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Brian Mcdonough and Joseph Tobin, On Behalf of Themselves and v. Bayer Healthcare

May 26, 2011


The opinion of the court was delivered by: William J. Martini, U.S.D.J.



This matter comes before the Court on Defendant Bayer Healthcare LLC‟s ("Bayer") motion to strike pursuant to Federal Rule of Civil Procedure 12(f) and motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, Defendant‟s motion to strike is GRANTED, and Defendant‟s motion to dismiss is GRANTED in part and DENIED in part.


Plaintiffs‟ Amended Complaint ("Complaint") brings a putative class action on behalf of themselves and other purchasers and users of "spot on" flea and tick treatments manufactured by Defendant. Defendant Bayer manufactures K9 Advantix, a flea and tick control pesticide product for dogs containing the insecticide Imidacloprid and Permethrin. (Compl. ¶ 4.) Bayer is considered a "spot on" flea and tick treatment because the pesticide is applied directly to the dog‟s skin in a localized area. (See Compl., Ex. B.) On April 21, 2009, the Environmental Protection Agency ("EPA"), which regulates the safety of pesticides, issued a press release, reporting a "recent sharp increase in the number of incidents being reported from the use of spot-on pesticide products for flea and tick control for pets." (Compl., Ex. C.)

Plaintiffs allege that K9 Advantix is unsafe because it caused skin irritation and neurological problems for their pets. (Compl. ¶ 8.) Plaintiff Brian McDonough, a resident of New Jersey, alleges that on or about November 2009, he purchased and used K9 Advantix on his dog. (Compl. ¶ 27.) Approximately one day after applying the product, Plaintiff‟s dog began to have neurological problems, which were diagnosed by a veterinarian as neurological seizures. (Comp. ¶ 29.) Although the Complaint focuses on K9 Advantix, Plaintiff Joseph Tobin, a resident of California, alleges that his cat was harmed by Bayer‟s Advantage product and eventually had to be put to sleep. (Compl. ¶ 30-33.)

Plaintiffs, on behalf of themselves and other purchasers of Defendant‟s product, bring the following causes of action: (1) breach of express warranty (Count One); (2) breach of implied warranty of merchantability (Count Two); (3) unjust enrichment (Count Three); and (4) violation of the New Jersey Consumer Fraud Act ("NJCFA") (Count Four). Specifically, Plaintiffs seek economic damages based upon the difference between the amount they paid for the product and the diminished (or nonexistent) value of the product as a result of it being unsafe to apply to their pets.*fn1


A.Motion to Strike

Defendant includes a motion to strike, pursuant to Federal Rule of Civil Procedure 12(f), with its motion to dismiss. (Def.‟s Moving Br. at 3-5.) Defendant moves to dismiss any references to Advantage, another flea and tick product, from the Complaint, which only asserts claims related to K9 Advantix. Additionally, Defendant moves to dismiss any reference to "cats," as K9 Advantix is a product only for use on dogs. Because Plaintiff Joseph Tobin‟s factual allegations relate to using Advantage on his cat, while the causes of action stated relate only to K9 Advantix, Defendant moves to strike Joseph Tobin‟s factual allegations and have him dismissed from the matter. Plaintiffs do not object, and Joseph Tobin‟s claims have been withdrawn at this time. (Pls.‟ Reply Br. at 1.) Additionally, Plaintiffs‟ do not seem to object to striking all references to "cats" and to "Advantage." Finally, Defendant moves to strike references to "Frontline and Frontline Plus products," since those products are not manufactured by Defendant. Since this is likely a typographical error by Plaintiffs, this will also be stricken. As such, the Court grants Defendant‟s motion to strike in its entirety.

B.Motion to Dismiss Standard

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,*fn2 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). Although a complaint need not contain 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." Twombly, 550 U.S. at 555. Thus, the factual allegations must be sufficient to raise a plaintiff's 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." Iqbal, 129 S.Ct. at 1949 (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..." Iqbal, 129 S.Ct. at 1949 (2009).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, ...

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