Loduca v. Wellpet LLC

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation549 F.Supp.3d 391
Docket NumberCIVIL ACTION NO. 21-CV-0954
Parties Rita Schmidt LODUCA, Donna Freeman, and Lynn Wesley, Individually on behalf of all others Similarly situated, Plaintiffs v. WELLPET LLC, et al., Defendants
Decision Date13 July 2021

Gabriel C. Magee, Joshua M. Neuman, Tobias Millrood, Pogust Millrood, LLC, Conshohocken, PA, for Plaintiffs.

Thomas J. Sullivan, Shook, Hardy & Bacon L.L.P., Philadelphia, PA, James P. Muehlberger, Shook Hardy & Bacon LLP, Kansas City, MO, for Defendant WellPet LLC.


JOYNER, District Judge Defendant WellPet LLC hereby moves for dismissal of Plaintiffs’ Class Action Complaint1 pursuant to Fed. R. Civ. P. 12(b)(6) for the reason that it fails to state any claims against it upon which relief may be granted. For the reasons given in the following paragraphs, the Motion shall be granted in part and denied in part.

Factual Background

Plaintiffs Rita Schmidt Loduca, Donna Freeman and Lynn Wesley are all Pennsylvania residents who allege that they purchased various dog food products manufactured and sold by Defendant WellPet, LLC - specifically its Wellness CORE, Wellness Complete Health, and Holistic Select dry dog food brands. The gist of the complaint, which Plaintiffs purport to bring "individually and on behalf of all others similarly situated," is that Defendants misrepresented the appropriate daily feeding amounts for dogs by omitting that the daily feeding instructions are only appropriate for the "highest demand activity level and breed." These misrepresentations purportedly resulted in Plaintiffs and members of the class purchasing more of Defendants’ dog food than was otherwise necessary and caused their dogs to eat excessive and unhealthy amounts of food. (Class Action Complaint, ¶s 1-5). As a result of having been misled into purchasing more dog food than was "otherwise necessary," Plaintiffs aver that they "expended additional unnecessary financial sums and experienced a direct financial detriment." (Compl., ¶ 6). Plaintiffs claim that these misrepresentations were "fraudulent, deceptive, misleading, unfair and/or false," and that "Defendant WellPet LLC and its respective parent organization[s], Defendant[s] Berwind Corporation" profited from them.2 Plaintiffs therefore seek both monetary and injunctive relief under Pennsylvania state law for breach of the implied warranty of merchantability, unjust enrichment, negligent misrepresentation, fraud, civil conspiracy and for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201, et. seq. Asserting that the Complaint fails to set forth any claims against it upon which relief may be granted, Defendant WellPet moves for dismissal of the Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6).

Legal Standards Governing 12(b)(6) Motions

It is well-settled that a motion under Fed. R. Civ. P. 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that the plaintiff's claims lack facial plausibility.

Warren General Hospital v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Thompson v. Real Estate Mortgage Network, 748 F.3d 142, 147 (3d Cir. 2014). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's 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." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964, 167 L. Ed.2d 929, 940 (2007). Through it all, the plaintiff has the burden of pleading "sufficient factual matter to show that the claim is facially plausible" thereby enabling "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Warren General Hospital, supra, (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ).

Analysis of Rule 12(b)(6) motions is said to be two-fold. First, a court considering a motion to dismiss can begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed.2d 868 (2009). Second, when there are well-pleaded factual allegations, the court should then assume their veracity and proceed to determine whether they plausibly give rise to an entitlement to relief. Id.


As noted, WellPet challenges all six counts of Plaintiffs’ complaint on the grounds that they fail to aver the facts necessary to make out viable causes of action. We address each Count/Claim in turn.

1. Unfair Trade Practices and Consumer Protection Law

Count I of the Class Action Complaint purports to state a claim that, by their actions in formulating the feeding instructions for their dry dog food products, Defendants violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201, et. seq. ("UTPCPL").

The Pennsylvania Supreme Court has stated that the underlying foundation and purpose behind Pennsylvania's Consumer Protection Law was the prevention of fraud and protection of the public from unfair or deceptive business practices and to even the bargaining power between consumers and sellers in commercial transactions. Commonwealth by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 459, 329 A.2d 812, 817 (1974) ; Burke v. Yingling, 446 Pa. Super. 16, 22, 666 A.2d 288, 291 (1995). In furtherance of that objective, the statute is to be liberally construed. Earl v. NVR, Inc., 990 F.3d 310, 311 (3d Cir. 2021) ; Commonwealth v. Golden Gate National Senior Care LLC, 648 Pa. 604, 625, 194 A.3d 1010, 1022 (Pa. 2018).

By its statutory language, the UTPCPL declares that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" are unlawful. 73 P.S. § 201-3. It goes on to provide a definition of some twenty-one "unfair methods of competition" and "unfair or deceptive acts or practices" in § 201-2(4), three of which are invoked in Count I of Plaintiffs’ Complaint - those set forth at §§ 201-2(4)(ii), (v), and (xxi). Thus it appears that Plaintiffs are accusing Defendant of: "[c]ausing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;" "[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have;" and/or "[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." 73 P.S. §§ 201-2(4)(ii), (v), (xxi).

"The statute creates a private right of action in persons3 upon whom unfair methods of competition and unfair or deceptive acts or practices are employed and who, as a result, sustain an ascertainable loss." Hunt v. United States Tobacco Co., 538 F.3d 217, 221 (3d Cir. 2008) ; 73 P.S. § 201-9.2. Private actions are also limited to "[a]ny person who purchases or leases goods or services primarily for personal, family or household purposes ..." 73 P.S. § 201-9.2(a). It should be noted that "[a]n act or a practice is deceptive or unfair if it has the capacity or tendency to deceive, and neither the intention to deceive nor actual deception must be proved; rather, it need only be shown that the acts and practices are capable of being interpreted in a misleading way." Golden Gate, 194 A.3d at 1023 (quoting Commonwealth ex rel. Corbett v. Peoples Benefit Servs., Inc., 923 A.2d 1230, 1236 (Pa. Commw. 2007) ).

To state a cognizable UTPCPL claim, a plaintiff must establish that the defendant engaged in an activity proscribed under the law, that the plaintiff "justifiably relied on the defendant's wrongful conduct or representation and ... suffered harm as a result of that reliance." Hunt, supra, and Hoffmann v. Wells Fargo Bank, N.A., 242 F. Supp. 3d 372, 394 (E.D. Pa. 2017) (both quoting Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 438 (Pa. 2004) ). See also, Kaymark v. Bank of America, N.A., 783 F.3d 168, 180 (3d Cir. 2015) (noting that "[t]o maintain a private right of action under the UTPCPL, a plaintiff must demonstrate (1) an ascertainable loss of money or property, real or personal (2) as a result of the defendant's prohibited conduct under the statute"); and Santana Products, Inc. v. Bobrick Washroom Equipment, Inc., 401 F.3d 123, 136 (3d Cir. 2005) (recognizing that "[t]he Supreme Court of Pennsylvania has held that a plaintiff bringing an action under the UTPCPL must prove the common law fraud elements of reliance and causation with respect to all subsections of the UTPCPL" and citing Weinberg v. Sun Co., Inc., 565 Pa. 612, 777 A.2d 442, 446 (Pa. 2001) in support). And, inasmuch as it must be affirmatively proven, a plaintiff is not entitled to a presumption of justifiable reliance. Hunt, 538 F.3d at 227.

In application of these holdings to the case at hand, we find that the Plaintiffs’ Complaint generally avers that the feeding information on the labels of the bags of at least three of Defendants’ dry dog food brands misrepresents the correct feeding recommendations for the vast majority of canine pets and instead uses high activity dogs and/or breeds as the baseline for its recommended quantities. The Complaint goes on to allege that the Plaintiffs relied upon the recommendations set forth on the pet food bags in feeding their dogs and that this reliance resulted in the overfeeding of their pets and in Plaintiffs (and proposed class members) having purchased more food than necessary to their financial detriment. Given that ...

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