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Loeb v. Champion Petfoods USA Inc.

United States District Court, E.D. Wisconsin

September 5, 2019

KELLIE LOEB, Plaintiff,



         In this action, Plaintiff asserts that Defendants have intentionally deceived her and other Wisconsin consumers by touting their dog foods as superior while knowing that the products are contaminated with heavy metals. (Docket #1). This central theory animated each of Plaintiff's five causes of action. Id. Several of the claims were dismissed in the Court's order on Defendants' motion to dismiss. (Docket #19). The remaining claims were dismissed when the Court granted Defendants' motion for summary judgment. (Docket #59).

         On February 26, 2019, Plaintiff moved to vacate the Court's judgment of dismissal pursuant to Federal Rule of Civil Procedure 59(e). (Docket #67). Rule 59(e) permits a party to ask for alteration or amendment of a judgment within twenty-eight days of the judgment's issuance. Fed.R.Civ.P. 59(e). Plaintiff's motion was timely filed-judgment was entered on February 6, 2019-and so the Court may consider its merits. Nevertheless, the standard Plaintiff must meet to have her motion granted is steep:

A Rule 59(e) motion can be granted only where the movant clearly establishes: “(1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013). Rule 59(e) “does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to judgment.” Id. at 954 (citing Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000)).

Barrington Music Prods., Inc. v. Music & Arts Ctr., 924 F.3d 966, 968 (7th Cir. 2019); Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th Cir. 2018) (“District courts need not grant Rule 59(e) motions to advance arguments or theories that could and should have been made before the district court rendered a judgment.”) (emphasis added, quotation omitted).

         Plaintiff's motion seeks only reversal of the summary judgment order and its resulting judgment. (Docket #67 at 2). She does not suggest any errors in the order on the motion to dismiss. The Court will, therefore, confine its analysis to the summary judgment order. In the interest of brevity, and because only that one order is at issue, the Court will assume familiarity with the summary judgment order for the purposes of the instant decision.

         Plaintiff offers four reasons that the Court's summary judgment decision was wrong. None have merit. First, Plaintiff contends that the Court has misunderstood her fundamental theory of the case. Rather than marrying her assertion of contamination in the products directly with the heavy metal levels therein, Plaintiff states that she intended to use heavy metals as merely an example of the product's adulteration. With this perspective of the complaint in mind, Plaintiff contends that the Court should have considered her evidence regarding the disgusting additives and far-flung sources of the products' ingredients.

         As the Court carefully explained in the summary judgment order, it disagrees with Plaintiff's position. Though Plaintiff's complaint asserts that many of Defendants' various advertising statements are false or misleading, their falsity is expressly and repeatedly tied to excessive heavy metal concentrations. See generally (Docket #1). Indeed, Plaintiff's own summation of her case is as follows:

1. Champion sells a variety of premium-priced dog foods throughout the United States. Its dry dog food products (“Products”) are sold under the “Orijen” and “Acana” brand names. Champion's packaging prominently states that the Products are “Biologically Appropriate” and contain “fresh, regional ingredients.” Champion's packaging further represents that Orijen “features FRESH, RAW or DEHYDRATED ingredients, from minimally processed poultry, fish and eggs that are deemed fit for human consumption prior to inclusion in our foods.” Consumers pay a premium for what Champion advertises and labels as a premium product. A 25-pound bag of “Orijen Original Biologically Appropriate Dog Food” can cost $80 or more- up to four times the price of national brand competitors.
2. Contrary to Champion's representations regarding the Products, the Products contain excessive levels of harmful heavy metals, including arsenic, lead, cadmium, and mercury.
3. As a result of Champion's misrepresentations, Plaintiff and other putative Class members were harmed by paying for the advertised Products and receiving only an inferior and contaminated product.

Id. at 1-2. To the extent that Plaintiff's complaint really meant to pose a wide-ranging critique of Defendants' ingredient-sourcing for the products, she did her best to hide that theory in what might be charitably described as a haystack. In reality, as the Court previously stated, the complaint “contains not a whisper about such allegations[.]” (Docket #59 at 12).[1] Thus, it was wholly appropriate for the Court to deem Plaintiff's sourcing evidence as inapposite to the claim she presented.

         Plaintiff is correct that she “was not required to plead every conceivable fact proving that [Defendants'] representations were false and deceptive.” (Docket #72 at 8). However, she freely chose to inextricably intertwine her allegations of misleading advertisements with the issue of heavy metals. She also refused to amend her complaint in the many months between the issue of the scheduling order and the filing of Defendants' summary judgment motion. The Court cannot save her from her own litigation strategy, however inadvisable it may appear.[2]

         Second, Plaintiff maintains that even when her case is constrained to the heavy metal theory, her evidence was sufficient for a reasonable jury to find in her favor on the WDTPA claim. But her only “evidence” was pointing out that the MTLs, which helped form the basis of Poppenga's opinion, should be used with caution. This cannot contradict Poppenga's assertion that the MTLs are the best guidance available for determining safe heavy metal concentrations in dog food. Plaintiff's misgivings about the MTLs are not a substitute for an expert opinion that it was inappropriate for ...

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