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Kristy Snyder, Wendy Reilley and Kyle Baldasano, On Behalf of v. Farnam

May 26, 2011


The opinion of the court was delivered by: Hon. William J.MARTINI



This matter comes before the Court on Defendants Farnam Companies, Inc. ("Farnam"), and Wellmark International‟s ("Wellmark") 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, Defendants‟ 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 treatmentsfor dogs and cats manufactured by Defendants. Defendants manufacture various flea and tick control pesticide products ("Products") containing insecticides Permethrin, (S)-Methoprene, Pyriproxyfen, and Etonfenprox. (Compl. ¶ 5-6.) The Products are considered "spot on" flea and tick treatments because the pesticide is applied directly to one or more localized areas on the body of the pet. (See Compl., Ex. E.) 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. E.)

Plaintiffs allege that Defendants‟ Products are unsafe because they caused skin irritation and neurological problems for their pets. (Compl. ¶ 7.) Plaintiff Christy Snyder, a resident of Pennsylvania, alleges that on July 20, 2009, she purchased and used Farnam‟s Product on her dog, which she alleges led to her dog becoming lethargic, losing weight, and suffering hearing loss. (Compl. ¶¶ 40-43.) Plaintiff Wendy Reilley, a resident of New Jersey, alleges that on or about May 2009, she purchased and treated her dog with Farnam‟s Product, after which the dog "exhibited neurological problems." (Compl. ¶¶ 44-47.) Plaintiff Kyle Baldasano, a resident of California, alleges that on March 8, 2010, he treated his cat with Wellmark‟s Product, after which the cat became "very disoriented, sickly and generally showed abnormal behavior." (Compl. ¶¶ 48-49.)

Plaintiffs, on behalf of themselves and other purchasers of Defendants‟ products, 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); (4) violation of the New Jersey Consumer Fraud Act ("NJCFA") (Count Four); and (5) violation of the Illinois Consumer Fraud and Deceptive Business Practice Act ("ICFA") (Count Five). 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 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, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002).

B.Claims Against Defendants Central Life Sciences and Central Garden & Pet Company

Defendants point out that Farnam does business as "Central Life Sciences," and that "Central Life Sciences is not a separate legal entity." (Defs.‟ Moving Br. at 5.) Therefore, the Court will properly treat Farnam and Central Life Sciences as a single Defendant ("Farnam"). Additionally, Defendants note that the Complaint contains no factual allegations as to actions by Farnam and Wellmark‟s parent company, Central Garden & Pet Company ("Central Garden"). A parent corporation cannot be held liable for the acts of its subsidiaries solely because of its ownership of those subsidiaries. United States v. Bestfoods, 524 U.S. 51, 69 (1998). Since Plaintiffs have failed to allege any facts ...

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