Vanzant et al v. Hill's Pet Nutrition, Inc. et al

Filing 60

MEMORANDUM Opinion signed by the Honorable Samuel Der-Yeghiayan on 11/29/2017. This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, the motion to dismiss is granted. Mailed notice (ags, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
, EASTERII DIVISION

HOLLY BLAINE VANZANT, et al.,

Plaintiffs,
v.

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)
)
)

)

HILL'S PET NUTRITION INC., et al.,

Defendants.

No. 17 C 2535

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)
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MEMORANDUM OPTNION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants' motion to dismiss. For the
reasons stated below, the motion to dismiss is granted.

BACKGROUND
Plaintiff Holly BlaineYaruant (Yanzarrt) and Plaintiff Dana Land (Land)
allegedly owned cats that had serious health problems. After appointments with
veterinarians, the veterinarians allegedly prescribed prescription cat food

(Prescription Cat Food) to treat the health problems of Plaintiffs' cats. The
Prescription Cat Food is allegedly made by Defendant Hill's Pet Nutrition, Inc.

(HPN). Plaintiffs allegedly

used the prescriptions from the veterinarians to purchase

the Prescription Cat Food from Defendant Petsmart, Inc. (Petsmart). Plaintiffs

allegedly continued to purchase the Prescription Cat Food for years. Plaintiffs
contend that the prescriptions are not required by law and that the prescription
requirement is deceptive and allows HPN and Petsmart to profit by selling the

Prescription Cat Food at above-market prices. Plaintiffs contend that the
Prescription Cat Food does not contain any ingredient that cannot be found in other
non-prescription pet food. Plaintiffs also contend that the use of the word

"prescription" and similar wording deceives consumers into believing that the
product has been evaluated by the U.S. Food and Drug Administration (FDA).

Plaintiffs include in the amended complaint claims brought against HPN alleging

a

violation of the Illinois Consumer Fraud and Deceptive Business Practices Act

(ICFA), 815 ILCS 505/1 et seq. (Count I), ICFA claims brought against Petsmart
(Count II), unjust enrichment claims brought against HPN (Count III), and unjust
enrichment claims brought against Petsmart (Count

IV).

Defendants move to

dismiss all claims.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(bX6)), the court must draw all reasonable inferences

that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, lnc.,673 F.3d 609, 622 (7th

Cir.2012); Thompsonv. Ill. Dep't of Prof'l Regulation,300 F.3d 750, 753 (7thCir.
2002). A plaintiff is required to include allegations in the complaint that "plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a

'speculative level"'and
E. E. O.

"if they do not, the plaintiff

C. v. Concentra Health Services, Inc., 496

F

pleads itself out of court."

.3d 773, 77 6 (7th Cir.

2007)(quoting in part Bell Atlantic Corp. v. Twombly,l2T S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter,

lnc.,673 F.3d at 622 (stating that "[t]o

survive a motion to dismiss, the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face," and that "[a]

claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct

alleged")(quoting Ashcroft v. Iqbal,556 U.S. 662 (2009))(intemal quotations
omiued).

DISCUSSION

I.

Severance

The court initially notes thatYaruant and Land have presented claims relating

to different cats with different health issues and veterinarians and different pet food
that they purchased. Plaintiffs' claims are factually unrelated and if this action were

to survive the pleadings stage, and Land insisted on pursuing an action in her own

name, the court would have considered dismissing Land as a plaintiff and requiring

Land to file her own lawsuit and pay her own filing fee as appropriate. Although

Plaintiffs have styled their complaint as a class action complaint, no class has yet
been certified in this case. Plaintiffs have inappropriately presented two distinct
cases without paying the necessary

filing fees for both.

II ICFA Claims
Defendants argue that Plaintiffs have not pled sufficient facts to support an

ICFA claim.

A.

Causation

Defendants argue that Plaintiffs have not pled facts suggesting proximate
causation to support an ICFA claim. Defendants correctly point out that, according

to Plaintiffs' own pleading, Plaintiffs decided to purchase the Prescription Cat Food
based on the recommendation of a veterinarian to treat their cats. Plaintiffs, now

seeking to take their place as class representatives after years of purchasing the pet

food, claim that had they known all they now know about prescription pet food, they
never would have purchased the

food. Plaintiffs' position, however, does not fit

with the rest of their allegations. Plaintiffs' allegations suggest on one hand that
they loved and cared for their cats and yet they assert that they would have let their
cats suffer the effects of serious health conditions without the Prescription Cat Food

because of the facts they now claim to know about prescription pet food.

Plaintiffs do not dispute that they took their cats to their veterinarians seeking
assistance for serious health problems with their cats and that the veterinarians

prescribed the Prescription Cat Food to assist in the treatment. Nor do Plaintiffs
dispute the therapeutic benefits of the Prescription Cat Food, and Plaintiffs have

offered no allegations indicating that the Prescription Cat Food did not offer the
health benefits promised by Defendants. Nor do Plaintiffs dispute that they did
indeed purchase the food for years to help their cats stay healthy. Yet Plaintiffs
insist that their allegations at the pleadings stage be accepted as true in regard to

causation. Accepting Plaintiffs' allegations as true essentially means that Plaintiffs
went through all the trouble of seeking treatment for their ailing cats and paying for
special food, but would have been willing to forego the recommended treatment for

their beloved cats if they had known the facts they now know about prescription pet
food and Plaintiffs needed to pay a few more dollars for such food. Such assertions
are not consistent, but for the purposes of the instant motion, the court accepts such

allegations as true. Plaintiffs have presented allegations showing proximate cause.

B.

Safe Harbor Exception

Defendants argue that the ICFA claim is barred by the ICFA safe harbor

exemption. Section 10b(1) of the ICFA (Section 10b(l)) provides that "[n]othing in
[the ICFA] shall apply to . . . [a]ctions or transactions specifically authorizedby

laws administered by any regulatory body or officer acting under statutory authority

of this State or the United States. . . ." 815 ILCS 505/10b(1). The Illinois Supreme
Court has made clear that ooinformal regulatory activity" can suffice to trigger the
safe harbor exception of Section 10b(1). Price v. Philip Morris, lnc.,848 N.E.2d

46 (I11. 2005). Defendants have requested that the court take judicial notice

l,

of

various statements from the FDA, including the Compliance Policy Guide (CPG)
and Plaintiffs have not objected. Defendants correctly point out that the CPG

recognizes the gate-keeping role of veterinarians in ensuring that pet owners
purchase only appropriate therapeutic foods. Plaintiffs argue that the word

"prescription" is not specifically used in the CPG. The CPG, however, is intended
only to provide general guidance, not to specifically spell out the legal requirements
as

if providing a statutory mandate. In the CPG, the FDA recognizes that there is a

need that such therapeutic pet foods be'omade available to the public only through

licensed veterinarians or through retail or internet sales to individuals purchasing the

product under the direction of a veterinarian." (CPG 7). The prescription pet food
procedure allegedly utilized by Defendants fits squarely within such guidance

offered by the FDA. Defendants also present evidence showing that the FDA has
been aware for decades of the use of the term "prescriptions" by veterinarians in

regard to prescription pet food and the FDA has not questioned such activity. The

FDA is the regulatory authority that is charged with overseeing therapeutic pet food
and Plaintiffs cannot seek to impose stricter requirements upon Defendants in

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pursuing their ICFA claims. Defendants are thus protected by the safe harbor
exception in Section 10b(1).

C. Failure to Plead with Particularity
Defendants argue that Plaintiffs have failed to plead their ICFA claims with

particularity. A plaintiff bringing an ICFA claim alleging deceptive conduct must
plead the claim with particularity in accordance with Federal Rule of Civil
Procedure 9(b) (Rule 9(b)) andooallege the who, what, where, and when of the
alleged fraud . . .

. Camasta

v. Jos. A. Bank Clothiers,

Inc.,76l F.3d732,738 (7th

Cir.2}l4)(explaining that "[w]hile fthe Court] allow[s] [the plaintiff] some

flexibility in the factual support required for his claim, a plaintiff alleging fraud

does

not have unlimited leeway in satisfying the particularity requirement of Rule 9(b)
when the circumstances are pleaded solely on information and belief')(internal
quotations omitted).

Plaintiffs, in their apparent eagerness to present their "class action complaint,"
have failed to plead the necessary facts to support their claims of fraud. Plaintiffs'

first amended complaint is filled with allegations as to all types of both dog and cat
food that treat all sorts of pet health issues and Plaintiffs offer extensive allegations
as to the fraud by the sale

of such "prescription cat and dog products." (A Compl.

Par.37). As indicated above, however, no class has been certified in this matter.
Also, as indicated above, Plaintiffs are not even properly joined in the same action.

It is incumbent for each Plaintiff to allege facts to plead her specific claims with
particularity.

Plaintiffs claim that they purchased the Prescription Cat Food from Petsmart
in Illinois, but they fail to speciff what store or stores from which they bought the

food. (A Compl. Par. 65,70). Plaintiffs have also failed to allege facts to
specifically explain how Defendants engaged in the alleged deception or provided
misleading statements. Plaintiffs' own allegations acknowledge that the Prescription
Cat Food was available only through what veterinarians referred to as a prescription.
Thus, the use of the word "prescription" or other similar related terms indicates no
deception on the part of Defendants. Plaintiffs also fail to specify the time of the
alleged deception. To plead with particularity, Plaintiffs must offer more than
general statements as to when they bought the Prescription Cat Food. Plaintiffs

claim to have bought the food for years. Yet they offer no specific allegations

as

to

when they read the labels on the Prescription Cat Food that they now claim are

misleading or were otherwise deceived by Defendants, or how frequently in the
"years" they were deceived. Plaintiffs have thus failed to plead their ICFA claims

with particularity.
To the extent that Plaintiffs seek to pursue unfair practices claims under

ICFA, there are no allegations that would suggest that Defendants engaged in
conduct that would violate public policy. The allegations presented by Plaintiffs
suggest that Defendants acted in accordance with the guidance provided by the FDA,

which is the relevant regulatory body. Plaintiffs complain in their response that
"Defendants' conduct is what makes it impossible for consumers like Plaintiffs to
buy Prescription Pet Food without a prescription from a veterinarian." (Resp 8).

Plaintiffs, however, are seeking rights that directly contradict the FDA's admonition
that such food be "made available to the public only thorough licensed

veterinarians." (CPG 7). Plaintiffs' desire to save what they contend are needless
additional expenses for prescriptions and prescription pet food is also a red herring
in this case, since the FDA's guidance in the CPG is not on trial in this case.

Plaintiffs' case rests on their claims that Defendants, which are private corporate
entities, somehow are engaging in fraud or unfair practices by following the
guidance of the

If,

as

FDA. There is simply no basis in the law to support

such a notion.

Plaintiffs now claim, they had known all they know about prescription pet

food, they would not have paid the amount sought in the marketplace for such food,

Plaintiffs could have chosen to forego the therapeutic food for their cats. There is no
deception based on the face of Plaintiffs' own pleadings. Based on the above,

Defendants' motion to dismiss the ICFA claims is granted.

II. Unjust Enrichment Claims
Defendants argue that the unjust enrichment claims must be dismissed since
the ICFA claims cannot stand. The Seventh Circuit has stated that when "the unjust
enrichment claim" is "premised on the same fraud underlying the ICFA claim," and

there was "no valid underlying fraud, both the ICFA claim and the unjust enrichment

claim

fail[.]"

Cleary v. Philip Morris lnc.,656 F.3d 511, 518 (7th Cir. 2011).

Plaintiffs' unjust enrichment claims are premised on the same alleged deception that
supported their ICFA claims. Therefore, Defendants' motion to dismiss the unjust
enrichment claims is granted.

CONCLUSION
Based on the foregoing analysis, Defendants' motion to dismiss is granted.

Dated: November 29,2017

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