United States District Court, E.D. Missouri, Eastern Division
NESTLÉ PURINA PETCARE COMPANY, Plaintiff/Counterclaim Defendant,
THE BLUE BUFFALO COMPANY LTD., Defendant/Counterclaim Plaintiff, AND RELATED ACTIONS
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE
false advertising pet food case is before me on two motions
to dismiss: Diversified Ingredients' motion to dismiss
the third-party complaint of Wilbur-Ellis Company, and David
Dressel, Dean H. Hiller and Edward J. Wanner (the
“Individual Defendants”)'s motion to dismiss
the third-party complaint of Wilbur-Ellis. The Individual
Defendants are Diversified's owners, officers, and
directors, and are being sued on a piercing the veil theory.
The issues are fully briefed and ready for
review. For the reasons that follow, I will grant
in part and deny in part Diversified's motion to dismiss,
and I will grant the Individual Defendants' motion to
Nestle Purina Petcare Company brought this case against The
Blue Buffalo Company, alleging that Blue Buffalo falsely
advertises its pet foods as free of poultry byproduct meal
and meeting other nutritional claims in violation of the
Lanham Act, 15 U.S.C. § 1125. Blue Buffalo has since
admitted that poultry byproduct was in some of its pet foods.
However, Blue Buffalo claims that its ingredient supplier,
Wilbur-Ellis, and ingredient broker, Diversified Ingredients,
deceived Blue Buffalo when they sold it byproduct meal
instead of high quality chicken and turkey meal. Blue Buffalo
has brought several third-party claims against Diversified
and Wilbur-Ellis, and alleges that they are liable for Blue
Buffalo's damages, among other things.
being joined in the case, Diversified brought crossclaims
against Wilbur-Ellis, alleging that it was unknowingly
defrauded by Wilbur-Ellis, and that Diversified believed it
had been procuring and delivering byproduct-free poultry meal
to Blue Buffalo. Wilbur-Ellis has since filed its own
crossclaims against Diversified, arguing that Wilbur-Ellis
provided poultry “blends” in accordance with its
contracts, and alleging that Diversified did and should have
known Wilbur-Ellis was providing it with product that
contained byproduct. Wilbur-Ellis further alleges that
Diversified mislabeled the byproduct meal as poultry meal
when it re-sold it to Blue Buffalo. Wilbur-Ellis seeks
indemnity and contribution from Blue Buffalo for any
liability it is found to owe to Blue Buffalo.
has also brought third-party claims against the Individual
Defendants, arguing that they are the alter ego of
Diversified, and piercing the corporate veil is warranted so
that Wilbur-Ellis may collect against the Individual
Defendants for any judgment for which Diversified may be
ruling on a motion to dismiss brought under Fed.R.Civ.P.
12(b)(6), I must accept as true all factual allegations in
the complaint and view them in the light most favorable to
the plaintiff. Kohl v. Casson, 5 F.3d 1141, 1148
(8th Cir. 1993). “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.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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. While a court must accept
factual allegations as true, it is “not bound to accept
as true a legal conclusion couched as a factual
allegation.” Carton v. Gen. Motor Acceptance
Corp., 611 F.3d 451, 454 (8th Cir. 2010) (internal
citations omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678 (internal citations omitted).
state courts which often require detailed statements of fact
in a petition, however, the federal rules require only notice
pleading. Under Fed.R.Civ.P. 8(a):
[A] complaint must include only a short and plain statement
of the claim showing that the pleader is entitled to relief.
Such a statement must simply give the defendant fair notice
of what the plaintiff's claim is and the grounds upon
which it rests. This simplified notice pleading standard
relies on liberal discovery rules and summary judgment
motions to define disputed facts and issues and to dispose of
Romine v. Acxiom Corp., 296 F.3d 701, 711 (8th Cir.
Intentional Tortfeasor Rule
Counts 1 and 2, Wilbur-Ellis seeks contribution and equitable
indemnity from Diversified for any harms to Blue Buffalo for
which Wilbur-Ellis is found liable and for which Diversified
is also at fault.
argues that Wilbur-Ellis is not entitled to contribution or
equitable indemnity for any underlying intentional conduct
because such recovery is barred by the intentional misconduct
rule. Under the “intentional misconduct rule, ”
Missouri courts prohibit claims for contribution or indemnity
among willful joint tortfeasors. Missouri Pac. R. Co. v.
Whitehead & Kales Co., 566 S.W.2d 466, 469 (Mo.
1978). As a result, Diversified argues that Wilbur-Ellis'
claims for contribution and indemnity that stem from Blue
Buffalo's underlying claims of intentional/fraudulent
misrepresentation and fraud in the inducement should be
dismissed. Diversified also seeks dismissal of