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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
AMY HOLLUBand PATRICIA
DAVIS, et al.,
Consolidated Motion to Dismiss Plaintiff\u2019s Third Amended Complaint (\u201cMotion to Dismiss\u201d) [D.E. 336]. The Court has considered the pleading, the parties\u2019 written submissions, the oral arguments, and applicable law.
This action arises from Defendants\u2019 manufacturing, sale, distribution, marketing and/or advertising of a variety of pet food products which Plaintiffs allege to be harmful to their pets. Plaintiffs filed their initial complaint in this action on May 9, 2007. (See Complaint [D.E. 1]). They subsequently filed an Amended Complaint [D.E. 153] on July 25, 2007, and a Second Amended Complaint [D.E. 260] on November 29, 2007. On December 3, 2007, Plaintiffs filed a Motion for Leave to Conduct Personal Jurisdiction Discovery [D.E. 262]. After a hearing on the motion, on December 13, 2007, the undersigned granted Plaintiffs leave to conduct jurisdictional discovery [D.E.
On January 25, 2008, the Court granted Plaintiffs leave to file a Third Amended Class Action Complaint (\u201cTAC\u201d) [D.E. 333]. The TAC asserts nine counts and identifies four classes of defendants: Manufacturers, Co-Packers, Retailers, and Pet Specialty Retailers. Count I asserts a claim for fraudulent misrepresentation as to all Defendants. (See TAC at \u00b6\u00b6 129-137). Count II asserts a claim for negligent misrepresentation as to all Defendants. (See id. at \u00b6\u00b6 138-146). Count III of the TAC alleges all Defendants have violated the Florida Deceptive and Unfair Trade Practices Act (\u201cFDUTPA\u201d). (See TAC at \u00b6\u00b6 147-157). Count IV asserts a claim of negligence as to the Defendant Manufacturers, Co-Packers, and Petsmart, Inc., a Pet Specialty Retailer. (See TAC at \u00b6\u00b6 158-164). Count V asserts a claim for strict products liability as to all Defendants. (See TAC at \u00b6\u00b6 165-168). Count VI requests injunctive relief as to all Defendants\u2019 allegedly illegal actions. (See
Retailers and Pet Speciality Retailers. (See TAC at \u00b6\u00b6 176-184). Count VIII is for breach of express warranty as to all Defendants. (See TAC at \u00b6\u00b6 185-191). Finally, Count IX asserts a claim for unjust enrichment against all Defendants. (See TAC at \u00b6\u00b6 192-200).
On February 14, 2008, Defendants filed their Motion to Dismiss the TAC. Defendants raise numerous grounds for dismissal of some or all of the counts of the TAC. The undersigned addresses these arguments below.2
this ground is therefore denied without prejudice. Kroger may file a separate motion to dismiss on the ground of lack of personal jurisdiction after the close of jurisdictional discovery, and in the event Plaintiffs do not voluntarily dismiss it from this action.
\u201cFederal Rule of Civil Procedure 8(a)(2) requires only \u2018a short and plain statement of the claim showing that the pleader is entitled to relief,\u2019 in order to \u2018give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. . . .\u2019\u201dBell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, \u201c[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff\u2019s obligation to provide the \u2018grounds\u2019 of his \u2018entitle[ment] to relief\u201d\u2019 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.
Defendants assert that dismissal as to all counts of the TAC is appropriate on the ground that Plaintiffs have failed either to allege a cognizable injury sufficient to confer standing, or to allege a causal relationship between Defendants\u2019 actions and the harm they suffered. For the reasons stated in open court, the undersigned is unpersuaded by Defendants\u2019 argument. Plaintiffs have alleged that
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