Goodman v. Intervet, Inc.
| Decision Date | 06 March 2023 |
| Docket Number | Civ. 22-cv-02926-WJM-ESK |
| Parties | CATHY GOODMAN, MATTHEW INMAN, DENNIS CANETTY, BELINDA YOUNG, AND ELLEN BERRIS, on behalf of themselves and all others similarly situated, Plaintiffs, v. INTERVET, INC. d/b/a MERCK ANIMAL HEALTH d/b/a HOME AGAIN, Defendant. |
| Court | U.S. District Court — District of New Jersey |
In this putative class action for deceptive and misleading marketing Defendant Intervet, Inc. d/b/a Merck Animal Health d/b/a Home Again (“Defendant”) moves to dismiss Plaintiffs' entire Amended Complaint (“AC”) for failure to state a claim pursuant to Fed.R.Civ.P 12(b)(6) and for failure to plead with specificity pursuant to Fed.R.Civ.P. 9(b). ECF No. 21. Defendant also seeks dismissal of the individual counts on various alternative grounds. The Court decides the matter without oral argument. Fed.R.Civ.P. 78(b). For the reasons stated below Defendant's motion to dismiss is denied in part and granted in part.
Defendant, through its Home Again program, offers pet microchip services to consumers to help locate lost pets. After a pet is implanted with a Home Again microchip, the pet owner receives paperwork from Home Again to enroll the microchip number and pet owner's contact information in the Home Again database, AC, ¶¶ 4-6, 31, ECF No. 16. The cost of the Home Again database registration fee is typically included in the cost of the microchip. Id. at ¶ 31. If the pet is lost in the future, a veterinarian or shelter may scan the pet's microchip to identify the pet's owner in the Home Again database, Id. at ¶ 24.
That contact information remains in the database forever for free; pet owners may also update their information at any time for no additional fee. Id. at ¶ 6. Home Again also offers a premium optional service that requires an annual fee (between $17.00 and $21.99) and provides, inter alia, lost pet alerts and access to a medical emergency hotline. Id. at ¶ 40, n.4.
Plaintiffs allege that Defendant's website, forms, and marketing materials contain express misrepresentations and material omissions that deceive consumers into believing that enrollment in the annual paid membership is required to maintain and update contact information in its database. Id. at ¶¶ 7-9. For example, even though a consumer need not pay for “membership services” to “identify your pet if lost,” id. at ¶¶ 41, 45-55, Home Again provides pet owners with enrollment paperwork that advertises “Home Again membership services are $19.99 per year,” has a space for credit card information, and warns “Please return this form to the Home Again Pet Recovery Service or we will not be able to identify your pet if lost.” Id. at ¶ 40 (emphasis added). As another example, on Home Again's website, customers may “Check Your Status” to confirm pet registration, but if membership has lapsed, the webpage does not confirm whether the pet is in the database; instead, a message pops up to call Customer Service as “[t]his pet's full service annual membership has expired.” Id. at ¶¶ 50-51. In purported reliance on Defendant's misrepresentations, Plaintiffs chose to pay for a premium membership, which consists of “useless services that no reasonable consumer would pay for if they realized what they were actually buying,” Id. at ¶ 8. Plaintiffs did not realize that renewal of the Home Again premium membership was not necessary to stay enrolled in the database until after consulting with attorneys. Id. at ¶¶ 67, 72, 76, 84, 89.
The original complaint was filed on May 19, 2022. ECF No. 1. The AC, filed on August 23, 2022 with Defendant's consent, see ECF No. 14, includes five plaintiffs currently from California, Ohio, New York, Maryland, or Florida. ECF No. 16. Defendant is incorporated in Delaware and maintains its principal place of business in New Jersey. AC, ¶ 16. Jurisdiction is based on the Class Action Fairness Act, 28 U.S.C. § 1332(d).
Plaintiffs allege:
Count One: New Jersey Consumer Fraud Act (“NJ CFA”), N.J.S.A. 56:8-1, et seq. on behalf of Plaintiffs and the nationwide class
Count Two: California Unfair Competition Law (“CUCL”), Cal. Bus. & Prof. Code §§ 17200, et seq. on behalf of Plaintiffs Cathy Goodman, Matthew Inman, and the California Class
Count Three: California Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq. on behalf of Plaintiffs Goodman, Inman, and the California Class
Count Four: California False Advertising Law (“CFAL”), Cal. Bus. & Prof Code §§ 17500, et seq. on behalf of Plaintiffs Goodman, Inman, and the California Class
Count Five: New York Gen. Bus. Law (“NY GBL”), N.Y. Gen. Bus Law § 349, on behalf of Plaintiff Dennis Canetty and the New York Class Count Six: Maryland Consumer Protection Act (“MCPA”), Md. Code Comm. Law §§ 13-101 et seq. on behalf of Plaintiff Belinda Young and the Maryland Class
Count Seven: Florida Deceptive and Unfair Trade Practice (“FDUTPA”), Fla. Stat. § 501.201, et seq., on behalf of Plaintiff Ellen Berris and the Florida Class
Count Eight: Unjust Enrichment, on behalf of Plaintiffs and the Classes
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 facts alleged in the complaint as true, 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 (2007); see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). This assumption of truth is inapplicable, however, to legal conclusions couched as factual allegations or to “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements. ” Ashcroft v. Iqbal, 5 56 U.S. 662 (2009). A court must take well-pleaded allegations as true but need not credit “bald assertions” or “legal conclusions.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997). That is, although a complaint need not contain detailed factual allegations, “a plaintiffs 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. Thus, the factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, see id. at 570, such that the court may “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a probability requirement' ... it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
Defendant claims that Counts Two through Seven are time-barred. Plaintiffs respond that one or more equitable tolling doctrines - the discovery rule, continuing harm, or fraudulent concealment - extend the applicable statutes of limitations[1] for each state law claim beyond the actual date of enrollment. However, the Court agrees with Plaintiffs' alternative contention that it is inappropriate to decide this fact-intensive issue before discovery, The statute of limitations is an affirmative defense that the defendant bears the burden of establishing. Elissa H. v. Kijakazi, No. 22-3003,2022 WL 4626980, at *2 (D.N.J. Sept. 28, 2022) (citing Richard B. Roush, Inc. Profit Sharing Plan v. New England Mut. Life Ins. Co., 311 F,3d 581, 585 (3d Cir. 2002)), Furthermore, a time-bar must be apparent on the face of the complaint to be the basis for granting a Rule 12(b)(6) motion. Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). Here, the Court cannot determine from the face of the AC whether any equitable tolling applies or even whether the causes of action accrued outside of the statute of limitations period. Plaintiffs contend their pets received Home Again microchips between 2010 and possibly 2018, See, e.g., AC, ¶¶ 86, 65.
However, Plaintiffs do not identify when they paid the annual fee to renew or whether membership was renewed more than once. See e.g., id. at ¶¶ 66, 71, 75, 81, 82, 83, 88.
Moreover, the AC does not indicate when Plaintiffs consulted with attorneys and learned of the purported misrepresentations. See e.g., Schmidt v. Skolas, 770 F.3d 241,251 (3d Cir. 2014) (). Thus, “the wisdom of the usual approach-decision of statute of limitations issues on a motion for summary judgment-is apparent here.” Luongo v. Vill. Supermarket, Inc., 261 F.Supp.3d 520, 528 (D.N.J. 2017).
Defendants' motion to dismiss on statute of limitations grounds is denied.
Defendant moves to dismiss the entire AC, contending that Plaintiffs have not identified any express misrepresentations in their pleading and instead that its communications do convey to customers that access to the database does not require the annual paid premium service. For example, the Intervet communication referenced in ¶ 58 j of the AC is captioned, “Renew Your HomeAgain Membership Today ” and states, “With your annual HomeAgain membership, you'll get so much more than just basic* pet recovery.” At the bottom of the advertisement, “Basic service” is defined: ...
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