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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…

In the notice of removal, apparently, because it may be too late if you simply plead satisfaction of the amount in controversy and wait until the amount is challenged to prove the underlying calculations.  In Dart Cherokee Basin Operating Co., LLC v. Owens, 730 F.3d 1234 (10th Cir,. September 17, 2013), Judge Hartz, joined by Judges Kelly, Tymkovich and Phillips, dissented from the Court's denial of en banc review of this issue by an equally divided vote.    In this case, the Petitioner/Defendant had removed the case pursuant to CAFA, and pleaded facts supporting satisfaction of the $5 million amount in controversy, but had waited until the Respondent/Plaintiff challenged the notice of removal to submit a declaration setting forth a calculation of potential liability.  The District Court remanded the case, holding that the declaration was untimely. Judge Hartz would have granted review, and argued that the Tenth Circuit owed a duty…

This is a follow-up from our earlier post discussing the Supreme Court's decision to hear the appeal in Genesis HealthCare Corp. v. Symczyk and our prediction that the Court's decision could impact the viability of future FLSA litigation.  Well, as it turns out, we could not have been more wrong.  In an extremely narrow 5-4 decision, the Court refused to decide whether the unaccepted Rule 68 offer of judgment actually rendered Ms. Symcyzk's individual FLSA claim moot, instead assuming that the claim was moot because she conceded the issue in the courts below and subsequently waived the argument on appeal.  No. 11-1059, ___ S. Ct. ___, 2013 WL 1567370 (April 16, 2013). Because the Court "assumed, without deciding" that the plaintiff's individual claim was moot, the larger question left to resolve was whether the lawsuit could remain viable based on the FLSA collective action allegations. The Court held that it did not because "the…

Being a fan of Les Miz, I was pleasantly surprised by Sacha Baron Cohen's performance of the great musical number "Master of the House" in the recent film adaptation.  It's probably my second favorite version after Lawrence Tierney's memorable rendition in the classic Seinfeld episode "The Jacket."  Now, the Supreme Court will soon decide which party, for purposes of removal will be considered the Master of the House, or rather the Complaint, for purposes of CAFA removal. In Standard Fire Insurance Co. v. Knowles, the Court will hear its first case under the  Class Action Fairness Act ("CAFA"), the 2005 statute which conferred original federal jurisdiction to any class action where minimal diversity existed at the amount-in-controversy exceeds $5 million.  At issue in Knowles is whether the named plaintiff, as a putative class representative, can stave off a defendant's right to remove under CAFA by filing any accompanying “stipulation” that…

This term the Supreme Court granted cert to Genesis HealthCare Corp. v. Symczyk, No. 11-1059, an appeal from the Third Circuit decision, 656 F.3d 189 (3d Cir. 2011).  At issue is whether a defendant can moot a putative Fair Labor Standards Act (“FSLA”) collective action by "picking off" the named plaintiff through a Rule 68 offer of judgment before certification.  While the Court's decision will no doubt impact the future viability of wage and hour collective actions, it may also have the potential to affect Rule 23 class actions as well. Briefly, the plaintiff, Laura Symczyk, alleged that her employer, Genesis, improperly deducted her pay for meal breaks even though she often did not take them.  After answering, Genesis proffered a Rule 68 offer of judgment of “$7,500.00 in alleged unpaid wages, plus attorneys’ fees, costs and expenses.”  After the plaintiff refused the offer, Genesis moved to dismiss, arguing that…

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