Nestle Purina PetCare Company v. The Blue Buffalo Company Ltd.

Filing 758

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Wilbur-Ellis Company's motion to dismiss # 500 is GRANTED. IT IS FURTHER ORDERED that Blue Buffalo shall file an amended complaint in compliance with this Memorandum and Order by no later than April 29, 2016.. Signed by District Judge Rodney W. Sippel on 4/19/16. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NESTLÉ PURINA PETCARE COMPANY,
Plaintiff/Counterclaim Defendant,
vs.
THE BLUE BUFFALO COMPANY LTD.,
Defendant/Counterclaim Plaintiff,

AND RELATED ACTIONS

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Case No. 4:14 CV 859 RWS

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MEMORANDUM AND ORDER
This false advertising pet food case is before me on Wilbur-Ellis Company’s motion to
dismiss Blue Buffalo’s claim for contribution. Wilbur-Ellis argues that Blue Buffalo has failed
to state a claim under Federal Rule of Civil Procedure 12(b)(6) because it does not, and cannot,
allege that Wilbur-Ellis is a joint tortfeasor for Purina’s underlying claims. For the reasons that
follow, I will grant Wilbur-Ellis’ motion and dismiss Blue Buffalo’s claim for contribution from
Wilbur-Ellis from the Amended Third Party Complaint.
Motion to Dismiss Legal Standard
In ruling on a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), I must accept as
true all factual allegations in the complaint and view them in the light most favorable to the
plaintiff. Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993). “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, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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, 556 U.S. at 678. While a court must accept factual
allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Carton v. Gen. Motor Acceptance Corp., 611 F.3d 451, 454 (8th Cir. 2010) (internal
citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (internal citations omitted).
Discussion
Wilbur-Ellis moves to dismiss Blue Buffalo’s claim for contribution from Blue Buffalo’s
Amended Third Party Complaint. Blue Buffalo seeks contribution from Wilbur-Ellis for any
liability it is found to have for Purina’s underlying claims of unjust enrichment and unfair
competition.1 Wilbur-Ellis argues that Blue Buffalo has failed to state a claim under Federal
Rule of Civil Procedure 12(b)(6) because it does not, and cannot, allege that Wilbur-Ellis is a
joint tortfeasor for Purina’s underlying claims.
1. Procedural Propriety
Blue Buffalo opposes Wilbur-Ellis’ motion, first arguing that it is procedurally improper.
Blue Buffalo argues that the motion is procedurally improper under FRCP 12(g) because it is a
successive motion to dismiss presenting an argument that was available to Wilbur-Ellis at the
time of its first motion to dismiss but that it omitted from its earlier motion. While certain
defenses may not be asserted in a successive motion to dismiss, such is not the case here. FRCP
12(g) limits successive motions “except as provided in Rule 12(h)(2).” FRCP 12(h)(2) allows
parties to present defenses or objections based on failure to state a claim. See FRCP 12(g),
12(h)(2); see also Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (“Rule 12(h)(2)
I previously dismissed Blue Buffalo’s claim for contribution to the extent it sought contribution for any
Lanham Act liability. See the Court’s Memorandum and Order of September 8, 2015 [#450].
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specifically excepts failure-to-state-a-claim defenses from the Rule 12(g) consolidation
requirement.”). Since Wilbur-Ellis seeks dismissal of the contribution claim for failure to state a
claim, it is properly within the 12(h)(2) exception.
2. Merits Review
Blue Buffalo also argues that Wilbur-Ellis’ motion fails on the merits because WilburEllis is potentially liable as a joint tortfeasor for Purina’s underlying claims of unjust enrichment
and unfair competition.
For a right to contribution to exist under Missouri law, defendants must be jointly and
severally liable to the plaintiff for the same indivisible harm. Gibson v. City of St. Louis, 349
S.W.3d 460, 466 (Mo. Ct. App. 2011). “An indivisible injury results when two or more causes
combine to produce an injury incapable of division on any reasonable basis and each is a
substantial factor in bringing about the harm.” Id. (internal citations omitted).
Blue Buffalo has not sufficiently alleged that Wilbur-Ellis is potentially liable to Purina
for the same, indivisible injury it is alleged to have caused. Blue Buffalo’s Amended ThirdParty Complaint (“Complaint”) merely alleges that “Blue Buffalo may be held liable in damages
to Nestle Purina . . . even though Wilbur-Ellis . . . [is] partially at fault for those damages.” Blue
Buffalo’s Amd. Third Pty. Compl. [#467] at

¶ 277. The only injuries alleged in Blue

Buffalo’s Complaint are those to Blue Buffalo. Blue Buffalo alleges it lost customer goodwill
and paid above market-price for the by-product meal it received. Id. at ¶¶ 213-14. Blue Buffalo
also alleges that Wilbur-Ellis’ conduct exposed Blue Buffalo to liability in this action and others,
and “to the extent any liability is ultimately imposed on Blue Buffalo, this, too, was foreseeable
to Wilbur-Ellis.” Id. at ¶ 215. These allegations merely amount to conclusory statements that
Wilbur-Ellis is liable to Blue Buffalo for any liability it is found to have to Purina. Such

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conclusory allegations are insufficient to survive a motion to dismiss for failure to state a claim.
Iqbal, 556 U.S. at 678.
Moreover, even if Blue Buffalo had sufficiently alleged how Wilbur-Ellis is potentially
liable to Purina for the same, indivisible injury, for the reasons that follow, the contribution
claims would fail because Purina could not have brought claims against Wilbur-Ellis for the
“same injury” for which it sued Blue Buffalo.
(a) Contribution for the Unfair Competition Claim
Purina’s claim for unfair competition alleges that Blue Buffalo injured it by “making
false, misleading and deceptive statements about its products while disparaging the products of
competitors . . . . [which] caused and continue to cause consumers to purchase Blue Buffalo’s
products over the products of competitors, including Purina.” Purina’s Second Amd. Compl.
[#104] at ¶ 76.2 Purina also alleges that “Blue Buffalo acted and continues to act in bad faith in
making claims about its products that it knew and knows to be materially false and deceptive.”
Id. at ¶ 77.
Blue Buffalo argues that Purina could have brought claims against Wilbur-Ellis for these
same injuries. Blue Buffalo relies on a recent decision from the United States Court of Appeals
for the Eleventh Circuit, which held that a plaintiff may bring a claim for “contributory false
advertising” under the Lanham Act. See Duty Free Americas, Inc. v. Estee Lauder Cos., 797
F.3d 1248, 1277 (11th Cir. 2015). In Duty Free Americas, the Eleventh Circuit held that, to
prove a claim of contributory false advertising, “[f]irst, the plaintiff must show that a third party
in fact directly engaged in false advertising that injured the plaintiff. Second, the plaintiff must

Purina recently filed a motion for leave to file a Third Amended Complaint (“TAC”), which is currently
under consideration by the Court. The proposed changes to the TAC do not materially affect the issues
involved in this motion and therefore I find no need to postpone ruling on this motion.
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allege that the defendant contributed to that conduct either by knowingly inducing or causing the
conduct, or by materially participating in it.” Id.
Missouri common law claims for unfair competition are coextensive with federal law,
and specifically with the general principles of unfair competition expressed in the Lanham Act.
WSM, Inc. v. Hilton, 724 F.2d 1320, 1332 n.6 (8th Cir. 1984). As a result, Blue Buffalo argues
that the Eleventh Circuit’s reasoning in Duty Free Americas should guide my analysis here and I
should conclude that Purina could have brought a claim for unfair competition against Blue
Buffalo.
Blue Buffalo’s argument raises a conundrum. In ruling on Wilbur-Ellis’ first motion to
dismiss, I concluded that there is no federal common law right to contribution under the Lanham
Act, nor is there an express right of contribution under the Lanham Act. I also declined to imply
a right to contribution for Purina’s underlying Lanham Act claim against Blue Buffalo. See
Memorandum and Order of September 8, 2015 [#450] (citing Getty Petroleum Corp. v. Island
Transp. Corp., 862 F.2d 10, 16 (2d Cir. 1988), cert. denied, 490 U.S. 1006, 109 S.Ct. 1642, 104
L.Ed.2d 157 (1989)). As a result, to the extent that Blue Buffalo urges me to rely on Lanham
Act jurisprudence to determine whether a right to contribution for unjust enrichment exists under
Missouri common law, which is coextensive with federal law, Blue Buffalo’s argument appears
to defeat itself. While the Eleventh Circuit’s reasoning in support of recognizing a right to
contributory false advertising is sound, it is not persuasive enough to compel me to reconsider
my previous ruling or to reject the line of cases holding that no such right exists. See id. at 9-10
(citing cases rejecting contributory liability for Lanham Act claims).3

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Although Blue Buffalo has not moved for reconsideration of my ruling my Memorandum and Order of
September 8, 2015, my agreement with their argument here and interests in consistency would essentially
compel a reconsideration of my previous ruling. Rule 60(b) “is not a vehicle for simple reargument on
the merits.” Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999). If I were to construe Blue Buffalo’s
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(b) Contribution for the Unjust Enrichment Claim
The only other avenue through which Blue Buffalo may seek contributory recovery from
Wilbur-Ellis is for any liability it is found to have under Purina’s unjust enrichment claim. The
elements of an unjust enrichment claim are “(1) the plaintiff conferred a benefit on the
defendant; (2) the defendant appreciated the benefit; and (3) the defendant accepted and retained
the benefit under inequitable or unjust circumstances.” Myers v. Sander, No. 4:13CV2192 CDP,
2014 WL 409081, at *8 (E.D. Mo. Feb. 3, 2014).
Here, there is no allegation that Purina conferred a benefit on Wilbur-Ellis, nor could
there be. Purina’s claim for unjust enrichment merely alleges that it conferred a benefit on Blue
Buffalo, pleading that “Blue Buffalo has enjoyed substantial profits from the sale of its products
to consumers who purchased Blue Buffalo’s products over the products of competitors based on
false statements made by Blue Buffalo, including that Blue Buffalo’s pet food products do not
contain chicken/poultry by-products meals when its products in fact do. . . . includ[ing] false
comparative statements about the ingredients and nutritional values of Blue Buffalo’s product as
compared to those of competitors, including Purina.” Id. at ¶ 80. Purina further alleges that
“Blue Buffalo would not have made such sales or earned the profits therefrom but for the
misrepresentations and false statements . . . . Blue Buffalo’s profits were further inflated via cost
savings for less expensive ingredients than advertised.” Id. at ¶ 81.
As stated above, for a right to contribution to exist under Missouri law, defendants must
be jointly and severally liable to the plaintiff for the same indivisible harm. Gibson v. City of St.
Louis, 349 S.W.3d 460, 466 (Mo. Ct. App. 2011). Purina’s injuries from Blue Buffalo’s alleged
unjust enrichment are not the same as the injuries Wilbur-Ellis is alleged to have caused, nor
arguments here as a motion for reconsideration, I would deny it because, although Blue Buffalo brings
new legal authority in the form of the Duty Free Americas opinion, the arguments presented do not raise
any legal or factual issues that were not considered by me in my previous order.
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could Purina have brought claims against Wilbur-Ellis for these same alleged injuries. The
injuries Purina is alleged to have suffered are lost profits and goodwill resulting from Blue
Buffalo’s alleged false advertising, false comparative statements, and inflated profits. As a
supplier, Wilbur-Ellis could not be found liable for Purina’s claims that Blue Buffalo knowingly
and in bad faith engaged in false advertising or that it made false comparative statements.4 As a
result, Blue Buffalo’s claim for contribution for any underlying liability based on unjust
enrichment fails as a matter of law.
Having found that Blue Buffalo has failed to state a claim for contribution against
Wilbur-Ellis, I will grant Wilbur-Ellis’ motion to dismiss Count Eleven from Blue Buffalo’s
Amended Third Party Complaint. Blue Buffalo shall file an amended complaint in compliance
with this Memorandum and Order by no later than April 29, 2016.
Accordingly,
IT IS HEREBY ORDERED that Wilbur-Ellis Company’s motion to dismiss #[500] is
GRANTED.
IT IS FURTHER ORDERED that Blue Buffalo shall file an amended complaint in
compliance with this Memorandum and Order by no later than April 29, 2016.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 19th day of April, 2016.

Moreover, Purina’s claim that Blue Buffalo profited from using less expensive ingredients is in direct
tension with Blue Buffalo’s claim that Wilbur-Ellis charged Blue Buffalo above market-rate for the less
expensive by-product ingredients it actually received.
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