Miller v. Nestle Purina PetCare Company
Filing
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OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss Plaintiffs Complaint, [Doc. No.7], is granted. IT IS FURTHER ORDERED that Plaintiff will be given 14 days from the date of this Opinion, Memorandum and Order to file an Amended Complaint in accordance with the discussion herein. Failure to file an Amended Complaint will result in dismissal of this action with prejudice. 7 ( Response to Court due by 2/11/2014.) Signed by District Judge Henry E. Autrey on 1/28/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CYRUS MILLER, on behalf of himself
and all others similarly situated,
Plaintiff,
vs.
NESTLE PURINA PETCARE COMPANY,
Defendant.
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Case No. 4:13CV283 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motions to Dismiss
Plaintiff’s Complaint, [Doc. No.7]. Plaintiff opposes the Motion. For the reasons
set forth below, the Motion is granted.
Facts and Background1
Plaintiff filed this putative class action Complaint under the Missouri
Merchandising Practices Act against Defendant alleging that Defendant’s Beneful
line of wet and dry dog food products caused and continue to cause illness and/or
death in a significant number of dogs who consume the products.
The Complaint alleges that Defendant falsely represented its Beneful line of
products as “healthy,” “wholesome,” “nutritious” dog food. Plaintiff specifically
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This recitation of facts is taken from the Complaint herein and is for the purposes of the
motion to dismiss. It in no way relieves the parties of any necessary proof in later proceedings.
alleges that he fed his dog Beneful Healthy Weight dog food and within two
weeks after eating only this dog food, Plaintiff’s dog began to develop a number
of symptoms that progressed in severity as she continued her diet of Beneful
Healthy Weight dog food. The dog became lethargic, incontinent and developed
blood in her urine. Her veterinarian diagnosed her with severe bladder stones.
The veterinarian suggested Plaintiff switch to a medicated dog food for urinary
health. Plaintiff switched the dog’s food to a non-Purina brand medicated dry
food and the bladder stones and incontinence subsided within four to six weeks.
Plaintiff further alleges that, on information and belief, the products have
caused similar illnesses and/or death in a significant number of dogs.
Plaintiff claims that Defendant engaged in unlawful practices within the
meaning of Mo.Rev.Stat. § 407.020 by selling products that cause illness and/or
death in a significant number of dogs; that the representations that the products are
healthy, wholesome, dog food, 100% Complete Nutrition and/or 100% complete
and balanced nutrition are false and/or misleading to a reasonable consumer
because Defendant failed to disclose that the products caused and/or had a
significant risk of causing, illness and/or death in a significant number of dogs.
Defendant moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim and for failure to plead fraud with
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particularity.
Discussion
When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss for failure to state a claim, the Court must take as true the alleged facts and
determine whether they are sufficient to raise more than a speculative right to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does
not, however, accept as true any allegation that is a legal conclusion. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). The complaint must have “‘a short and
plain statement of the claim showing that the [plaintiff] is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Twombly, 550 U.S. at 555 (quoting Fed.R.Civ.P. 8(a)(2))
and then Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Twombly, supra);
see also Gregory v. Dillard’s Inc., 565 F.3d 464, 473 (8th Cir.) (en banc), cert.
denied, 130 S.Ct. 628 (2009). While detailed factual allegations are not necessary,
a complaint that contains “labels and conclusions,” and “a formulaic recitation of
the elements of a cause of action” is not sufficient. Twombly, 550 U.S. at 555;
accord Iqbal, 129 S.Ct. at 1949. The complaint must set forth “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570;
accord Iqbal, 129 S.Ct. at 1949; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
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594 (8th Cir. 2009). “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.” Iqbal, 129 S.Ct. at 1949. If the
claims are only conceivable, not plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1950. In considering a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), “the complaint should be read as
a whole, not parsed piece by piece to determine whether each allegation, in
isolation, is plausible.” Braden, 588 F.3d at 594. The issue in considering such a
motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff
is entitled to present evidence in support of the claim. See Neitzke v. Williams, 490
U.S. 319, 327 (1989). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949,(2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, “although a
complaint need not include detailed factual allegations, ‘a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.’ ” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 62930 (8th Cir.2010) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
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The Missouri Merchandising Practices Act (“MMPA”) “serves as a
supplement to the definition of common law fraud [and] eliminates the need to
prove an intent to defraud or reliance.” Sales Resource, Inc. v. Alliance Foods,
Inc., 2010 WL 5184943, at *26 (E .D. Mo. Dec. 15, 2010) (internal quotation
marks and citation omitted). It provides in relevant part as follows:
Any person who purchases or leases merchandise primarily for
personal, family or household purposes and thereby suffers an
ascertainable loss of money or property, real or personal, as a result of
the use or employment by another person of a method, act or practice
declared unlawful by section 407.020 may bring a private civil action
in either the circuit court of the county in which the seller or lessor
resides or in which the transaction complained of took place, to
recover actual damages.
Mo.Rev.St. § 407.020(1) in turn provides in relevant part as follows: “The act, use
or employment by any person of any deception, fraud, false pretense, false
promise, misrepresentation, unfair practice or the concealment, suppression, or
omission of any material fact in connection with the sale or advertisement of any
merchandise in trade or commerce ... in or from the state of Missouri, is declared
to be an unlawful practice.” See Mo.Rev.St. § 407.025(1). “The Missouri
Supreme Court has found the words ‘unlawful practice’ are ‘unrestricted,
all-encompassing and exceedingly broad.’” Sales Resource, Inc., 2010 WL
5184943, at *27, quoting Ports Petroleum Co., Inc. of Ohio v. Nixon, 37 S.W.3d
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237, 240 (Mo. banc 2001). Thus, “[i]n order to state a claim for violation of the
MMPA, plaintiff was required to allege that [ ]he (1) [purchased] merchandise
from defendant; (2) for personal, family, or household purposes; and (3) suffered
an ascertainable loss of money or property; (4) as a result of an act declared
unlawful by section 407.020.” Chochorowski v. Home Depot U.S.A., Inc., 295
S.W.3d 194, 198 (Mo .App.2009) (citation omitted).
Defendant argues that Plaintiff’s Complaint fails to satisfy Twombly and
Iqbal, fails to allege fraud with particularity under Rule 9 and fails to set forth a
valid claim under the Missouri Merchandising Practices Act because Plaintiff
cannot prove the alleged misstatements were made in Missouri or reached
Missouri consumers.
The Court agrees with Defendant that the allegations in the Complaint are
insufficient to state a claim. Although Plaintiff argues that he has set out
sufficient facts to state a claim, upon examination, it is clear that the Complaint
fails. Under Twombly and Iqbal, a complaint must set out sufficient facts
establishing a plausible claim on its face. “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.” Iqbal, 129 S.Ct.
at 1949. If the claims are only conceivable, not plausible, the Complaint must be
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dismissed.
Plaintiff’s claim, that feeding his dog caused the dog’s lethargy,
incontinence, bloody urine, and bladder stones and feeding the dog medicated dog
food is conceivable, but not plausible as stated. Numerous other factors could
have caused the dog’s problems: susceptibility of her breed to bladder stones,
infection, parasites, to name a few. Nothing in the Complaint alleges that the
veterinarian diagnosed the bladder stones because of the certain type of dog food
the dog ate, nor does the fact that the veterinarian suggested a medicated food for
urinary health set out a fact which demonstrates Plaintiff is entitled to relief. So
many other factors could have played a role in the dog’s problems that merely
stating she ate the food, got sick, got better after eating medicated food for urinary
health that Plaintiff’s Complaint fails to set forth a plausible claim showing he is
entitled to relief from Defendant.
Additionally, Defendant is correct that Plaintiff pleads misrepresentation
and therefore must plead with specificity. The “fundamental purpose” of the MPA
is to protect consumers and, “to promote that purpose, the act prohibits false,
fraudulent or deceptive merchandising practices. [Mo.Rev.Stat.] Section 407.020.”
Huch v. Charter Commc'ns, Inc., 290 S.W.3d 721, 724 (Mo.2009) (en banc). More
specifically, that section declares that
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The act, use or employment by any person of any
deception, fraud, false pretense, false promise,
misrepresentation, unfair practice or the concealment,
suppression, or omission of any material fact in
connection with the sale or advertisement of any
merchandise in trade or commerce ... in or from the state
of Missouri, is declared to be an unlawful practice....
Any act, use or employment declared unlawful by this
subsection violates this subsection whether committed
before, during or after the sale, advertisement or
solicitation.
Plaintiff’s claim that Defendant misrepresented the quality of its Beneful
dog food products places this action squarely within the parameters of Rule 9's
requirement of specificity in pleading. Clearly, Plaintiff has not done so.
Although Plaintiff argues that he had complied with the specificity requirements
of Rule 9, the allegations fall woefully below Rule 9's requirements. Plaintiff fails
to detail what misrepresentations were made, where the statements were made, to
whom, they were made and why they were misleading, and how the alleged
misrepresentations were made to Plaintiff. As such, Plaintiff’s claims of
misrepresentation are insufficient to state a claim.
Conclusion
Plaintiff’s Complaint fails to satisfy the requirements of Rules 12(b)(6) and
9, as discussed herein. The Court will allow Plaintiff to amend.
Accordingly,
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IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss
Plaintiff’s Complaint, [Doc. No.7], is granted.
IT IS FURTHER ORDERED that Plaintiff will be given 14 days from the
date of this Opinion, Memorandum and Order to file an Amended Complaint in
accordance with the discussion herein. Failure to file an Amended Complaint will
result in dismissal of this action with prejudice.
Dated this 28th day of January, 2014.
_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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