Smith v. Merial Ltd.

• Decision Date: 05 June 2012
• Docket Number: Civ. No. 10-1050,Civ. No. 10-439,Civ. No. 11-6976,Civ. No. 10-6372,Civ. No. 10-442,Civ. No. 10-1391
• Parties: SANDY SMITH, et al., Plaintiffs, v. MERIAL LIMITED, Defendant. BRIAN McDONOUGH, et al., Plaintiffs, v. BAYER HEALTHCARE, LLC, Defendant. AUNDRIA ARLANDSON, et al., Plaintiffs, v. HARTZ MOUNTAIN CORPORATION, et al., Defendants. KRISTY SYNDER, et al., Plaintiffs, v. FARNAM COMPANIES, INC., et al., Defendants. SUNNY JOHANSSON, et al., Plaintiffs, v. CENTRAL GARDEN & PET COMPANY, et al., Defendants. LYNDA FROST, et al., Plaintiffs, v. FIDOPHARM, INC., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

SANDY SMITH, et al., Plaintiffs, v. MERIAL LIMITED, Defendant.

BRIAN McDONOUGH, et al., Plaintiffs, v. BAYER HEALTHCARE, LLC, Defendant.

AUNDRIA ARLANDSON, et al., Plaintiffs, v. HARTZ MOUNTAIN CORPORATION, et al., Defendants.

KRISTY SYNDER, et al., Plaintiffs, v. FARNAM COMPANIES, INC., et al., Defendants.

SUNNY JOHANSSON, et al., Plaintiffs, v. CENTRAL GARDEN & PET COMPANY, et al., Defendants.

LYNDA FROST, et al., Plaintiffs, v. FIDOPHARM, INC., et al., Defendants.

Civ. No. 10-439

Civ. No. 10-442

Civ. No. 10-1050

Civ. No. 10-1391

Civ. No. 10-6372

Civ. No. 11-6976

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Date: June 5, 2012

HON. WILLIAM J. MARTINI CONSOLIDATED OPINION & ORDER

WILLIAM J. MARTINI, U.S.D.J.:

Presently before the Court are six putative class actions which are collectively known as the Flea and Tick cases. In each action, a group of plaintiffs residing in multiple states allege that their pets were harmed by the chemicals in various "spot-on" flea and tick prevention products manufactured and/or sold by defendants, in spite of clear indications that those products posed a risk of harm to the animals. All plaintiffs are represented by the same group of attorneys.¹ Although there is at least one motion to dismiss pending in each matter, because ruling on several issues common to all six matters may advance the ultimate resolution of these cases, and in light of the motions tostrike plaintiffs' class claims which several defendants' contemporaneously filed with their motions to dismiss,² the Court will require additional briefing on several issues germane to class certification prior to ruling on the outstanding motions to dismiss. In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 2009) ("[t]he trial court . . . possesses broad discretion to control proceedings and frame [class certification] issues"); Fed. R. Civ. P. 42(a)(3) ("[i]f actions before the court involve a common question of law or fact, the court may . . . issue any other orders to avoid unnecessary cost or delay").

In doing so, the Court will first review: (1) the claims asserted in the Flea and Tick cases prior to the May 26, 2011, (2) the central holdings of the Court's May 26, 2011 Opinions and Orders, (3) the claims currently asserted by the Flea and Tick plaintiffs, which have been pled in accordance with the Court's May 26, 2011 rulings, and (4) the class certification requirements of Fed. R. Civ. P. 23.

1. The Flea and Tick Pleadings Prior to the Court's May 26, 2011 Rulings

The Flea and Tick cases, which remain at the pre-answer stage of litigation, are not newly before this Court.³ In the prior pleadings in Smith, McDonough, and Arlandson, and Snyder, which were all originally filed in the District of New Jersey (the"District of New Jersey Cases"), all plaintiffs sought relief under the same four causes of action: (1) breach of express warranty, (2) breach of implied warranty, (3) unjust enrichment, and (4) violation of New Jersey's Consumer Fraud Act ("CFA"), N.J.S.A. § 56:8-1, et seq⁴

In the prior pleading in Johansson, which was originally filed in the Northern District of California and subsequently transferred to this Court, plaintiffs asserted causes of action for (1) violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq., (2) breach of implied warranty of merchantability, (3) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1), (4) strict products liability, (5) violation of the California Consumer Legal Remedies Act, Cal Civ. Code § 1770(a), and (6) punitive damages, Cal. Civ. Code § 3345.

2. The Court's May 26, 2011 Flea and Tick Rulings

On May 26, 2011, this Court issued five parallel Opinions and Orders ("Parallel Opinions") regarding the then-pending motions to dismiss separately filed in Smith, McDonough, Arlandson, Snyder and, Johansson. Although each Parallel Opinion was tailored to address particular facts alleged in each case, the Court's rulings are consistent. ⁵

First, the Court ruled that plaintiffs' claims are not pre-empted by the Federal Insecticide, Fungicide, and Rodentcide Act, 7 U.S.C. § 136 ("FIFRA").⁶ (Arlandson Op. at 13-14, ECF No. 77.) Second, the Court dismissed plaintiffs' New Jersey CFA claim after ruling that New Jersey's Products Liability Act ("PLA") - and not its CFA - is the governing statute for the harm caused to plaintiffs' pets by defendants' products. (Id. at 16 (citing N.J.S.A. § 2A:58C-1(b)(3)).) Accordingly, any plaintiff entitled to seek relief under New Jersey law had to amend his pleading to assert a claim under New Jersey's PLA (the "CFA/PLA Claim"). Third, the Court made several choice of law determinations in the District of New Jersey Cases that adversely affect the likelihood of class certification in these cases.

i. Choice of Law Generally

Because plaintiffs' claims arise under state law, the Court will eventually have to determine which states' laws govern all of plaintiffs' claims, on an issue-by-issue basis. In reaching this decision, the Court must first determine if there is an actual conflict between states' laws. If there is no conflict, the law of the forum state applies. However, if there is a conflict, the Court must then determine which state's law applies to each claim asserted by plaintiffs, based on the specific choice of law test of the forum where the action was initiated. (Arlandson Op. at 9-11.)

ii. Choice of Law in Smith, McDonough, Arlandson and Snyder

While the Court has not yet made choice of law determinations on a number of plaintiffs' claims, in the four District of New Jersey cases, the Court made choice of law rulings on plaintiffs' CFA/PLA and unjust enrichment claims.

In those four cases, after applying New Jersey's "most significant relationship" choice of law test, the Court determined first, that as to plaintiffs' CFA/PLA claim, non-New Jersey plaintiffs could not seek relief under New Jersey's CFA or its PLA, and would have to amend their pleadings to instead plead those claims under their own states' products liability and/or consumer fraud statutes. (Arlandson Op. at 15, 29.) Second, that New Jersey law could be applied to all plaintiffs' unjust enrichment claims. (Id. at 33.)

The Court declined, however, to conduct a choice of law analysis as to the District of New Jersey plaintiffs' breach of warranty claims because the factual record was not yet full enough to make a choice of law determination on that issue. (Id. at 20-21.)

iii. Choice of Law in Johansson

In Johansson, which was transferred from the Northern District of California, the Court altogether declined to conduct a choice of law analysis using California's "governmental interest" test because that issue was not fully briefed for the Court. (Johansson Op. at 8-9, ECF No. 36.) The Court nonetheless dismissed plaintiffs' causes of action for breach of implied warranty of merchantability and violation of theMagnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1), for failure to plead privity, as required under California law. (Id. at 12-14.)

3. The Current Flea and Tick Pleadings

In all five Flea and Tick actions that were the subjects of the Parallel Opinions, plaintiffs were given thirty days to amend their pleadings in a manner consistent with the Parallel Opinions' rulings. Plaintiffs responded by filing amended pleadings in all five cases. In addition, another group of plaintiffs - who are represented by the same attorneys as in the other five Flea and Tick cases - initiated a new (and now sixth) Flea and Tick action, Frost v. FidoPharm.

Presently, the pleadings in Smith, McDonough, Arlandson, Synder, and Frost - which have all been pled in accordance with the choice of law rulings of the Parallel Opinions - assert claims for: breaches of express and implied warranties arising under unspecified state law, an unjust enrichment claim arising under New Jersey law, and violations of the consumer fraud and/or products liability statutes of each plaintiffs' home state. In Johansson, the only Flea and Tick case in which the Court did not require plaintiffs to amend their pleadings based on the Parallel Opinions' choice of law rulings, plaintiffs have repled the same causes of action which they asserted prior to the Court issuing the Parallel Opinions.

As currently pled, the named plaintiffs in the Flea and Tick cases assert claims arising under the laws of the twenty states in which they collectively reside. And in each individual action, there are plaintiffs who are residents of at least two separate states. Allsix pleadings also propose classes for class certification under Rule 23 of the Federal Rules of Civil Procedure 23.

4. Class Action Certification Under Rule 23

Rule 23 of the Federal Rules of Civil Procedure governs class actions. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2548 (2011). Pursuant to that Rule, class certification will only be appropriate if the Court is satisfied, after a rigorous analysis, that: (1) all four general class action prerequisites of Rule 23(a)⁷ are met and (2) that the action is maintainable under one of the three categories set forth in Rule 23(b). In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d at 309 (3d Cir. 2009). Plaintiffs, as the party seeking certification, have the burden of demonstrating that both prerequisites are met. Barabin v. Aramark Corp., 210 F.R.D. 152, 157 (E.D. Pa. 2002), aff'd, 2003 WL 355417 (3d Cir. 2003).

Although plaintiffs have not yet moved for class certification, at this stage in the litigation, and setting aside consideration of whether plaintiffs can meet the additional requirements of R. 23(a), the Court has serious concerns that plaintiffs can ever meet the certification requirements of R. 23(b), which states, in relevant part, that:

"A class action may be maintained if Rule 23(a) is satisfied and if:

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class,

...