Bakopoulos v. Mars Petcare US, Inc.

• Decision Date: 22 March 2022
• Docket Number: 20 CV 6841
• Citation: 592 F.Supp.3d 759
• Parties: John BAKOPOULOS, et al., Plaintiffs, v. MARS PETCARE US, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

592 F.Supp.3d 759

John BAKOPOULOS, et al., Plaintiffs,

v.MARS PETCARE US, INC., Defendant.

No. 20 CV 6841

United States District Court, N.D. Illinois, Eastern Division.

Signed March 22, 2022

Gregory F. Coleman, Arthur Stock, Milberg Coleman Bryson Phillips Grossman, PLLC, Knoxville, TN, John Hunter Bryson, Pro Hac Vice, Milberg Coleman Bryson Phillips Grossman, PLLC, Raleigh, NC, Nick Suciu, III, Pro Hac Vice, Milberg Coleman Bryson Phillips Grossman, PLLC, Bloomfield Hills, MI, for Plaintiff John Bakopoulos.

Gregory F. Coleman, Arthur Stock, Milberg Coleman Bryson Phillips Grossman, PLLC, Knoxville, TN, John Hunter Bryson, Pro Hac Vice, Milberg Coleman Bryson Phillips Grossman, PLLC, Raleigh, NC, for Plaintiffs Penny Bowers.

Gregory F. Coleman, Milberg Coleman Bryson Phillips Grossman, PLLC, Knoxville, TN, for Plaintiffs Jennifer O'Connor, Melvin Jeter.

Francis A. Citera, Brett Michael Doran, Brian D. Straw, Greenberg Traurig, LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Manish S. Shah, United States District Judge Defendant Mars Petcare US, Inc. manufactures and markets various dog foods. Plaintiffs bought Mars's products—branded as Nutro Limited Ingredient Diets—but claim that the dog foods weren't as advertised because they included wheat, soy, and chicken. Plaintiffs want to represent a class of consumers and bring claims for breach of express and implied warranties, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, and unjust enrichment. Mars moves to dismiss the warranty claims alleged in the second amended complaint. For the reasons discussed below, the motion is granted in part and denied in part.

I. Legal Standards

To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). The complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In reviewing a motion to dismiss, a court must construe all factual allegations as true and draw all reasonable inferences in the plaintiffs’ favor. Sloan v. Am. Brain Tumor Ass'n , 901 F.3d 891, 893 (7th Cir. 2018) (citing Deppe v. NCAA , 893 F.3d 498, 499 (7th Cir. 2018) ).

II. Background

To improve their dogs’ health, pet owners pay more for limited ingredient foods, including those free from wheat, soy, and chicken. [30] ¶¶ 1–2, 43–44, 56, 61, 82, 102.¹ Mars manufactured and marketed some of these foods, branded as Nutro Limited Ingredient Diets. Id. ¶¶ 9, 35. The product line featured varieties including "Adult Lamb & Sweet Potato Recipe Grain Free," "Adult Salmon & Lentils Recipe Grain Free," and "Adult Venison Meal & Sweet Potato Recipe Grain Free." Id. ¶ 2. Mars sold the Nutro foods by way of third-party retailers and online. Id. ¶ 9.

Through its marketing, Mars represented that its limited ingredient dog foods were, in fact, limited in their ingredients. [30] ¶¶ 46–47, 49, 91. Product packaging prominently advertised that Mars's foods were "grain free," included "NO CHICKEN and "no corn, wheat or soy." Id. ¶ 49. Packaging also said that the Nutro foods included "10 Key Ingredients or Less Per Bag," id. ¶¶ 50–51, and Mars's website advised that the dog foods "avoid ingredients that commonly cause food sensitivities in pets." Id. ¶ 47. Through these representations, Mars appealed specifically to dog owners concerned about their pets’ health, id. ¶ 46, and intended to induce plaintiffs to purchase its foods. Id. ¶ 92.

Plaintiffs are five dog owners who bought the Nutro Limited Ingredient Diets foods. [30] ¶¶ 13–34. They paid more for Mars's products than for competitors’, having viewed Mars's representations and relied on them. Id. ¶¶ 14–15, 20–21, 24–25, 28–29, 32–33. Plaintiffs Jeter and O'Connor purchased just one type of the Nutro Limited Ingredient Diets: the Adult Lamb & Sweet Potato Grain Free Recipe dog food. Id. ¶¶ 27, 31. Jeter's and O'Connor's requirements for Mars's products were that the dog foods didn't include wheat, soy, or chicken, and that they were limited in their ingredients. Id. ¶¶ 102–03.

The problem, according to plaintiffs, is that Mars's products included chicken, wheat, and soy. [30] ¶¶ 53–54. Plaintiffs conducted a Q-PCR DNA analysis of Mars's dog foods, and found that they contained "significant" amounts of these ingredients. Id. Plaintiffs want to represent a class of similarly situated consumers, and bring five claims against Mars. Id. ¶¶ 64–129. All plaintiffs allege a violation of the Illinois Consumer Fraud Act and unjust enrichment. Id. ¶¶ 109–129. Plaintiffs Jeter and O'Connor also bring state-law claims for breaches of express and implied warranties and related federal claims under the Magnuson–Moss Warranty Act. Id. ¶¶ 74–108.

In this second motion to dismiss, Mars moves to dismiss the warranty claims. [31]. The original plaintiffs conceded the dismissal of warranty claims in their first amended complaint because they didn't provide Mars with the required pre-suit notice. See Bakopoulos v. Mars Petcare US, Inc. , No. 20 CV 6841, 2021 WL 2915215, at *2 n.2 (N.D. Ill. July 12, 2021). I declined to substitute plaintiffs Jeter and O'Connor into the case at that stage, id. , and instead they were added as parties to this suit in the second amended complaint. [30]. The issues now are whether Jeter and O'Connor provided Mars with the requisite notice for their warranty claims, and whether they have stated any claim for breach of warranty.²

III. Analysis

A. Notice

Defendants argue that all of the warranty claims should be dismissed because Jeter and O'Connor didn't provide the required pre-suit notice for their claims. [32] at 6–9. Under Illinois law, a buyer who discovers a breach of warranty must notify the seller "or be barred from any remedy." 810 ILCS 5/2-607(3)(a).³ The requirement of pre-suit notice is intended to encourage settlement, cure defects, and minimize damages. See Connick v. Suzuki Motor Co., Ltd. , 174 Ill.2d 482, 495, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996) ; U.C.C. § 2–607 cmt. 4; Maldonado v. Creative Woodworking Concepts, Inc. , 296 Ill.App.3d 935, 939, 230 Ill.Dec. 743, 694 N.E.2d 1021 (3d Dist. 1998) (citations omitted). Notice must be made in good faith. See Maldonado , 296 Ill.App.3d at 940, 230 Ill.Dec. 743, 694 N.E.2d 1021 ; Baldwin v. Star Sci., Inc. , No. 14 C 588, 2016 WL 397290, at *10 (N.D. Ill. Feb. 2, 2016) (quoting Maldonado , 296 Ill.App.3d at 939, 230 Ill.Dec. 743, 694 N.E.2d 1021 ); see U.C.C. § 2-607 cmt. 4, 5. If plaintiffs’ notice is insufficient under Illinois law, it also fails under federal law, because the Magnuson–Moss Warranty Act incorporates state-law notice requirements. See Perona v. Volkswagen of Am., Inc. , 292 Ill.App.3d 59, 65, 225 Ill.Dec. 868, 684 N.E.2d 859 (1st Dist. 1997) (citing Walsh v. Ford Motor Co. , 807 F.2d 1000, 1012 (D.C. Cir. 1986) ); In re Rust-Oleum Restore Mktg., Sales Pracs. & Prod. Liab. Litig. , 155 F.Supp.3d 772, 799 (N.D. Ill. 2016) (citations omitted).

Generally, the sufficiency of notice is a question of fact. See Datil v. C.R. Bard, Inc. , No. 19 C 8274, 2020 WL 5810402, at *6 (N.D. Ill. Sept. 30, 2020) (citing Malawy v. Richards Mfg. Co. , 150 Ill.App.3d 549, 561, 103 Ill.Dec. 355, 501 N.E.2d 376 (5th Dist. 1986) ); Baldwin , 2016 WL 397290, at *10 (citations omitted); Halo Branded Sols., Inc. v. RTB W., Inc. , Case No: 15 C 50152, 2016 WL 1161340, at *4 (N.D. Ill. Mar. 24, 2016) (quoting Maldonado , 296 Ill.App.3d at 940, 230 Ill.Dec. 743, 694 N.E.2d 1021 ). But when the only inference to be drawn is that notice was unreasonable, a court may decide whether notice was sufficient as a matter of law. Datil , 2020 WL 5810402, at *6 (quoting Maldonado , 296 Ill.App.3d at 940, 230 Ill.Dec. 743, 694 N.E.2d 1021 ); Baldwin , 2016 WL 397290, at *10 (quoting Al Maha Trading & Contracting Holding Co. v. W.S. Darley & Co. , 936 F.Supp.2d 933, 941 (N.D. Ill. 2013) ).

On March 19, 2021, Jeter and O'Connor sent a letter to Mars, identifying the alleged defects with the dog food. [30] ¶¶ 96, 108; [32-1]. At the time the letter was sent, Jeter and O'Connor weren't parties to this lawsuit, but three days later the original plaintiffs sought to join Jeter and O'Connor through their opposition to the first motion to dismiss. See [17] at 6 n.5. I declined to add new plaintiffs at that stage in the case, see Bakopoulos , 2021 WL 2915215, at *2 n.2, and instead Jeter and O'Connor were joined months later, on October 5, 2021, when plaintiffs filed their second amended complaint. See [30] ¶¶ 27–34. Mars never responded to the letter from Jeter and O'Connor. Id. ¶ 96.

Mars argues that by providing notice of their claims just days before they asked to be added to ongoing litigation, Jeter and O'Connor didn't give pre-suit notice in good faith. See [32] at 6–9. Had I joined Jeter and O'Connor to the lawsuit when they first wanted in, Mars is right that notice wouldn't have been adequate because plaintiffs’ letter would have given Mars no time to engage in settlement, cure the defect, or minimize damages. See Reyes v. McDonald's Corp. , Nos. 06 C 1604, 06 C 2813, 2006 WL 3253579, at *3 (N.D. Ill. Nov. 8, 2006) (Plaintiffs filed suit a day after the allegedly offending conduct, "allowing no time for settlement discussions."); Connick , 174 Ill.2d at 493–95, 221 Ill.Dec. 389, 675 N.E.2d 584 ; U.C.C. § 2–607 cmt. 4.⁴ Given the timing of the alleged notice and Jeter and O'Connor's request to join this suit, it seems likely that plaintiffs didn't give notice in the spirit contemplated by the U.C.C. But more than six months passed before plaintiffs were actually added to the lawsuit, giving Mars an opportunity to engage with Jeter and O'Connor about their warranty claims.⁵ Whether notice of the warranty claims was...