United States District Court, W.D. Washington, Tacoma
NICOLE and GUY MAEL, NADINE VIGLIANO, BRITNEY MOREA, CAROL CONWAY, ANGELA BERTUCCI and TINA WIEPERT, on behalf of themselves and all others similarly situated, Plaintiffs,
EVANGER'S DOG AND CAT FOOD CO., INC., and NUTRIPACK, LLC, Defendants.
ORDER DENYING MOTION TO DISMISS
B. Leighton United States District Judge.
MATTER is before the Court on Defendants' Motion to
Dismiss [Dkt. #25]. Plaintiffs are consumers of Defendant
Evanger's pet food products seeking to represent a class
of similarly-situated consumers. Plaintiffs Nicole and Guy
Mael claim their dogs became sick (and one died) after
consuming Evanger's “Hunk of Beef” pet food
in January 2017. Plaintiffs Nadine Vigliano, Britney Morea,
Angela Bertucci, and Tina Wiepert claim that their dogs got
sick after eating Evanger's beef products. An FDA
investigation found traces of pentobarbital, a drug used to
euthanize animals, in several of Evanger's beef pet
foods, including “Hunk of Beef, ” “Braised
Beef, ” Against the Grain's “Pulled Beef,
” and in a product Evanger's manufactures for
another pet food company called “Party Animal.”
Evanger's subsequently recalled each of these products.
Carol Conway claims her dog, Ruby, became ill after eating
Evanger's Duck & Sweet Potato Pet Food. The Duck
& Sweet Potato food was not recalled, nor was it alleged
to be tainted with pentobarbital. Plaintiffs, however, refer
to both the recalled and non-recalled products as “Pet
Foods, ” and allege that Defendants falsely advertised
the Pet Foods as “human grade, USDA inspected
meats” despite the fact that the FDA found that none of
Defendants' suppliers were USDA-inspected nor human
grade. Plaintiffs cite to other, general findings by the FDA
that indicate Defendants' facilities were unsanitary and
that the non-beef products may have been contaminated as
well. These include peeling paint, mold, open sanitary sewer,
lack of refrigerated storage, damaged floors, as well as
flies and birds. Dkt. #27.
seek dismissal of Conway's claims arising out of
non-recalled, non-beef pet foods. They argue that the
allegations support only claims against recalled beef
products but fail to adequately state claims against any
non-recalled products. Specifically, Defendants assert that
Conway's claim regarding the non-beef pet foods suggests,
at best, the “possibility” of a claim. Dkt. #25.
Defendants contend that Conway has alleged no facts
establishing either (1) causation beyond speculation between
the non-beef food and the symptoms, or (2) that if the
non-beef food were the cause of the illness in Ruby, that
that food contained pentobarbital.
argues that whether the Duck and Sweet Potato Pet Food she
purchased contained pentobarbital is a question of fact that
cannot be decided on a motion to dismiss. Without identifying
specific allegations, Conway claims that her Amended
Complaint “adequately alleges numerous facts, including
those relating to Conway's experience, that give rise to
a reasonable inference that Defendants are liable for
misrepresenting the contents of all of their Pet Foods,
causing damage to Plaintiffs and the Class when they
purchased them and some further poisoned their pets.”
under Fed.R.Civ.P. 12(b)(6) may be based on either the lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). A plaintiff's complaint must allege facts to
state a claim for relief that is plausible on its face.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim has “facial plausibility” when the party
seeking relief “pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Although the court must accept as true the Complaint's
well-pled facts, conclusory allegations of law and
unwarranted inferences will not defeat an otherwise proper
12(b)(6) motion to dismiss. Vazquez v. Los Angeles
Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell
v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 556 U.S. at 678 (citing id.).
Rule 12(b)(6) motion, “a district court should grant
leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts.”
Cook, Perkiss & Liehe v. N. Cal. Collection
Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where
the facts are not in dispute, and the sole issue is whether
there is liability as a matter of substantive law, the court
may deny leave to amend. Albrecht v. Lund, 845 F.2d
193, 195-96 (9th Cir. 1988).
Ruby suffered from the same symptoms associated with
pentobarbital poisoning, Conway has not alleged facts that
demonstrate the Duck and Sweet Potato product was
contaminated with pentobarbital or was otherwise the cause of
the symptoms. Rather, Conway merely claims that because the
FDA found Defendants' facilities unsanitary as a whole,
found serious problems in Defendants' manufacturing and
quality assurance systems, and could not determine that
Defendants' non-beef suppliers were not
associated with pentobarbital, Defendants are therefore also
liable for the harm to Ruby.
Ruby's symptoms suggest a possible relation between
Defendants' Duck and Sweet Potato product and the
symptoms, the Amended Complaint pleads no factual allegations
plausibly establishing beyond mere speculation causation
between the food and the symptoms. Conway alleges that the
veterinarian diagnosed Ruby with gastroenteritis, but Conway
never alleges that it was caused by pentobarbital or anything
else contained in the pet food.
paint with too broad a brush, lumping together dogs that got
sick from the recalled, tainted beef products with a dog that
got sick after eating non-recalled, non-beef products.
Plaintiffs plausibly state a claim against Defendants with
respect to the recalled pentobarbital-tainted beef, alleging
that the injury to their dogs was caused by pentobarbital
poisoning. Conway, however, fails to state a claim against
Defendants for the non-recalled pet food not plausibly
alleged to be contaminated with pentobarbital. While Conway
alleges injury to Ruby consistent with pentobarbital
poisoning, she fails to allege, beyond mere speculation, that
that injury was caused by Defendants. However, because the
Amended Complaint could be cured by the allegation of
additional facts as to the non-recalled pet foods, dismissal
is not appropriate here. Cook, Perkiss & Liehe v. N.
Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir.
1990). The appropriate corrective is to grant leave for
Plaintiffs to amend their complaint.
Motion to Dismiss is DENIED without prejudice. Plaintiffs
have 21 days from the date below, March 13, 2018, to cure the
deficiencies in their Amended ...