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Jaramillo v. Dineequity

October 9, 2009

JAIME JARAMILLO, JASON CISZEWSKI, MICHELLE CISZEWSKI, LEONARDO BIUNDO, AND CRYSTAL BIUNDO, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
DINEEQUITY, INC., A DELAWARE CORPORATION, APPLEBEE'S INTERNATIONAL INC., D/B/A APPLEBEE'S NEIGHBORHOOD GRILL & BAR, A KANSAS CORPORATION, AND WEIGHTWATCHERS INTERNATIONAL, INC., A VIRGINIA CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the motion to transfer venue by Defendants DineEquity, Inc., Applebee's Neighborhood Grill and Bar, and WeightWatchers International, Inc. (collectively "Defendants"). Defendants assert the case should be transferred to the District of Kansas where a nearly identical case against Defendants was first filed. Alternatively, Defendants request the Court to stay the Illinois action pending the outcome of the Kansas case, or pending a ruling on the motion to transfer currently before the Judicial Panel on Multidistrict Litigation ("MDL"). Plaintiffs Jaime Jaramillo, Jason Ciszewski, Michelle Ciszewski, Leonardo Biundo, and Crystal Biundo (collectively "Plaintiffs") assert the Illinois case is materially different from the Kansas action and should continue in Illinois. This Court held oral argument on September 23, 2009. For the reasons set forth below, the Court grants Defendants' motion to transfer venue.

I. BACKGROUND FACTS

A. Procedural History

Plaintiffs filed their Class Action Complaint in the Circuit Court of Cook County on November 20, 2008, alleging that Defendants misrepresented the WeightWatchers POINTS(r) values, fat content, and calorie content in certain Applebee's Neighborhood Grill & Bar's ("Applebee's") WeightWatchers menu items.*fn1 Dkt. 1*fn2 . The case was removed from the Circuit Court to this Court in March 2009. Dkt. 1. The parties consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c)(1). Dkt. 25. Defendants filed the present motion to transfer venue on the grounds that a nearly identical case against Defendants is currently pending in the District of Kansas, having been filed two months before Plaintiffs commenced this action.

B. The Illinois Action

Plaintiffs are Illinois residents who have sued Defendants on behalf of themselves and all others who ordered and purchased items from Applebee's WeightWatchers menu between 2004 and the date of judgment in this case. Comp. ¶ 17. Specifically, Plaintiffs allege they were defrauded and suffered damages when Defendants misrepresented the actual WeightWatchers POINTS(r) values, fat content, and calorie content in certain WeightWatchers menu items in order to increase customer visits and food sales. Id. ¶ 1.

Applebee's is a chain restaurant owned by DineEquity, with 1900 locations nationwide. Each Applebee's restaurant has the same or substantially the same menu. In 2003, Applebee's entered an agreement with WeightWatchers to offer the WeightWatchers menu items to customers. Each of the named Plaintiffs are active members of the WeightWatchers diet program and claim to have eaten frequently at Applebee's since 2004 when the healthier fare was added to the menu. Id. ¶ 9. During some or all of the visits they chose items from the WeightWatchers menu. Id. ¶ 16.

Plaintiffs offer the results of an independent laboratory test which indicates that certain Applebee's menu items may contain greater levels of fat and calories, and therefore higher POINTS(r) values, than those listed on the menu. Id. ¶ 14. Plaintiffs contend the misrepresentation was intentional and allege six counts in their complaint: violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 (Count I); violation of the Uniform Deceptive Trade Practices Act, 815 Ill. Comp. Stat. 510/1 (Count II); Unjust Enrichment (Count III); Breach of Contract (Count IV); Breach of Implied Warranty of Merchantability for a Particular Purpose, 810 Ill. Comp. Stat. 5/2-314 & 315 (Count V); and Breach of Express Warranty, 810 Ill. Comp. Stat. 5/2-313 (Count VI).

C. The Kansas Action

A set of plaintiffs filed a similar class action lawsuit in the District of Kansas on September 9, 2008 ("Kansas action"), approximately two months prior to commencement of the Illinois action. The Kansas plaintiffs, like the Illinois Plaintiffs, allege that Defendants DineEquity, Inc., Applebee's International, Inc., and WeightWatchers International, Inc. fraudulently provided false nutritional data on Applebee's WeightWatchers menu. Kansas Comp. ¶ 1.

The Kansas plaintiffs filed the lawsuit on behalf of themselves and all other individuals who ordered and purchased an item from Applebee's WeightWatchers menu between September 5, 2004, and September 5, 2008. Some of the Kansas plaintiffs claimed to have eaten at Applebee's as many as thirty or fifty times in the year preceding September 2008, presumably because they thought the WeightWatchers menu items fit within their diet plans. Id. ¶ ¶ 10-11.

The Kansas plaintiffs, like the Illinois Plaintiffs, allege Defendants are liable for consumer fraud and unjust enrichment. However, unlike the Kansas plaintiffs, the Illinois Plaintiffs also allege breach of contract and breach of express and implied warranties. Further, unlike the Illinois Plaintiffs, the Kansas plaintiffs allege civil conspiracy and violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) ("RICO"). The factual allegations giving rise to all claims are substantially the same.

Discovery has commenced in the Kansas action. Defendant Applebee's 30(b)(6) depositions occurred on February 17-18, 2009, and Defendants have produced tens of thousands of pages of documents pursuant to discovery requests. Norris Decl. ¶ 5. Several depositions have also been scheduled in the Kansas action.

Furthermore, since the filing of the instant motion, the Kansas court issued an opinion granting in part and denying in part Defendants' Motion to Dismiss. Valiente v. DineEquity, Inc., Civil Action No. 08-2416 -KHV (D. Kan., Sep. 25, 2009). The Kansas court dismissed all of the Kansas plaintiffs' state law claims on the grounds that were preempted by the Nutritional Labeling and Education Act of 1990, 21 U.S.C. § 301 ("NLEA"). The Kansas court also dismissed Defendant DineEquity from all RICO claims. Id. Thus, the only causes of action still pending in the Kansas action are RICO claims against the Defendants Applebee's and WeightWatchers. Id.

D. Panel on Multidistrict Litigation Proceedings

On August 11, 2009, Defendants filed a motion before the MDL Panel under 28 U.S.C. ยง 1407 for transfer of the Kansas and Illinois actions, as well as two similar actions in Ohio and Kentucky. Dkt. 45. The motion asks the MDL to transfer the ...


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