Bakopoulos v. Mars Petcare US, Inc.

John Bakopoulos, et al., Plaintiffs, v. Mars Petcare US, Inc., Defendants.

No. 20 CV 6841

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

July 12, 2021

MEMORANDUM OPINION AND ORDER

MANISH S. SHAH UNITED STATES DISTRICT JUDGE

Defendant Mars Petcare US, Inc. manufactures and markets various dog foods. Plaintiffs-the owners of many canines-bought some of those foods, branded as Nutro Limited Ingredient Diets. Plaintiffs argue that the dog food they bought was not as advertised or labeled because the products included wheat soy, and chicken. Plaintiffs seek to represent a class of consumers and bring claims for breach of express and implied warranties, violation of three state consumer protection statutes, and unjust enrichment. Mars moves to dismiss under Rule 12(b)(2) for lack of personal jurisdiction and Rule 12(b)(6) for failure to state a claim. For the reasons discussed below, Mars's motion is granted in part and denied in part.

I. Legal Standards

A challenge to plaintiffs' standing to bring a claim is a challenge to this court's subject-matter jurisdiction see Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015), and is usually made through a motion under Federal Rule of Civil Procedure 12(b)(1). As the party invoking federal jurisdiction, the plaintiffs bear the burden of establishing that jurisdiction. See Collier v. SP Plus Corp., 889 F.3d 894, 896 (7th Cir. 2018). Because Mars makes a facial challenge to subject-matter jurisdiction, I consider only the complaint, documents incorporated by reference in the pleadings, and matters subject to judicial notice, accepting the well-pleaded facts as true and drawing all reasonable inferences in plaintiffs' favor. See Milwaukee Police Ass'n v. Flynn, 863 F.3d 636, 640 (7th Cir. 2017); Silha, 807 F.3d at 173.

Federal Rule of Civil Procedure 12(b)(2) governs dismissals based on lack of personal jurisdiction. Illinois courts exercise jurisdiction to the limit set by the federal Due Process Clause. Noboa v. Barcelo Corporacion Empresarial, 812 F.3d 571, 572 (7th Cir. 2016). When a defendant moves to dismiss based on personal jurisdiction, the plaintiffs bears the burden of establishing a prima facie case of jurisdiction. John Crane, Inc. v. Shein Law Ctr., Ltd., 891 F.3d 692, 695 (7th Cir. 2018); Brook v. McCormley, 873 F.3d 549, 551-52. (7th Cir. 2017).

To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing a motion to dismiss, a court must construe all factual allegations as true and draw all reasonable inferences in the plaintiffs' favor. Sloan v. Am. Brain Tumor Ass'n, 901 F.3d 891, 893 (7th Cir. 2018).

II. Background

To alleviate allergies or provide other benefits, pet owners choose certain types of foods for their animals. [5] at ¶ 48.^[1] These premium products-which can cost more than the competition-include “grain free” and “limited ingredient” pet foods. Id. at ¶¶ 48-49. Such products are often recommended to dog owners by veterinarians. Id. at ¶ 51. Defendant Mars Petcare US, Inc. manufactured and marketed some of these foods, branded as Nutro Limited Ingredient Diets. Id. at ¶ 10. The product line included several different varieties, including “Adult Lamb & Sweet Potato Recipe Grain Free, ” “Adult Salmon & Lentils Recipe Grain Free, ” and “Adult Venison Meal & Sweet Potato Recipe Grain Free.” Id. at ¶ 2. Mars sold these foods both online and through third-party retailers, and targeted dog owners worried about food allergies. Id. at ¶¶ 10, 51-52. Through the brand name, on its website, and on product packaging, Mars represented that its “Limited Ingredient” products were, in fact, limited in their ingredients. Id. at ¶¶ 52-54. On Mars's website, for instance, it advertised that the dog foods in question “avoid ingredients that commonly cause food sensitivities in pets, like chicken, beef, corn, wheat, soy and dairy protein.” Id. at ¶ 52. Product packaging included large and prominent disclaimers: “NO CHICKEN” and “Grain Free.” Id. at ¶ 54. Mars represented that the foods contained “10 Key Ingredients or Less Per Bag, ” and that wheat, soy, and chicken were not among them. Id. at ¶¶ 55-56. An ingredients list on the products did not include wheat, soy, or chicken. Id. at ¶ 56.

Plaintiffs are six dog owners who bought the Nutro Limited Ingredient Diets foods. Id. at ¶¶ 4-9, 14-39. Plaintiffs paid more for Mars's products than for other dog foods, having viewed Mars's representations and relied on them. Id. at ¶¶ 15-16, 21-22, 25-26, 29-30, 33-34, 37-38. John Bakopoulos, Penny Bowers, and Maria Perez purchased Mars's dog foods near their homes in Illinois. Id. at ¶¶ 15, 21, 25. Annie White bought Nutro Limited Ingredient Diets foods in Wisconsin, while Maureen Phend and Cheryl Miller purchased the products in South Carolina. Id. at ¶¶ 29, 33, 37.

Plaintiffs conducted a Q-PCR DNA analysis of Mars's products, and found that they contained more than trace amounts of chicken, wheat, and soy. Id. at ¶¶ 58-59. Defendant “knew or should have known” that its misrepresentations about the ingredients were likely to mislead consumers. Id. at ¶ 127. Plaintiffs bring a putative class action against Mars, alleging seven total claims. [5]. All plaintiffs bring claims for breach of express warranty; breach of implied warranty; violation of the Magnuson-Moss Warranty Act; and unjust enrichment. Id. at ¶¶ 83-118. The Illinois plaintiffs bring claims under the Illinois Consumer Fraud and Deceptive Business Practices Act. Id. at ¶¶ 119-32. Annie White brings a claim under the Wisconsin Deceptive Trade Practices Act. Id. at ¶¶ 133-45. Maureen Phend and Cheryl Miller allege claims for violation of the South Carolina Unfair Trade Practices Act. Id. at ¶¶ 146-58.

Mars moves to dismiss all claims. [13]. Mars argues that this court lacks personal jurisdiction over it as to the claims brought by the Wisconsin and South Carolina plaintiffs. [14] at 9-10. Defendant also argues that plaintiffs do not have standing to bring claims related to products that they did not buy and to seek prospective injunctive relief. Id. at 11, 20. Finally, Mars argues that plaintiffs have not alleged the required facts to support any of their claims. Id. at 13.^[2]

III. Analysis

A. Article III Standing

Article III of the U.S. Constitution limits federal court jurisdiction to cases or controversies brought by plaintiffs who “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560-61 (1992)). Defendants challenge plaintiffs' standing in two ways. First, Mars argues that plaintiffs do not have standing to bring claims with respect to products that they did not purchase. [14] at 11. Second, Mars argues that plaintiffs have not met the required showing of likely injury for prospective injunctive relief. Id. at 20.

1. Products Not Purchased

Plaintiffs' claims relate to six products, four of which they bought, and two of which they did not. [5] at ¶ 2; [17] at 4.^[3] Defendants argue that plaintiffs cannot satisfy the injury-in-fact requirement with respect to products that they did not buy, and that because plaintiffs did not buy the Duck & Lentils Recipe Grain Free or Small Bites Adult Lamb and Sweet Potato Recipe dog foods, they lack Article III standing to pursue claims based on those products. [14] at 11. Plaintiffs claim that they have standing to bring claims on products that are substantially similar to those that injured them. [17] at 4-5.

Plaintiffs have no injury-in-fact caused by products that they did not buy, and therefore lack standing with respect to those products. See Weaver v. Champion Petfoods USA Inc., No. 20-2235, 2021 WL 2678801, at *5 (7th Cir. 2021) (finding that a plaintiff lacked standing in a class action consumer products case where he alleged injury relating to products that he did not buy that were similar to those he had bought); Payton v. Cnty. of Kane, 308 F.3d 673, 682 (7th Cir. 2002) (“[A] person cannot predicate standing on injury which he does not share.”) (quoting Allee v. Medrano, 416 U.S. 802, 828-29 (1974)) (Burger, C.J., dissenting). Plaintiffs cite to several district court decisions where consumer-fraud claims based on substantially similar products survived until at least the class certification stage. [17] at 4; see Wagner v. Gen. Nutrition Corp., No. 16-CV-10961, 2017 WL 3070772, at *5-6 (N.D. Ill. 2017); Ulrich v. Probalance, Inc., No. 16 C 10488, 2017 WL 3581183, at *6-7 (N.D. Ill. 2017); Carrol v. S.C. Johnsons & Son, Inc., No. 17-cv-05828, 2018 WL 1695421, at *4 (N.D. Ill. Mar. 29, 2018). Those cases are not controlling, and I find their reasoning unpersuasive. Whether these plaintiffs may be adequate class representatives for absent class members injured by similar products is a different question than the issue here. At this stage of the case, there is no class and plaintiffs cannot bypass the “irreducible constitutional minimum” of Article III standing for their individual claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs' claims relating to products they did not purchase are dismissed without prejudice for lack of standing.

2. Prospective Injunctive Relief

Plaintiffs seek prospective injunctive relief. [5] at ¶ 82. To seek prospective injunctive relief, pl...