804 F. Supp. 2d 257
D.N.J.2011Background
- Plaintiffs allege injuries from flea and tick spot-on products by Central Pet and Farnam containing Pyrethrins or pyrethroids.
- EPA issued a May 5, 2009 advisory intensifying evaluation of spot-on products due to adverse pet reactions; HSUS commented August 3, 2009.
- Plaintiffs, from CA, FL, NC, OH, and TX, claim their pets suffered illness or death from Defendants’ products.
- Plaintiffs bring UCL, CLRA, implied warranty, MMWA, strict products liability, and punitive damages claims.
- Defendants move to dismiss under Rule 12(b)(6) and seek potential FIFRA preemption; court considers related briefing.
- Court grants in part and denies in part: Counts Two and Three dismissed without prejudice; other counts survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FIFRA preemption of claims | Claims not labeling-based; not preempted as to consumer fraud and CLRA claims. | FIFRA preempts labeling/packaging-based claims; fraud claims may be preempted. | Not preempted at this stage; only potential preemption of labeling-based claims. |
| UCL claim viability | Defendants deceived by marketing products as safe; omissions alleged. | Need California-specific contact and proper choice-of-law; fulsome Rule 9(b) pleading lacking. | UCL survives as to omissions; Rule 9(b) satisfied for omissions; need more detail for affirmative misrepresentations. |
| CLA/CLRA pleading standards (Rule 9(b) and materiality | Omissions are fraudulent under CLRA/UCL; non-disclosures alleged with specificity. | CLRA requires particularized misrepresentations and reliance; assert lack of specificity. | CLRA claim pleaded with sufficient specificity for nondisclosures; reliance presumed for material omissions; affirmations require more detail if added. |
| Implied warranty of merchantability (privity) | Product unfit for ordinary purpose; privity not required due to pesticide/personal injury exception. | No privity; pesticides exception misapplied; claim should be dismissed. | Implied warranty claim dismissed without prejudice for lack of privity; exception acknowledged but not applicable to plaintiffs’ injuries. |
| MMWA claim reliance on underlying state claim | MMWA should supplement state law warranties; underlying claim governs. | No independent basis if implied warranty fails; stay or dismissal appropriate. | MMWA claim dismissed without prejudice pending underlying state-law resolution. |
Key Cases Cited
- Bates v. Dow AgroSciences L.L.C., 544 U.S. 431 (U.S. 2005) (preemption limited to labeling/packaging; not design/privacy claims)
- Indian Brand Farms, Inc. v. Novartis Crop Prot., Inc., 617 F.3d 207 (3d Cir. 2010) (statements outside labeling not preempted; NJCFA/California analogies)
- Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (3d Cir. 2003) (Rule 9(b) specificity for fraud-based UCL claims)
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) (requirement to plead circumstances surrounding misrepresentations under Rule 9(b))
- Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) (pleading fraud with specificity; injected precision or substantiation)
- Twombly, 550 U.S. 544 (U.S. 2007) (heightened plausibility pleading standard)
- Iqbal, 129 S. Ct. 1937 (U.S. 2009) (plausibility standard applies after Twombly)