Barker v. Nestle Purina Petcare Co.
| Decision Date | 29 April 2022 |
| Docket Number | Case No. 4:21-cv-01075-MTS |
| Citation | 601 F.Supp.3d 464 |
| Parties | Michelle BARKER, on behalf of herself and all those similarly situated, Plaintiff, v. NESTLE PURINA PETCARE COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Charles E. Schaffer, Pro Hac Vice, David Magagna, Pro Hac Vice, Levin Sedran LLP, Philadelphia, PA, Jeffrey S. Goldenberg, Goldenberg Schneider LPA, Cincinnati, OH, John F. Edgar, Edgar Law Firm LLC, Kansas City, MO, Gary E. Mason, Mason LLP, Washington, DC, Kevin Laukaitis, Shub Law Firm LLC, Haddonfield, NJ, for Plaintiff.
James F. Bennett, Adam Joseph Simon, Dowd Bennett LLP, Clayton, MO, Keri Elizabeth Borders, Mayer Brown LLP, Los Angeles, CA, for Defendant.
Before the Court is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint, Doc. [27]. See Fed. R. Civ. P. 12(b)(1), (6). The motion is fully briefed and ready for adjudication. For the reasons explained herein, the Court will grant the Motion in part and deny it in part.
Defendant, Nestle Purina PetCare Company, manufactures, distributes, markets, and sells pet foods. Relevant to this suit are two varieties of dog food they sell, Purina Pro Plan Adult Sensitive Skin & Stomach Salmon & Rice Formula and Purina Pro Plan Adult Sensitive Skin & Stomach Lamb & Oat Meal Formula. Defendant represents that these two products contain no corn, wheat, or soy. Plaintiff alleges that she paid a premium for these two products purportedly free of corn, wheat, and soy based on that representation. But Plaintiff alleges that, in reality, both Pro Plan formulas "contain significant amounts of wheat." Doc. [24] ¶ 4.
Plaintiff brought this putative class action asserting five counts: Breach of Express Warranty (Count I); Breach of Implied Warranty of Merchantability (Count II); Unjust Enrichment (Count III); Missouri Merchandising Practices Act ("MMPA")1 (Count IV); and Georgia Fair Business Practices Act ("GFBPA")2 (Count V). In the instant Motion, Defendant seeks to dismiss Plaintiff's First Amended Complaint in its entirety for numerous reasons. Having subject matter jurisdiction to entertain this action under the Class Action Fairness Act, see 28 U.S.C. § 1332(d), the Court considers each of Defendant's arguments. See Lustgraaf v. Behrens , 619 F.3d 867, 873 (8th Cir. 2010) ().
Defendant first asserts that Plaintiff lacks standing to pursue her claims because she has not alleged a particularized, concrete injury, which would mean this action is not a case or controversy within the Court's power to hear. See U.S. Const. art. III, § 2; see also Fed. R. Civ. P. 12(b)(1). To establish she has standing, Plaintiff, as the party invoking the Court's jurisdiction, bears the burden of establishing she has a "personal stake" in the case sufficient to answer the question: "What's it to you?" TransUnion LLC v. Ramirez , ––– U.S. ––––, 141 S. Ct. 2190, 2203, 210 L.Ed.2d 568 (2021). To answer that question in a way sufficient to establish standing, Plaintiff must show: (i) that she "suffered an injury in fact that is concrete, particularized, and actual or imminent"; (ii) that the injury likely was caused by Defendant; and (iii) that judicial relief likely would redress the injury. Id. (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).
Here, Defendant alleges that Plaintiff has failed to show the existence of any injury. The Supreme Court has explained that an "injury in fact" is an "invasion of a legally protected interest" and must not only be "concrete and particularized" but also "actual or imminent, not conjectural or hypothetical." Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130. Since this case is only at the motion to dismiss stage, Plaintiff can succeed at establishing she has standing through "general factual allegations of injury resulting from the defendant's conduct." City of Clarkson Valley v. Mineta , 495 F.3d 567, 569 (8th Cir. 2007) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). Plaintiff has done so here.
Plaintiff has alleged that dog food she purchased contained significant amounts of wheat, contrary to the packaging's claims. See, e.g. , Doc. [24] ¶ 4 (); id. ¶ 15 (); id. ¶ 18 (); id. ¶ 40 (). Thus, her allegations do establish that "all or even most" of these products she purchased contained misrepresented ingredients. See Wallace v. ConAgra Foods, Inc. , 747 F.3d 1025, 1030 (8th Cir. 2014). At this stage, those allegations were sufficient to allege an injury in fact. Id. ; see also Von Slomski v. Hain Celestial Grp., Inc. , 8:13-cv-01757-AG-AN, 2014 WL 12771116, at *5 (C.D. Cal. June 10, 2014) (distinguishing Wallace because plaintiffs alleged all the teas contained pesticides "rather than merely alleging that some of the packages contain pesticides"); In re Gen. Mills Glyphosate Litig. , 0:16-cv-02869-MJD, 2017 WL 2983877, at *3 (D. Minn. July 12, 2017) (). Therefore, Plaintiff has established her standing to bring this action at this stage.
Defendant next argues that Plaintiff failed to state a claim because she failed plausibly to allege that Defendant engage in a deceptive act or unfair practice and failed plausibly to allege injury or damage. As recited above, however, Plaintiff's First Amended Complaint, subject to the provisions in Federal Rule of Civil Procedure 11(b), repeatedly alleges that Defendant's Pro Plan products at issue contain significant amounts of wheat though Defendant markets and labels them as having no wheat. Defendant's Motion discusses different kinds of cases, ones where only a "trace" amount of an ingredient is found. See, e.g. , Doc. [28] at 5–6 (). That simply is not what Plaintiff alleges regarding the Pro Plan products at issue in this case. Perhaps discovery will reveal Defendant's factual position is the more accurate one, but Defendant's position differs greatly from the one Plaintiff alleges. At this stage of the litigation, Plaintiff has the benefit of having her properly pleaded allegations taken as true, and Plaintiff plausibly has alleged deception and injury. Consequently, Defendant's Motion to dismiss on this ground will be denied.
Next Defendant argues that the First Amended Complaint fails to allege a violation of the MMPA because Plaintiff does not allege an unlawful practice in connection with a sale or advertisement of any merchandise in or from Missouri. To run afoul of the MMPA, a practice "must involve trade or commerce ‘in or from the state of Missouri.’ " Perras v. H & R Block , 789 F.3d 914, 918 (8th Cir. 2015) (quoting State ex rel. Nixon v. Estes , 108 S.W.3d 795, 801 (Mo. Ct. App. 2003) ); see also Mo. Rev. Stat. § 407.020.1. Twice now in cases where transactions took place outside of Missouri, the U.S. Court of Appeals for the Eighth Circuit has found that the MMPA did not apply. Perras , 789 F.3d at 918 ; Hale v. Emerson Elec. Co. , 942 F.3d 401, 404 (8th Cir. 2019) (per curiam).
In Perras the Eighth Circuit held that a putative class action against H & R Block for an allegedly fraudulent "compliance fee"—designed and implemented at H & R Block's Missouri headquarters but charged to consumers through transaction that took place outside of Missouri—did not involve commerce in or from the state of Missouri. 789 F.3d at 918. Later, in Hale , the Eighth Circuit held that a class action against Emerson Electric Company ("Emerson") for allegedly deceptive advertising associated with a vacuum cleaner did not involve commerce in or from the state of Missouri because, even though Emerson made all marketing decisions regarding the vacuums in Missouri, every part of the challenged transaction took place in a class member's home state. 942 F.3d at 404.
Plaintiff has failed to distinguish this case from Hale . Here, Plaintiff, a resident and citizen of Georgia, "encountered the allegedly misleading advertising, purchased [the product], and ultimately w[as] disappointed with [it]," all in her home state of Georgia. Id. ; see also Doc. [24] ¶ 29. Plaintiff argues that the MMPA applies because "Defendant was founded and headquartered in Missouri, where it designs, manufactures, distributes, labels, advertises, and sells" the products at issue. Doc. [31] at 9 (citing Doc. [24] ¶¶ 9, 11–12, 68).3 But it is "not enough" when the "design of the advertisement" is the "only relevant action taking place in Missouri." Hale , 942 F.3d at 404. Like in Hale , here, "every part of the challenged transaction[s] took place" outside Missouri. Id. Plaintiff has not demonstrated how the facts she alleged in this case differ from those in Hale in any way that warrants a different result. Put another way, there are no more facts alleged here regarding the sale of Defendant's Pro Plan dog food to a party outside Missouri than were present in the sale of Emerson's vacuum cleaner to a party outside Missouri.4
Next Defendant maintains that Plaintiff lacks standing to seek injunctive relief because she is now aware of Defendant's alleged deception and plausibly has not alleged a likelihood of future injury. Standing to seek injunctive relief "requires a showing that the plaintiff faces a...
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