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. 2

Case 1:07-cv-01543

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Exhibit B

Dockets.Justia.com

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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT-CHANCERY DIVISION
GARY BRUSKI, Individually and on Behalf )

of all Others Similarly Situted )

Plaintiff, )

VS. )

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MENU FOODS, Inc., a Canadian Corpration, )

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NUTRO PRODUCTS, Inc., a California )
Corpration, and PETSMART,

08338
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Corpration, )
Inc., an Arzona )

Defendants. )
)

CLASS ACTON COMPLAIl~tT

Plaintiff GARY BRUSKI ("BRUSKI"), individualy and on behalf of aU others similarly
situted. by an though their atlomeys, BElAS 8c W ACHWOSKI. for his Complaint against

Menu Foods, Inc., a Canadian Corpration ('¡Menu Foods"), Nut Prducs. Inc., a California
Corporation (MNutr Proucts"), and PetSma Inc., an Arzona Corpration ("PetSmar"). sttes

as follows:

CLASS ACTION
(I ) Plaintiff, Gar Bruki, brings this caus of action as an individua and as a class

action on behaf of

himself and all others similarly situated in Ilinois puruat to 735 ILeS 5/3~

801.
(2) The class is defined as:

"All persons in ntinois who purchad cuts and grvy style dog and cat foo, manufactured by Menu Foods at its facilty in Empoa. Kan bewen Dembe 3, 2006 and Marh 6. 2007 for sale by Nutro Proucts and distributed by PetSmart throughout Ilinois."

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Bruki bring this cause of acon on his own behaf and, purt to th 735 ILCS
'a-SOI(1 H 4) (1993), on behalf of all pens as thir repreentave as indicated above in the

.clas defnition.
(4) Th clas that Bruki seeks to rent is so numus th

joinder olall

membe is imprcticable. Th ar thouss of membe of the clas tht ar geogrphicaly
disp thughout the entire state of

Ilinois.
th claims oftl membe of

(5) Bruki's claim ar tyical of

the cliw beus
Menu Foos, Nutro

Brui and all other members wee injur by the sae wrongf conduct of

Pruc and PetSma alleged heren. \
(6) There ar quesions of fact and law common to the class, which common

questions predominate over any questions affecting only individual mebe.
(7) Because Bruski's claim are tyical of

the claims afthe class. and he ha no

interet adver to or which woud irrcocilably conflct with the other membe of

th
the class and has

class, Bruski is an adequate class reresentative.
(8) Bruski wil fairJy and adequately reent the iners of

retined counsel experienced and competent in the prosecon of complex class action
litigation.

(9) A class action is supeor to other available methods for the fair and
effcieniadjudication of

the controvers and substantial beefits wil derive frm

proeeing as a class action. Such treatment wil penit a larer numbe of similarly
sit"!ted persns to prosecute their common clai in a single fonim simultaeously,
effciently, and without duplication of effor and exse tht nwnerous individua
actions would engender.

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· (l0) Class trtment wil pennt th adjudication ofreJatively smll claims by may clas

membe who could not afford to inividualy litigate such claims against the lare corporate
defendants. There ar no diffculties likely to be encountere in the management of

the clas action

that would preclude its maintenance as a clas acon, and no superior alteratve exists to th form

and efcient group-wide adjudication of

this contrver.
THE PARTIES

(11) At all times relevant heeto. Brukj wa and is a resident of i

the State ofßlinois.

(12) Beteen Decebe 3.2006 and maich 6, 2007. Bruski purchas dog food
,,
proucts mÌnufactur by Menu Foods for Nutro Products frm the PetS

mar store #04n

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locted at 140 N. Barngton Road Schaumburg llJnois.
(13) At all times relevat her. Menu Food wa a corpration duly formed and

existing puruat to the laws of Caada. Although Menu Foos' world headquarer ar loc
in Stretile, Ontao. Canada it prouce cuts an ¡rvy style dog and cat food at its facilit in

Empori Kansa which are thn sold and disbuted to major retailC1r8 such as PetSma in
llinois for purc by ß1inojs residents, an spificalty residents in Cook County, ßlinois.

(14) At all times relevant heo, Nutr Pruct wa and is a corpraon duly formed
and exstng puuat to th laws of

the Sta ofCalifomia. Althugh Nutr Pructs' world
Industr. Caiforna, it sells its Natura Choice dog and ca

heaqurter ar locted in the city of

foo prct thugh major retailer such as Petma in llinois for purhas by Ilinois
resident, and, specifically. redent in Cook County. Illnois.
(15) At all ties relevant here. PetSma wa and is a corpration duly ronned and
, existing puruant to th laws of

the State of Ara. Although PetSmarts world headquarrs

ar located in Phoeix, Arzona PetSmar owns. operates an has an interst in the Petma
stre locte at 140 N. Barngton Ro. in the City ofScbaumburg. County of

Cook. State of
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· Ilinois, which stor offer for sale to residents Nutr Products' Natur Choice dog and ca foo
manufacur by Menu Foo.

f ACTUAL ALLEGATIONS
(16) In its public pronouncements Nut Proucts has rereted th its "Natul

Choice products us only the be ingreients that guatee prmium nutrtion and superior
perfonnimce. Th benefits are visible in your dog's shy coat heathy skin and ove look
and feel of good heath n

(17) Dug the time period frm Decbe 3,200 thugh Marh 6, 2007,
purhasrs ofNatura. Choice products who fed said pruc to their dogs and cats notice th

the dogs and em refu furer feedings while oth exbited sign ofre falur, whle stll

other dogs an cats wh ingeste Nat Choice proucts died ofrcaJ filur.

(IS) On marh 16. 2007. ~enuFoo inormed th Food and Dr Administon th
it -w recaling cen dog an cat foo prouc includng Nat Choice, afer leag of
complaits of vomiting an rel failur in dogs an cats following eonsbmption of

sad products

produced be December 3. 2005 and Marh 6. 200.

(19) Neithe Nut Pruc PetSmar or Menu Foo displayed any wanS or

disclaimers to advie pe own tht the dog and cat foo pructs they we seUing caed wi
them the nsk ofiJJJ re tàlur or death ofpe wh ingested sa.

(20) Bms ow a nine yea old golden retrever.

(2 I) Beeen Deembe 3, 2006 and Marh 6, 2007 Bru pW'ch Natu Choice
pructs frm th Petmar stor located at 140 N. Bagton Road. Schabur. ßlinois.
."

(22) The Natu Choice prouct purhas by Bru for his dog frm th

aforementioned PetSmar loction wa a prouct ofNut Prucs and wa maufactu by
Menu Foo.

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(23) Betee Decembe 3,200 and Mah 6, 2007. Bruki fed his dog th Nat
Choice product describ,xt abve.
(24) Followig theingeston of

the Natural Chice product Bruits do¡ bean to

deelop kidney failur an on Februry 28, 2007 wa fonnally diagnose with end ste re

falure.

(25) By failing to disclose and war its prouct were unsfe and uneathy, th
defents damed Bruki and other similaly situated by selling proucts the defendats knew
Or should have mow were unhealthy, unsae and dageous to th heth of

thir dogs and ca

which ingeSed said prouct. In addition, by failing to disclose the uneathy natur or sad

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pruc, the deendan failed to prvide ßlinois dog and cat ower with the informtion th

nee to ma an infoned deision rearding the food proucts thir dogs an cat we

couming.
COUNT I-BRACH OF W ARRA'y
(26) Br re an reltges each and ever prior allegation contaed in ths

Complaint with the sa fon and effect as if fully se forth herin
(27) Menu Foos. Nutr Prouct. an PetSmar ar merhan of dog an cat fo

product and knw that th ultimate consumers relied upon them to de\'op, maufactu an

sell dog and cat fo prucs tht were reaonably sae.
- (28) Menu Foos, Nmr Proucts an PetSmar both exprely (thugh
advertseent an promotional matena1s) and impliedy. wanted tht the dog and ca foo

p~.ducts, including Natl Choice were sae an fit for ordina pwse and inended us an
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wer fr of design manufactung and production eff and would not caus death in dogs an

ca which ingesed sa.

(29) Menu Foo, Nutr Pruc and PetSmar also crted an implied waty of

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" merchanbility to Brusk and other similarly situted Ilinois,' .' '.'- that its dog andcr pe own , . . ..'"

food proucts we (Ù of at lea fair or av~ra¡equBity; (2) ~t to their ordina puse of dog
and

ca consupti~n; an (3).adeately labeled so as to advise Broki an oth similarly

situted Illnois dog and ca owers that there wa a signficat risk of ilnes, injur or death
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based upon th consumption therf.

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(30)

Bruki and oth similarly situted Ilinois ~sidents relied upon the defenda.

waties and purha th aforementioned dog an c: food proucts. .

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(3 i) The defendants brched thir wamties in conection with the sae of

aforementi~ned dog and cat foo products from Decmber 3, 2006 thug Marh 6, 2007 to
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Broski and th member of th clas. .
the defdants' brch of (32) As a diret an prximte an forle ret of

th

expr an implied waties Brki and other similay situted Ilinois redents have
suere dames in an amunt in excess of

fift thousd ($50,00.00) doJJar, spificly to be

deterine at tr.

COUNT U-STRlCl UABILIT

(33) Bru repets an releges eah and ever allegation contane in ths Comlaì
with th sa force and effec as is fuly se fort hern.
(34) Th defendants develope manufactu. mfUeted and 'distnDuted th dog and
ca fo products mentioned herin for sale an sold them in the cours of

thir bunes!l an

continued to do sO even afer acquirig knowledge that they could kill anmals wh inges

sae.
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(3~). Natu Choice dog and cat food products mauftu an sold to Brusk an.
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simíliriy si~ted Ilinois pa ownerlfrm Dembe 3, 200 ~u~ Marh 6,2007 we
unnably daerus due to the poibilit of

vomiting. re failur and death in dogs and.

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cat which ingeste sae.

(36) The defendants did not give adequate, meangful warning rearing th

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significant risk of vomiting, renal failure and death from the dog and cat foo proucts at issue.
(37) As a dire and prximate reult of

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the seous risk Bruki and other similary situated ßJinois dog and ca owner hae suffer daages in an i
amount in exce of fift ($50,00.00) dollar spificaly to be deter at tral.

the defendats' failure to war of

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(38) Th defendant conduct was outrgeow;, Even though th wa publicly available

informaton prior to the prouct reJI on Mach 16, 2007 tht dogs an ca in IIinois we
suferng sighfictt illness and death as a reult of the ingeson of prouc mentione here

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the defents contiue to sell sad proucts
(39) The defenants knew th aforeentioned prouc we", unsae, uneathy

dangerus and thby showe a complete indiff to or conscious disr of the saet of

an

Brui's pet and those of similarly situted dog and cat ow in ßJiDois. Bniki and the
members of the class ar entitled to rever

punitie ~ aø the defendats

~OUNT Ill-NEGLIGENCl
(40) Bruki rets and relages each an ev allegation contane in ths Complait
with th saie force and efect as iffuny se fort hern.

(4 I) At all times ",leva heeto. the defendats we engage in th business of

designg, maufacng, sellng an supplying th dog and cat foo pructs at iss.
(42) When place in the st of commere in ßJinois the dog and cat fo prduct
we not accompaned by any meaingf warg regaring the risk of

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Vomiting, re failur

and death assoat with sad pruc.

(43) By reon of

the defents' knWledge and expese about th nutrtiona vaue

of

the dog an cat foo pruc at issue, as wel as th hafu efects assoiated with

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consuming of sae, the defendats owe a dut of ca to Bruki and other similarly situated dog .
an cat owner tht reuir, among othr thgs, tht the defendats would be trthfl an
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accumte in thei represtations to Bruki and other similarly situated nJinois resdents who

owned dogs an cats about the us and effect on sad dogs and cats from lieson of

th

proucts at iss.

(44) The defendts breched their dut of ca to Bruski and other similarly situte

redents who owned dogs and cats that ingesed the prducts at iss by negligently makin

material misreprtations as to the safet of said pruc.

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(45) \ The defendan knew or should have knwn that the aforemenoned dog and ca
food proucts were not sae and heathy for consption an not a pa of a healthy lifesle

when in fact the defendats kn those repretaons wee false, misleaing and deve.

(46) The defendants' actions as desribe herin consûtute knwi omissions
suppreion or conceaent ofmatea1 facts mae with th inte tht other rely upon such
conceament, suprssions or omissons in coiiecon with th pur and feing to thir

dogs an cats the pructs at issue.
(47) The 'behavior of the defendts demonstte tht the defendats unawflly

an

negligentl, us and employed unconscionable comerial and busin practice. engaged in

dection, frud false pretns or misrepresentaon anor perpted the knwing
conceaiÏneJ suppresion or omission of

materal fats with the intent tht dO¡ an cat own

including Brui and other similary situated membe of th clas re upn such conc:ent,
supprion or omission in connecton of . .1'. the sae an adverisement of

th dog an cat foo

proucts at iss
(48) Bruki an other similary situated dog an ca owners in ßlinois rely
relied on th defendants renttions. .

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(49) Ths reliance wa not only foreseeable by the defendats but also intended by the

defendats and it wa forele by th defendats tht Bruki and other similarly situte dog
and cat owner in Ilifois would rely upon th reretations and tht such reliance would

cau injur to Burski and oth.

similarly situaed dog and am ower in Ulinois.

(SO) The behavior of

the defendants wa intended to mami~ saes and profits at th

expese of the safety and wen being of dogs and ca in lUinois an thir own wa outgeous
an peformed with evil motive, intent to injur. il wiI and without legal justification or excus
an withut regad to the safety an well being of dogs and ca in Ilinois or their owner.
(51) As the diret an proximate cause and legal relt oithe defendats' failur to
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provide adequa warngs to the ingesor of

the pruct at issu, and as a dirt and legl relt

of

the negligen, carlessn or other wrngdoing an actions or omissons of

the defendam

including the manufactung, distrbuon and sae of uneathy dog and ca foo prots, Bruki

aid membe of

the clas' dogs and ca have suffer or wil suer adve heth effec frm

sad consuption.

(52) Bru and other similarly situted Ilinois dog and ca ownrs an entitled to
damages in exce of fift thousan ($SO.OO.OO) dolJan. spificay to be determin at the

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tral. punitive dames plus intere and cots includin reable åtiney's fee.
COUN IV~FRAUD
. (53) Bruski repts and releges each and eve prior allegation contaned in ths

. an cat owners th knwledge they knew of

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Complaint with the sae forc and afect as if fu set fort herin '

(54) The defendats conceed frm Bnisk and othr similary situ lUin~js dog
the defec and in dag~ asiated with the
widespre ne and rert of dog

pruct at issue even though the defedats we awa of

im ca mnes and dea assoate with the proucts at isse in Ilinois pror to the prouç
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. reii on Marh 16.2007.

(55) Th defendants had a unque biwledge as to the potentil health ha
asiated with the pruct at issue prior to March 16, 2007 and ha a duty to infrm Brusk and

other Similarly situted dog and cat owner in Iliiiois of

sad risk
the defendant's conceament of

(56) As a direct and proximate result of

the matenal

facts Bruki and other similary situted JIinois dog and cat owner were damaged.

WHERFO~ the Plaintiff GARY BRUSKI, n:ue that ths Court enter a

jointly

judgment \ and kverly against MEN FOODS, NUTO PRODUCTS an PETSMAT and in
Plaintiff and seks the fOJlowing relief.
A. Tht this maer be cerified as a clas action on behaf of

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favor of

herin and tht counel of rerd be appointe to reprnt the cla;

th propose class desbe

8. Awar to the Plaintiffim the clas compery daes in exces offift thus
(SSO,OO().OO) dolla; -

C. Awa the Plaintiff and the clas puntive da;
D. Awar the Plaitiff and th class the cost of prseuting th action toget with interest and reonable attrnys fees an co; an

E. A wa such other an fu relief as the Cour deems jus an pro.

DEMAN FOR JUY TRA.,
- Bruki. on behalf ofhilf and all other simlarly situ. here demands a tral by

jui on aU claims for which thre is a right to a

jur tral.

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Date: Ma 22 2007

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Respeully SUbmitted .
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GAY BRUSKI and al Ol aiml.,y s/7

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Pet . acwski . Their Attol'ey

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Pete C. Wachki
Gerg S. Bellas
BELLAS & WACHOWSKI
Attorneys for the Plaintiff

l 5 Nort Nortwet Highway

Par Ridget Illnois 6068
[phone] FAX [phone] Attrneys Cook COUQty ID226S

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