 15 in the beef and tuna flavor from a Chicago Domick's grocery store, a subsidiar of Safeway Inc. 15. Plaintifs pet cat, Mojo, throughout November of2006, ate one or more of sad products tht Plaintiff purchas, but Mojo immediately regurgitated portions of the product and progressively developed lethargy, weight loss, and loss of appetite. Thereafer, veterinar tests reveaed acute renal and kidney faiure for Mojo, caused by eatig Defendant's pet food product. On November 28,2006, Mojo was put to sleep because of his deteriorating heath. 16. To date, Plaintiff has incured veterinaran expenses for Mojo, arsing out of his six consumption of Defendant's pet food products at issue, approximately in excess of hundred dollar ($600.00). 17. Defendant, Safeway Inc has admtted that cats and dogs in the United States have become sick and developed signs of kidney failure, including loss of appetite, vomiting, and lethargy from consuming its pet foods at issue, and has advised consumers to stop using the afected products immediately and seek assistance of a veteriaran where appropriate. 18. The pet food products at issue are defectively designed and made, and are poisonous or unreasnably dagerous to pets; due to the ingredient composition of said products, the products are not usale for their intended purposes, and when used, cause a signcant risk of bodily har including severe or fatal bodily har (such a renal or kidney faiure, or death) to the pet. 19. Said defect and inherent dangers existed in the pet food products at issue at the tie Plaintiff and the Class purchased said products, though they could not discover Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 8 of 15 sae at the time of purchase, the dagers inherent in the products at the time the products left the possession of the manufacrer, distributor, marketer and seller of sad products. 20. Defendants had a duty to design manufactre, distribute, market and sell a safe product, and a duty to war or disclaim any potential dangers which derve from unreasnable dangers posed by the product. CLASS ALLEGA nONS the Federa Rules of 21. Plaintiff brigs this class action pursuant to Rule 23 of Civil Procedure on behalf of herslf and all persons and entities who purcha the pet products at issue, defined herein as "cuts and gravy" style pet food in can or pouch, manufactured by Menu Foods Income Fund or Menu Foods, Inc., between November 6, 2006 and March 6, 2007, including products ultimately sold or marketed by Safeway Inc. and other pet food brands. Excluded from the Clas are the offcers and employees of each of the Defendants, Plaintiffs counsel, and any judges or justices presiding over tms action. 22. Plaintiff also brings this action on behalf of a Subclass of all persons and entities who purchaed pet products at issue caused to be distributed, marketed and/or sold by Safeway Inc. - herein, the "Safeway Subclass." 23. Plaiti also brings this action on behal of a Subclass of all persons and entities who purchas pet products at issue caused to be distributed, marketed and/or sold in the State of llois - the "llinois Subclass." 24. Plaintiff has met the requirements of Rules 23(a), 23(b)(I), 23(b)(2), and 23(b)(3) of the Federal Rules of Civil Procedure. Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 9 of 15 25. Plaitiff does not know the exact size of the Class and Subclasses, since this information is largely in Defendans' exclusive control. But bas on the nature of the trade and commerce involved, Plaintiff believes that the Class and Subclass each numbers at least in the thousads and that the member of each class are geographicay disperse throughout the State of Ilinois, or alternatively, throughout the U.S. including in Ilinois. Therefore, joinder of the members of the Class or each Subclass would be impractcable, and class treatment is the superior method for faily and effciently adjudicaing this controversy. 26. Plaintiffs claims are typical of other Class and Subclass members' claims becse al Class and Subclass members were injured through the uniform misconduct described herein. 27. Common legal and factal questions among and within the respective classes exist, such as: a. Whether the respecive Defendants cased to be manufactred, distrbuted, mareted, and sold, the pet food products at issue; b. Whether the pe food products at issue are unreasonably dangerous, unft for pet consmption, andor not as represeted by Safeway Inc.; and c. Whether Defendants' conduct cause injury in fact to Plaitiff and the members of the Plaintif Class. 28. Plaitiff can an will faily and adequately represent and protec the respective Plaintif Class (including Subclass) members' interests, and has no interests that confict Class (or Subclass) members' interests. with or ar antagonistic to the Plaintiff Plaintifs attorney is experienced and competent in class acton litigation. Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 10 of 15 29. Class ceification of the respecive, alterntive classes is appropriate under Rule 23(b)(3) of the Federal Rules of Civil Procedure beuse a class action is the superior the claims asserted given that: proceur vehicle for the fair and effcient adjudication of a. Common quesions of law and fac overwhelmingly predominate over any individual questions that may arse among or withi the respective classs and, consequently, enormous economies to the cour and paries exist in litigating the common issues, for each class, on a class-wide basis instead of on a repetitive individual basis; b. Class treatment is required for optimal deterrence against, and compensation for, Defendants' wrongf conduct alleged herein; and c. The aggregate volume of the claims of the Plaintiff Class and each Subclass, whether considered in a national class or, alteratively, in a Ilinois class, coupled with the economies of scle inherent in litigating similar claims on a common basis, will enable this cae to be litigated as a class action on a cost-efective basis, especially when compared with repetitive individual litigation, and no unusual diffculties are likely to be encountered in this class action's management in that all legal and factual questions are common to each class. 30. Plaintifs clais are tyical of the other Plaitiff Class and Subclass members' clais because Defendants injured Plaintiff and the respective Class and Subclass members in the sae maner. 31. Class certification is appropriate pursuat to Rule 23(b)(l) of the Federal Rules of Civil Procedure becse prosecution of separte actions would create a risk of adjudication with respect to individual members of the respective classes, which may, as a practica matter, dispose of other class members' interests who aren't paries to the adjudication or which may substantially impair or impee individual class members' abilty to protect their interests. Separate actions prosecuted by individual class members Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 11 of 15 would also create a risk of inconsisten or varng adjudications, which would establish incompatible standards of conduct for Defendants. 32. Class certcation, whether as a nationa Class, Safeway Subclass and Ilinois Subclass, or alternative as a single Ilinois Class, is appropriate under Rule 23(b )(2) of the Federal Rules of Civil Procedure because Defendats have acted on grounds generally applicable to the respective Plaintiff Class and Subclass members. CAUSES OF ACTION 33. The preceding paragraphs are incorprated into each of the following causes of action as it set forth in full. FIRST CAUSE OF ACTION - UNAI TRE PRACTICE (Safeway Inc. Subclass and Ilinois Subclass Only) pet food products 34. Defendats, Safeway Inc., misrepresented, on the packaging of the at issue which they caused to be marketed and sold to Plaitiff and other members of Safeway Subclass, that sad products were, indee, pet food, were suitable for consumption by pes. 35. Said representations on the product packaging, prominently marketed to retai store isles, are advertisements, announcements, statements or representations containing assertons representations or statements of fact wmch are untre, deceptive and/or misleading, in violation of 8 I 5 ILCS 510/2 and simlar state statutes. 36. In fa, sad products are not suitable for consumption by pes, are not properly considered or presented as pet food, are not fit for their intended purpse, are dangerous to the heath of the pet and could lead to the pet's substantial physica injury or death, are really pet food imitations and contai an ingrient composition that causes the preceding allegations in this paragaph to be true. Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 12 of 15 37. Safeway Inc. caused the above-mentioned statements and misrepresentations to be featued on the packaging of their products at issue, which Plaintiff and other members of the Safeway Subclass viewed at the time of purchase, with the intent to increae the consumption of, the sale of, or to induce the public to purchase, of their Priority US pet products at issue. 38. Absent Defendant's untrue, deceptive, or misleading statements and representations, Plaintiff and the other members of Safeway Subclass would have acted differently. For instance, they would not have been induced to purchase, nor would they have purchased, the Prority US pet products at issue. 39. Defendant's above-described statements and misrepresentations about the Priority US pet products at issue have the capacity or tendency to deceive or mislead, and in fact proximately caused damage to Plaintiff and the other members of the Safeway Subclass by inducing them to buy a product they otherwse would not have bought. 40. Because of Defendants' untre, deceptive, or misleading statements and misrepresentations, Plaintiff and the other members of the Safeway Subclass have suffered pecuniar loss. SECOND CAUSE OF ACTION - NEGLIGENCE 41. The Menu Foods Defendants designed and manufactred the pet products at issue. 42. Defendant, Safeway Inc., distributed, marketed and sold those pet products at issue that were sold under their brad name, e.g., Prority. 43. Each of the Defendants breached their respective duties and duties of cae, e.g., in designng, maufactrig, distributing and sellng pet products at issue that are Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 13 of 15 reasonably safe for their intended purposes and so as not to injure users of the products, especially when the products are used in the sae maer prescribed by the maker, designer, distributor or seller, as well as their respecve aforementioned duties (see ii i 8-20, supra.) 44. Defendats' respective breaches of the aforementioned duties in the coure of makg, distributing, marketing and selling the pet products at issue to Plaiti and the Class caused each of them actual and proxiate damage. Plaintiff and the Class, who purchased sad pet products at issue, were damaged as a result thereof THI CAUSE OF ACTION - STRCT LIABILITY 45. Each of the Defendants proximately caused pet products at issue to be placed into the strea of commerce and purchased by Plaintif and other members of the Class. 46. The Defendants breached their aforementioned duties to Plaintiff and the Class, ii 18-20 supra. Plaintiff and the Class were damaged as a result. FOURTH CAUSE OF ACTION - UNJUST ENCHMNT 47. The revenues and profits flowig to each of the Defendants from the sale the Defendants and each of them. of the pet products at issue inured to the benefit of 48. Alterntively, as a result of the Defendants' deceptive and unfar practices outlined above, Plaintiff and other members of the Safeway Subclass and Ilinois Subclass purchased pet food products at issue, which were less than the product advertsed and represented and which were not for their ordinar and intended purpse. 49. The untrue, deceptive, and misleading saes and marketing practices described in tms Complait have enriched each of the Defendants at the expense of Plaintiff and the putative Class members. Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 14 of 15 50. Plaintif and other members of the Class are entitled to restitution, and disgorgement of each of the Defendants' il-gotten gains, as a result ofthe Defendants' unjust enrichment. JURY TRL DEMAND Plaitiff demands a trial by jury on all matters so triable. PRAYER FOR RELIEF WHREFORE, Plaintiff requests that this Court enter judgment in the respective Class members' favor and against Defendants, as follows: A. That this Court determine that this action may be maintained as a class action under Rule 23 of the Federal Rules of Civil Proceure, certify the Class, the Ilinois Subclass, and the Safeway Subclass, appoint Plaintiff as representative of the Class and the Subclasses, and appoint Plaitiffs counsel as class counsel of sae. B. That this Court rule that each of the Defendants violated the applicable laws, and are therefore liable under sad laws as alleged above; C. That this Cour award appropriate damges, including double damages where appropriate, interest, and injunctive relief to Plaintiff and the Class (including each Subclass); D. That this Court determne that the Defendants were unjustly enriched and that restitution is appropriate; E. That this Court require each Defendant to account for all revenues or profits improperly received as a result of the aforementioned conduct, enjoin each Defendant from dispersing sad monies, and impose a constructive trust on said monies. F. That this Cour award Plaintiffs counsel reasonable attorneys' fees and costs; and G. That this Court order any other relief as it deems just and proper. Case 1:07-cv-01543 Document 33-2 Filed 05/01/2007 Page 15 of 15 Dated: April 17,2007 Respectflly submitted, SONJA FOXE, on behalf of herself and al others similarly situated By: k( Jo H. Alexader John H. Alexander & Associates, LLC 100 W. Monroe, Suite 2 I 00 Chicago, IL 60602 (312) 263-7731

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