Cisneros ex rel. Situated v. Petland, Inc.

• Decision Date: 17 April 2018
• Docket Number: CIVIL ACTION FILE NO. 1:17-CV-2828-MHC
• Citation: 341 F.Supp.3d 1365
• Parties: Rosalba CISNEROS, on Behalf of Herself and All Others Similarly Situated, Plaintiff, v. PETLAND, INC., BKG Pets, Inc., Pets BKG LLC and Pawsitive Solutions, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

341 F.Supp.3d 1365

Rosalba CISNEROS, on Behalf of Herself and All Others Similarly Situated, Plaintiff,

v.PETLAND, INC., BKG Pets, Inc., Pets BKG LLC and Pawsitive Solutions, Inc., Defendants.

CIVIL ACTION FILE NO. 1:17-CV-2828-MHC

United States District Court, N.D. Georgia, Atlanta Division.

Signed April 17, 2018

Anthony Thomas Eliseuson, Pro Hac Vice, Kelsey Rinehart Eberly, Animal Legal Defense Fund, Cotati, CA, David Aaron Weisz, Michael Ira Fistel, Jr., Johnson Fistel, LLP, William Woodhull Stone, Johnson & Weaver, LLP, Marietta, GA, Jessica June Sleater, Andersen Sleater Sianni, LLC, New York, NY, Tamara Yvette Feliciano, Coleman Legal Group, LLC, Alpharetta, GA, for Plaintiff.

Robert G. Cohen, Pro Hac Vice, Kegler Brown Hill & Ritter, Columbus, OH, Henry D. Fellows, Jr., Michael Coleman Gretchen, Fellows La Briola, LLP, John Earl Floyd, Bondurant Mixson & Elmore, LLP, Robert A. Luskin, Goodman McGuffey, LLP, Atlanta, GA, Eric S. Boos, Humberto H. Ocariz, Michael A. Holt, Pro Hac Vice, Shook Hardy & Bacon, LLP, Miami, FL, for Defendants.

ORDER

MARK H. COHEN, United States District Judge

This case comes before the Court on Defendant Pawsitive Solutions, Inc. ("Pawsitive")'s Motion to Dismiss [Doc. 14], Defendant Petland, Inc. ("Petland")'s Motion to Dismiss [Doc. 15], and Defendants BKG Pets, Inc. and Pets BKG LLC ("BKG Defendants" or "Petland Kennesaw")'s Motion to Dismiss [Doc. 16].

I. BACKGROUND

Plaintiff Rosalba Cisneros ("Cisneros"), on behalf of herself and a prospective class, filed a three-count complaint against Pawsitive, Petland, and the BKG Defendants (collectively, "Defendants"), alleging that Defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. , and its state analog, O.C.G.A. § 16-14-4, when it sold her a dog that was certified as healthy but died soon after she purchased it. See generally Compl. [Doc. 1]. Petland is "the largest national retailer selling puppies to consumers, and conducts its operations through approximately 80 retail store franchisees in the United States."Id. ¶ 16. The BKG Defendants are franchisees of Petland and operate a Petland store in Kennesaw, Georgia. Id. ¶ 19. Pawsitive contracts with Petland and Petland franchisees "as a business consultant, to help pet store owners ...." Id. ¶ 26. Pawsitive also serves as a customer "claims manager" and is the entity customers are instructed to call "as a matter of first recourse" if a purchased animal is found to be ill. Id. ¶ 24.

A. Allegations Specific to Cisernos

Cisernos purchased a Shih Tzu puppy named Giant, from Petland Kennesaw on December 10, 2015, for $2,400. Id. ¶ 29. Included in the purchase price was a veterinary certification that the animal was healthy and fit for sale. Id. Veterinarian Dr. Walton Waller ("Dr. Waller") certified the puppy as healthy, fit for adoption, and free of parvovirus. Id. ¶¶ 21, 30. Cisemos also purchased, for $500, a membership in the "Puppy for a Lifetime Program" that purportedly would provide a replacement puppy under certain circumstances if the customer periodically purchased certain dog food, vitamins, and supplements. Id. ¶ 29. Petland also provided a "Limited Puppy Purchase Contract" that warranted care through Pawsitive and Dr. Waller. Id. ¶ 31.

Upon arriving at Cisneros' home on the day of purchase, Giant began vomiting and had severe diarrhea. Id. ¶ 32. On December 14, 2015, Cisemos brought Giant to Dr. Waller, who did not diagnose the dog with any condition, but provided a prescription for an antibiotic. Id. The next evening, Cisemos took Giant to an emergency veterinarian at a clinic unaffiliated with Petland, who diagnosed the dog with parvovirus, a serious and highly contagious condition. Id. The emergency veterinarian reported the incidence of parvovims to the Georgia Department of Agriculture ("GDOA") as required by Georgia law. Id. The next day, Cisemos called Petland Kennesaw and informed them of the parvovirus diagnosis. Id. ¶ 33. Petland Kennesaw instructed her to resubmit Giant to treatment with Dr. Waller if she wanted to be reimbursed for the veterinary care under the warranty. Id. Cisneros followed these instructions and brought Giant to Dr. Waller. Id.

Dr. Waller did not provide treatment for parvovims, and Giant died while in Dr. Waller's care. Id. On December 19, 2015, a representative of Pawsitive called Cisneros and "falsely stated that Giant was improving and would be released from Waller's care the following week." Id. ¶ 34. On September 21, 2015, Dr. Waller reported to the GDOA that Giant died of liver disease on December 19, 2015. Id. ¶ 33. Cisneros learned of Giant's death when she received a copy of the GDOA report on December 21, 2015. Id. ¶ 35. Cisernos's daughter went to Dr. Waller's clinic to retrieve Giant's body to have a necropsy performed. Id. The staff at the clinic "lied to her, saying that Giant's body was no longer at the clinic, and immediately called a Petland Kennesaw store manager named Zach to come to the clinic." Id. The staff at the clinic did not release the body until the police became involved. Id.

The necropsy, performed by a veterinarian unaffiliated with Petland, revealed that Giant died from parovirus and his liver condition was normal. Id. ¶ 36. It also revealed that Dr. Waller had removed Giant's organs before relinquishing the body. Id.

B. RICO Allegations

Cisneros alleges that Defendants are an association-in-fact enterprise consisting of Petland, its franchisees, Pawsitive, and its preferred veterinarians and their clinics, including Dr. Waller. Id. ¶ 81. The enterprise allegedly works to deceive and defraud customers by selling pets it knows to be unhealthy at inflated prices that are falsely certified as healthy. Id. ¶ 2.

The Complaint alleges that Petland and the BKG Defendants purchase animals from "known puppy and kitten mills" at nominal prices, roughly $50 to $200 per puppy. Id. ¶ 38. These mills "operate like an assembly line in which breeders maximize profits by producing the largest possible number of puppies and kittens with little to no regard for [their] health and welfare ...." Id. ¶ 39. "[P]uppies and kittens whelped at a mill are highly prone to debilitating and life-threatening conditions ...." Id. at 41.

Petland purportedly pays its preferred veterinarians a fixed rate in exchange for their agreement to certify that each animal is healthy and fit for adoption. Id. ¶ 46. The certifications increase the value of the pets, because customers believe they are purchasing a healthy animal. Id. ¶ 47. Cisneros alleges that the certification process is unreliable because most animals do not manifest symptoms of illness until after they are already placed in homes, seven to ten days after they arrive at the store. Id. ¶ 48. Health forms for dogs at Kennesaw Petland are rubber-stamped with Dr. Waller's signature. Id. ¶ 49. Petland has a specific protocol for the treatment and sale of sick animals, which the franchisees are required to follow. Id. ¶ 50. Petland, its franchisees, and its employees are incentivized financially to make any representation necessary to guarantee the sale of an animal, no matter how sick it may be. Id. ¶ 54. Petland receives 4.5% of gross revenues on a weekly basis from its franchisees. Id.

Cisneros also asserts that Pawsitive instructs the franchisees to send customers to preferred veterinarians, a practice which prevents independent veterinarians from examining the puppies and informing the customers they were sold a puppy that was already sick. Id. ¶ 58. Petland gives customers two instructional sheets regarding hypoglycemia

and canine cough, which are intended to dissuade customers from seeking immediate veterinary care for potentially life-threatening conditions to reduce veterinary costs to Petland, and conceal serious health issues. Id. ¶¶ 59-64.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Under Federal Rule of Civil Procedure 12(b)(6), a claim will be dismissed for failure to state a claim upon which relief can be granted if it does not 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). The Supreme Court has explained this standard as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted). Thus, a claim will survive a motion to dismiss only if the factual allegations in the pleading are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

At the motion to dismiss stage, the court accepts all well-pleaded facts in the plaintiff's complaint as true, as well as all reasonable inferences drawn from those facts. McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004) ; Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). Not only must the court accept the well-pleaded allegations as true, but these allegations must also be construed in the light most favorable to the pleader. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011). However, the court need not accept legal conclusions, nor must it accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Thus, evaluation of a motion to dismiss requires the court to assume the veracity of well-pleaded factual allegations and "determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937...