Ficarelli v. Champion Petfoods USA Inc. et al

Filing 42

MEMORANDUM OPINION OF THE COURT signed by District Judge Eli J. Richardson on 12/28/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MATTHEW D. FICARELLI, individually
and on behalf of others similarly situated,
Plaintiff,
v.
CHAMPION PETFOODS USA, INC. and
CHAMPION PETFOODS LP,
Defendants.

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NO. 3:18-cv-00361
JUDGE RICHARDSON

MEMORANDUM OPINION
Before the Court is the Motion to Dismiss (Doc. No. 9) of Defendants Champion Petfoods
USA, Inc. and Champion Petfoods LP. Plaintiff, Matthew D. Ficarelli, responded in opposition
(Doc. No. 26), and Defendants replied (Doc. No. 31). For the reasons discussed below, the Motion
will be denied in part and deferred in part.
FACTUAL BACKGROUND 1
Defendants sell a variety of premium-priced dog foods (the “Products”) throughout the
United States. (Doc. No. 1 ¶ 1.) Defendant Champion Petfoods USA, Inc. is incorporated in
Delaware and its headquarters are in Kentucky. (Id. ¶ 7.) Defendant Champion Petfoods LP is a
Canadian limited partnership with its headquarters and principal place of business in Canada. (Id.
¶ 8.) Champion Petfoods LP owns, operates, and controls Champion Petfoods USA. (Id.) Plaintiff
resides in Davidson County, Tennessee. (Id. ¶ 6.) Prior to October 2017, Plaintiff was a resident

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For purposes of Defendants’ Motion to Dismiss, the Court will assume to be true all the following
alleged facts, which are taken from Plaintiff’s complaint.
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of Florida. (Id.) Since 2010, Plaintiff has purchased Defendants’ dry dog food products
approximately monthly. (Id.)
Defendants tout their products as “The World’s Best Petfood.” (Id. ¶ 10.) Defendants’ dry
dog food products (the “Products”) are sold under the “Orijen” and “Acana” brand names. (Id.)
Defendants’ packaging prominently states that the Products are “biologically appropriate” and
contain “fresh, regional ingredients.” (Id. ¶ 1.) Defendants’ packaging also represents that Orijen
features fresh, raw, or dehydrated ingredients from minimally processed poultry, fish, and eggs
that are deemed fit for human consumption prior to inclusion in Defendants’ foods. (Id. ¶ 12.) The
packaging of Acana dry dog food contains substantially similar representations. (Id. ¶ 13.) Acana’s
website also states, “Unmatched by any pet food maker, our ingredients are deemed fit for human
consumption when they arrive at our kitchens fresh, bursting with goodness, and typically within
48 hours from which they were harvested.” (Id. ¶ 14.) Consumers pay a premium for what
Defendants advertise and label as premium product, as a bag of Defendants’ dog food can cost up
to four times the price of national brand competitors’. (Id. ¶ 1.)
Contrary to these representations, Defendants’ Products are contaminated with excessive
quantities of heavy metals, including arsenic, lead, cadmium, and mercury, which are toxic to dogs.
(Id. ¶¶ 15, 20.) The concentrations of these heavy metals in Defendants’ Products are dangerous
and render Defendants’ representations regarding the Products false and misleading. (Id. ¶ 17.)
Based on these alleged facts, Plaintiff brings the following claims on behalf of himself and
others similarly situated: (1) violation of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”); (2) breach of express warranty; (3) breach of implied warranty; (4) unjust

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enrichment. (Id. ¶¶ 31-60.) Defendants now move to dismiss these claims under Rule 12(b)(1),
Rule 12(b)(2), and Rule 12(b)(6). 2
LEGAL STANDARD
I.

Rule 12(b)(1)
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994). In other words, federal courts “have only the power that is authorized
by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Therefore, subject-matter jurisdiction
is a threshold issue that the Court must address and resolve prior to reaching the merits of the
case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998); see also Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”). “Moreover, ‘where subject matter jurisdiction is challenged under Rule
12(b)(1), as it was here, the plaintiff has the burden of proving jurisdiction in order to survive the
motion.’” Wayside Church v. Van Buren Cty., 847 F.3d 812, 817 (6th Cir. 2017) (quoting Rogers
v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986)).
Rule 12(b)(1) motions fall into two categories: facial attacks and factual attacks. Id. at 816.
A facial attack is a challenge to the sufficiency of the pleading itself, requiring the Court to take
allegations in the complaint as true and construing those allegations in the light most favorable to
the non-moving party. See id. A factual attack, on the other hand, is a challenge to the factual
existence of subject-matter jurisdiction. See id. at 817. In considering whether jurisdiction has been

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Because the Court finds that Plaintiff has failed to allege personal jurisdiction, as discussed in
more detail herein, it does not address Defendants’ arguments under Rule 12(b)(6). Instead, the
Court defers ruling on those arguments unless and until Plaintiff files an amended complaint as
contemplated below and Defendants in response renew their Rule 12(b)(6) arguments in
connection with such amended complaint.
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proved as a matter of fact, a trial court has wide discretion to allow affidavits, documents, and a
limited evidentiary hearing to resolve disputed jurisdictional facts. Ohio Nat’l Life Ins. Co. v.
United States, 922 F.2d 320, 325 (6th Cir. 1990). In evaluating a factual attack, no presumptive
truthfulness applies to the factual allegations, and the court is free to weigh the evidence to arrive
at its decision of whether it has power to hear the case. See United States v. Chattanooga-Hamilton
Cty. Hosp. Auth., 782 F.3d 260, 265 (6th Cir. 2015).
II.

Rule 12(b)(2)
Rule 12(b)(2) allows a defendant to file a motion to dismiss for lack of personal

jurisdiction. “In a diversity case, a plaintiff must satisfy the state-law requirements for personal
jurisdiction. Thus, [the plaintiff] must demonstrate that both due process and the [forum state’s]
long-arm statute are satisfied.” Schneider v. Hardesty, 669 F.3d 693, 699 (6th Cir. 2012) (citation
omitted). In other words, there is “a two-step test to determine whether the district court properly
[has] personal jurisdiction over [the defendant]. First, [the district court] must determine whether
[the forum state’s] law authorizes jurisdiction. If it does, [the district court] must determine
whether that authorization comports with the Due Process Clause of the Fourteenth Amendment.”
Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 357,
361 (6th Cir. 2008) (citation omitted). 3 “[I]f jurisdiction is not proper under the Due Process Clause
it is unnecessary to analyze jurisdiction under the state long-arm statute, and vice-versa.” Conn v.
Zakharov, 667 F.3d 705, 711–12 (6th Cir. 2012).

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The due-process inquiry is necessary in addition to the statutory inquiry because “[t]he Due
Process Clause of the Fourteenth Amendment constrains a State’s authority to bind a nonresident
defendant to a judgment of its courts.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). In other
words, even if a state asserts personal jurisdiction over a foreign defendant under the state’s longarm statute, such assertion, to be valid, must comport with due process.
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In fact, for Tennessee federal courts sitting in diversity, it is always unnecessary to analyze
jurisdiction under Tennessee’s long-arm statute separately from analyzing the permissibility of
jurisdiction under the Due Process Clause. This is because Tennessee’s long-arm statute, Tenn.
Code Ann. § 20-2-214, has been interpreted to be “coterminous with the limits on personal
jurisdiction imposed by the Due Process Clause of the United States Constitution, and thus, the
jurisdictional limits of Tennessee law and of federal constitutional due process are
identical.” Intera Corp. v. Henderson, 428 F.3d 605, 616 (6th Cir. 2005) (internal quotation marks
and citation omitted). Thus, unlike for courts in some states, for a Tennessee court it is appropriate
to collapse the two-part jurisdictional inquiry into one part, i.e., the due-process inquiry. EdgeAQ,
LLC v. WTS Paradigm, LLC, No. 3:14-CV-2264, 2015 WL 3453758, at *3 (M.D. Tenn. May 29,
2015) (quoting Grober v. Mako Prods., Inc., 686 F.3d 1335, 1345 (Fed. Cir. 2012)); see also Conn,
667 F.3d at 717.
For the Court to have personal jurisdiction over a defendant, the plaintiff must show that
the defendant has (or had) sufficient minimum contacts with Tennessee such that “the maintenance
of the suit does not offend ‘traditional notions of fair play and substantial justice.’” International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Minimum contacts exist where a defendant
purposefully avails itself of the privilege of conducting activities within the forum state. Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). These principles, though time-tested and
essential, constitute merely the beginning of the applicable due process analysis, which as a whole
is more involved and specific than these principles would indicate.
Personal jurisdiction comes in two forms: general and specific. Bristol-Myers Squibb Co.
v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017); Miller v. AXA
Winterthur Ins. Co., 694 F.3d 675, 678 (6th Cir. 2012). “General jurisdiction depends on

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continuous and systematic contact with the forum state, so that the courts may exercise jurisdiction
over any claims a plaintiff may bring against the defendant.” Id. at 678-79 (quoting Kerry Steel,
Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997)). With respect to a corporation, the
place of incorporation and principal place of business are typically the bases for general
jurisdiction. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). It is true that these two places are
not the only two places where general jurisdiction could possibly exist. See id. at 137-39. Absent
“exceptional” circumstances, however, a foreign corporation will be considered “at home” only in
its place of incorporation and principal place of business. See BNSF Railroad Co. v. Tyrrell, 137
S. Ct. 1549, 1558 (2017).
In contrast to general jurisdiction, specific jurisdiction must arise out of or relate to the
defendant’s contacts with the forum state—principally an activity or occurrence that takes place
in the forum state. Bristol-Myers, 137 S. Ct. at 1780; Miller, 694 F.3d at 679 (“Specific jurisdiction
. . . grants jurisdiction only to the extent that a claim arises out of or relates to a defendant’s
contacts in the forum state.”). Under the constitutional due-process analysis, for specific
jurisdiction to exist: (1) the defendant must purposefully avail himself of the privilege of acting in
the forum state or causing a consequence in the forum state; (2) the cause of action must arise from
the defendant’s activities there; and (3) the acts of the defendant or consequences caused by the
defendant must have a substantial enough connection with the forum state to make the exercise of
personal jurisdiction over the defendant reasonable. Intera, 428 F.3d at 615. If it finds that all three
of these are satisfied, then the court will recognize specific jurisdiction. Miller, 694 F.3d at 680.
Plaintiffs have the burden of showing personal jurisdiction, but “that burden is relatively
slight where . . . the . . . court rules without conducting an evidentiary hearing.” MAG IAS Holdings,
Inc. v. Schmuckle, 854 F.3d 894, 899 (6th Cir. 2017) (internal quotation marks and citation

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omitted). When a district court rules on a motion to dismiss under Rule 12(b)(2) without
conducting an evidentiary hearing, the court must consider the pleadings and affidavits in a light
most favorable to the plaintiff. Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d 499, 504
(6th Cir. 2014) (citing CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996)). To
defeat the Rule 12(b)(2) motion in such a case, the nonmoving party “need only make a prima
facie showing of jurisdiction.” Id. (quoting CompuServe, 89 F.3d at 1262). “[A] court disposing
of a 12(b)(2) motion [without an evidentiary hearing] does not weigh the controverting assertions
of the party seeking dismissal . . . because we want to prevent non-resident defendants from
regularly avoiding personal jurisdiction simply by filing an affidavit denying all jurisdictional
facts.” CompuServe, 89 F.3d at 1262 (internal quotation and emphasis omitted). “Dismissal in this
procedural posture is proper only if all the specific facts which the plaintiff . . . alleges collectively
fail to state a prima facie case for jurisdiction.” Id.
However, if the court chooses to have an evidentiary hearing to decide upon
the Rule 12(b)(2) motion, “the plaintiff must establish personal jurisdiction by a preponderance of
the evidence.” Kelley v. Int’l Capital Res., Inc., 231 F.R.D. 502, 509 (M.D. Tenn. 2005). The same
standard will apply if the either the issue is reserved for decision at trial or if the reason no
evidentiary hearing was held is that there was no real dispute as to the facts or the extent of
discovery. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998).

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DISCUSSION
I.

Article III Standing
Defendants argue that Plaintiff fails to plausibly allege Article III standing because he has

not sufficiently alleged that he suffered harm. 4 The Court disagrees.
A motion that alleges lack of standing is properly characterized as a motion to dismiss for
lack of subject-matter jurisdiction. See Forest City Residential Mgmt., Inc. ex rel. Plymouth
Square Ltd. Dividend Hous. Ass’n v. Beasley, 71 F. Supp. 3d 715, 722 (E.D. Mich. 2014)
(citing Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008)). The Article III standing
doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek
redress for a legal wrong. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Standing is a
threshold question in every federal case. Warth v. Seldin, 422 U.S. 490, 498 (1975). Where, as
here, a case is at the pleading stage, the plaintiff must “clearly . . . allege facts demonstrating” each
element of standing. Id. at 518.
“To satisfy Article III’s standing requirements, a plaintiff must show: ‘(1) [he] has suffered
an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.’” Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 581 (6th Cir. 2016) (quoting Loren
v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 606-07 (6th Cir. 2007)). The Supreme Court

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Defendants’ motion is properly characterized as a facial attack on subject-matter jurisdiction. For
example, Defendants argue, “[Plaintiff] does not allege that he consumed the food or intended to
consume the food . . . or that his dog was physically injured by the miniscule amounts of heavy
metals.” (Doc. No. 10 at 16). Also, in their reply, Defendants argue, “Because Plaintiff’s injury
theory is tied to his allegation that Champion’s products are not made up of ingredients fit for
human consumption, the Complaint does not plausibly allege injury-in-fact.” (Doc. No. 31 at 2.)
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has emphasized that the requirement that an injury-in-fact be “concrete and particularized”
encompasses two distinct requirements. Spokeo, 136 S. Ct. at 1548. “For an injury to be
‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id. (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). “A ‘concrete’ injury,” on the other hand,
“must be ‘de facto’; that is, it must actually exist.” Id. Unless an alleged injury satisfies both
requirements, it cannot give rise to standing under Article III. Cunningham v. Rapid Response
Monitoring Servs., Inc., 251 F. Supp. 3d 1187, 1193 (M.D. Tenn. 2017).
Plaintiff’s allegations satisfy the Article III standing requirements. Plaintiff alleges that he
paid (or paid too much) for dog food that had excessively high levels of toxic heavy metals, which
he purchased because of Defendants’ deceptive and false advertisements, and he seeks money
damages for the alleged harm. (Doc. No. 1 ¶¶ 1-3, 6, 42, 47, 57.) Such alleged harm is concrete,
particularized and actual; fairly traceable to the alleged deceptive and false advertising of
Defendants; and likely to be redressed by a decision in favor of Plaintiff (should he prove entitled
to such a decision). See Loeb v. Champion Petfoods USA Inc., No. 18-CV-494-JPS, 2018 WL
2745254, at *5 (E.D. Wis. June 7, 2018) (“Plaintiff’s allegations easily satisfy these [standing]
elements. She pleads that she paid too much for unsafe dog food, that this was caused by
Defendants’ deceptive and false advertisements, and she seeks money damages as compensation.”)
Defendants present several arguments against this finding, none of which the Court finds
persuasive. First, Defendants argue that Plaintiff’s conclusion that he was harmed by purchasing a
product that was inferior and contaminated is not plausible because he received the product that
was advertised, i.e., a safe premium dog food. However, this argument addresses the merits of
Plaintiff’s claim of wrongdoing by Defendants, not whether the complaint’s allegations satisfy
Article III’s standing requirements; this argument thus misses the mark, because “standing in no

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way depends on the merits of the plaintiff’s contention that particular [alleged] conduct is illegal.”
Warth, 422 U.S. at 500. Defendant here confuses the issue of whether Defendant has plausibly
alleged standing with the issue of whether Plaintiff plausibly has alleged wrongdoing by
Defendants (i.e., providing Plaintiff a product that was inferior to the product Defendant advertised
it to be). Moreover, because Defendants have made a facial (rather than factual) attack on subjectmatter jurisdiction (in particular, standing), the Court must presume all allegations in the complaint
are true, just as on a Rule 12(b)(6) motion. See Wayside Church, 847 F.3d at 816. Thus, it is not
proper for the Court, when ruling on a challenge to standing, to assess whether the plaintiff’s
allegations of wrongdoing are factually correct; instead, the Court assumes arguendo that the
defendant(s) engaged in the wrongdoing alleged.
Second, Defendants assert that Plaintiff’s contention that the Products are unsafe for human
consumption is conclusory and conjectural because he does not cite to any human standard which
the Products supposedly violate. Again, Defendants are, misguidedly, basing their attack upon
standing on a challenge to Plaintiff’s allegations of wrongdoing by Defendants. Defendants reveal
as much when they write, “Because Plaintiff’s injury theory is tied to his allegations that
Champion’s products are not made up of ingredients fit for human consumption, the Complaint
does not plausibly allege injury-in-fact.” (Doc. No. 31 at 2). Defendants here again confuse the
issue of whether Defendant has plausibly alleged injury-in-fact (the first of the three standing
requirements) with the issue of whether Plaintiff plausibly has alleged wrongdoing by Defendants
(i.e., falsely claiming that their products are fit for human consumption). Thus, even if Defendants
are correct that Plaintiff’s contention here is conclusory and thus excepted from the general rule
that Plaintiff’s allegations of Defendants’ wrongdoing presently must be accepted as true, that is

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immaterial because under Warth, the merits of such allegations are not relevant to the inquiry into
standing.
Third, along the same lines, Defendants, argue that Plaintiff does not cite to any fact, study,
or document demonstrating that the levels of heavy metals in the Products are not fit for human
consumption. But such citation is not necessary to plausibly allege standing, for two reasons. First,
Defendants here are again challenging the merits of Plaintiff’s allegations of wrongdoing, which
is not helpful in making an attack upon standing. Second, even if the validity of such allegations
were material in challenging standing, Defendants fail to explain why citation to this particular
information is necessarily required for Plaintiff’s allegations to be accepted as true at this stage.
Cf. Loeb, 2018 WL 2745254, at *5 (rejecting argument that the complaint failed to satisfy Iqbal
and Twombly because it did not allege the standard or metric by which the defendants’ products
would be considered safe for dogs or fit for human consumption).
Fourth, Defendants argue that this Court should follow those courts that have dismissed
claims for lack of Article III standing when the claims were premised on the defendant’s alleged
failure to disclose levels of heavy metals that (at least according to the respective plaintiffs) were
under FDA standards. (Doc. No. 10 at 14). Defendants cites two such, namely Koronthaly v.
L’Oreal USA, Inc., 374 F. App’x 257 (3d Cir. 2010) and Boysen v. Walgreen Co., No. C-11-06262SI, 2012 WL 2953069 (N.D. Cal. July 19, 2012). The Court finds that these cases, and those on
which they rely, are (in addition to being non-precedential for this Court) distinguishable from the
present case because, inter alia, Defendants themselves state that there are no FDA regulations as
to the relevant heavy-metal concentrations in human or dog solid food. (See Doc. No. 31 at 3-4.)
See Zeiger v. WellPet LLC, 304 F. Supp. 3d 837, 846 (N.D. Cal. 2018) (distinguishing Boysen on
this basis); Loeb, 2018 WL 2745254, at *5 (same). Moreover, in those cases, there is no indication

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that the ostensible (but not actual, according to the plaintiffs) low levels of metals in the products
there at issue would have tended to induce the plaintiffs’ purchases nearly as strongly as they
would have induced Plaintiff’s purchases of the Products, given the very idea behind the Products
and Defendants’ marketing of them; for this reason, the connection between Plaintiff’s alleged
injury and his alleged economic harm appears stronger than in those cases. 5 Finally, to the extent
that these cases (especially Boysen) rely upon a blanket rule that economic injury will not support
standing in product liability cases, the Court declines to follow them because the Court is aware
of no binding precedent that would automatically preclude this specific category of alleged harm
from constituting an injury-in-fact in a products liability case (even assuming that the instant case
is in fact properly deemed a “products liability” case).
Fifth, and relatedly, Defendants argue that Plaintiff needs to allege a physical injury to
himself or his dog from consuming the Products. But Plaintiff’s allegation that he suffered a
monetary loss for paying for (or paying more for) the Products because of Defendants’
misrepresentation is sufficient. See Loreto v. Procter & Gamble Co., 515 F. App’x 576, 581 (6th
Cir. 2013) (“Plaintiffs’ allegation that they suffered a monetary loss by paying more for a cold
remedy because of the company’s misrepresentation establishes a cognizable injury [for purposes
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Relatedly, Koronthaly is distinguishable because there the Third Circuit held that the plaintiff
“has not demonstrated a concrete injury-in-fact” in light of the absence of “any allegation that she
received a product that failed to work for its intended purpose or was worth objectively less than
what one could reasonably expect[.]” 374 F. App’x at 259. In the present case, by contrast, Plaintiff
has alleged that, given the marketing of the Products, and the correspondingly very high prices
allegedly justified by the characteristics of the Products as marketed, the Products failed to serve
their intended purpose (as expressed in such marketing) and were worth objectively less than what
one might reasonably expect. Koronthaly is further distinguishable because there the plaintiff
“asserted only a subjective allegation that the trace amounts of lead in the lipsticks are
unacceptable to her[.]” Id. By contrast, in the present case, Plaintiff has alleged a far more
substantial and objective injury.

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of standing].”); Loeb, 2018 WL 2745254, at *5 (rejecting the defendants’ standing argument “that
Plaintiff needs to plead a physical injury to her or her pet from consuming the contaminated food,
[because] that is not what she seeks to redress. Rather, Plaintiff complains about paying too much
for what she maintains was a low-quality product.”) 6 As indicated above, to the extent that
Defendant relies on non-binding cases holding otherwise, the Court declines to follow them.
Accordingly, the Court will not grant Defendants’ motion to dismiss based on a lack of standing.
II.

Personal Jurisdiction
Defendants alternatively move to dismiss the complaint for lack of personal jurisdiction.

Because there has been no evidentiary hearing on the issue of personal jurisdiction, and the parties
have not requested one, the Court limits its inquiry to whether Plaintiff has established a “prima
facie showing of jurisdiction,” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996),
and considers the pleadings in the light most favorable to Plaintiff. Palnik v. Westlake Entm’t,
Inc., 344 F. App’x 249, 251 (6th Cir. 2009). Still, it remains Plaintiff’s burden to make his showing
of jurisdiction, and the complaint must establish with reasonable particularly those specific facts

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The court’s discussion in Zeiger is on point:
A “quintessential injury-in-fact” occurs when plaintiffs allege that they “spent
money that, absent defendants' actions, they would not have spent.” Maya v. Centex
Corp., 658 F.3d 1060, 1069 (9th Cir. 2011). This is precisely what plaintiffs do
here. See Am. Compl. ¶¶ 25–27 (describing that each individual plaintiff “was
unaware that the Contaminated Dog Foods contained any level of lead, arsenic, or
BPA and would not have purchased the food if that was fully disclosed”). Plaintiffs’
claims are premised on their allegations that were it not for defendants’ labeling,
which omit the presence of lead, arsenic, and BPA in their Products, plaintiffs
would not have purchased and spent money on their Products. Similar allegations
in the food mislabeling context have repeatedly been held sufficient to establish an
economic injury for purposes of both constitutional and statutory standing.

304 F. Supp 3d at 846. Though obviously non-binding on this Court, Zeiger is, the Court
believes, persuasive.
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that would support jurisdiction. Id. (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d
883, 887 (6th Cir. 2002)). As indicated above, Plaintiff can meet this burden by showing either
general jurisdiction or specific jurisdiction.
This Court lacks general personal jurisdiction over Defendants, as neither Defendant has
its place of incorporation or principal place of business in Tennessee. Defendant Champion
Petfoods USA Inc. is incorporated in Delaware and has its principal place of business in Kentucky.
(Doc. No. 1 ¶ 7.) Defendant Champion Petfoods LP is a Canadian limited partnership and has its
principal place of business in Canada. (Id. ¶ 8.) Moreover, Plaintiff has alleged no other basis—
“exceptional” or otherwise—for general jurisdiction.
Furthermore, Plaintiff’s allegations fail to satisfy his prima facie showing of specific
jurisdiction. Plaintiff alleges, “Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial
part of the events and omissions giving rise to Plaintiff’s claims occurred within the Middle District
of Tennessee.” (Id. ¶ 5.) Plaintiff also alleges that he resides in Davidson County, Tennessee and
that prior to October 2017, he was a resident of Florida. (Id. ¶ 6.) Plaintiff further alleges that since
2010, he has purchased the Products approximately monthly. (Id.) However, nowhere does
Plaintiff state that he purchased the Products in Tennessee. This is a critical flaw in the complaint
because it is Plaintiff’s purchase of the Products that gives rise to this lawsuit. Although the Court
must construe the complaint in the light most favorable to Plaintiff, the Court cannot reasonably
infer that Plaintiff purchased the dog food in Tennessee. For example, given that Tennessee is
adjacent to Kentucky (the border of which is within commuting distance of some if not all of
Davidson County), Plaintiff conceivably could work in Kentucky and purchase the Products there
and only there. In addition, Plaintiff’s allegation that “a substantial part of the events and omissions
giving rise to Plaintiff’s claims occurred within the Middle District of Tennessee” is insufficient

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because it is wholly conclusory and does not allege with reasonable particularly those specific
facts that would support jurisdiction.
Likewise, Plaintiff’s belated, unsworn statement that he purchased Champion’s products
in Tennessee (Doc. No. 26 at 8)) is to no avail because the Court cannot consider allegations made
solely in response to a motion to dismiss. Thompson v. City of Memphis, No. 09-2658-D/P, 2010
WL 11602029, * 5 (W.D. Tenn. June 29, 2010) (citing Carr Carriers, Inc. v. Ford, 747 F.2d 1101,
1107 (7th Cir. 1984)).
Accordingly, because Plaintiff has not made the required prima facie showing of general
or specific personal jurisdiction, Defendants’ argument for dismissal under Rule 12(b)(2) is well
taken. According, this action will be dismissed unless Plaintiff files an amended complaint
consistent with the Order accompanying this Memorandum Opinion.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss is DENIED insofar as it seeks dismissal
under Rule 12(b)(1) for lack of subject-matter jurisdiction (standing), deferred insofar as it seeks
dismissal under Rule 12(b)(6) for failure to state a claim, and deferred insofar as it seeks dismissal
under Rule 12(b)(2) for lack of personal jurisdiction.
An appropriate accompanying order will be entered.

____________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

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