Loeb v. Champion Petfoods USA Inc et al

Filing 73

ORDER signed by Judge J P Stadtmueller on 9/5/2019. Specified allegations are REINSTATED in accordance with this Order. 67 Plaintiff's Motion to Vacate Judgment is DENIED. See Order for further details. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KELLIE LOEB,
Plaintiff,
v.
CHAMPION PETFOODS USA INC.
and CHAMPION PETFOODS LP,

Case No. 18-CV-494-JPS-JPS

ORDER

Defendants.
In this action, Plaintiff asserts that Defendants have intentionally
deceived her and other Wisconsin consumers by touting their dog foods as
superior while knowing that the products are contaminated with heavy
metals. (Docket #1). This central theory animated each of Plaintiff’s five
causes of action. Id. Several of the claims were dismissed in the Court’s
order on Defendants’ motion to dismiss. (Docket #19). The remaining
claims were dismissed when the Court granted Defendants’ motion for
summary judgment. (Docket #59).
On February 26, 2019, Plaintiff moved to vacate the Court’s
judgment of dismissal pursuant to Federal Rule of Civil Procedure 59(e).
(Docket #67). Rule 59(e) permits a party to ask for alteration or amendment
of a judgment within twenty-eight days of the judgment’s issuance. Fed. R.
Civ. P. 59(e). Plaintiff’s motion was timely filed—judgment was entered on
February 6, 2019—and so the Court may consider its merits. Nevertheless,
the standard Plaintiff must meet to have her motion granted is steep:
A Rule 59(e) motion can be granted only where the
movant clearly establishes: “(1) that the court committed a
manifest error of law or fact, or (2) that newly discovered

evidence precluded entry of judgment.” Cincinnati Life Ins. Co.
v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013). Rule 59(e) “does not
provide a vehicle for a party to undo its own procedural
failures, and it certainly does not allow a party to introduce
new evidence or advance arguments that could and should
have been presented to the district court prior to judgment.”
Id. at 954 (citing Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d
524, 529 (7th Cir. 2000)).
Barrington Music Prods., Inc. v. Music & Arts Ctr., 924 F.3d 966, 968 (7th Cir.
2019); Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th Cir. 2018) (“District
courts need not grant Rule 59(e) motions to advance arguments or theories
that could and should have been made before the district court rendered a
judgment.”) (emphasis added, quotation omitted).
Plaintiff’s motion seeks only reversal of the summary judgment
order and its resulting judgment. (Docket #67 at 2). She does not suggest
any errors in the order on the motion to dismiss. The Court will, therefore,
confine its analysis to the summary judgment order. In the interest of
brevity, and because only that one order is at issue, the Court will assume
familiarity with the summary judgment order for the purposes of the
instant decision.
Plaintiff offers four reasons that the Court’s summary judgment
decision was wrong. None have merit. First, Plaintiff contends that the
Court has misunderstood her fundamental theory of the case. Rather than
marrying her assertion of contamination in the products directly with the
heavy metal levels therein, Plaintiff states that she intended to use heavy
metals as merely an example of the product’s adulteration. With this
perspective of the complaint in mind, Plaintiff contends that the Court
should have considered her evidence regarding the disgusting additives
and far-flung sources of the products’ ingredients.
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As the Court carefully explained in the summary judgment order, it
disagrees with Plaintiff’s position. Though Plaintiff’s complaint asserts that
many of Defendants’ various advertising statements are false or
misleading, their falsity is expressly and repeatedly tied to excessive heavy
metal concentrations. See generally (Docket #1). Indeed, Plaintiff’s own
summation of her case is as follows:
1.
Champion sells a variety of premium-priced
dog foods throughout the United States. Its dry dog food
products (“Products”) are sold under the “Orijen” and
“Acana” brand names. Champion’s packaging prominently
states that the Products are “Biologically Appropriate” and
contain “fresh, regional ingredients.” Champion’s packaging
further 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 our foods.” Consumers pay
a premium for what Champion advertises and labels as a
premium product. A 25-pound bag of “Orijen Original
Biologically Appropriate Dog Food” can cost $80 or more—
up to four times the price of national brand competitors.
2.
Contrary to Champion’s representations
regarding the Products, the Products contain excessive levels
of harmful heavy metals, including arsenic, lead, cadmium,
and mercury.
3.
As a result of Champion’s misrepresentations,
Plaintiff and other putative Class members were harmed by
paying for the advertised Products and receiving only an
inferior and contaminated product.
Id. at 1–2. To the extent that Plaintiff’s complaint really meant to pose a
wide-ranging critique of Defendants’ ingredient-sourcing for the products,
she did her best to hide that theory in what might be charitably described
as a haystack. In reality, as the Court previously stated, the complaint

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“contains not a whisper about such allegations[.]” (Docket #59 at 12).1 Thus,
it was wholly appropriate for the Court to deem Plaintiff’s sourcing
evidence as inapposite to the claim she presented.
Plaintiff is correct that she “was not required to plead every
conceivable fact proving that [Defendants’] representations were false and
deceptive.” (Docket #72 at 8). However, she freely chose to inextricably
intertwine her allegations of misleading advertisements with the issue of
heavy metals. She also refused to amend her complaint in the many months
between the issue of the scheduling order and the filing of Defendants’
summary judgment motion. The Court cannot save her from her own
litigation strategy, however inadvisable it may appear.2
Second, Plaintiff maintains that even when her case is constrained to
the heavy metal theory, her evidence was sufficient for a reasonable jury to
find in her favor on the WDTPA claim. But her only “evidence” was
pointing out that the MTLs, which helped form the basis of Poppenga’s
opinion, should be used with caution. This cannot contradict Poppenga’s
assertion that the MTLs are the best guidance available for determining safe
heavy metal concentrations in dog food. Plaintiff’s misgivings about the
MTLs are not a substitute for an expert opinion that it was inappropriate

Compare the same introductory allegations of the operative complaint to
those of Plaintiff’s proposed amended complaint. (Docket #67-1 at 2–3). The
amended complaint demonstrates that Plaintiff could have clearly pleaded her
case, but for unknown reasons chose not to do so.
1

The Court found that Plaintiff chained her case, perhaps foolishly, to the
mast of the U.S.S. Heavy Metals. Plaintiff failed to properly construct the vessel in
her pleadings and maintain it through discovery. When the ship sank upon
reaching the maelstrom of summary judgment, her case was doomed to go down
with it.
2

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for Poppenga to base his opinions on them. Without this evidence,
Poppenga’s opinions stand unrebutted, and no reasonable jury would be in
a position to disagree with them.
Third, Plaintiff asserts that the Court was wrong to require that she
confer a direct benefit upon Defendants in order to maintain her unjust
enrichment claim. Plaintiff offers, however, only the arguments that she
made in her summary judgment brief, or those which she should have
made there. They do not convince the Court to change its decision.
Fourth, Plaintiff contends that the Court should not have treated the
Acana allegations as withdrawn in light of the parties’ failure to address
them in their summary judgment submissions. While the Court continues
to be perplexed by the parties’, and especially Plaintiff’s, conduct in that
regard, it agrees that Plaintiff arguably has standing to pursue the Acana
claim. Carrol v. S.C. Johnsons & Son, No. 17-CV-05828, 2018 WL 1695421, at
*4 (N.D. Ill. Mar. 29, 2018). Defendants have not meaningfully responded to
Plaintiff’s arguments for reinstatement of the Acana allegations. The Court
will, therefore, reverse its decision and reinstate the Acana allegations. This
does nothing to change the result of the case and will not require the Court
to vacate its judgment.
Finally, Plaintiff asks that if the Court declines to reverse its
dismissal of the case on summary judgment, it should nevertheless vacate
the judgment to allow Plaintiff to file an amended complaint. The amended
complaint includes additional allegations directly addressing the sourcing
issues which were not mentioned in the original complaint. Compare
(Docket #1) with (Docket #67-1). The Court will deny Plaintiff leave to
amend on the basis of her undue delay in requesting such relief and

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prejudice to both Defendants and the Court. Runnion ex rel. Runnion v. Girl
Scouts of Greater Chi. & N.W. Ind., 786 F.3d 510, 521–22 (7th Cir. 2015).
As noted above, Plaintiff had months to correct her complaint to
conform with the theory she desired to present on summary judgment,
which was the theory she was carefully developing through the discovery
process. Though Plaintiff laments that she “was unaware that the Court’s
interpretation of her claims was fundamentally different and significantly
narrower than her view of what is alleged in the Complaint,” the Court
finds this disingenuous. She could read her own complaint and see that it
was totally silent on the sourcing issues she raised in her summary
judgment materials. Further, she had the benefit of the Court’s order on the
motion to dismiss, as well as Defendants’ own interpretation of the
complaint as discussed in its summary judgment brief.
In seeking amendment not only after a summary judgment motion
had been filed, but after it had been decided against her, Plaintiff presents
the very picture of undue delay. The recent Liebhart case is instructive.
There, the Seventh Circuit affirmed the district court’s denial of leave to
amend based on the plaintiffs’ undue delay. Liebhart v. SPX Corp., 917 F.3d
952, 965–66 (7th Cir. 2019). The plaintiffs had learned of the factual basis for
their new allegations months before filling their motion for leave to amend.
Id. In the interim, summary judgment motions had been filed and the
district court was working to decide them. Id. Here, not only did Plaintiff
discover the sourcing issues in discovery months prior to seeking leave, her
motion for leave came after Defendants’ dispositive motion had already
been granted.
Even taking Plaintiff at her word that her delay was not intentional,
it was surely negligent to leave her pleading in such a precarious state. Why
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allow the sourcing issues to be at best vaguely implicated in her complaint?
Why not offer the proposed amended complaint months ago to avoid the
risk that the Court would interpret her complaint as it is currently pleaded?
Plaintiff offers no worthwhile excuse for her idleness.
This leads to the matter of prejudice. This District is short on judges
and its case filings are ever-increasing. More importantly, the undersigned
has a long-standing policy of completing cases expeditiously, so that every
party gets its day in court, without intruding upon another’s day in court.
That is precisely what Plaintiff proposes to do here. She was on notice that
she needed to give this case an appropriate level of attention, and yet chose
to ignore the state of her pleadings not until the last minute, but indeed after
the last minute had already passed. Her inexcusable delay prejudices
Defendants, the Court, and the other litigants seeking access to the court.
Put bluntly, the Court does not have the time or resources to shepherd
parties, particularly represented parties, through each stage of the litigation
process towards trial. Plaintiff had her chance keep her case on a track
towards trial, and has no one but herself to blame that it was derailed.
In light of the foregoing, the Court will deny Plaintiff’s motion to
vacate its judgment of February 6, 2019. The Court will, however, separately
grant her relief in the form of reinstatement of the Acana allegations,
overturning its decision on that issue in the summary judgment order.
(Docket #59 at 7 n.5). This relief has no effect on the judgment itself.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to vacate the Court’s
judgment of dismissal (Docket #67) be and the same is hereby DENIED;
and

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IT IS FURTHER ORDERED that Plaintiff’s allegations regarding
the Acana products are reinstated in accordance with the terms of this
Order, and the Court’s decision dismissing those allegations (Docket #59 at
7 n.5) is hereby VACATED.
Dated at Milwaukee, Wisconsin, this 5th day of September, 2019.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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