attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


Buetow et al. v. A.L.S. Enterprises, Inc. et al.: US District Court : CIVIL PROCEEDURE - insufficent facts pled regarding alleged conspriacy; only conclusory; claim dismissed

Mike Buetow, Gary Steven Richardson, Jr.,
Joe Rohrbach, Jeff Brosi, Dennis Deeb, and
Chris Lewison, individually on behalf of
themselves and all other Minnesota residents
and entities similarly situated,
Civ. No. 07-3970 (RHK/JSM)
A.L.S. Enterprises, Inc., Cabelas Inc.,
Gander Mountain Co., Bass Pro Shops, Inc.,
and Browning,
Troy J. Hutchinson, Vincent J. Esades, Heins Mills & Olson, P.L.C., Minneapolis,
Minnesota, Ernest W. Grumbles III, Thomas J. Leach, Merchant & Gould, Minneapolis,
Minnesota, for Plaintiffs.
Michael D. Leffel, Naikang Tsao, Theresa A. Andre, Bree Grossi Wilde, Foley & Lardner
LLP, Madison, Wisconsin, John D. Sear, Bowman and Brooke LLP, Minneapolis,
Minnesota, for Defendant A.L.S. Enterprises, Inc.
William A. LeMire, Christopher D. Newkirk, Arthur, Chapman, Kettering, Smetak &
Pikala, P.A., Minneapolis, Minnesota, for Defendant Cabelas, Inc.
Charles F. Webber, Elizabeth Shields Keating, Faegre & Benson LLP, Minneapolis,
Minnesota, Dudley W. Von Holt, Robert J. Wagner, Thompson Coburn LLP, St. Louis,
Missouri, for Defendant Gander Mountain Co.
Brian N. Johnson, Halleland Lewis Nilan & Johnson, P.A., Minneapolis, Minnesota,
Omri E. Praiss, Bryce J. Bartlett, Husch Blackwell Sanders LLP, St. Louis, Missouri, for
Defendant Bass Pro Shops, Inc.
Karen Hanson Riebel, Elizabeth R. Odette, Lockridge Grindal Nauen P.L.L.P.,
Minneapolis, Minnesota, Andrew H. Stone, John A. Pearce, Jones Waldo Holbrook &
McDonough, P.C., Salt Lake City, Utah, for Defendant Browning.
This purported class action concerns hunting clothing manufactured and/or sold by
Defendants A.L.S. Enterprises, Inc. (ALS), Cabelas, Inc. (Cabelas), Gander
Mountain Co. (Gander Mountain), Bass Pro Shops, Inc. (Bass Pro), and Browning
(collectively, Defendants). Plaintiffs allege that Defendants have misrepresented that
their clothing eliminates 100% of human odors and is capable of being reactivated or
regenerated in a household clothes dryer after the clothing has become saturated with
Defendants previously moved to dismiss the Complaint, arguing that Plaintiffs had
failed to adequately plead their claims. By Order dated January 18, 2008, the Court
granted those Motions in part and denied them in part, concluding that Plaintiffs had
failed to specify which Defendants were responsible for the particular unlawful conduct
alleged in the Complaint. The Court granted Plaintiffs leave to amend; they filed an
Amended Complaint on January 29, 2008.
Presently pending before the Court are several Motions filed by Defendants vis-avis
the Amended Complaint. First, all Defendants argue that Count IV of the Amended
Complaint, which alleges a civil conspiracy among them, must be dismissed for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Second, Bass Pro and
Browning argue that, absent the conspiracy claim, Plaintiffs lack standing to sue them
because Plaintiffs have nowhere alleged that they purchased any products from them.
Accordingly, they argue that they should be dismissed from this case in its entirety if the
Court dismisses the conspiracy claim. Third, and finally, Gander Mountain argues that
Plaintiffs have not adequately pleaded the non-conspiracy claims asserted against it. For
the reasons set forth below, the Court will grant the Motions in part and deny them in
The key allegations in this case are set forth in the Courts Order of January 18,
2008, and for the sake of brevity will not be repeated here. See Carlson v. A.L.S. Enters.,
Inc., Civ. No. 07-3970, 2008 WL 185710 (D. Minn. Jan. 18, 2008). As pertinent to the
present Motions, Plaintiffs Amended Complaint alleges the following facts:
(1) Defendants knowingly misrepresent that their odor-eliminating clothing eliminates all
human odors and can be reactivated or regenerated in a household clothes dryer;
(2) Defendants conceal from the public the true nature of their odor-eliminating clothing;
(3) each Defendant knows that each other Defendant makes the same claims; and (4) each
Defendant knows that each other Defendant actively conceals the truth about its clothing.
(Am. Compl. 122.) Plaintiffs also assert that Cabelas, Gander Mountain, Bass Pro, and
Browning agreed, as part of several licensing agreements with ALS, to use ALSs
trademarks, logos, and other promotional materials, which include misrepresentations
about the odor-eliminating capabilities of ALSs Scent-Lok product. (Id. 2, 35.)
The recent Supreme Court case of Bell Atlantic Co. v. Twombly, __ U.S. __, 127
S. Ct. 1955 (2007), sets forth the standard to be applied when evaluating a motion to
dismiss under Rule 12(b)(6). To avoid dismissal, a complaint must include enough facts
to state a claim to relief that is plausible on its face. Id. at 1974. Stated differently, a
plaintiff must plead sufficient facts to provide the grounds of his entitle[ment] to
relief, [which] requires more than labels and conclusions, and [for which] a formulaic
recitation of the elements of a cause of action will not do. Id. at 1964-65 (citation
omitted). Thus, a complaint cannot simply le[ave] open the possibility that a plaintiff
might later establish some set of undisclosed facts to support recovery. Id. at 1968
(citation omitted). Rather, the facts set forth in the complaint must be sufficient to nudge
the[] claims across the line from conceivable to plausible. Id. at 1974.
When reviewing a motion to dismiss, the complaint must be liberally construed,
assuming the facts alleged therein as true and drawing all reasonable inferences from
those facts in the plaintiffs favor. Id. at 1964-65. A complaint should not be dismissed
simply because a court is doubtful that the plaintiff will be able to prove all of its factual
allegations. Id. Accordingly, a well-pleaded complaint will survive a motion to dismiss
even if it appears that a recovery is very remote and unlikely. Id. at 1965 (citation
I. The conspiracy claim will be dismissed.
As Plaintiffs concede, the hallmark of [a] conspiracy is agreement. (Mem. in
Oppn at 4 (quoting Jennings v. Emry, 910 F.2d 1434, 1441 (7th Cir. 1990)).) A plaintiff
asserting a conspiracy claim, therefore, must allege sufficient facts to suggest a meeting
of the minds to participate in unlawful activity among the alleged conspirators. K&S
Pship v. Contl Bank, N.A., 952 F.2d 971, 980 (8th Cir. 1991); Manis v. Sterling, 862
F.2d 679, 681 (8th Cir. 1988). This is often difficult, as conspiracies by their nature
usually are clandestine plaintiffs, therefore, typically are not in a position to allege
with precision the specific facts giving rise to the claim. Stephenson v. Deutsche Bank
AG, 282 F. Supp. 2d 1032, 1070 (D. Minn. 2003) (Kyle, J.) (quoting White v. Walsh, 649
F.2d 560, 561 (8th Cir. 1981)). Nevertheless, a plaintiff cannot simply incant the magic
words conspiracy or agreement in order to adequately plead a conspiracy claim. See
Twombly, 127 S. Ct. at 1965 (plaintiff must plead more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do); accord Twombly
v. Bell Atl. Corp., 313 F. Supp. 2d 174, 180 (S.D.N.Y. 2003) (simply alleging that two
or more defendants participated in a conspiracy, without more, is insufficient to
withstand a motion to dismiss), revd, 425 F.2d 99 (2d Cir. 2005), revd, __ U.S. __, 127
S. Ct. 1955 (2007). As the district court in Twombly aptly noted:
While conclusory allegations may not suffice to state a claim, the Court must
be cautious to avoid making findings or assumptions of fact without a
complete factual record, and plaintiffs must not be expected to adduce
evidence without having had the opportunity for discovery. The crucial
inquiry, therefore, is what inferences naturally arise from the facts that
plaintiffs have pled, taking all facts in the Amended Complaint as true.
313 F. Supp. 2d at 182 (emphasis added).
Relying heavily on Twombly, Defendants argue that the conspiracy claim here
must be dismissed because Plaintiffs allegations of an illegal agreement are
conclusory. (See ALS Mem. at 6-8; Joint Reply at 2-4.) They further ague that the few
facts properly pleaded are insufficient to create an inference of an unlawful agreement
among Defendants. The Court agrees.
In support of their conspiracy claim, Plaintiffs essentially point to nothing more
than Defendants parallel conduct that is, each Defendant knowingly misrepresented
that [its] odor-eliminating clothing eliminates all human odors and can be reactivated or
regenerated in a household dryer, as well as the concealment of those facts from the
general public. (Am. Compl. 122.) As the Twombly Court noted, however, parallel
conduct is, at best, ambiguous; while such conduct is consistent with a conspiracy, it is
equally consistent with other, non-nefarious explanations. See 127 S. Ct. at 1964
(parallel business behavior is admissible circumstantial evidence from which the fact
finder may infer agreement, [but] it falls short of conclusively establish[ing] agreement)
(internal quotation marks omitted). Accordingly, an allegation of parallel conduct and a
bare assertion of conspiracy will not suffice. Without more, parallel conduct does not
suggest conspiracy, and a conclusory allegation of agreement at some unidentified point
does not supply facts adequate to show illegality. Id. at 1966.
1 Plaintiffs argue in their Memorandum in Opposition that the licensing agreements
alone constitute sufficient evidence of a conspiracy. (Mem. in Oppn at 6.) They reiterated that
assertion at oral argument, contending that, under Twombly, simply referencing a written
agreement [is] sufficient to plead a conspiracy. (4/22/08 Hearing Tr. at 14.) The Court does
not agree. [I]n general terms, the act of combination, standing alone, is not actionable as a
conspiracy. Bergquist v. Felland (In re O-Jay Foods, Inc.), Civ. No. 4-91-566, 1991 WL
378164, at *20 (D. Minn. Nov. 21, 1991) (MacLaughlin, J.) (applying Minnesota law).
Obviously, not every contract is evidence of a conspiracy; only when a contract contains an
agreement to violate the law have courts found conspiracies to exist, as the cases cited by
Plaintiffs demonstrate. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 143-44
(1948) (licensing agreements between movie distributor and movie exhibitors required exhibitors
to set minimum prices, which as a result regulated competition among exhibitors); Omnicare v.
Unitedhealth Group, Inc., 524 F. Supp. 2d 1031, 1038 (N.D. Ill. 2007) (merger agreement
restricted partys ability to compete in relevant marketplace). Indeed, the Twombly plaintiffs
alleged that the defendants had made unfair agreements . . . designed to sabotage competitors
in the local-telephone-services market, see 127 S. Ct. at 1962, and yet the Court held that the
complaint had been properly dismissed for failing to adequately allege facts supporting a
conspiracy. Here, Plaintiffs have nowhere alleged that the licensing agreements contained illegal
terms or otherwise required illegal conduct on Defendants part, and hence the licensing
agreements add little (if anything) to the mix. In any event, even if the licensing agreements
This conclusion is particularly true here, because Plaintiffs specifically allege that
ALS requires Defendants to use trademarks, logos, and promotional materials provided to
them by ALS. (Am. Compl. 35.) Hence, it is not surprising that ALSs alleged
misrepresentations about Scent-Lok were repeated by each of the other Defendants;
ALS mandated that to be the case. Plaintiffs argue that the licensing agreements between
ALS and each Defendant are direct evidence of a conspiracy (Mem. in Oppn at 5-8),
but in the Courts view the exact opposite is true: the licensing agreements actually
negate any suggestion of a conspiracy because they provide a plausible alternative
explanation for Defendants parallel conduct. Under these circumstances, no conspiracy
may be inferred. See Twombly, 127 S. Ct. at 1972 (complaint did not suggest conspiracy
when an obvious alternative explanation existed for defendants conduct).1
were, in some sense, conspiratorial evidence, they would at most suggest only that there were
four individual conspiracies between ALS, on one hand, and each of Cabelas, Gander
Mountain, Bass Pro, and Browning on the other and not one overarching conspiracy involving
all five Defendants. This further undermines Plaintiffs conspiracy claim.
2 Interestingly, [m]ost general English dictionaries fail to list conclusory as a main
entry. B. Garner, A Dictionary of Modern Legal Usage 191 (2d ed. 1995). The words
meaning, however, is important in this case: expressing a factual inference without expressing
the fundamental facts on which the inference is based. Id. Here, the factual inference
Plaintiffs assert is that Defendants knew the representations they were making about their
products were false; the Amended Complaint, however, is bereft of the fundamental facts on
Plaintiffs also argue that they have adequately pleaded a conspiracy claim because
they have alleged that each Defendant knew that all other Defendants made similar
inaccurate claims about their products. (Mem. in Oppn at 5.) They assert that
knowledge of a fraud being committed by competitors and the affirmative agreement to
engage in that same fraudulent behavior is a sufficient allegation of a meeting of the
minds. Id. Yet, Plaintiffs have cited no authority for this proposition, and the Court
does not believe that Company As knowledge that Company B is engaging in fraudulent
conduct, followed by Company As decision to engage in the same conduct, necessarily
suggests an illicit agreement between Company A and Company B. Cf. Twombly, 127 S.
Ct. at 1964 (noting that conscious decision to engage in parallel conduct, i.e., conscious
parallelism, is insufficient to support a claim of conspiracy in restraint of trade under the
Sherman Act). Moreover, Plaintiffs assertion that each Defendant knew it was
misrepresenting the efficacy of its products and their ability to be regenerated is
conclusory Plaintiffs have simply failed to plead any facts suggesting how or when
Defendants purportedly obtained that knowledge.2
which th[at] inference is based. Id.
3 At oral argument, Plaintiffs also asserted that they were aware of additional facts
suggesting a conspiracy that they had not pleaded in the Amended Complaint. Assuming
arguendo that is true, it does not save the conspiracy claim from dismissal. In the Courts view,
a plaintiff cannot intentionally omit facts relevant to a particular claim in a complaint and then
later attempt to resuscitate that claim, after dismissal, by seeking to plead those omitted facts.
See EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 780 (7th Cir. 2007) (noting that
pleading rules are designed to [e]ncourag[e] a plaintiff to plead what few facts can be easily
provided and that a plaintiff should alert[] the defendant to basic, critical factual allegations).
Furthermore, the assertion that Plaintiffs possess additional facts suggesting a conspiracy claim
was also conclusory Plaintiffs made no attempt at oral argument to state what those additional
facts are.
Finally, at oral argument Plaintiffs asserted that requiring them to plead their
conspiracy claim in greater detail would, in essence, require heightened, Rule 9(b)-like
pleading for conspiracy claims. (4/22/08 Hearing Tr. at 17.) Yet, in concluding that the
conspiracy claim has not been adequately pleaded here, the Court is in no way suggesting
that Plaintiffs were required to plead that claim with particularity under Federal Rule of
Civil Procedure 9(b). See Stephenson, 282 F. Supp. 2d at 1070 (conspiracy allegations
need not be pleaded with particularity under [Rule] 9(b)). Rather, the defect in the
conspiracy claim was laid bare by Twombly: Plaintiffs were required to plead facts
plausibly suggesting an illegal agreement, and Defendants parallel conduct, when viewed
in conjunction with the licensing agreements requiring such conduct, is simply
insufficient to nudge Plaintiffs claims across the conceivable/plausible line. 127 S. Ct.
at 1974.3
4 Constitutional standing must be distinguished from statutory standing. The former
refers to whether the person whose standing is challenged is a proper party to request an
adjudication of a particular issue under Article III of the United States Constitution. E.g.,
United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1013 (8th Cir. 2003). The latter
concerns whether the person whose standing is challenged is a proper plaintiff under the terms of
the statute in question. E.g., Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1211
(10th Cir. 2006). Here, there is no dispute that Plaintiffs enjoy statutory standing under the
For these reasons, the Court concludes that Plaintiffs have failed to adequately
plead their conspiracy claim (Count IV of the Amended Complaint), and it will be
II. Plaintiffs lack standing to sue Bass Pro and Browning.
Bass Pro and Browning argue that once the conspiracy claim is dismissed, the
other claims asserted against them must also be dismissed because Plaintiffs do not allege
any direct contact with them. Stated differently, no named Plaintiff alleges that he
purchased any Scent-Lok products from Bass Pro or Browning, and no named Plaintiff
alleges that he had any direct contact with Bass Pro [or Browning] in any respect no
named Plaintiff even alleges that he ever heard Bass Pros [or Brownings] alleged
misrepresentations, let alone relied on them. (Bass Pro Mem. at 8.) In the absence of
any direct contact, Bass Pro and Browning argue that Plaintiffs cannot show an injury
traceable to their conduct and, as a result, Plaintiffs lack standing to sue them. (See id. at
6-9.) The Court agrees.
Plaintiffs concede that, in order to establish constitutional standing vis-a-vis these
Defendants, they must show a personal injury fairly traceable to [Bass Pros and
Brownings] allegedly unlawful conduct. (Mem. in Oppn at 9.)4 They further concede
Minnesota consumer-protection statutes in Counts I-III of the Amended Complaint. Hence, only
the question of Article III standing is implicated in this case.
that they have not pleaded any direct contact with Bass Pro or Browning sufficient to
establish an injury traceable to their conduct. Nevertheless, Plaintiffs argue that they
enjoy standing to sue Bass Pro and Browning under the juridical-link exception. (See
id. at 11-13.) First described in La Mar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th
Cir. 1973), the juridical-link exception answers the question of whether two defendants
are sufficiently linked so that a plaintiff with a cause of action against only [one]
defendant can also sue the other defendant. In re Eaton Vance Corp. Sec. Litig., 220
F.R.D. 162, 165 (D. Mass. 2004). The exception applies where the named plaintiffs in a
class action have no relationship with one or more named defendants, but all of the
defendants are related in some fashion whether by contract, conspiracy, or otherwise
such that a single resolution of the dispute would be expeditious. La Mar, 489 F.2d at
466. While the Eighth Circuit has not opined on the propriety of the juridical-link
exception, its use has been approved by several other Courts of Appeals. See, e.g.,
Payton v. County of Kane, 308 F.3d 673 (7th Cir. 2002); Moore v. Comfed Sav. Bank,
908 F.2d 834 (11th Cir. 1990).
Even assuming arguendo that the Eighth Circuit would approve the juridical-link
exception, Plaintiffs cannot invoke that exception to establish standing here, for two
reasons. First, now that the conspiracy claim has been dismissed, there exists no link
connecting all of the Defendants. Plaintiffs point to the licensing agreements in an effort
to establish such a link, but they ignore that the Defendants were not parties to a global
licensing agreement; rather, there were several such agreements, entered into individually
between ALS and each of Cabelas, Gander Mountain, Bass Pro, and Browning. A
juridical link among defendants typically is found [w]here all members of the defendant
class are officials of a single state and are charged with enforcing or uniformly acting in
accordance with a state statute, or where there is a contractual obligation among all
defendants. Dash v. FirstPlus Home Loan Owner Trust 1996-2, 248 F. Supp. 2d 489,
504-05 (M.D.N.C. 2003) (emphasis added) (citations omitted); accord Mull v. Alliance
Mortgage Banking Corp., 219 F. Supp. 2d 895, 909 (W.D. Tenn. 2002). Neither
situation exists in the present action because Defendants do not have contractual
relationships with each other and Plaintiffs do not challenge any state or local statute.
Dash, 248 F. Supp. 2d at 505 (emphasis added).
Second, and more importantly, La Mar discussed the juridical-link exception in the
context of class certification under Federal Rule of Civil Procedure 23; standing was not
at issue. See 489 F.2d at 465-66. While some courts have held that plaintiffs may use the
juridical-link exception as a means to establish standing, see, e.g., Glover v. Standard
Fed. Bank, Civ. No. 97-2068, 2001 WL 34635707, at *2-3 (D. Minn. June 11, 2001)
(Frank, J.), a substantial number of courts have rejected such attempts. See, e.g., Johnson
v. GEICO Cas. Co., 516 F. Supp. 2d 351, 356 (D. Del. 2007) (Courts considering [the
juridical-link] doctrine have concluded that it does not apply to questions of standing
raised at the pleading stage.); In re Franklin Mut. Funds Fee Litig., 388 F. Supp. 2d 451,
5 See also Lindquist v. Farmers Ins. Co. of Ariz., No. CV 06-597, 2008 WL 343299, at *9
(D. Ariz. Feb. 6, 2008); Siemers v. Wells Fargo & Co., No. C05-4518, 2006 WL 3041090, at *6
(N.D. Cal. Oct. 24, 2006); Popoola v. M.D.-Individual Practice Assoc., 230 F.R.D. 424, 431 (D.
Md. 2005); In re Eaton Vance, 220 F.R.D. at 170-71; Faircloth v. Natl Home Loan Corp., 313
F. Supp. 2d 544, 550-51 (M.D.N.C. 2003); Matte v. Sunshine Mobile Homes, Inc., 270 F. Supp.
2d 805, 822 (W.D. La. 2003).
6 That this case is brought as a class action also is of no moment vis-a-vis standing. See,
e.g., Hastings v. Wilson, Civ. No. 05-2566, 2007 WL 333617, at *4 (D. Minn. Feb. 1, 2007)
(Kyle, J.) (Plaintiffs may not use Rule 23 to circumvent their obligation to establish standing),
affd, 516 F.3d 1055 (8th Cir. 2008); Dash, 248 F. Supp. 2d at 503 (Plaintiffs may not use the
procedural device of a class action to bootstrap themselves into standing [they] lack[].) (internal
quotation marks and citation omitted).
462 n.7 (D.N.J. 2005) (The juridical link doctrine has no bearing on standing; rather, its
place lies in a Rule 23 analysis); Henry v. Circus Circus Casinos, Inc., 223 F.R.D. 541,
544 n.2 (D. Nev. 2004) (The Court declines to import La Mars juridical link doctrine
into an Article III analysis. A doctrine developed under Rule 23 based on judicial
efficiency and expedience does not play a role in an Article III standing analysis.).5
Given the Supreme Courts admonition that Article III standing cannot be overlooked
for the sake of convenience and efficiency, Raines v. Byrd, 521 U.S. 811, 820 (1997),
and that a plaintiff who has been subject to injurious conduct of one kind [does not]
possess by virtue of that injury the necessary stake in litigating conduct of another kind,
although similar, to which he has not been subject, Blum v. Yaretsky, 457 U.S. 991, 999
(1982) (emphasis added), the Court agrees with those cases holding that the juridical-link
exception cannot be used to circumvent a plaintiffs obligation to establish standing.6
Accordingly, the Court determines that Plaintiffs lack standing to sue Bass Pro and
Browning in Counts I-III of the Amended Complaint, and those claims will be dismissed
against them.
III. Counts I through III are adequately pleaded against Gander Mountain.
Finally, Gander Mountain argues that Plaintiffs have not properly pleaded Counts
I-III against it because the two named Plaintiffs who bought Scent-Lok products from
Gander Mountain, Joe Rohrbach and Jeff Brosi, have not specified how they were
deceived by Gander Mountains conduct. (Gander Mountain Mem. at 2-3.) According
to Gander Mountain, the purported failure to identify proximate causation between these
Plaintiffs purchases and Gander Mountains alleged misrepresentations mandates the
dismissal of Counts I-III. (Id.) The Court disagrees.
Gander Mountain relies upon the Eighth Circuits recent decision in Schaaf v.
Residential Funding Corp., 517 F.3d 544 (8th Cir. 2008), in support of its argument. In
Schaaf, the Eighth Circuit held that in order to state a claim under the Minnesota
Consumer Fraud Act (which is the statute implicated in Count I here), a plaintiff must
plead facts showing that the defendants actions caused the plaintiffs losses. Id. at 552.
The Schaaf plaintiffs failed in this regard because they did not plead facts linking the
defendants purportedly unlawful conduct to their damages. Id. at 553.
By contrast here, the Amended Complaint alleges that Gander Mountain
misrepresented in its marketing and advertising, and on product tags and labels that its
odor-eliminating clothing eliminates all human odors and can be reactivated in a
household clothes dyer (Am. Compl. 23), and that Rohrbach and Blasi would not have
purchased the odor eliminating clothing but for the [mis]representations made by Gander
Mountain (id. 14-15). In the Courts view, these allegations suffice to show the
required causal connection between [Gander Mountains] wrongful conduct and
[Rohrbachs and Blasis] losses. Schaaf, 517 F.3d at 549. Indeed, it is hard to conceive
what more Gander Mountain would have Plaintiffs plead in order to provide some
indication of the loss and the causal connection that [Plaintiffs] ha[ve] in mind. Id.
(quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that ALSs Motion to Dismiss (Doc. No. 73), Cabelas Motion to Dismiss
(Doc. No. 81), Bass Pros Motion to Dismiss (Doc. No. 77), and Brownings Motion to
Dismiss (Doc. No. 83) are each GRANTED, and Gander Mountains Motion to Dismiss
(Doc. No. 86) is GRANTED IN PART and DENIED IN PART. Count IV of the
Amended Complaint is DISMISSED WITH PREJUDICE, and Counts I through III of
the Amended Complaint are DISMISSED WITH PREJUDICE vis-a-vis Bass Pro and
Dated: May 5, 2008 s/Richard H. Kyle
United States District Judge


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.