IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Filing 208

DECLARATION of Kyle R. Nordrehaug (part 1 of 2) in Support of Objections re #206 Notice (Other), #205 Notice (Other), #204 MOTION to Intervene as Settlement Class Members by Margaret Picus, Daniel Kaffer. (Attachments: #1 Declaration of Kyle Nordrehaug in Support of Objections with Exhibits 6-9 (part 2), #2 Declaration of Robert Klein, #3 Request for Limited Discovery in Connection with Objections, #4 Certificate of Service)(NORDREHAUG, KYLE)

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IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION Doc. 208 LAW OFFICES OF DANIEL I. WARD Daniel I. Ward, Esq. (NJ Bar No. 033581986) 118 White Horse Road W. Voorhees, NJ 08043 Tel: (856) 566-6614 Fax: (856) 566-7373 BLUMENTHAL & NORDREHAUG Kyle R. Nordrehaug (Cal. State Bar #205975) 2255 Calle Clara La Jolla, California 92037 Tel: (858)551-1223 Fax: (858) 551-1232 Attorneys for Proposed Intervenors and Settlement Class Members, MARGARET PICUS and DANIEL KAFFER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civil Action No. 07-2867 (NLH) (All Cases) MDL Docket No. 1850 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION TO INTERVENE AND THE OBJECTIONS TO CLASS SETTLEMENT BY MARGARET PICUS AND DANIEL KAFFER Date: Time: October 14, 2008 9:30 a.m. IN RE PET FOOD PRODUCTS LIABILITY LITIGATION Judge: Hon. Noel L. Hillman Courtroom: 3A I, KYLE R. NORDREHAUG, declare, under penalty of perjury, as follows: 1. I am an attorney licensed to practice law in the state of California and the Ninth 1 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION TO INTERVENE AND OBJECTIONS TO THE CLASS SETTLEMENT Civil Action No. 07-2867 (NLH) (All Cases) / MDL Docket No. 1850 Dockets.Justia.com Circuit, and I submit this Declaration to the Court in support of the motion to intervene and the objections to the Class Settlement by Settlement Class Members Margaret Picus and Daniel Kaffer. 2. Attached hereto as Exhibit #1 is a true and correct copy of the MDL Order Vacating Conditional Transfer Order of the Picus action, dated October 9, 2007. 3. Attached hereto as Exhibit #2 is a true and correct copy of the Complaint in Picus v. Wal-Mart Stores, et al., Case No. 2:07-CV-00682- PMP-LRL ("Picus"), currently pending in the United States District Court for the District of Nevada. 4. Attached hereto as Exhibit #3 is a true and correct copy of the District Court Order in Picus which denied Defendants' Motion to Dismiss. 5. Attached hereto as Exhibit #4 is a true and correct copy of the Complaint in Kennedy v. Natural Balance, Case No. 07cv1082, filed in the United States District Court for the Southern District of California, currently pending before the Ninth Circuit Court of Appeals. 6. Attached hereto as Exhibit #5 is a true and correct copy of the District Court Order in Kennedy which denied Defendants' Motion to Dismiss. 7. Attached hereto as Exhibit #6 is a true and correct copy of the Opposition to Class Certification filed by Defendant Natural Balance. 8. Attached hereto as Exhibit #7 is a true and correct copy of Managing Class Action Litigation: A Pocket Guide for Judges, published by the Federal Judicial Center in 2005. 9. Attached hereto as Exhibit #8 is a true and correct copy of Settling Defendant Natural Balance's discovery responses in Kennedy v. Natural Balance which verify the sales of Natural Balance pet food products for the contamination period and for the period 2005 to the present. 10. Other lawyers at my firm and I have extensive class litigation experience and can adequately represent the subclass of consumers asserting only purchase claims in the instant 2 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION TO INTERVENE AND OBJECTIONS TO THE CLASS SETTLEMENT Civil Action No. 07-2867 (NLH) (All Cases) / MDL Docket No. 1850 action. We have handled a number of class actions and complex commercial cases and have acted both as counsel and as lead and co-lead counsel in a variety of these matters. We have successfully prosecuted and obtained significant recoveries in numerous class action lawsuits and other lawsuits involving complex issues of law and fact. Blumenthal & Nordrehaug are experienced in prosecuting consumer class action lawsuits and refund claims for deceptive, unfair and unlawful business practices, and can competently represent the Class. A true and correct copy of my firm's resume is attached hereto as Exhibit #9. I declare under penalty of perjury under the laws of the United States, the State of California and the State of New Jersey that the foregoing is true and correct. Executed this 11th day of September, 2008 at La Jolla, California. By: /s/ Kle R. Nordrehaug Kyle R. Nordrehaug, Esq. BLUMENTHAL & NORDREHAUG 2255 Calle Clara La Jolla, CA 92037 Tel: (858) 551-1223 Fax: (858) 551-1232 Email: kyle@bamlawlj.com Attorneys for Settlement Class members Margaret Picus and Daniel Kaffer K:\D\NBB\Picus v. Wal-Mart\MDL\p-motion to intervene-Decl-KRN.wpd 3 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION TO INTERVENE AND OBJECTIONS TO THE CLASS SETTLEMENT Civil Action No. 07-2867 (NLH) (All Cases) / MDL Docket No. 1850 EXHIBIT #1 EXHIBIT #2 EXHIBIT #3 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 1 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** ) MARGARET PICUS, on behalf of herself ) and all others similarly situated, ) ) Plaintiffs, ) ) v. ) ) WAL-MART STORES, INC.; MENU ) FOODS INC.; DEL MONTE FOODS ) COMPANY; SUNSHINE MILLS, INC.; ) CHEMNUTRA, INC.; and DOES 1 ) through 100, inclusive, ) ) Defendants. ) ) 2:07-CV-00682-PMP-LRL BASE FILE 2:07-CV-00686-PMP-LRL 2:07-CV-00689-PMP-LRL ORDER Presently before the Court is Defendant Del Monte Foods Company's Partial Motion to Dismiss (Doc. #9) with supporting memorandum of law (Doc. #10) and affidavit (Doc. #11), filed on June 21, 2007. Defendant Sunshine Mills, Inc. filed a Joinder in Del Monte's Partial Motion to Dismiss (Doc. #19) on July 5, 2007. Plaintiff filed an Opposition (Doc. #20) on July 5, 2007. Defendants Del Monte Foods Company and Sunshine Mills, Inc. did not file a reply. Also before the Court is Defendant Menu Foods, Inc.'s Motion to Dismiss (Doc. #18), filed on July 5, 2007. Defendant ChemNutra, Inc. filed a Joinder to Menu Foods, Inc.'s Motion to Dismiss (Doc. #21) on July 13, 2007. Plaintiff filed an Opposition (Doc. #22) and Objection to Exhibit A (Doc. #22) on July 13, 2007. Defendant Menu Foods, Inc. filed a Reply (Doc. #24) and Response to the Objection (Doc. #23) on July 26, 2007. Defendant ChemNutra, Inc. filed a Joinder in the Reply (Doc. #25) on July 27, 2007. Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 2 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff filed a Reply (Doc. #30) in support of her Objection on August 8, 2007. I. BACKGROUND Plaintiff filed a class action Complaint in Nevada state court on April 20, 2007, alleging Defendants sold consumers "Ol' Roy" brand pet food products labeled as "Made in USA" when in fact "components of the Ol' Roy brand pet food products were made and/or manufactured in China." (Notice of Removal [Doc. #1], Compl. at 2.) Plaintiff asserts claims for violation of the Nevada Deceptive Trade Practices Act ("NDTPA") and similar statutes in other states (count one); fraud through intentional non-disclosure of material facts (count two); and unjust enrichment (count three). (Id. at 12-18.) Plaintiff seeks relief on behalf of herself and all consumers throughout the United States who purchased such products prior to March 16, 2007. (Id. at 2, 8.) Defendant Wal-Mart Stores, Inc. ("Wal-Mart") removed the action to this Court on May 25, 2007. (Notice of Removal.) On June 20, 2007, the Court consolidated Plaintiff Picus' Complaint with three other complaints removed to the Court within days of each other. (Order [Doc. #15].) On June 28, 2007, the Judicial Panel on Multidistrict Litigation ("JPML") conditionally transferred the case to the Northern District of New Jersey for consolidated pretrial proceedings in the In re Pet Foods Product Liability Litigation. (Joint Motion to Vacate Conditional Transfer Order [Doc. #28].) Defendant Del Monte Foods Company ("Del Monte") thereafter requested a stay of all proceedings pending a ruling on transfer from the JPML. (Del Monte Foods Co.'s Emergency Mot. & Mem. of P. & A. in Support of Mot. to Stay Proceedings [Doc. #38].) Magistrate Judge Lawrence R. Leavitt granted the motion to stay with respect to discovery and scheduling obligations under Federal Rules of Civil Procedure 16 and 26. (Order [Doc. #42].) Defendant Del Monte moves for partial dismissal for failure to state a claim. Del Monte argues Plaintiff fails to state a claim for relief under the Federal Trade Commission Act or related regulations because no private right of action exists under the Act or its 2 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 3 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 regulations. Del Monte also argues Plaintiff fails to state a claim for restitution, disgorgement, or injunctive relief under the NDTPA because the NDTPA does not permit such remedies. Del Monte further argues that Plaintiff has failed to state a claim for unjust enrichment because the Complaint alleges an adequate remedy at law and the claim fails on the merits because unjust enrichment requires showing the defendant retained a benefit. However, Del Monte argues it did not retain a benefit where the product recall permitted Plaintiff to return the product for a refund of the purchase price. Finally, Del Monte argues Plaintiff has failed to state a claim for deceptive trade practices under the statutory law of California, Arkansas, Alabama, and Delaware because she has failed to plead facts showing these states have any connection to Plaintiff's purchase of pet food in Nevada. Defendant Menu Foods, Inc. ("Menu Foods") moves to dismiss the Complaint, arguing that because the pet food at issue was manufactured in the United States, the words "Made in USA" on the packaging were not deceptive. Additionally, Menu Foods argues Plaintiff lacks standing to assert relief under the laws of any jurisdiction other than Nevada because she purchased the food only in Nevada. Menu Foods further argues Plaintiff failed to plead her fraud claim with particularity by failing to specify each Defendant's alleged role in the fraudulent scheme. Finally, Menu Foods argues Plaintiff fails to state a claim for unjust enrichment because she cannot establish Menu Foods retained a benefit where Plaintiff could receive a refund pursuant to the voluntary recall of the pet food. Plaintiff responds that although the Complaint mentions federal law, her first claim arises under state unfair practice laws, which may prohibit the same conduct as federal laws and regulations. The reference to federal law in Plaintiff's Complaint therefore is for the purpose of determining what "Made in USA" means, but does not attempt to allege a federal claim. Plaintiff contends that deceptive designations of geographic origin violate Nevada deceptive trade practices law and Defendants labeled the Ol' Roy pet food as "Made in USA" when it was not. As to the unjust enrichment claim, Plaintiff argues she 3 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 4 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 can plead remedies at law and her unjust enrichment claim in the alternative, and thus dismissal is inappropriate. On the merits, Plaintiff argues the recall notice does not negate any element of her unjust enrichment claim because the recall was for products containing contaminated ingredients from China, which are not coextensive with the mislabeled but uncontaminated products. With respect to restitution and injunctive relief, Plaintiff argues she is entitled to these remedies for at least two of her three claims, and therefore striking the remedies from the Complaint is unwarranted. As to Defendant's jurisdictional arguments, Plaintiff contends that because each state's law prohibits the use of deceptive representations of geographic origin, there is no conflict of law and no obstacle to using Nevada law, or, alternatively, the law of Defendants' home states, for a nationwide class. Additionally, Plaintiff contends this issue relates to class manageability and should not be decided on a motion to dismiss. Finally, Plaintiff contends the Complaint adequately alleges fraud, and, to the extent it does not, the Court should apply a relaxed pleading standard because information detailing the precise role each Defendant played is within Defendants' exclusive control. Plaintiff requests leave to amend should the Court grant Defendants' motion to dismiss. Plaintiff also objects to Exhibit A to Menu Foods' motion, arguing the exhibit is unauthenticated, irrelevant, hearsay, and evidence not properly considered under the motion to dismiss standard. Menu Foods responds by attaching an affidavit authenticating the exhibit and argues that because Plaintiff referred to the product recall in the Complaint, the exhibit is not extrinsic evidence. II. DISCUSSION In considering a motion to dismiss, "the court must construe the complaint in the light most favorable to the plaintiff, taking all her allegations as true and drawing all reasonable inferences from the complaint in her favor." Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). However, the Court does not necessarily assume the truth of 4 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 5 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 legal conclusions merely because they are cast in the form of factual allegations in the plaintiff's complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). There is a strong presumption against dismissing an action for failure to state a claim. Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). "`The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Hydrick v. Hunter, --- F.3d ----, 2007 WL 2445998, *3 (9th Cir. 2007) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A. Objection to Defendant Menu Foods' Exhibit A Defendant Menu Foods attached as Exhibit A to its motion to dismiss a March 16, 2007 recall notice announcing the recall of certain cat and dog food manufactured in late 2006 and early 2007. Plaintiff objects to the Court's consideration of this evidence in conjunction with the motion to dismiss. Plaintiff argues the recall notice is unauthenticated, irrelevant, hearsay, and evidence not properly considered under the motion to dismiss standard. Menu Foods responds by attaching an affidavit authenticating the exhibit and argues that because Plaintiff referred to the product recall in the Complaint, the exhibit is not extrinsic evidence. Federal Rule of Civil Procedure 12(b) provides that if the parties present to the court matters outside the pleadings in conjunction with a motion to dismiss for failure to state a claim under Rule 12(b)(6) and the court does not exclude the materials, the court shall treat the motion as one for summary judgment and shall give all parties reasonable opportunity to present pertinent materials in support. "A court may, however, consider certain materials--documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice--without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Where the plaintiff refers extensively to a document or the document forms the basis of the plaintiff's claim, the court may consider the document incorporated by 5 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 6 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 reference into the complaint, even if the plaintiff does not attach the document to the complaint. Id. The Court will not consider Exhibit A in ruling on Defendant Menu Foods' motion to dismiss. The recall notice is not attached to the Complaint nor incorporated by reference therein. Although the Complaint refers to Defendants disclosing the use of ingredients manufactured in China on or after March 16, 2007, and refers generally to the 2007 recall of Ol' Roy brand products, the Complaint does not refer extensively to Menu Foods' March 16, 2007 recall notice nor do Plaintiff's claims rely upon the recall notice. Plaintiff asserts injuries arising from the alleged mislabeling of the products as "Made in USA," not from the purchase and use of contaminated or recalled products. While the Court may take judicial notice of the fact that such a recall notice was issued on March 16, 2007, the Court cannot take judicial notice of the truth of the facts asserted therein. See Fed. R. Evid. 201; Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). Because the Complaint pleads that such a recall took place, the Court need not take judicial notice of Exhibit A. The Court therefore sustains Plaintiff's objection to Exhibit A. B. Federal Trade Commission Act Del Monte argues Plaintiff fails to state a claim for relief under the Federal Trade Commission Act or related regulations because no private right of action exists under the Act or its regulations. Plaintiff clarifies that she does not assert a separate claim under federal law. Rather, the Complaint refers to federal law as a source of authority to determine when a product properly is labeled "Made in USA." The Court therefore will deny as moot Defendant Del Monte's motion to dismiss on this basis. C. Remedies Under the NDTPA Del Monte argues Plaintiff fails to state a claim for restitution, disgorgement, or injunctive relief under the NDTPA because the NDTPA does not permit such remedies. Plaintiff responds that a requested remedy is not the proper subject of a Rule 12(b)(6) 6 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 7 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 motion, and, in any event, she is entitled to these remedies for at least two of her three claims so the Court should not strike the requested relief from the Complaint. Nevada law permits a victim of consumer fraud, which includes a victim of deceptive trade practices, to bring a private cause of action. Nev. Rev. Stat. § 41.600(1)(2). Upon prevailing on such a claim, the court "shall award" the plaintiff "[a]ny damages that he has sustained" plus costs and reasonable attorney's fees. Id. § 41.600(3). Section 41.600 does not specifically permit a private party to obtain injunctive or other equitable relief in pursuing such a claim. In contrast, the NDTPA authorizes the State's commissioner of consumer affairs, attorney general, and district attorneys to pursue claims for injunctive and equitable relief. See Nev. Rev. Stat. § 598.0963, § 598.0971, § 598.0985. The parties have not identified a case in which the Nevada Supreme Court has addressed whether a private party is entitled to pursue injunctive relief or other equitable remedies under § 41.600, and the Court could locate none. Where a state has not addressed a particular issue, a federal court must use its best judgment to predict how the highest state court would resolve it "using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance." Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 865 (9th Cir. 1996) (quotation omitted); Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 812 (9th Cir. 2002). In making that prediction, federal courts look to existing state law without predicting potential changes in that law. Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1327 (9th Cir. 1986). Although federal courts should not predict changes in a state's law, they "are not precluded from affording relief simply because neither the state Supreme Court nor the state legislature has enunciated a clear rule governing a particular type of controversy." Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 186 (9th Cir. 1989) (quotation omitted). The Court looks to Nevada rules of statutory construction to determine the meaning of a Nevada statute. In re First T.D. & Inv., Inc., 253 F.3d 520, 527 (9th Cir. 2001). 7 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 8 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Under Nevada law, a court should construe a statute to give effect to the legislature's intent. Richardson Constr., Inc. v. Clark County Sch. Dist., 156 P.3d 21, 23 (Nev. 2007). If the statute's plain language is unambiguous, that language controls. Id. If the statute's language is ambiguous, the Court "must examine the statute in the context of the entire statutory scheme, reason, and public policy to effect a construction that reflects the Legislature's intent." Id. "If a statute expressly provides a remedy, courts should be cautious in reading other remedies into the statute." Builders Ass'n of N. Nev. v. City of Reno, 776 P.2d 1234, 1235 (Nev. 1989); see also Chavez v. Sievers, 43 P.3d 1022, 1025-26 & n.10 (Nev. 2002). Additionally, a court may infer the legislature's intent to limit remedies where it provides for a remedy in one section but fails to do so in a related provision. Cf. Hamm v. Carson City Nugget, Inc., 450 P.2d 358, 360 (Nev. 1969) ("By providing for civil liability in one section and failing to do so in the section immediately following, the legislature made its intention clear."). Here, the Nevada legislature expressly provided for a remedy for private litigants pursuing deceptive practices claims in the form of damages plus costs and attorney's fees. The Court therefore will not read into the statute other remedies, particularly where the overall statutory structure suggests the Nevada legislature intended otherwise. The Nevada legislature specifically authorized the commissioner of consumer affairs, the attorney general, and district attorneys to pursue injunctive and other equitable relief to remedy deceptive trade practices but declined to include those same remedies in the section referring to private causes of action for consumer fraud. Having expressly provided for those remedies for state officials but not for private actors, the Nevada legislature expressed its intent to permit victims of consumer fraud to recover damages, but placed enforcement of Nevada deceptive practices law through injunctions and other equitable remedies in the hands of state officials. /// 8 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 9 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Accordingly, the Court will grant Defendant Del Monte's motion to dismiss Plaintiff's request for injunctive and other equitable relief under the NDTPA. However, Plaintiff may proceed on her NDTPA claim for damages, costs, and attorney's fees. Additionally, this ruling does not preclude Plaintiff from seeking injunctive or equitable relief on her other claims. D. Unjust Enrichment Defendants argue Plaintiff has failed to state a claim for unjust enrichment because the Complaint alleges an adequate remedy at law; therefore Plaintiff may not pursue an equitable remedy. Additionally, Defendants argue the claim fails on the merits because Defendants did not retain a benefit where the product recall permitted Plaintiff to return the product for a refund of the purchase price. Plaintiff argues she can plead in the alternative and thus dismissal is inappropriate. On the merits, Plaintiff argues the recall notice does not negate any element of her unjust enrichment claim because the recall was for products containing contaminated ingredients from China, which are not coextensive with the mislabeled but uncontaminated products. Under Nevada law, unjust enrichment is "the unjust retention . . . of money or property of another against the fundamental principles of justice or equity and good conscience." Asphalt Prods. Corp. v. All Star Ready Mix, Inc., 898 P.2d 699, 701 (Nev. 1995) (quotations omitted). Nevada recognizes the general rule that equitable remedies are not available where the plaintiff has a full and adequate remedy at law. State v. Second Judicial Dist. Court in & for Washoe County, 241 P. 317, 322 (Nev. 1925). Federal Rule of Civil Procedure 8(e)(2) provides that a party may state claims alternately, and may "state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds." The liberal policy reflected in Rule 8(e)(2) instructs courts not to construe a pleading "`as an admission against another alternative or inconsistent pleading in the same case.'" McCalden v. Cal. 9 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 10 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990) (quoting Molsbergen v. United States, 757 F.2d 1016, 1019 (9th Cir. 1985)). Thus, although a plaintiff may not recover on both theories, "a plaintiff may claim . . . remedies as alternatives, leaving the ultimate election for the court." E.H. Boly & Son, Inc. v. Schneider, 525 F.2d 20, 23 n.3 (9th Cir. 1975); see also Hubbard Bus. Plaza v. Lincoln Liberty Life Ins. Co., 596 F. Supp. 344, 347 (D. Nev. 1984) (stating a "claimant is entitled to introduce his evidence in support of all his claims for relief; if he doesn't make an election among them, the trier of fact decides which, if any, to sustain."). The Court will not dismiss Plaintiff's unjust enrichment claim even though Plaintiff also has alleged claims for legal relief. Under Rule 8(e)(2), Plaintiff may plead the unjust enrichment claim in the alternative to her legal claims. The Court also will not dismiss the claim on the merits. Defendants argue they did not "retain" a benefit because, pursuant to the recall, Plaintiff could have returned her pet food for a refund. However, Plaintiff's claim potentially encompasses more than the contaminated pet food recalled in late 2006 and early 2007. Rather, Plaintiff's claim relates to all Ol' Roy pet food products Defendants labeled as "Made in USA" which allegedly were manufactured in whole or in part in China, whether subject to the recall or not. The Court therefore will deny Defendants' motion to dismiss Plaintiff's unjust enrichment claim. E. Law of Other Jurisdictions Plaintiff's Complaint seeks to assert claims on behalf of a nationwide class and alleges all states' laws are substantively similar in that all would prohibit deceptive representations of a product's geographic origin. (Compl. at 12.) The Complaint specifically refers to the laws of Delaware, California, Arkansas, and Alabama, in addition to Nevada. (Id. at 12-13.) Defendants argue Plaintiff has failed to state a claim for deceptive trade practices under the statutory law of states other than Nevada because she 10 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 11 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 has failed to plead facts showing these states have any connection to Plaintiff's purchase of pet food in Nevada. Defendants also argue Plaintiff has failed to show Nevada law can apply to potential class members who purchased the pet food outside Nevada. Plaintiff responds that because each state's law prohibits the use of deceptive representations of geographic origin, there is no conflict of law and no obstacle to using Nevada law, or, alternatively, the law of Defendants' home states, for a nationwide class. Additionally, Plaintiff contends this issue relates to class manageability and should not be decided on a motion to dismiss. Plaintiff's Complaint seeks to initiate a nationwide class action which would apply relevant state deceptive practices laws to class members' claims. Which law to apply to which class members is a question suited for determination at the class certification stage. Variances in applicable state laws may make class litigation unmanageable or defeat the predominance of common issues necessary for class certification. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022-23 (9th Cir. 1998) (considering the effect of variations in state law on the predominance of common issues for class certification); see also In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 529 (3d Cir. 2004) (instructing district courts to consider variations in state laws in evaluating manageability of class litigation); In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018 (7th Cir. 2002) (finding a proposed nationwide class unmanageable because the claims would have to be adjudicated under the laws of many different jurisdictions). Such considerations are premature at this stage, where Plaintiff has not yet moved for certification of her proposed nationwide class. The Court therefore will deny Defendants' motion to dismiss on this basis, without prejudice to renew these arguments at the class certification stage. F. Packaging Was Not Deceptive Defendant Menu Foods argues that because the pet food was manufactured in the United States, the packaging was not deceptive. The Complaint, however, alleges the pet 11 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 12 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 food was "manufactured either in whole or in part, in China." (Compl. at ¶ 5.) At the motion to dismiss stage, the Court must take Plaintiff's allegations as true. Defendants' argument raises a factual dispute not appropriate for resolution in deciding a motion to dismiss. The Court therefore will deny Defendant Menu Foods' motion to dismiss on this basis. G. Pleading Fraud With Particularity Defendant Menu Foods argues Plaintiff failed to plead her fraud claim with particularity by failing to specify each Defendant's alleged role in the fraudulent scheme. Plaintiff responds that the Complaint adequately alleges fraud, and, to the extent it does not, the Court should apply a relaxed pleading standard because information detailing the precise role each Defendant played is within Defendants' exclusive control. Plaintiff requests leave to amend should the Court grant Defendants' motion to dismiss. Federal Rule of Civil Procedure 9(b) requires a plaintiff alleging fraud to state with particularity in the complaint the circumstances constituting fraud. Fed. R. Civ. P. 9(b). To satisfy this burden, the complaint "`must set forth more than the neutral facts necessary to identify the transaction.'" Yourish v. Cal. Amplifier, 191 F.3d 983, 993 (9th Cir. 1999) (footnote omitted) (quoting In re GlenFed Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc)). The United States Court of Appeals for the Ninth Circuit has defined "neutral facts" to mean the "`time, place, and content of an alleged misrepresentation.'" Id. at 993 n.10 (quoting GlenFed, 42 F.3d at 1547-48). In addition to the neutral facts, a plaintiff also must explain what is false about a statement and why it is false. Id. at 993. "[M]ere conclusory allegations of fraud are insufficient." Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989). A complaint does not satisfy Rule 9(b) where it "merely lump[s] multiple defendants together." Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007). Rather, when suing more than one defendant, the complaint's allegations must differentiate 12 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 13 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 among the defendants and inform each defendant separately of the allegations surrounding his alleged participation in the fraud. Id. "In the context of a fraud suit involving multiple defendants, a plaintiff must, at a minimum, `identif[y] the role of [each] defendant[ ] in the alleged fraudulent scheme.'" Id. at 765 (quoting Moore, 885 F.2d at 541). However, courts must not "make Rule 9(b) carry more weight than it was meant to bear." GlenFed, 42 F.3d at 1554. So long as the complaint sufficiently describes the circumstances of the alleged fraud so that the defendant adequately is able to respond, the complaint meets the particularity requirement of Rule 9(b). Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). Plaintiff's Complaint alleges the time, place, and content of the alleged misrepresentations as the labels of specified Ol' Roy brand pet products labeled as "Made in USA" prior to March 16, 2007. The Complaint also identifies the content of the alleged misrepresentation as the labeling of the Ol' Roy products as "Made in USA" in capital letters on the product packaging. Finally, Plaintiff's Complaint identifies why this statement is false by alleging that in fact the pet food contained components manufactured in whole or in part outside the United States, and despite knowing the source of these components was outside the United States, Defendants nevertheless labeled the pet food "Made in USA." The Complaint does not lump Defendants together or make blanket allegations referring only to "defendants" as a group. Rather, the Complaint identifies each Defendant separately by name and alleges Defendants Menu Foods, Del Monte, and Sunshine Mills "each participated in the packaging or labeling of different Ol' Roy brand pet food products," and "participated with Wal-Mart in the fraudulent labeling of Ol' Roy pet food products." (Compl. at ¶ 6.) With respect to Defendant ChemNutra, the Complaint alleges ChemNutra imported wheat gluten manufactured in China to be used as an ingredient in the Ol' Roy pet food. (Id.) The Complaint also alleges ChemNutra "participated in the scheme 13 Case 2:07-cv-00682-PMP-LRL Document 47 Filed 10/12/2007 Page 14 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 and practice of labeling the Ol' Roy brand pet food products as `Made in USA' and/or were responsible for the mislabeling of the Ol' Roy brand pet food products as `Made in USA.'" (Id.) The Complaint contains specific allegations as to each Defendant and identifies the neutral facts of the alleged fraud as well as allegations explaining why the alleged misstatements are false. The Complaint's allegations are sufficiently particular to permit Defendants to respond adequately, and the Court therefore will deny Defendants' motion to dismiss for failure to plead fraud with particularity. III. CONCLUSION IT IS THEREFORE ORDERED that Defendant Del Monte Foods Company's Partial Motion to Dismiss (Doc. #9) is hereby GRANTED in part and DENIED in part. The motion is granted with respect to Plaintiff's request for injunctive and other equitable relief under the NDTPA. The motion is denied in all other respects. IT IS FURTHER ORDERED that Defendant Sunshine Mills, Inc.'s Joinder in Del Monte's Partial Motion to Dismiss (Doc. #19) is hereby GRANTED in part and DENIED in part. The motion is granted with respect to Plaintiff's request for injunctive and other equitable relief under the NDTPA. The motion is denied in all other respects. IT IS FURTHER ORDERED that Defendant Menu Foods, Inc.'s Motion to Dismiss (Doc. #18) is hereby DENIED. IT IS FURTHER ORDERED that Defendant ChemNutra, Inc.'s Joinder to Menu Foods, Inc.'s Motion to Dismiss (Doc. #21) is hereby DENIED. DATED: October 12, 2007 _______________________________ PHILIP M. PRO United States District Judge 14 EXHIBIT #4 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 1 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 2 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 3 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 4 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 5 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 6 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 7 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 8 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 9 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 10 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 11 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 12 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 13 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 14 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 15 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 16 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 17 of 18 Case 3:07-cv-01082-H-RBB Document 18 Filed 08/24/2007 Page 18 of 18 EXHIBIT #5 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 1 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ROBERT ADAM KENNEDY, an individual, on behalf of himself, and on behalf of all persons similarly situated , vs. Plaintiff, CASE NO. 07-CV-1082 H (RBB) ORDER: (1) GRANTING IN PART AND DENYING IN PART NATURAL BALANCE'S MOTION TO DISMISS; (2) GRANTING IN PART AND DENYING IN PART WILBURELLIS' MOTION TO DISMISS NATURAL BALANCE PET FOODS, INC., a California corporation; WILBUR-ELLIS COMPANY, a California corporation; and DOES 2 through 100, inclusive, Defendants. Plaintiff, Robert Adam Kennedy, initially filed suit in state court on May 2, 2007. On June 13, 2007, Defendant Wilbur-Ellis Company removed the case to this Court. (Doc. No. 1.) On July 2, 2007, Defendant Natural Balance Pet Foods, Inc. filed a motion to dismiss. (Doc. Nos. 7-8.) Also on July 2, 2007, Defendant Wilbur-Ellis filed a motion to dismiss. (Doc. No. 10.) Additionally, Wilbur-Ellis filed a notice of joinder in Natural Balance's motion on July 10, 2007. (Doc. No. 11.) Plaintiff filed a response in opposition to Natural Balance's motion on July 23, 2007. (Doc. No. 12.) Natural Balance filed a reply in support of its motion on July 30, 2007. (Doc. No. 15.) Plaintiff filed a response in opposition to Wilbur-Ellis' motion -107cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 2 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on July 23, 2007. (Doc. No. 13.) Wilbur-Ellis filed a reply in support of its motion on July 30, 2007. (Doc. No. 14.) For the reasons stated below, the Court GRANTS in part and DENIES in part Natural Balance's motion to dismiss and GRANTS in part and DENIES in part Wilbur-Ellis' motion to dismiss. The Plaintiff grants the motions without prejudice, and Plaintiff shall file any amended complaint no later than August 27, 2007. Background According to the complaint, Defendants engaged in a scheme through which several varieties of Natural Balance pet food were sold to consumers with the label "Made in the USA" despite the fact that the products were manufactured either in whole or in part in China. (Compl. ¶¶ 2-5.) Plaintiff alleges that Defendants fraudulently concealed the true facts regarding the origin of the pet foods. (Id. ¶ 10.) Plaintiff alleges that Defendants only disclosed that components of the products came from China on or after April 17, 2007 as a result of an FDA investigation. (Id. ¶ 5.) According to the complaint, each Defendant company participated in the manufacture and/or distribution of a Natural Balance brand pet food product containing a false representation that the product was "Made in the USA." (Id. ¶ 6.) Plaintiff alleges that Wilbur-Ellis imported from China the manufactured rice protein ingredient in Natural Balance brand pet foods. (Id. ¶ 7.) According to the complaint, Wilbur-Ellis participated in the scheme of marketing and labeling the pet food products or was responsible for the mislabeling of the pet food products. (Id.) Plaintiff brings his complaint as a class action, and he asserts two claims in the complaint against both Defendants. First, he brings a claim for violation of the California Consumer Legal Remedies Act ("CLRA"), California Civil Code § 1770 et seq. Second, Plaintiff brings a claim for unfair competition in violation of California Business and Professions Code § 17200 et seq. and § 17500 et seq. ("UCL"). Legal Standard Rule 12(b)(6) permits dismissal of a claim either where that claim lacks a -207cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 3 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cognizable legal theory, or where plaintiff alleges insufficient facts to support his the ory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In resolving a Rule 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337­38 (9th Cir. 1996). Although a plaintiff need not give "detailed factual allegations," mere "labels and conclusions, and a formulaic recitation of the elements of a cause of action" are not sufficient to survive a motion to dismiss. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). Instead, a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Id. Dismissal for failure to state a claim upon which relief can be granted is proper if a complaint is vague, conclusory, and fails to set forth any material facts in support of the allegation. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 583 (9th Cir. 1983). Furthermore, a court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). If a court finds that a complaint fails to state a claim, the court should grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995). As a general matter, a court may not consider any material beyond the pleadings in deciding a Rule 12(b)(6) motion. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If the court considers matters outside of the pleadings, the court must treat the motion to dismiss as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure "and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." See Fed. R. Civ. P. 12(b); see also Hal Roach Studios, Inc., 896 F.2d at 1555 n.19. /// -307cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 4 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Analysis Defendants argue for dismissal on several grounds. First, Defendants contend that the Court should dismiss Plaintiff's CLRA claim because he failed to provide the required notice prior to bringing suit. Second, Defendants argue that Plaintiff has not stated a claim against them under California's UCL because alleged use of foreign rice protein is insufficient to preclude labeling a product as "Made in the USA." Finally, Wilbur-Ellis argues that Plaintiff has not, and cannot, plead facts stating a claim under either the CLRA or UCL against it. A. Notice Requirements Under the CLRA The CLRA allows individual consumers to bring suit to obtain relief for specified unlawful conduct. In "an action for damages" under the CLRA, a plaintiff must provide the defendant with written notice at least thirty days prior to bringing suit. Cal. Civil Code § 1782(a). The notice must specify the alleged violations, demand correction, and be sent via certified or registered mail. Id. In contrast to an action for damages, the CLRA expressly provides that "an action for injunctive relief . . . may be commenced without compliance with" the notice requirements in § 1782(a). Cal. Civil Code § 1782(d). Additionally, at least thirty days following commencement of an action for injunctive relief, and after compliance with the notice requirements in § 1782(a), a plaintiff may amend the complaint without leave of court to include a request for damages. Cal. Civil Code § 1782(d). Defendants argue that, because Plaintiff seeks damages in his complaint and because he did not provide the required presuit notice, the Court must dismiss Plain tiff's claim under the CLRA. In opposition, Plaintiff agrees that he cannot seek damages under the CLRA at this time, states that he is not seeking damages under the CLRA, but argues that his requests for injunctive relief and restitution under the CLRA may proceed. Plaintiff has not connected all of his various prayers for relief to particular claims, and it is unclear what remedies Plaintiff seeks under the CLRA. Nevertheless, -407cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 5 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 examining Plaintiff's complaint, he states in general terms that he seeks damages, injunctive relief, and restitution. (Compl. ¶ 2, 4.) In his opposition, however, Plaintiff notes that the prayer for damages was part of boilerplate pleading language and states that he does not seek damages under the CLRA. To the extent the complaint prays for damages under the CLRA, that claim fails for failure to give presuit notice. Courts have reached different conclusions as to whether a premature claim for damages under the CLRA requires dismissal with or without prejudice. Compare Laster v. T-Mobile USA, Inc., 407 F. Supp. 2d 1181, 1195-96 (S.D. Cal. 2005) (describing statutory policy of fostering early settlement of disputes and dismissing CLRA damages claim with prejudice for lack of presuit notice), with Deitz v. Comcast Corp., 2006 WL 3782902, *6-*7 (N.D. Cal. Dec. 21, 2006) (dismissing CLRA damages claim without prejudice where complaint "alluded" to damages). Here, the complaint is unclear as to whether Plaintiff seeks damages under the CLRA. Under the circumstances of this case, the Court dismisses any damages allegation under the CLRA without prejudice. To the extent the complaint seeks injunctive relief, that claim may proceed in light of § 1782(d). See Kagan v. Gibraltar Sav. & Loan Assoc., 35 Cal. 3d 582, 591 (1984) ("This notice requirement need not be complied with in order to bring an action for injunctive relief."). As to requests for other equitable relief, such as restitution, however, the CLRA does not specify any presuit notice requirement. In numerous cases California courts have relied on the rule of statutory construction that expression in a statute of certain things necessarily involves the exclusion of other things not expressed. See, e.g., Mut. Life Ins. Co. v. City of Los Angeles, 50 Cal. 3d 402, 410 (1990) (describing this familiar rule of statutory construction encompassed by the Latin phrase expressio unius est exclusio alterius); Gilkas v. Zolin, 6 Cal. 4th 841, 852 (1993) (noting the common rule of statutory construction and stating that court may not expand application of a statute beyond that specified by the legislature). Accordingly, this rule of construction counsels against implying a requirement for written presuit notice in suits seeking -507cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 6 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 equitable relief given that the legislature only specified a notice requirement in actions seeking damages. This appropriateness of this interpretation is strengthened by the California legislature's specific enumeration of different types of CLRA actions in California Civil Code § 1781, which distinguishes between actions seeking "damages," "injunctive relief," and "restitution," and the legislature's specific requirement of notice only in actions "for damages" in § 1782(a). Additionally, California courts have noted that they have "authority to order restitution as a form of ancillary relief in an injunctive action." See Fletcher v. Sec. Pac. Nat'l Bank, 23 Cal. 3d 442, 453-54 (1979). Accordingly, absent statutory language requiring presuit notice, the Court declines to imply a notice requirement to Plaintiff's claim for restitution under the CLRA. In sum, to the extent Plaintiff brings a claim under the CLRA for damages, the Court DISMISSES that claim without prejudice. Plaintiff's claim for injunctive relief under the CLRA may proceed. Finally, absent statutory language to the contrary, the Court declines to dismiss Plaintiff's CLRA claim seeking injunctive relief and restitution for failure to give presuit notice. B. Unfair Competition Claims Against Natural Balance Natural Balance, joined by Wilbur-Ellis, argues that Plaintiff's complaint fails to state a claim under California's UCL arising out of false representations that pet food was "Made in the USA." According to Defendants, Plaintiff's second claim fails because the alleged foreign components of the pet food are simply foreign-sourced raw ingredients that were not made, manufactured, or produced outside the United States within the meaning of California Business and Professions Code § 17533.7. In response, Plaintiff contends that Defendants improperly dispute factual allegations, and he argues that, at the motion to dismiss stage, the Court must view the allegations in the complaint in the light most favorable to Plaintiff. /// -607cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 7 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Business and Profession Code § 17533.7 provides: It is unlawful for any person, firm, corporation or association to sell or offer for sale in this State any merchandise on which merchandise or its container there appears the words "Made in U.S.A.," "Made in America," "U.S.A." or similar words when the merchandise or any article, unit, or part thereof, has been entirely or substantially made, manufactured, or produced outside of the United States. According to the California appellate court, the terms "made" and "manufacture" describe the physical process of turning raw materials into goods. See Colgan v. Leatherman Tool Group, Inc., 135 Cal. App. 4th 663, 685 (Ct. App. 2006). Defendants contend that the rice protein identified in the complaint as coming from China is a raw ingredient that was not "made and/or manufactured" within the meaning of § 17533.7. Looking at the allegations in the complaint, however, Plaintiff has sufficiently alleged this claim on this ground. The complaint sufficiently alleges that components of the pet food were "made and/or manufactured" outside of the United States. According to the complaint, one of the foreign components of the pet food was a "manufactured rice protein ingredient." (Compl. ¶ 7.) Additionally, Plaintiff alleges that components of the pet foods were entirely or substantially made, manufactured, or produced outside of the United States. (Id. ¶¶ 9-10.) Although Defendants dispute the underlying facts and characterize the rice protein product as simply a "raw ingredient," the Court must construe all allegations in the light most favorable to Plaintiff. Therefore, Defendants' factual disputes do not provide a ground upon which to dismiss Plaintiff's claim. Moreover, Defendants argue in the reply that the manufactured rice protein cannot be considered an "article, unit, or part" of the finished pet food product. Without citation to legal authority, Defendants state that ingredients generally do not fit within the statutory definition. At the motion to dismiss stage, however, Plaintiff has sufficiently alleged that a part of the pet food product was manufactured outside of the United States. Additionally, although the parties dispute the applicability of Federal Trade Commission standards concerning whether a product may be labeled -707cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 8 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "Made in the USA" to interpretation of § 17533.7, Plaintiff's allegations are sufficient at this stage under both § 17533.7 itself and the federal standards. Therefore, the Court need not decide whether it may consider the federal standard as a guide in interpreting the California statute. Defendants may renew their arguments at a later stage of the proceedin gs. C. Sufficiency of Allegations Against Wilbur-Ellis Plaintiff brings claims against Wilbur-Ellis under both the CLRA and the UCL based on labeling of Natural Balance pet food products as "Made in the USA." Wilbur-Ellis contends that it imported the rice protein but had no role in labeling the pet food products at issue. Further, it argues that Plaintiff's complaint relies on concluso ry allegations and fails to state a claim under either the CLRA or UCL. In support of its argument that it plays no role in the marketing and labeling of Natural Balance pet foods, Wilbur-Ellis attaches a declaration from Joey Herrick, the president of Natural Balance, in which he states that Wilbur-Ellis does not take part in marketing or labeling Natural Balance pet foods. The Court may not consider Herric k's declaration, however, without converting the motion to dismiss into one for summary judgment. See Fed. R. Civ. P. 12(b). At this early stage of the proceedings, the Court declines to convert the motion to dismiss into one for summary judgment and, thus, does not consider the Herrick declaration. Nevertheless, examining the allegations against Wilbur-Ellis in the complaint, Plaintiff has failed to state a claim under either the CLRA or the UCL. In particular, the complaint does not contain any factual allegations regarding how Wilbur-Ellis played a role in the marketing or labeling of the Natural Balance brand pet food as "Made in the USA." Instead, Plaintiff simply alleges in vague and conclusory terms that Wilbur-Ellis "participated in" the manufacturing and labeling of the Natural Balance pet food products. (See, e.g., Compl. ¶ 6.) Further, the complaint states that Wilbur-Ellis was "responsible, whole or in part, for importing the manufactured rice protein ingredient in Natural Balance brand pet food products from China and -807cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 9 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supplying the same for use in the" products. (Id. ¶ 7.) While these statements allege that Wilbur-Ellis imported and supplied the rice protein ingredient, they do not connect it to any marketing or labeling decisions. Accordingly, the allegations are insufficient to state a claim under the CLRA or UCL arising out of the labeling of the pet food products because they are insufficient to put Wilbur-Ellis on notice of the nature of the cla ims pending against it. See Fed. R. Civ. P. 8(e). Plaintiff has not pleaded facts sufficient to "raise a right to relief above the speculative level" as to Wilbur-Ellis. Bell Atlantic Corp., 127 S. Ct. at 1964. Moreover, Plaintiff alleges in conclusory terms that Wilbur-Ellis participated in a fraudulent scheme to misrepresent the country of origin of the pet food products. (See, e.g., id. ¶¶ 6, 7, 10.) Under Rule 9(b) of the Federal Rules of Civil Procedure all averments of fraud must state the circumstances constituting fraud with particularity. Rule 9(b)'s particularity requirement applies to state law causes of action. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003). Moreover, even in cases in which fraud is not an essential element of a claim, Rule 9(b)'s particularity requirement applies to any averments of fraud. Id. Where a plaintiff alleges a uniform course of fraudulent conduct and relies on that conduct as the basis of a claim, the claim "sounds in fraud" and the plaintiff must plead the whole claim with particularity. Id. at 1103-04. In contrast, in cases in which the plaintiff does not allege a unified course of fraudulent conduct but alleges both fraudulent and non-fraudulent conduct, Rule 9(b)'s heightened pleading standard applies to allegations of fraud but not to the entire claim. Id. at 1104-05. If a plaintiff makes averments of fraud in a claim in which fraud is not an element, the court should "disregard the averments of fraud not meeting Rule 9(b)'s standard and then ask whether a claim has been stated." Id. at 1105 (emphasis omitted). The Ninth Circuit has noted that fraud is not an essential element under either the CLRA or the UCL. Id. Here, the Court need not determine whether Plaintiff's complaint sounds in fraud such that Rule 9(b) applies to the entire claims, or simply contains some allegations of -907cv1082 Case 3:07-cv-01082-H-RBB Document 17 Filed 08/08/2007 Page 10 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fraudulent conduct. To the extent Plaintiff's claims sound in fraud as to Wilbur-Ellis, he has failed to plead those claims with the particularity required by Rule 9(b). He provides no details whatsoever, but simply states that Wilbur-Ellis acted fraudulently or with fraudulent intent. See Vess, 317 F.3d at 1106 (any averments of fraud must include the who, what, when, where, and how of the alleged misconduct). Further, given that fraud is not an essential element of Plaintiff's claims, Plaintiff similarly fails to state a claim under either the CLRA or the UCL against Wilbur-Ellis if the Court disregards the fraud allegations not meeting Rule 9(b)'s requirements. In sum, Plaintiff has failed to allege sufficiently his CLRA and UCL claims against Wilbur-Ellis. Therefore, the Court DISMISSES those claims as to WilburEllis. It is not clear, however, that Plaintiff could not sufficiently plead a cause of action against Wilbur-Ellis. Therefore, the Court grants the motion to dismiss on this ground without prejudice and allows Plaintiff an attempt to amend. See Doe, 58 F.3d at 497. Conclusion For the reasons discussed, the Court GRANTS in part and DENIES in part Natur al Balance's motion to dismiss. The Court DISMISSES without prejudice any claim for damages under the CLRA. Further, the Court GRANTS in part and DENIES in part Wilbur-Ellis' motion to dismiss. The Court DISMISSES without prejudice Plaintiff's claims against Wilbur-Ellis. Plaintiff shall file any amended complaint no later than August 27, 2007. IT IS SO ORDERED. DATED: August 7, 2007 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT COPIES TO: All parties of record. - 10 - 07cv1082

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