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Roseberry-Andrews v. Schell & Kampeter, Inc.

United States District Court, D. Maryland, Southern Division

May 2, 2016

SCHELL & KAMPETER, INC., et al., Defendants.


GEORGE J. HAZEL United States District Judge

Plaintiff Cynthia Roseberry-Andrews brought this action against Schell & Kampeter, Inc., doing business as Diamond Pet Foods, and Diamond Pet Foods. Inc. (collectively. '"Diamond"), alleging damages related to pet food product distributed by Diamond. ECF No. 6. This Memorandum Opinion and accompanying Order address Defendants" Motion to Dismiss (ECF No. 11) and Plaintiffs Motion to Correct Complaint (ECF No. 14). A hearing is unnecessary. Loc. R. 105.6 (D. Md. 2014). For the reasons stated below. Defendants' Motion to Dismiss is GRANTED and Plaintiffs Motion to Correct Complaint is DENIED, as moot.


From April 2012 to May 2012. Diamond initiated several recalls of its pet food due to detections of the Salmonella virus. ECF No. 6 ¶¶ 25-31. On April 7. 2012. Plaintiff purchased one of the nine recalled dog food brands and fed the dog food to her American Kennel Club Champion dogs. Claudia and Damascus. ECF No. 6 ¶¶ 8-9. As a result of consuming Diamond's pet food, both dogs became ill and died. ECF No. 6 ¶ 10.

Barbara Marciano filed a class action against Diamond related to the recalled pet food. Marciano v. Schell & Kampeier, Inc., No. 12-cv-2708. 2014 Jury Verdicts LEXIS 4625 (E.D.N.Y. May 6, 2014). Marciano sought damages, which included incidental damages for class members whose pets died. Id. On October 30. 2014, Judge Sandra J. Feuerstein of the United States District Court for the Eastern District of New York ("Settlement Court") accepted the settlement between Diamond and the class members ("Settlement Class") and dismissed "the Action and all Released Claims of the Class with prejudice."" ECF No. 17-1 at 13.[2]

The Settlement Court determined that adequate notice had been given to the Settlement Class. ECF No. 17-1 at 11, 14 ("The Notice of Pendency and Proposed Settlement of Class Action given to the Class in accordance with the notice Order entered on February 19. 2014 was the best notice practicable under the circumstances, including the individual notice to all members of the Class who could be identified through reasonable effort."). In his declaration. Kenneth Jue. a case manager for Gilardi & Co. LLC. detailed steps Gilardi & Co. LLC made to provide notice of the settlement, including telephone and email support, an informational website, and an online marketing campaign and publication notice, which generated over forty-five million "impressions" and 16.877 claims. ECF No. 11 at 43-45. The filing postmark deadline to submit a request to be excluded from the class was April 24. 2014. and the tiling postmark deadline to submit an objection to the settlement was April 28. 2014. ECF No. 11 at 46. Plaintiff Roseberry-Andrews did not request an exclusion or object to the settlement. See ECF No. 11 at 46. 61.

The Settlement Court ruled that members of the Settlement Class "fully, finally, and forever released, relinquished, and discharged all Released Claims against the persons with Released Claims (the 'Released Persons*). whether or not such Class Member executes and delivers the Proof of Claim and Release." F.CF No. 17-1 at 13. Additionally.

Class Members who have not timely opted out of the Class . . . shall be permanently barred and enjoined from the assertion, institution, maintenance, prosecution, or enforcement against any Released Person, in any state or federal court or arbitral forum, or in the court of any foreign jurisdiction, of any and all Released Claims (including, without limitation. Unknown Claims), as well as any other claims arising out of, relating to. or in connection with, the defense, settlement, or resolution of the Action or the Released Claims.

ECF No. 17-1 at 14.

The Settlement Court retained continuing exclusive jurisdiction over implementation of this Settlement, disposition of the Settlement Fund, determining attorneys' fees, and "all Settling Parties hereto for the purpose of construing, enforcing, and administering the Settlement Agreement." ECF No. 17-1 at 15.


Federal Rule of Civil Procedure ("Rule") 12(b)(6) permits a defendant to present a motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). 'To survive a motion to dismiss, a complaint must contain sufficient factual matter. accepted as true, "to state a claim to relief that is plausible on its face.*" Ashcvofl v. Iqbal 556 U.S. 662, 678. 129 S.Ct. 1937 (2009): see also Conn. Gen. Life Jus. Co. v. Advanced Surgery Ctr. of Bethesda, LLC, No. DKC 14-2376. 2015 U.S. Dist. LEXIS 91689, at H3 (D. Md. July 15, 2015) ("At this stage, all well-pled allegations in a complaint must be considered as true and all factual allegations must be construed in the light most favorable to the plaintiff"). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal. 556 U.S. at 678.

Courts are generally not allowed "to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir, 2007). "However, there are limited circumstances in which the court may consider extrinsic documents in the context of a motion to dismiss.'" including "documents "attached to the complaint, as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.'" Philips v. Pin. Cty. Mem. Hosp., 572 F.3d 176. 180 (4th Cir. 2009). Courts may also consider documents subject to judicial notice, such as public court records. See Tellabs. Inc. v. Makor Issues & Rights. Ltd. 551 U.S. 308. 322. 127 S.Ct. 2499 (2007).

When a court approves and finalizes a class action settlement, "an absentee class member who receives adequate notice of an action to which his class is a party, and who fails to opt out by the deadline stated in the notice, is bound by the disposition of the action, including settlement." Smithv. Capital One Auto Fin.. Inc.. No. JKB-11-1023. 2012 U.S. Dist. LEXIS 2476. at *6 (D. Md. Jan. 9. 2012). I lore, in order to succeed on its Motion to Dismiss, Diamond must establish that: Plaintiff was a member of the Settlement Class; the Settlement Agreement precludes the claims ...

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