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Adkins v. Nestle Purina Petcare Co.

United States District Court, N.D. Illinois, Eastern Division

September 27, 2013

DENNIS ADKINS, MARIA HIGGINBOTHAM, MARY ELLIS, DWAYNE HOLLEY, KAIYA HOLLEY, DEBORAH COWAN, BARBARA PIERPONT, CINDI FARKAS, TERRY SAFRANEK, ELIZABETH MAWAKA, ROBIN PIERRE, JILL HOLBROOK, MARY ELLEN DESCHAMPS, TRACEY BAGATTA, HAL SCHEER, S. RAYMOND PARKER, KRISTINA IRVING, KATHLEEN MALONE, JEANNIE JOHNSON, REBEL ELY, and RITA DESOLLAR, for themselves and several classes, Plaintiffs,
v.
NESTLE PURINA PETCARE COMPANY, WAGGIN' TRAIN, LLC, WAL-MART STORES, INC., doing business as Wal-Mart and Sam's Club, TARGET CORPORATION, COSTCO WHOLESALE CORPORATION, BJ'S WHOLESALE CLUB, INC., PET SUPPLIES PLUS OF CONNECTICUT XI, LLC, CVS CAREMARK CORPORATION, doing business as Caremark Advanced Technology Pharmacy, LLC and CVS Pharmacy, Inc., WALGREEN COMPANY, and DOES 1-20, Defendants

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For Dennis Adkins (1:12-cv-02871), Plaintiff: Catherine Anne Ceko, Cathleen M. Combs, James O. Latturner, Tara Leigh Goodwin, Thomas Everett Soule, Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For Maria Higginbotham, Kaiya Holley, Mary Ellis, Cindi Farkas, Dwayne Holley, Barbara Pierpont, Terry Safranek (1:12-cv-02871), Plaintiffs: Bruce Edward Newman, PRO HAC VICE, Brown, Paindiris & Scott, Llp, Bristol, CT; Tara Leigh Goodwin, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For Deborah Cowan, Elizabeth Mawaka, Robin Pierre, Jill Holbrook, Mary Ellen Deschamps, Tracy Bagatta, Hal Scheer, S. Raymond Parker, Kristina Irving, Kahleen Malone, Rebel Ely (1:12-cv-02871), Plaintiffs: Bruce Edward Newman, PRO HAC VICE, Brown, Paindiris & Scott, Llp, Bristol, CT; Cathleen M. Combs, Daniel A. Edelman, Tara Leigh Goodwin, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For Jeannie Johnson (1:12-cv-02871), Plaintiff: Bruce Edward Newman, PRO HAC VICE, Brown, Paindiris & Scott, Llp, Bristol, CT; Reginald Terrell, PRO HAC VICE, The Terrell Law Group, Oakland, CA; Tara Leigh Goodwin, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For Rita DeSollar, for themselves and several classes (1:12-cv-02871), Plaintiff: Cathleen M. Combs, Tara Leigh Goodwin, Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For Nestle Purina Petcare Company, Waggin' Train LLC (1:12-cv-02871), Defendants: Miranda L Berge, LEAD ATTORNEY, PRO HAC VICE, Hogan Lovells Llp, Washington, DC; Craig A. Hoover, Hogan & Hartson, Washington, DC; Edward Desmond Hogan, PRO HAC VICE, Hogan Lovells Us Llp, Washington, DC; Richard George Douglass, Stephen Novack, Novack and Macey LLP, Chicago, IL.

For Wal-Mart Stores Inc., doing business as Wal-Mart, doing business as Sam's Club (1:12-cv-02871), Defendant: Craig A. Hoover, Hogan & Hartson, Washington, DC; Edward Desmond Hogan, PRO HAC VICE, Hogan Lovells Us Llp, Washington, DC; Miranda L Berge, Hogan Lovells Llp, Washington, DC; Richard George Douglass, Stephen Novack, Novack and Macey LLP, Chicago, IL.

For Target Corporation, Pet Supplies Plus of Connecticut XI LLC, Walgreen Company (1:12-cv-02871), Defendants: Craig A. Hoover, LEAD ATTORNEY, Hogan & Hartson, Washington, DC; Edward Desmond Hogan, PRO HAC VICE, Hogan Lovells Us Llp, Washington, DC; Miranda L Berge, Hogan Lovells Llp, Washington, DC; Richard George Douglass, Stephen Novack, Novack and Macey LLP, Chicago, IL.

For Costco Wholesale Corporation, CVS Caremark Corporation, doing business as Caremark Advanced Technology Pharmacy LLC, doing business as CVS Pharmacy Inc. (1:12-cv-02871), Defendants: Craig A. Hoover, LEAD ATTORNEY, Hogan & Hartson, Washington, DC; Miranda L Berge, Hogan Lovells Llp, Washington, DC; Richard George Douglass, Stephen Novack, Novack and Macey LLP, Chicago, IL.

For BJ's Wholesale Club Inc. (1:12-cv-02871), Defendant: Jeffrey W. Gunn, Morris & Stella, Chicago, IL.

For Does 1-20 (1:12-cv-02871), Defendant: Craig A. Hoover, Hogan & Hartson, Washington, DC.

For Elizabeth Mawaka, Individually and On Behalf of All Others Similarly Situated, Jill Holbrook, Individually and On Behalf of All Others Similarly Situated, Hal Scheer, Individually and On Behalf of All Others Similarly Situated, S. Raymond Parker, Individually and On Behalf of All Others Similarly Situated, Mary Ellen Deschamps, Individually and On Behalf of All Others Similarly Situated, Kristina Irving, Individually and On Behalf of All Others Similarly Situated, Tracy Bagatta, Individually and On Behalf of All Others Similarly Situated, Robin Pierre, Individually and On Behalf of All Others Similarly Situated, Kathleen Malone, Individually and On Behalf of All Others Similarly Situated (3:12-cv-00880), Plaintiffs: Bruce E. Newman, LEAD ATTORNEY, Brown, Paindiris & Scott, LLP, Bristol, CT.

For Nestle Purina Pet Care Co., Waggin' Train, LLC (3:12-cv-00880), Defendants: Craig A. Hoover, Miranda L. Berge, LEAD ATTORNEYS, PRO HAC VICE, Hogan Lovells U.S. LLP, Washington, DC; Matthew H. Geelan, Michael G. Durham, LEAD ATTORNEYS, Donahue, Durham & Noonan, P.C., Guilford, CT.

For Wal-Mart Stores, Inc., Sam's Club Inc (3:12-cv-00880), Defendants: Craig A. Hoover, Miranda L. Berge, LEAD ATTORNEYS, PRO HAC VICE, Hogan Lovells U.S. LLP, Washington, DC; Miranda L. Berge, Miranda L. Berge, LEAD ATTORNEYS, Donahue, Durham & Noonan, P.C., Guilford, CT.

For Pet Supplies Plus of Connecticut XI, LLC (3:12-cv-00880), Defendant: Miles David Newman Esty, LEAD ATTORNEY, Esty & Buckmir, LLC, Hamden, CT; Stuart A. Margolis, LEAD ATTORNEY, Berdon, Young & Margolis, New Haven, CT.

For Costco Wholesale Corporation (3:12-cv-00880), Defendant: Craig A. Hoover, Miranda L. Berge, LEAD ATTORNEYS, Hogan Lovells U.S. LLP, Washington, DC; Miranda L. Berge, Miranda L. Berge, LEAD ATTORNEYS, Donahue, Durham & Noonan, P.C., Guilford, CT.

For BJ'S Wholesale Club, Inc. (3:12-cv-00880), Defendant: James F. Biondo, LEAD ATTORNEY, Rosenblum Newfield LLC, Stamford, CT.

For Jeannie Johnson, individually and on behalf of all others similarly situated (4:12-cv-04774), Plaintiff: Reginald Von Terrell, LEAD ATTORNEY, The Terrell Law Group, Oakland, CA; Sydney Jay Hall, LEAD ATTORNEY, Attorney at Law, Burlingame, Ca.

For Nestle Purina Pet Care Co., Wal-Mart Stores, Inc., (4:12-cv-04774), Defendants: Mark Craig Goodman, Hogan Lovells U.S. LLP, San Francisco, CA; Miranda L. Berge, Hogan Lovells U.S. LLP, Washington, DC.

For Waggin' Train, LLC, Sam's Club, Inc. (4:12-cv-04774), Defendants: Mark Craig Goodman, LEAD ATTORNEY, Hogan Lovells U.S. LLP, San Francisco, CA; Miranda L. Berge, Hogan Lovells U.S. LLP, Washington, DC.

For Rebel Ely, Individually and On Behalf of All Others Similarly Situated (4:12-cv-04785), Plaintiff: Kolin Tang, Rosemary Farrales Luzon, LEAD ATTORNEYS, Shepherd, Finkelman, Miller & Shah, LLP, San Diego, CA.

For Nestle Purina Pet Care Company (4:12-cv-04785), Defendant: Mark Craig Goodman, LEAD ATTORNEY, Hogan Lovells U.S. LLP, San Francisco, CA; Miranda L. Berge, Hogan Lovells U.S. LLP, Washington, DC.

For Waggin Train, LLC (4:12-cv-04785), Defendant: Miranda L. Berge, Hogan Lovells U.S. LLP, Washington, DC.

OPINION

Robert W. Gettleman, United States District Judge.

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MEMORANDUM OPINION AND ORDER

Plaintiffs' Consolidated Amended Complaint (" complaint" ) brings a putative class action on behalf of themselves and other purchasers of chicken jerky dog treats manufactured by defendants Nestle Purina PetCare Company (" Nestle Purina" ) and Waggin' Train LLC (" Waggin' Train" ), and sold by defendants Wal-Mart Stories, Inc. (" Walmart" ), Target Corporation (" Target" ), Costco Wholesale Corporation (" Costco" ), BJ's Wholesale Club Inc. (" BJ's" ), Pet Supplies Plus of Connecticut XI, LLC (" Pet Supplies Plus" ), CVS Caremark Corporation (" CVS" ), and Walgreen Company (" Walgreens" ) (collectively, " defendants" ). Plaintiffs allege that defendants' Chinese-made treats are unsafe because they caused their dogs to become ill or die after eating them. The complaint is

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brought by 21 plaintiffs from various states whose pets were allegedly harmed after eating the treats: Dennis Adkins and Rita DeSollar (Illinois); Maria Higginbotham (Washington); Mary Ellis, Jeannie Johnson, and Rebel Ely (California); Dwayne and Kaiya Holley, Robin Pierre, and Tracey Bagatta (New York); Deborah Cowan (Texas); Barbara Pierpont (Pennsylvania); Cindi Farkas (New Jersey); Terry Safranek (Ohio); Elizabeth Mawaka, Mary Ellen Deschamps, and Hal Scheer (Connecticut); Jill Holbrook (Florida); S. Raymond Parker (Tennessee); Kristina Irving (Alabama); and Kathleen Malone (Louisiana).

Plaintiffs assert eight counts: breach of implied warranty (Count I); breach of express warranty (Count II); violations of state consumer protection statutes (Count III); common law fraud (Count IV); unjust enrichment (Count V); negligence (Count VI); and strict products liability for defective design and failure to warn (Counts VII-VIII). Counts IV and VI are against Nestle Purina and Waggin' Train only. All other counts are asserted against all defendants. Plaintiffs seek monetary relief, including punitive damages, and injunctive relief.

Defendant BJ's has moved to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). The other defendants have moved to dismiss all counts of the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, defendant BJ's motion is granted, and defendants' 12(b)(6) motion is granted in part and denied in part.

BACKGROUND[1]

Plaintiffs contend that they purchased defective and dangerous chicken jerky dog treats manufactured by Waggin' Train and Nestle Purina and sold by Wal-Mart, Target, Costco, BJ's, CVS, Pet Supplies Plus, and Walgreens (" merchant defendants" ). Some of the treats (including, for example, a product called " Jerky Tenders" ) consisted of chicken jerky alone. Other products (including, for example, " Yam Good" treats) consisted of chicken jerky combined with other food products. Shortly after being fed these treats, and without any other change in diet, plaintiffs' dogs became ill or died. All of the illnesses were similar, with most dogs experiencing symptoms such as vomiting, diarrhea, and kidney failure. Plaintiffs assert that the treats were defective and the proximate cause of the injuries to their dogs, although they do not identify the specific defect. They attach and cite to a Food and Drug Administration (" FDA" ) Advisory issued in 2011 which stated that it was investigating reports of illnesses in pets that ate jerky treat products from China. The Advisory also states that despite investigation and testing by the FDA and other labs, " scientists have not been able to determine a definitive cause for the reported illness" or " identif[y] a contaminant," and it cautions that the reported illness may be due to other causes.

Plaintiffs further allege that defendants knew the treats were defective, and despite warnings and investigations by the FDA and reports of over 500 incidents, they continued to offer these treats for sale as being safe for consumption. Specifically, the packaging of the Jerky Tender and Yam Good treats stated, among other things, that the treats were " wholesome," " nutritious," and " healthy and delicious"

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(plaintiffs allege that similar statements were made on the packaging of all other Waggin' Train products containing chicken jerky). Plaintiffs claim that they saw these representations and relied on them when making the decision to purchase the treats, and that no pet owner would purchase food for their pet if they knew it was dangerous. Plaintiffs allege that the merchant defendants Wal-Mart, Target, Costco, BJ's, Pet Supplies Plus, CVS, and Walgreens adopted these representations of Waggin' Train and Nestle Purina. Despite being warned about the harm these treats caused, through (among ...


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