Arlandson v. Hartz Mountain Corp.., Civ. No. 10–1050.

Citation792 F.Supp.2d 691
Decision Date26 May 2011
Docket NumberCiv. No. 10–1050.
PartiesAundria ARLANDSON, et al., on behalf of themselves and all others similarly situated, Plaintiffs,v.HARTZ MOUNTAIN CORPORATION, Sergeant's Pet Care Products, Inc., and Summit Vetpharm, LLC, Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

792 F.Supp.2d 691

Aundria ARLANDSON, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
HARTZ MOUNTAIN CORPORATION, Sergeant's Pet Care Products, Inc., and Summit Vetpharm, LLC, Defendants.

Civ. No. 10–1050.

United States District Court, D. New Jersey.

May 26, 2011.

[792 F.Supp.2d 695]

Julie Diane Miller, Freed & Weiss, Chicago, IL, Paul Diamond, Diamond Law Office, LLC, Fort Lee, NJ, Gary S. Graifman, Kantrowitz, Goldhamer & Graifman, Esqs., Montvale, NJ, James E. Cecchi, Lindsey H. Taylor, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Roseland, NJ, Michael Scott Green, Green & Pagano, Milltown, NJ, Scott A. George, Seeger Weiss, LLP, Newark, NJ, for Plaintiffs.Geoffrey W. Castello, III, Kelley Drye & Warren LLP, Parsippany, NJ, Paul J. Dillon, Bloom, Karinja & Dillon, PC, Livingston, NJ, Kelly A. Waters, Jessica Leigh Brennan, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Newark, NJ, for Defendants.
WILLIAM J. MARTINI, District Judge:

This matter comes before the Court on Defendant Hartz Mountain Corporation (“Hartz”), Sergeant's Pet Care Products (“Sergeant's”), and Summit Vetpharm, LLC's (“Summit”) motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(2). There was no oral argument. Fed.R.Civ.P. 78. For the reasons stated below, Defendants' motions to dismiss is GRANTED in part and DENIED in part.


Plaintiffs' Consolidated Amended Complaint (“Complaint”) brings a putative class action on behalf of themselves and other purchasers and users of “spot on” flea and tick treatments manufactured by Defendants Hartz, Sergeant's, and Summit. Defendants all manufacture “spot on” flea and tick control products (“Products”) that are sold over the counter and contain Pyrethrin or Pyrethrin derivatives. (Compl. ¶ 177.) “Spot on” flea and tick treatments are ones that are applied directly to one or more localized areas on the body of the pet. (Compl. ¶ 185.)

On May 5, 2009, as updated January 10, 2010, the Environmental Protection Agency (“EPA”), which regulates the safety of pesticides, issued an advisory, reporting

[792 F.Supp.2d 696]

that it is “intensifying its evaluation of spot-on pesticide products for flea and tick control due to recent increases in the number of reported adverse reactions in pets treated with these products.” (Compl. ¶ 185.) Additionally, on August 3, 2009, the national Humane Society of the United States (“HSUS”) released public comments to the EPA specifically addressing Defendant Hartz, stating that “the HSUS continues to receive complaints regarding Hartz flea and tick products more than any other manufacturer.” (Compl. ¶ 187.)

Plaintiffs allege that Defendants' Products are unsafe because they sickened and, in some cases, killed their pets. (Compl. ¶ 2.) The Complaint includes 28 named Plaintiffs from various states whose pets were allegedly harmed after being treated with flea and tick products sold by Hartz, Sergeant's or Summit. Ten Plaintiffs residing in seven different states are alleging claims against Hartz (“Hartz Plaintiffs”): Laura Bouse (California), Violeta Cruz (Georgia), Stacie Gibbs (Pennsylvania), Deanna Marsocci (North Carolina), Rich Parsons (California), Barbara Pennell (North Carolina), Michael Powell (Arizona), Kristy Pruitte (North Carolina), Richard Swanson (New York), and Lisa Tuyes (Louisiana). Fourteen Plaintiffs residing in nine different states are alleging claims against Sergeant's (“Sergeant's Plaintiffs”): Aundria Arlandson (Minnesota), William and Gretchen Brynteson (Minnesota), Melanie Canceli (California), Linda Carden (Tennessee), Lisa Dachenhausen (New York), Claire Enkosky (New York), Stephanie Grandy (Illinois), Bonnie Kyrros (Oregon), Tiffany Murphy (California), Miriam Poore (Florida), Kathy Slivan (Pennsylvania), Shelby Touchstone (Florida), and Marie Zolnowski (New Jersey). Four Plaintiffs residing in four different states are alleging claims against Summit (“Summit Plaintiffs”): Lisa Dougherty (Maryland), Kathleen Fedrow (California), Ywanna Longmire (Virginia), and Catharine Vexler (Texas).

Plaintiffs, on behalf of themselves and other purchasers of Defendants' products, bring the following causes of action: (1) breach of implied warranty of merchantability (Count One); (2) breach of express warranty (Count Two); (3) violation of the New Jersey Consumer Fraud Act (“NJCFA”) against Defendants Hartz and Summit 1 (Count Three); and (4) unjust enrichment (Count Four). Specifically, Plaintiffs seek economic damages based upon the difference between the amount they paid for the product and the diminished (or nonexistent) value of the product as a result of it being unsafe to apply to their pets.2

II. DISCUSSIONA. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005), and dismissal is appropriate only if, accepting all of the

[792 F.Supp.2d 697]

facts alleged in the complaint as true,3 the plaintiff has failed to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir.2008). Although a complaint need not contain detailed factual allegations, “a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, see id. at 570, 127 S.Ct. 1955, such that the court may “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). While “[t]he plausibility standard is not akin to a probability requirement' ... it asks for more than a sheer possibility ...” Iqbal, 129 S.Ct. at 1949 (2009).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir.2007). The court may also consider “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s].” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 560 (3d Cir.2002).

B. Sergeant's Motion to Dismiss for Lack of Personal Jurisdiction

Federal Rule of Civil Procedure 12(b)(2) provides for the dismissal of a complaint where the court has no personal jurisdiction over the defendant. Sergeant's, a Nevada Corporation with its principal place of business in Omaha, Nebraska, contends that the Court does not have personal jurisdiction over it. (Sergeant's Moving Br. at 3.) A district court may exercise personal jurisdiction over a nonresident of the forum to the extent authorized by the forum state's long-arm statute. See Provident Nat'l Bank v. California Fed. Sav. Loan Ass'n, 819 F.2d 434, 436 (3d Cir.1987) (citing Fed.R.Civ.P. 4(e)). New Jersey's long-arm statute permits an exercise of jurisdiction to the fullest extent allowed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Nicholas v. Saul Stone & Co., LLC, 224 F.3d 179, 184 (3d Cir.2000); N.J. Ct. R. 4:4–4. Thus, courts in this state may exercise personal jurisdiction over nonresident defendants if they have established “certain minimum contacts with [New Jersey] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks omitted).

Personal jurisdiction may be either general or specific to the particular litigation. General jurisdiction only exists where the defendant has continuous or systematic

[792 F.Supp.2d 698]

contacts with the forum. Sergeant's is a Nevada corporation, with its principal place of business in Nebraska, and has no offices, bank accounts, assets, or employees in New Jersey. (Sergeant's Moving Br. at 3.) Sergeant's connection to New Jersey alleged by Plaintiffs is through its products being sold and marketed in the state and purchased by Plaintiff Marie Zolnowski. (Pls.' Opp. Br. at 48.) These contacts likely do not constitute “continuous or systematic contacts” with New Jersey so as to support general jurisdiction.

Regardless of whether general jurisdiction exists, however, the Court finds that specific jurisdiction over Sergeant's is supported here. Specific jurisdiction is established where the defendant has sufficient “minimum contacts” with the forum, and the cause of action arises directly out of those contacts. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Minimum contacts are established if “the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefit and protection of its laws.” Hanson, 357 U.S. at 253, 78 S.Ct. 1228 (citing Int'l Shoe, 326 U.S. at 319, 66 S.Ct. 154). Specific jurisdiction is not satisfied, however, where the unilateral acts of the plaintiff alone bring the defendant into the...

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