Adkins v. Nestle Purina Petcare Co.

Decision Date27 September 2013
Docket NumberNos. 12 C 2871,12 C 0880 (D.Conn.), 12 C 4774 (N.D.Cal.), 12 C 4785 (N.D.Cal.).,s. 12 C 2871
Citation973 F.Supp.2d 905
PartiesDennis ADKINS, Maria Higginbotham, Mary Ellis, Dwayne Holley, Kaiya Holley, Deborah Cowan, Barbara Pierpont, Cindi Farkas, Terry Safranek, Elizabeth Mawaka, Robin Pierre, Jill Holbrook, Mary Ellen Deschamps, Tracey Bagatta, Hal Scheer, S. Raymond Parker, Kristina Irving, Kathleen Malone, Jeannie Johnson, Rebel Ely, Rita DeSollar , and for themselves and several classes, Plaintiffs, v. NESTLE PURINA PETCARE COMPANY, Waggin' Train, LLC, Wal–Mart Stores, Inc., doing business as Wal–Mart and Sam's Club, Target Corporation, Costco Wholesale Corporation, BJ's Wholesale Club, Inc., Pet Supplies Plus Of Connecticut XI, LLC, CVS Caremark Corporation, doing business as Caremark Advanced Technology Pharmacy, LLC and CVS Pharmacy, Inc., Walgreen Company, and Does 1–20, Defendants.
CourtU.S. District Court — Northern District of Illinois

OPINION TEXT STARTS HERE

Catherine Anne Ceko, Cathleen M. Combs, James O. Latturner, Tara Leigh Goodwin, Thomas Everett Soule, Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin LLC, Chicago, IL, Bruce Edward Newman, Brown, Paindiris & Scott, LLP, Bristol, CT, for Plaintiffs.

Miranda L. Berge, Edward Desmond Hogan, Hogan Lovells LLP, Craig A. Hoover, Hogan & Hartson, Washington, DC, Richard George Douglass, Stephen Novack, Novack and Macey LLP, Jeffrey W. Gunn, Morris & Stella, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

Plaintiffs' Consolidated Amended Complaint (“complaint”) brings a putative class action on behalf of themselves and other purchasers of chicken jerky dog treats manufactured by defendants Nestle Purina PetCare Company (Nestle Purina) and Waggin' Train LLC (Waggin' Train), and sold by defendants Wal–Mart Stories, Inc. (Walmart), Target Corporation (Target), Costco Wholesale Corporation (Costco), BJ's Wholesale Club Inc. (BJ's), Pet Supplies Plus of Connecticut XI, LLC (Pet Supplies Plus), CVS Caremark Corporation (CVS), and Walgreen Company (Walgreens) (collectively, defendants). Plaintiffs allege that defendants' Chinese-made treats are unsafe because they caused their dogs to become ill or die after eating them. The complaint is brought by 21 plaintiffs from various states whose pets were allegedly harmed after eating the treats: Dennis Adkins and Rita DeSollar (Illinois); Maria Higginbotham (Washington); Mary Ellis, Jeannie Johnson, and Rebel Ely (California); Dwayne and Kaiya Holley, Robin Pierre, and Tracey Bagatta (New York); Deborah Cowan (Texas); Barbara Pierpont (Pennsylvania); Cindi Farkas (New Jersey); Terry Safranek (Ohio); Elizabeth Mawaka, Mary Ellen Deschamps, and Hal Scheer (Connecticut); Jill Holbrook (Florida); S. Raymond Parker (Tennessee); Kristina Irving (Alabama); and Kathleen Malone (Louisiana).

Plaintiffs assert eight counts: breach of implied warranty (Count I); breach of express warranty (Count II); violations of state consumer protection statutes (Count III); common law fraud (Count IV); unjust enrichment (Count V); negligence (Count VI); and strict products liability for defective design and failure to warn (Counts VII–VIII). Counts IV and VI are against Nestle Purina and Waggin' Train only. All other counts are asserted against all defendants. Plaintiffs seek monetary relief, including punitive damages, and injunctive relief.

Defendant BJ's has moved to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). The other defendants have moved to dismiss all counts of the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, defendant BJ's motion is granted, and defendants' 12(b)(6) motion is granted in part and denied in part.

BACKGROUND1

Plaintiffs contend that they purchased defective and dangerous chicken jerky dog treats manufactured by Waggin' Train and Nestle Purina and sold by Wal–Mart, Target, Costco, BJ's, CVS, Pet Supplies Plus, and Walgreens (“merchant defendants). Some of the treats (including, for example, a product called “Jerky Tenders”) consisted of chicken jerky alone. Other products (including, for example, “Yam Good” treats) consisted of chicken jerky combined with other food products. Shortly after being fed these treats, and without any other change in diet, plaintiffs' dogs became ill or died. All of the illnesses were similar, with most dogs experiencing symptoms such as vomiting, diarrhea, and kidney failure. Plaintiffs assert that the treats were defective and the proximate cause of the injuries to their dogs, although they do not identify the specific defect. They attach and cite to a Food and Drug Administration (“FDA”) Advisory issued in 2011 which stated that it was investigating reports of illnesses in pets that ate jerky treat products from China. The Advisory also states that despite investigation and testing by the FDA and other labs, “scientists have not been able to determine a definitive cause for the reported illness” or “identif[y] a contaminant,” and it cautions that the reported illness may be due to other causes.

Plaintiffs further allege that defendants knew the treats were defective, and despite warnings and investigations by the FDA and reports of over 500 incidents, they continued to offer these treats for sale as being safe for consumption. Specifically, the packaging of the Jerky Tender and Yam Good treats stated, among other things, that the treats were “wholesome,” “nutritious,” and “healthy and delicious”(plaintiffs allege that similar statements were made on the packaging of all other Waggin' Train products containing chicken jerky). Plaintiffs claim that they saw these representations and relied on them when making the decision to purchase the treats, and that no pet owner would purchase food for their pet if they knew it was dangerous. Plaintiffs allege that the merchant defendants Wal–Mart, Target, Costco, BJ's, Pet Supplies Plus, CVS, and Walgreens adopted these representations of Waggin' Train and Nestle Purina. Despite being warned about the harm these treats caused, through (among other things) service of process in the instant case, the merchant defendants continued to sell the dog treats and took no action to protect consumers.

LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). In evaluating a motion to dismiss, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To provide the defendants with “fair notice of what the claim is and the grounds upon which it rests,” the complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 555, 127 S.Ct. 1955 (quoting Fed.R.Civ.P. 8(a)(2)). In addition, the complaint's allegations must plausibly suggest that the plaintiff has a right to relief and raise that possibility above the “speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

I. BJ's Motion to Dismiss for Lack of Personal Jurisdiction

BJ's was named in an amended complaint filed by Elizabeth Mawaka in the Connecticut district court. The complaint alleged that BJ's had sold some of the subject pet treats from one of its locations in New York. When BJ's was added, there was already a pending motion to transfer venue to this court, where the instant action was pending. BJ's was the only defendant to oppose this motion, arguing that because it never sold any of the subject pet treats in Illinois, this court would lack personal jurisdiction over it. Thus, the action would not be transferable because it could not have been brought in the transferee district. 28 U.S.C. § 1404(a). The Connecticut district court ordered the case to be transferred, but it did not address BJ's objections, which BJ's renews before this court.

A. Personal Jurisdiction

Plaintiffs have the burden of establishing a prima facie case for personal jurisdiction. Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir.2002). When determining whether personal jurisdiction exists over a defendant, “the allegations in the complaint are to be taken as true unless controverted by the defendants' affidavits; and any conflicts in the affidavits are to be resolved in [the plaintiff's] favor.” Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987). Facts contained in defendants' affidavits that remained unrefuted by plaintiffs are deemed true, however. Glass v. Kemper Corp., 930 F.Supp. 332, 337 (N.D.Ill.1996).

“A federal district court sitting in diversity in Illinois has jurisdiction over a non-resident, non-consenting defendant if an Illinois state court would have jurisdiction over that party.” McIlwee v. ADM Industries, Inc., 17 F.3d 222, 223 (7th Cir.1994). Jurisdiction under the Illinois long arm statute is coextensive with the requirements of due process under the United States Constitution. Original Creations, Inc. v. Ready Am., Inc., 836 F.Supp.2d 711, 713 (N.D.Ill.2011) (citing Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir.2010)). For an exercise of personal jurisdiction to satisfy due process, the defendant must have minimum contacts with the forum such that 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, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This determination depends on whether the plaintiff asserts general or specific jurisdiction against the defendant. “General jurisdiction ... is for suits neither arising out of nor related to the defendant's contacts, and it is permitted only where the defendant has ‘continuous and systematic general business' contact with the forum.” RAR, Inc. v. Turner Diesel,...

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