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Sunny Johansson, Susan Cedeno, William Shelby, Kyndell Walsh v. Central Garden & Pet Company

May 26, 2011


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



This matter comes before the Court on Defendants Central Garden & Pet Company ("Central Pet") and Farnam Companies, Inc. ("Farnam") 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‟ Complaint ("Complaint"), originally filed in the Northern District of California and transferred to this District on December 12, 2010, brings a putative class action on behalf of themselves and other purchasers and users of "spot on" flea and tick treatments for dogs and cats manufactured by Defendants. Defendants manufacture various flea and tick control pesticide products ("Products") that are sold over the counter and contain Pyrethrins, or the synthetic version of the same chemical, Pyrethroids. (Compl. ¶ 37.) 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. ¶ 44.)

On May 5, 2009, as updated January 10, 2010, the Environmental Protection Agency ("EPA"), which regulates the safety of pesticides, issued an advisory, reporting that it is "intensifying its evaluation of spot-on pesticide products for flea and tick control due to recent increases in the number of reported adverse reactions in pets treated with these products." (Compl. ¶ 44.) Additionally, on August 3, 2009, the national Humane Society of the United States ("HSUS") released public comments to the EPA addressing the dangers posed by flea and tick products. The HSUS comments stated that, "[o]ver the past decade, the HSUS has received hundreds of complaints regarding severe reactions and even death of companion animals caused by many flea and tick products." (Compl. ¶46.)

Plaintiffs allege that Defendants‟ Products are unsafe because they sickened and, in some cases, killed their pets. (Compl. ¶ 2.) The Complaint includes five named Plaintiffs from California, Florida, North Carolina, Ohio, and Texas. (Compl. ¶¶ 4-8.) Each Plaintiff alleges that Defendants‟ Products caused some type of adverse reaction in their pet. (Compl. ¶¶ 13-31.)

Plaintiffs, on behalf of themselves and other purchasers of Defendants‟ Products, bring the following causes of action: (1) violation of the California Unfair Competition Law (Count One); (2) breach of implied warranty of merchantability (Count Two); (3) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1) (Count Three); (4) strict products liability (Count Four, mislabeled Count Five); (5) violation of the California Consumer Legal Remedies Act, Cal Civ. Code § 1770(a) (Count Five, mislabeled Count Six); and (6) punitive damages pursuant to Cal. Civ. Code § 3345 (Count Six, mislabeled Count Seven).*fn1

Defendants filed the instant motion to transfer or, in the alternative, to dismiss the claims on October 22, 2010, while this matter was pending in the Northern District of California. The Northern District of California granted the motion to transfer but did not address Defendants‟ arguments regarding dismissal. The Court now addresses this pending motion to dismiss, as supplemented by Defendants‟ January 24, 2011 Letter Brief (Docket Entry No. 32) submitted to the Court.*fn2


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,*fn3 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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