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)

Majerczyk v. Menu Foods, Inc.

Doc. 33 Att. 1

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Exhibit A

Dockets.Justia.com

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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,

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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.

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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.

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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).

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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

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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

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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.

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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.

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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

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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.

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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

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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.

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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.

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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 [phone]