Jon Campisi Jul. 8, 2013, 9:18am


A federal judge in western Pennsylvania has agreed to dismiss one count in a putative

class action involving allegations that Del Monte Corp. and Milo’s Kitchen made false and misleading representations relating to the Chicken Jerky Dog Treats pet snack.

In a June 25 order, U.S. District Judge Cathy Bissoon, of the Western District of Pennsylvania, tossed an unjust enrichment count in the class action brought by plaintiff Lisa Mazur, although the jurist refused to dismiss the balance of the claims in the complaint.

The Pennsylvania Record reported on the case back in April after a federal judge sitting in the Northern District of California transferred the litigation to the U.S. District Court in Pittsburgh.

The case was initiated close to a year ago by Mazur, whose suit contained allegations similar to those contained within complaints filed by plaintiffs in North Carolina and California.

The judge who granted the transfer to Pennsylvania wrote at the time that the lawsuits raise similar claims based on allegations that Del Monte and Milo’s Kitchen misrepresented the wholesome nature of the dog treats and failed to properly warn consumers of the supposed contamination.

The website Courthouse News Service previously reported that Del Monte was one of a dozen pet food manufacturers who participated in a $24 million settlement two years ago over allegations that wet dog food had been tainted with melamine and cyanuric acid.

As for granting a defense motion to dismiss the unjust enrichment count in the class action, Bissoon, the federal judge from Pittsburgh, wrote that she acted on a May 24 recommendation by Magistrate Judge Maureen Kelly.

In her May report, Kelly cited a defense argument that the claim should be dismissed because the plaintiff has an adequate remedy at law and thus is not entitled to an equitable remedy.

The defendants also asserted that the claim should be tossed because Mazur has failed to allege the elements necessary to state a claim for unjust enrichment.

Kelly ended up agreeing with the defendants, writing in her report that it is apparent from Mazur’s allegations in the complaint that “while she is dissatisfied with the chicken jerky treats, she nevertheless purchased, received and used the product. It therefore cannot be said that the benefit bestowed on Defendants in the form of a profit from the sale was ‘wrongly secured.’”

Bissoon adopted Kelly’s recommendation that the remaining claims be allowed to proceed.

Those claims include negligence, strict liability, breach of warranty, fraud, and violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.

As for Mazur, the lead plaintiff in the case, she claims she had to have her otherwise healthy 7-year-old dog euthanized in early 2012 after the animal was diagnosed with kidney failure following its ingestion of the defendants’ product, which Mazur purchased at a store in New Kensington, Pa. back on Dec. 12, 2011.

Mazur and the other plaintiffs contend that the chicken treats are neither wholesome nor nutritious, despite claims to the contrary by the defendants.

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