Keller v. Menu Foods Limited et al
COMPLAINT -.(Moore, J.)
Keller v. Menu Foods Limited et al
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J. CHAD MOORE, ESQUIRE PA 76660 2 7 0 Market Street M illersb u rg , PA 17061 T elep h o n e: 717-692-5533 F ax : 717-692-5111 E -m ail: firstname.lastname@example.org A tto r n e y for Plaintiffs
U N IT E D STATES DISTRICT COURT M ID D L E DISTRICT OF PENNSYLVANIA D ix ie Keller, on behalf of herself an d all others similarly situated, P la in t if f C O M P L A IN T ) v. ) ) M E N U FOODS LIMITED; MENU ) F O O D S INC.; MENU FOODS ) M I D W E S T CORPORATION; MENU ) F O O D S INCOME FUND; MENU ) F O O D S SOUTH DAKOTA, INC.; ) M E N U FOODS HOLDINGS, INC. and ) D O E S 1-100, ) ) D e f e n d a n ts . ) ____________________________________) ) ) ) ) C iv il Action No.:
C L A S S ACTION
J U R Y TRIAL DEMANDED
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CLASS ACTION COMPLAINT P la in tif f Dixie Keller ("Plaintiff"), individually and on behalf of all other sim ilarly situated, files this Class Action Complaint against Defendants Menu F o o d s, Inc.., a New Jersey Corporation, Menu Foods Income Fund, a foreign trust, an d its affiliated entities (collectively "Defendants"). Plaintiff alleges the fo llo w in g based on personal knowledge with respect to her own experiences and o th e r w is e base on information and belief. 1. P lain tiff brings this class action on behalf of herself and as a
r ep r e se n ta tiv e of a class of persons consisting of all persons in the United States w h o purchased contaminated pet food products produced, manufactured, and/or d istrib u ted by Defendants that caused injury, sickness, and/or death to Plaintiff's h o u s e h o ld pet and those of other pet owners across the nation (the "Products"). 2. D efen d an ts are a leading manufacturer of pet food products sold by
w h o le sa le and retail outlets nationwide and hold themselves out to consumers as m an u factu rin g safe, nutritious and high quality dog and cat food. 3. D efen d an ts developed, manufactured, marketed, advertised and
w a rr an te d their Products as free of defects and safe and fit for their intended p u rp o se as household pet food. Defendants intentionally placed the Products into th e stream of commerce to be sold to Plaintiff and other pet owners in P en n sylv an ia and throughout the United States. 4. S in ce at least February 20, 2007, Defendants knew or should have
k n o w n that their Products were causing illness and/or death to dogs and cats who w ere eating their products. Defendants delayed issuing a recall until March 16, 2 0 0 7 when it biggest institutional customer initiated its own recall of defendants p r o d u c ts . The contaminating agent is currently identified as melamine - a chemical u sed to make certain plastics and fertilizers.
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A s a result of Defendant's negligent manufacture of the Products and
d elay in warning affected pet owners, Plaintiff and members of the Class have u n n ecessarily suffered damages in the form of veterinary and burial expenses, loss o f pets, and the purchase price of the Products, which Plaintiff and Class members w o u ld never have purchased had they known of the Products' defects. 6. D e fe n d a n ts have admitted that certain of their products manufactured
b etw een December 3, 2006 and March 6, 2007 are defective and have caused and co n tin u e to cause severe injury, illness and death in household pets.
P A R T IE S 7. P la in tif f is a resident of Fairfield, Pennsylvania. Plaintiff purchased
th e recalled Iams product and fed them to her cat, resulting in the sickness and d eath of her cat. Plaintiff, individually and as a representative of a Class of s im ila rly situation persons (defined below), brings suit against the named D efen d an ts for offering for sale and selling to Plaintiff and members of the Class th e Products in a defective condition and thereby causing damages to Plaintiff and m em b ers of the Class. 8. D efen d an t Menu Foods Income Fund is an unincorporated open-
e n d e d trust established under the laws of the Province of Ontario with its principal p lace of business in Ontario, Canada. The Income Fund controls, directly or in d ir ec tly , the other Defendants engaged in the manufacture and distribution of pet fo o d products, including the Products. 9. D efen d an t Menu Foods Midwest Corp. is a Delaware corporation
affiliated with the other Defendants and involved in their activities relating to the p r o d u c ts .
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D efen d an t Menu Foods South Dakota, Inc. is a Delaware corporation
affiliated with the other Defendants and involved in their activities relating to the P r o d u c ts . 11. D efen d an t Menu Foods Holdings, Inc. is a Delaware corporation
affiliated with the other Defendants and involved in their activities relating to the P r o d u c ts . 12. D e fe n d a n t Menu Foods, Inc. is a New Jersey corporation affiliated
w ith the other Defendants and involved in their activities relating to the Products. 13. D efen d an t Menu Foods Limited manufactures and sells wet pet food
p ro d u cts to retail customers and brand owners in North America. MFL owns the K an sas and New Jersey manufacturing plants that produced the Products now su b ject to recall. It is affiliated with the other Defendants and involved in their activ ities relating to the Products. 14. P lain tiff is not aware of the true names and capacities of defendants
su ed as DOES 1-100, inclusive, and therefore sues them by such fictitious names. Plaintiff will amend this Complaint to add the true names and capacities of the D O E defendants once they are discovered. Each of the DOE defendants is legally resp o n sib le in some manner for the unlawful acts alleged in this Complaint. Some o r all DOE defendants are controlled by, control, or have a common nucleus of co n tro l with one or more specifically named defendants in such a manner as to ju stify disregarding the separateness of said entities or individuals from one a n o th e r . Some or all DOE defendants are entities or individuals, who function as ag en ts or co-conspirators of specifically named defendants, and other defendants, in clu d in g DOE defendants, facilitating the ability of one another to perpetrate the w ro n g s alleged herein.
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JURISDICTION AND VENUE 15. T h e Court has original jurisdiction over this complaint pursuant to 28
U .S .C . Section 1332(d) and the Class Action Fairness Act of 2005, Publ. L. 109-2 (F eb . 18, 2005); and over supplemental state law claims pursuant to 28 U.S.C. S ectio n 1367. 16. V en u e is proper in this district since Defendants transacted business in
th is district, and the conduct complained of occurred in this district, as well as elsew h ere in Pennsylvania. Venue is further proper in this district under, inter a lia , 28 U.S.C. Section 1391 and/or Publ. L. 109-2. FACTS 17. P la in tif f Dixie Keller purchased pouches pouches of Iams wet cat
f o o d including an "Iams Select Variety Pack" from a local retailer for her o th erw ise healthy cat, Annie Muffin. 18. P lain tiff fed the Product to her cat on an ongoing basis with no reason
to suspect that the it contained a toxic chemical, because she believed in the name a n d quality of the Product. Ms. Keller's cat began showing signs of renal failure w ith in a few short days after eating the product and ultimately died on March, 21, 2 0 0 7 after suffering horribly as a result of consuming Defendant's Product. 19. D efen d an ts delayed informing the public about problems with their
P r o d u c ts despite receiving complaints about sick and dying dogs and cats by at least February 20, 2007 and identifying as early as March 6, 2007 that the likely s o u r c e of contamination was wheat gluten from a new supplier. 20. O n March 16, 2007, nearly a month after receiving consumer
co m p lain ts, Defendants initiated a recall of 60 million cans and pouches of "cuts a n d gravy" style dog and cat food manufactured at Defendants' Kansas and New Jersey facilities between December 3, 2006 and march 6, 2007.
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R a th e r than timely warning the public about the suspected, and later
co n firm ed , dangers of the Products, Defendants delayed announcing the recall to m in im iz e the financial fallout from the contamination. Defendants had no choice b u t to issue a recall on March 13, 2007 because Defendants' biggest customer had in itiated its own recall of Defendants' products. 22. D efen d an ts knew about serious problems from consumer complaints
n o later than February 20, 2007 and they began an internal investigation by F e b r u a r y 27, 2007. By March 6, 2007 Defendants were able to determine a p articu lar new supplier of wheat gluten as the likely source of the contamination, an d tried to correct the problem before announcing a recall in order to limit the tem p o ral scope of the recall. Even after March 6, Defendants continued to m ain tain their silence, as they, according to their own later announcement, co n d u cted a "substantial batter of technical tests, conducted by both internal and ex tern al specialists." 23. D efen d an ts' delay in disclosing vital information concerning the
P r o d u c ts is in direct contrast to their own published Code of Ethical Conduct ("C o d e"), which touts that they are "committed to full and honest communications w ith [their] customers about [their] products and services." Defendants further ack n o w led g e in their Code that, as a pet food company, their customers have "trust in us" and that "their trust must be justified." 24. D efen d an ts, directly or through actual or ostensible agents and/or co-
co n sp irato rs, have implicitly and explicitly represented that the Products are fit for co n su m p tio n by pets and will not result in the death and serious illness of pets who co n su m e the Products. 25. D e fe n d a n ts have also made representations, including on product
lab elin g and in marketing and promotional materials, concerning the quality of th e ir Products, including explicit and implicit representations that the Products are
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suitable for consumption by pets. Defendants ultimately make billions of dollars a y ea r from companies who sell Menu Foods at the retail level. Accordingly, they k e e p themselves apprised of the advertising, promotions, marketing and claims that are made on behalf of Menu Foods' products. Defendants undoubtedly coordinate w ith the companies who brand their products at the retail level about the products' safety and quality, including the Products. C L A S S ACTION ALLEGATIONS 26. P lain tiff brings this action on her own behalf and as a Class action
p u rsu an t to Rule 23(b)(2) of the Federal Rules of Civil Procedure on behalf of the fo llo w in g proposed class: A ll persons in the United States who purchased, or incurred damages by u sin g , pet food produced or manufactured by Defendants that was or will be recalled by Defendants, including that produced from December 3, 2006 up to and in clu d in g March 6, 2007.
U p o n completion of discovery with respect to the scope of the Class, Plaintiff r es er v e s the right to amend the class definition. Excluded from the Class are D efen d an ts, their parents, subsidiaries and affiliates, directors and officers, and m em b ers of their immediate families. Also excluded from the Class are the court, th e Courts spouse, all persons within the third degree of relationship to the Court an d its spouse and the spouses of all such persons. 27. T h e Class is composed of thousands of persons throughout the
co u n try, and is sufficiently numerous for class treatment. The joinder of all Class m em b ers individually in one action would be impracticable, and the disposition of th eir claims in a class action will provide substantial benefits to the parties and the C o u r t.
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P lain tiff's claims are typical of the the claims of the Class, and
P lain tiff has no interests adverse to the interests of other members of the Class. 29. T h e r e are questions of law and fact common to all Class members that
p red o m in ate over questions affecting any individual members, including the f o llo w in g : ( a) W h e th e r Defendants violated the Pennsylvania Unfair Trade Practices
an d Consumer Protection Law; (b) W h e th e r Defendants' representations, omissions, and conduct
r eg a r d in g the Products were misleading or false; (c) W h eth er Defendants' representations and conduct were likely to
d eceiv e consumers into believing that the Products were safe for the purpose for w h ich they were sold; (d) W h e n Defendants knew or should have known the Products were
p o iso n in g animals; (e) W h eth er Defendants refused to disclose the problems with the
P ro d u cts after it knew of their propensity to harm pets; (f) W h eth er the propensity of the Products to harm pets constitutes a
m an u factu rin g or design defect; (g ) (h ) ( i) ( j) W h eth er Defendants' conduct constitutes a breach of warranties; W h eth er Defendants' conduct constitutes a breach of contract; W h eth er Class members have been injured by Defendants' conduct; W h eth er Class members have sustained damages and are entitled to
r es titu tio n as a result of Defendants' wrongdoing, and if so, what is that proper m easu re and appropriate formula to be applied in determining such damages and restitu tio n , including the availability of emotional distress and medical monitoring d am ag es; and (k) W h e th e r Class members are entitled to injunctive relief.
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P lain tiff will fairly and adequately protect the interests of the Class
an d has retained counsel for the prosecution of class action litigation. 31. A class action is superior to other methods for the fair and efficient
a d ju d ic atio n of the claims herein asserted. Plaintiffs anticipate that no unusual d ifficu lties are likely to be encountered in the management of this class action. 32. A class action will permit a large number of similarly situation
p erso n s to prosecute their common claims in a single forum simultaneously, e ff ic ie n tly , and without duplication of effort and expense that numerous individual actio n s would engender. Class treatment also will permit the adjudication of relativ ely small claims by many Class members who could not otherwise afford to seek legal redress for the wrongs complained of herein. If a class or general public actio n is not permitted, many Class members will likely receive no remedy for d am ag es suffered as a result of Menu Foods' misconduct. 33. D efen d an ts have acted and refused to act on grounds generally
a p p lic ab le to the entire Class, thereby making appropriate final injunctive relief w ith respect to the Class as a whole. COUNT I S T R IC T PRODUCTS LIABILITY 34. P lain tiff hereby incorporates all other allegations in the Complaint
in to this Cause of Action, except such allegations as may be inconsistent herewith (w h ich are plead in the alternative). Plaintiff alleges this cause of action on behalf o f herself and all others similarly situated. 35. D e fe n d a n ts are strictly liable for supplying a product that is either
d e f ec tiv e in its manufacture by virtue of the introduction of melamine and/or other co n tam in an ts into the Product while under Defendants' control or, alternatively, d e f ec tiv e in its design by virtue of the lack of safeguards necessary to ensure that to x in s are not introduced into its pet food while under Defendants' control.
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D efen d an ts are also strictly liable for failure to warn the public of the
k n o w n dangers and reasonably foreseeable harm that could result from use of the P r o d u c t. 37. P lain tiff, a pet owner, is a reasonably foreseeable user of the Product,
a n d purchased and used the product in a foreseeable manner by feeding the Product to pets. Plaintiff has been damaged, and has suffered losses including the loss of a p e t, the expenditure of money for medical care and monitoring of pets, severe e m o tio n a l distress and the money spent on the Product itself. C O U N T II N E G L IG E N C E 38. P lain tiff incorporates all other allegations in the Complaint into this
c au s e of action, except such allegations as may be inconsistent herewith (which are p lead in the alternative). Plaintiff alleges this cause of action on behalf of himself an d all others similarly situated. 39. D e fe n d a n ts owed a duty to Plaintiff to ensure that its pet foods were
n o t poisonous to pets in the manner of the Products. 40. D efen d an ts breached their duty of care to Plaintiff by failing to use
su fficien t quality control, perform adequate testing, proper manufacturing, p ro d u ctio n , or processing, and failing to take sufficient measure to prevent the P ro d u cts from being offered for sale, sold, or fed to pets. 41. R es ipsa loquitur applies because Defendants had exclusive control of
th e relevant instrumentalities, including the Product and manufacturing facilities, m e la m in e or other toxins would not normally be present, absent negligence. 42. M en u Foods' breaches of duty were the actual and proximate cause of
d am ag e to Plaintiff, including the loss of a pet, the expenditure of money for m ed ical care and monitoring of pets, sever emotional distress and the money spent o n the product itself.
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COUNT III B R E A C H OF WARRANTY 43. P lain tiff hereby incorporates all other allegations in the Complaint into this
C a u s e of Action, except such allegations as may be inconsistent herewith (which are plead in the alternative). Plaintiff alleges this cause of action on behalf of h erself and all others similarly situated. 44. D efen d an ts, by calling its product "food" and making other similarly
en ticin g representations as set forth more fully above, impliedly and/or expressly w arran ted that the Products were ingestible and would not sicken and kill the dogs a n d cats that ate them. Menu Foods also warranted thereby, that its products were fit for the particular purpose of nourishing pets without sickening and killing said p e ts . 45. D efen d an ts breached these warranties by virtue of the facts set forth in
th e body of the Complaint, and Plaintiff was damaged thereby, including the loss o f a pet, the expenditure of money for medical care and monitoring of pets, severe e m o tio n a l distress, and the money spent on the product itself. C O U N T IV B R E A C H OF CONTRACT 46. P lain tiff hereby incorporates all other allegations in the Complaint
in to this Cause of Action, except such allegations as may be inconsistent herewith (w h ich are plead in the alternative). Plaintiff alleges this cause of action on behalf o f herself and all others similarly situated. 47. T h e facts as set forth above also constitute the formation and breach
o f a contract between the Plaintiff and Defendants. Alternatively, Plaintiff was n ecessarily the third party beneficiary of a contract between Defendants and in te rm e d ia rie s from whom Plaintiff purchased the Products. Plaintiff was damaged b y Defendant's breaches, as previously set forth.
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COUNT V V IO L A T IO N OF THE PA UNFAIR TRADE PRACTICES AND C O N S U M E R PROTECTION LAW (73 P.S. Section 201-1 et seq) 48. P lain tiff hereby incorporates all other allegations in the Complaint
in to this Cause of Action, except such allegations as may be inconsistent herewith (w h ich are plead in the alternative). Plaintiff alleges this cause of action on behalf o f herself and all others similarly situated. 49. T h e acts set forth above also constitute violations of the Pennsylvania
U n f a ir Trade Practices and Consumer Protection Law, and Plaintiff has suffered d am ag e thereby, including out of pocket loss and other pecuniary harm, as set forth above. C O U N T VI U N J U S T ENRICHMENT 50. P lain tiff hereby incorporates all other allegations in the Complaint
in to this Cause of Action, except such allegations as may be inconsistent herewith (w h ich are plead in the alternative). Plaintiff alleges this cause of action on behalf o f herself and all others similarly situated. 51 A s a direct, proximate, and foreseeable result of Defendants' acts and
o th erw ise wrongful conduct, Plaintiff suffered damages. Defendants profited and b en efited from the sale of Products, even as the Product cause Plaintiff to incur d am ag es. 52. D efen d an ts have accepted and retained these profits and benefits
d eriv ed from consumers, including Plaintiff, with full knowledge and awareness th at, as a result of Defendants' unconscionable wrongdoing, consumers were not r ec eiv in g products of the quality, nature, fitness or value that had been represented b y Defendants or that reasonable consumers expected. Plaintiff purchased pet food
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that she expected would be safe and healthy for her cat and instead had had to en d u re the death of her pet. 53. B y virtue of the conscious wrongdoing alleged here, Defendants have
b een unjustly enriched at the expense of Plaintiff. Plaintiff is entitled to, and seeks, th e disgorgement and restitution of Defendants' wrongful profits, revenues, and b en efits, to the extent and in the amount deemed appropriate by the Court. Plaintiff is also entitled to, and seeks such other relief as the Court deems just and p ro p er to remedy Defendants' unjust enrichment. P R A Y E R FOR RELIEF W H E R E F O R E , Plaintiff, on behalf of herself and the Class, prays for the f o llo w in g relief: A. B. A n order certifying the Class as defined above; A n aware of actual damages, restitution, and/or disgorgement from
D efen d an ts of the benefits conferred by Plaintiff and the Class; C. D. E. F. G. H. R eim b u rsem en t of medical and other expenses; A p p r o p r ia te injunctive relief; A p p ro p riate statutory and punitive damages; P re- and post-judgment interest to the Class; R easo n ab le attorney's fees and costs; and S u c h further relief as the Court deems appropriate. J U R Y DEMAND P lain tiff requests trial by jury of all claims that can be so tried. _ /s/ J. Chad Moore____ J . Chad Moore, Esquire PA 76660 2 7 0 Market Street M illersb u rg , PA 17061 T el: 717-692-5533 F ax : 717-692-5111
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