Fishon v. Mars Petcare US, Inc.

• Decision Date: 20 November 2020
• Docket Number: No. 3:19-cv-00816,3:19-cv-00816
• Parties: Arnold FISHON, Lilly Perez, and Tana Parker on behalf of themselves and all others similarly situated, Plaintiffs, v. MARS PETCARE US, INC., Defendant.
• Court: U.S. District Court — Middle District of Tennessee

501 F.Supp.3d 555

Arnold FISHON, Lilly Perez, and Tana Parker on behalf of themselves and all others similarly situated, Plaintiffs,

v.MARS PETCARE US, INC., Defendant.

No. 3:19-cv-00816

United States District Court, M.D. Tennessee, Nashville Division.

Filed November 20, 2020

Adam A. Edwards, Gregory F. Coleman, Justin G. Day, Lisa A. White, Greg Coleman Law PC, Knoxville, TN, Charles E. Schaffer, David C. Magagna, Jr., Levin Sedran & Berman, LLP, Jonathan Shub, Kohn, Swift & Graf, P.C., Philadelphia, PA, Danielle L. Perry, J. Hunter Bryson, John Hunter Bryson, David K. Lietz, Mason Lietz & Klinger, LLP, Gary E. Mason, Whitfield Bryson & Mason LLP, Philip Friedman, Friedman Law Offices, Washington, DC, Jeffrey S. Goldenberg, Todd Naylor, Goldenberg Schneider, LPA, Cincinnati, OH, for Plaintiffs.

David A. Forkner, Marta Chlistunoff, Williams & Connolly, Washington, DC, Ryan Thomas Holt, Sherrard Roe Voight & Harbison, PLC, Nashville, TN, for Mars Petcare US, Inc.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Arnold Fishon, Lilly Perez, and Tana Parker (collectively, "Plaintiffs"), individually and on behalf of a putative class, brought this action against Mars Petcare US, Inc. ("Mars" or "Defendant") for allegedly misleading consumers by mislabeling a particular product line of dog food as grain and soy free. Before the Court is Mars’ Motion to Dismiss and to Strike Plaintiffs’ First Amended Complaint (Doc. No. 30), which has been fully briefed by the parties (Doc. Nos. 31, 37, 39).¹ For the following reasons, Mars’ motion will be granted in part and denied in part.

I. FACTUAL ALLEGATIONS AND BACKGROUND²

Mars designs, manufactures, distributes, markets, and sells premium-priced dog food known as IAMS^® Proactive Health Sensitive Skin & Stomach Grain-Free Recipe with Chicken & Peas ("IAMS Grain-Free Recipe"). (Compl. ¶ 1.) The front of each IAMS Grain-Free Recipe bag prominently states that the food is made with a "Grain Free Recipe" and is "Tailored for Dogs with Grain Sensitivities." (Id. ¶ 40.) The back of each bag also contains the phrases "Grain Free Recipe" and "No Grains[,]" and provides the following promotional paragraph about why dog owners should purchase IAMS Grain-Free Recipe over other dog food:

Not all dogs are the same, so why feed them the same generic food? The IAMS brand understands that dogs with grain sensitivities have unique needs. That's why we've crafted our grain free recipe without any corn, wheat or soy , and added a tailored blend of wholesome fiber and natural prebiotics to support healthy digestion. This premium, grain free recipe will allow your dog to be at their best, today and every day.

(Id. ¶ 41–42 (emphasis added).) Mars’ website made similar representations and stated that IAMS Grain-Free Recipe contains "No Wheat [and] No Soy[.]"³ (Id. ¶¶ 37–38.)

Because "[d]ogs can—and often do—have allergic reactions

to certain foods, including those that contain grains ... wheat, or soy[,] ... many dog owners choose to pay a premium to provide their dogs a grain-free and soy-free diet." (Id. ¶¶ 2–3, 47.) Thus, based on Mars’ representations, Plaintiffs were willing to (and in fact did) purchase bags of IAMS Grain-Free Recipe at a premium price and feed it to their dogs. (Id. ¶¶ 13–35.) But "independent testing" revealed that Mars misled Plaintiffs because IAMS Grain-Free Recipe "does in fact contain significant amounts of corn, rice, wheat, and soy."⁴ (Id. ¶¶ 43–45.)

As a result, Plaintiffs filed this action against Mars alleging that they suffered economic damages because they reasonably believed that IAMS Grain-Free Recipe contained no grain or soy protein, and they would not have purchased it over alternative products, or would have paid substantially less for it, had they known that Mars’ representations about its ingredients were false. (Id. ¶¶ 21, 27, 35, 54–55.) The Complaint names Fishon (a New York resident), Perez (a Tennessee resident), and Parker (a Virginia resident), and asserts claims against Mars for violating the Magnuson-Moss Warranty Act and various state contract and consumer protection laws. The Complaint also states that this action is brought on behalf of the named Plaintiffs and either a nationwide class or, alternatively, New York, Tennessee, and Virginia subclasses. (Id. ¶¶ 62–65.)

Mars has now moved to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, as well as to strike Plaintiffs’ nationwide class allegations. (Doc. No. 30.) Because these three requests involve different legal standards, the Court will address them as separate motions.

II. MOTION TO DISMISS UNDER RULE 12(b)(1) FOR LACK OF STANDING

A. Legal Standard

A motion to dismiss for lack of standing is properly characterized as a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Forest City Residential Mgmt., Inc. ex rel. Plymouth Square Ltd. Dividend Hous. Ass'n v. Beasley, 71 F. Supp. 3d 715, 722–23 (E.D. Mich. 2014) (citing Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008) ). "[W]here subject matter jurisdiction is challenged under Rule 12(b)(1), as it was here, the plaintiff has the burden of proving jurisdiction in order to survive the motion." Wayside Church v. Van Buren Cnty., 847 F.3d 812, 817 (6th Cir. 2017) (quoting Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986) ).

"A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack)." Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) ). This distinction is important because if the defendant makes a facial attack, the Court must take all of the allegations in the complaint as true to determine "whether the plaintiff has alleged a basis for subject matter jurisdiction." Id. (emphasis added). But if the defendant makes a factual attack, the Court may consider and weigh evidence, including evidence outside of the pleadings, to determine whether the plaintiff has "carrie[d] the burden of establishing subject matter jurisdiction by a preponderance of the evidence." Ready for the World Inc. v. Riley, No. 19-10062, 2019 WL 4261137, at *2 (E.D. Mich. Sept. 9, 2019) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ).

B. Analysis

Article III of the Constitution provides that the "judicial Power" extends only to "Cases" and "Controversies," U.S. Const. Art. III, § 2, an element of which is standing. Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). "Although the term ‘standing’ does not appear in Article III, [the] standing doctrine is ‘rooted in the traditional understanding of a case or controversy’ and limits ‘the category of litigants empowered to maintain a lawsuit in federal court[.]’ " Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 861 (6th Cir. 2020) (quoting Spokeo, 136 S.Ct. at 1547 ). If no named plaintiff has standing, the Court lacks subject-matter jurisdiction to hear the case. See O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ("[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.").

To establish Article III standing at the pleading stage, a plaintiff must allege facts plausibly demonstrating that he "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, 136 S.Ct. at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ); see also Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 581 (6th Cir. 2016). The plaintiff has the burden of demonstrating all three elements "separately for each form of relief sought." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

Mars argues that this case should be dismissed for lack of standing because the Complaint does not plausibly allege that Plaintiffs suffered an injury in fact to recover damages or obtain injunctive relief.⁵ "To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ). For an injury to be "concrete," it must be real, and not abstract, and for an injury to be particularized, it "must affect the plaintiff in a personal and individual way." Id. (citations omitted). Plaintiffs seeking injunctive relief must make an additional showing that they suffered "both past injury and a real and immediate threat of future injury." Mosley v. Kohl's Dep't. Stores, Inc., 942 F.3d 752, 756 (6th Cir. 2019) (citations and internal quotation marks omitted) (emphasis added).

As explained more fully below, the Court finds that Plaintiffs have plausibly alleged an Article III injury to seek damages, but they have not plausibly alleged a threat of future injury to seek injunctive relief.

1. Standing to Seek Damages

Mars argues that Plaintiffs have not plausibly alleged a particularized Article III injury to claim damages because they have not explicitly alleged that they purchased or used any bag of IAMS Grain-Free Recipe that contained grain or soy. (Doc. No. 31 at 11–13.⁶ ) The Court disagrees.

Mars premises its argument on Wallace v. ConAgra Foods, Inc., an Eighth Circuit decision involving plaintiffs who claimed that they overpaid for...