`Case: 1:20-cv-05543 Document #: 19 Filed: 11/12/20 Page 1 of 3 PageID #:45
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`UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`No.
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`l:20—cv-05543
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`Judge Andrea R. Wood
`Magistrate Judge Jeffery Cummings
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`KENNETH MEYERS,
`on behalf of Plaintiff and the
`class members described herein,
`
`Plaintiff,
`
`vs.
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`ARIZONA BEVERAGES USA LLC,
`
`Defendant.
`
`DEFENDANT’S RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF’S
`CLASS ACTION COMPLAINT OR, ALTERNATIVELY, TO
`TRANSFER VENUE UNDER 28 U.S.C. Q 14041511
`
`1,
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`Defendant, Arizona Beverages USA LLC (“ABU”), pursuant to Federal Rule of
`
`Civil Procedure 12(b)(6), moves to dismiss the Class Action Complaint filed by Plaintiff
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`(“Complaint”), Kenneth Meyers (“Plaintiff”), with prejudice,
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`for the reasons more fully
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`discussed in ABU’s Memorandum of Law filed contemporaneously herewith for reasons,
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`including, but not limited to: (i) Plaintiff’s claims are preempted; (ii) the Complaint does not
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`contain a plausible claim for relief; (iii) lack of pre-suit notice bars the warranty claims; (iv) no
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`claim for implied warranty exists under the Magnuson-Moss Warranty Act; (V) the Safe Harbor
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`provisions in the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”) and the Indiana
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`Deceptive Consumer Sales Act (“IDCSA”) apply so as to bar those causes of action; (vi) lack of
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`pre-suit notice precludes claims under the IDCSA; (vii) failure to plead fraud with particularity
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`as required by Rule 9(b); and (viii) for failure to state a claim for common law fraud.
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`
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`Case: 1:20-cv-05543 Document #: 19 Filed: 11/12/20 Page 2 of 3 PageID #:46
`Case: 1:20-cv-05543 Document #: 19 Filed: 11/12/20 Page 2 of 3 PageID #:46
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`2.
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`Alternatively, pursuant to 28 U.S.C. § 1404(a), this action ought to be transferred
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`to the United States District Court for the Eastern District of New York. Transfer of venue is
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`warranted for the convenience of the parties, and witnesses, and to promote the interest ofj ustice.
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`3.
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`WHEREFORE, for the reasons set forth in its Memorandum of Law, ABU
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`respectfully requests that this Court grant its Rule 12(b)(6) Motion to Dismiss, dismiss Plaintiff s
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`Complaint with prejudice, or, alternatively, transfer venue of this action to the United States
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`District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1404(a), or grant any
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`such further relief this Court deems equitable and just.
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`Respectfully submitted,
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`ARIZONA BEVERAGES USA, LLC
`
`
`By: _/§/ Robert P. Donovan
`Admitted Pro Hac Vice
`
`Robert P. Donovan, Esq. (No. 037871988)
`McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP
`570 Broad Street, Suite 1500
`Newark, New Jersey 07102
`Telephone No.: (973) 622-7711
`rdonovan@mdmc-law. com
`
`Casey Grabenstein, Esq. (No. 6289606)
`SAUL EWING ARNSTEIN & LEHR LLP
`
`161 North Clark Street, Suite 4200
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`Chicago, Illinois 60601
`Telephone No.: (312) 876-7810
`casey. grabenstein@saul. com
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`Attorneys for Defendant, Arizona Beverages USA LLC
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`#4355206
`
`
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`Case: 1:20-cv-05543 Document #: 19 Filed: 11/12/20 Page 3 of 3 PageID #:47
`Case: 1:20-cv-05543 Document #: 19 Filed: 11/12/20 Page 3 of 3 PageID #:47
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`CERTIFICATE OF SERVICE
`
`The undersigned attorney certifies that on November 12, 2020, he caused the foregoing
`Defendant’s Rule 12(b)(6) Motion to Dismiss Plaintiff’s Class Action Complaint or,
`Alternatively, to Transfer Venue Under 28 U.S.C. § 1404(a), to be filed electronically with
`the Clerk of the US. District Court, using the Court’s CM/ECF system, which sent electronic
`notification to all parties who have appeared and are registered as CM/ECF participants in this
`matter.
`
`/_s/ Robert P. Donovan
`
`#435 5206
`
`
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