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Twombly chews up dog-food class action | Missouri & Kansas Class Action Law

Plaintiff fed his dog Beneful Healthy Weight dog food, and within two weeks, his dog was lethargic, incontinent, and hematuric (blood in urine).  The vet recommended a medicated dog food, and the symptoms disappeared.

Plaintiff filed a putative class action under the Missouri Merchandising Practices Act (MMPA), alleging that Purina misrepresented its Beneful brand dog food as “healthy,” “wholesome,” “nutritious,” and “100% Complete Nutrition,” and failed to disclose that the dog food caused, or carried the risk of, illness and death in a significant number of dogs.

Defendant moved to dismiss the complaint, based on Twombly and Rule (9b).  The Court granted the motion (with leave to amend).

On Twombly grounds, the Court found that the Complaint failed to set for a plausible claim — specifically there was no causation alleged:

Nothing in the Complaint alleges that the veterinarian diagnosed the bladder stones because of the certain type of dog food the dog ate, nor does the fact that the veterinarian suggested a medicated food for urinary health set out a fact which demonstrates Plaintiff is entitled to relief. So many other factors could have played a role in the dog’s problems that merely stating she ate the food, got sick, got better after eating medicated food for urinary health that Plaintiff’s Complaint fails to set forth a plausible claim showing he is entitled to relief from Defendant.

And on Rule 9(b) grounds, the Complaint lacked any specific allegations regarding the alleged misrepresentations:

[T]he allegations fall woefully below Rule 9’s requirements. Plaintiff fails to detail what misrepresentations were made, where the statements were made, to whom, they were made and why they were misleading, and how the alleged misrepresentations were made to Plaintiff. As such, Plaintiff’s claims of misrepresentation are insufficient to state a claim.

The Court gave Plaintiff a chance to amend his Complaint.  We’ll report back with any meaningful developments.

The case is Miller v. Nestle Purina Petcare Co., 2014 WL 307271 (E.D. Mo. Jan. 28, 2014).

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