United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS;
AFFORDING PLAINTIFFS LEAVE TO AMEND RE: DKT. 92, 93,
M. CHESNEY UNITED STATES DISTRICT JUDGE
the Court are the following three motions, each filed April
3, 2017: (1) “Motion to Dismiss Plaintiffs' Claims
Under § 1 of the Sherman Act” (“Antitrust
Motion”), brought collectively by defendants Mars
Petcare US, Inc. (“Mars”), Royal Canin U.S.A.,
Inc. (“Royal Canin”), Nestle Purina Petcare
Company (“Purina”), Hill's Pet Nutrition,
Inc. (“Hills”), Petsmart, Inc.
(“Petsmart”), Medical Management International,
Inc. d/b/a Banfield Pet Hospital (“Banfield”),
and Bluepearl Vet, LLC (“Bluepearl”); (2)
“Motion to Dismiss Plaintiffs' State Law
Claims” (“State Law Motion”), brought
collectively by defendants Mars, Royal Canin, Purina, and
Hills (hereinafter, “Manufacturer Defendants”);
and (3) “Motion to Dismiss Plaintiffs' Sixth Cause
of Action” (“MMPA Motion”),  brought by
defendant Purina, to the extent such claim is asserted
against said defendant. All three motions have been fully
matter came on regularly for hearing on July 7, 2017. Michael
A. Kelly and Matthew D. Davis of Walkup, Melodia, Kelly &
Schoenberger; Daniel Shulman and Julia Dayton Klein of Gray,
Plant, Mooty, Mooty, & Bennett, P.A.; Michael L.
McGlamry, Wade H. Tomlinson III, and Caroline G. McGlamry of
Pope McGlamry, P.C.; and Edward J. Coyne III of Ward and
Smith, P.A. appeared on behalf of plaintiffs. John E.
Schmidtlein, Benjamin M. Greenblum, and Xiao Wang of Williams
& Connolly LLP appeared on behalf of Mars, Royal Canin,
Banfield, and Bluepearl. Christopher M. Curran and J. Frank
Hogue of White & Case LLP appeared on behalf of Purina.
Michael F. Tubach and Hannah Y. Chanoine of O'Melveny
& Myers LLP appeared on behalf of Hills. Eileen R. Ridley
of Foley & Lardner LLP appeared on behalf of Petsmart.
Court, having considered the parties' respective written
submissions and the arguments of counsel at the hearing,
rules as follows.
defendants move to dismiss Count I of plaintiffs' First
Amended Complaint (“FAC”), for failure to allege
facts evidencing an agreement in violation of the Sherman
Act, 15 U.S.C. § 1. For the reasons stated on the record
at the hearing, the Court agrees.
the Antitrust Motion is hereby GRANTED, with leave to amend
to allege facts sufficient to plead parallel conduct, see
Bell Atlantic Corp. v. Twombly, 555 U.S. 544, 556-57
(2007), and “plus factors, ” see In re
Musical Instruments & Equip. Antitrust Litig., 798
F.3d 1186, 1194 (9th Cir. 2015).
State Law Motion
Defendants move to dismiss Counts II-XIII of the FAC,
plaintiffs' state law claims, on the following grounds:
(1) failure to plead fraud with sufficient particularity
under Rule 9(b) of the Federal Rules of Civil Procedure; (2)
failure to allege reliance and causation; (3) lack of
standing to seek injunctive relief; (4) lack of standing to
bring a claim based on products not purchased by plaintiffs;
and (5) failure to plead entitlement to equitable relief.
reasons stated on the record at the hearing, the Court finds:
(1) Plaintiffs' state law claims, to the extent based on
an alleged misrepresentation, have not been pleaded with the
particularity required by Rule 9(b), namely, identification
of the false or misleading statement, by whom it was
communicated, to whom it was communicated, and “what is
false or misleading about [the] statement.” See
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th
(2) Plaintiffs have not alleged facts sufficient to plead
reliance where required under the relevant state consumer
protection law, nor have they alleged facts sufficient to
plead proximate causation under any such law.
(3) Plaintiffs have failed to allege facts sufficient to
plead Article III standing to bring a claim for injunctive
relief, in particular, facts demonstrating plaintiffs'
intent to purchase the accused products in the future despite
their allegation that such products are more expensive than
products having the same composition.
(4) Plaintiffs have failed to allege facts sufficient to
plead Article III standing to bring a claim for any product
not alleged to have ...