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Case: 1:20-cv-05543 Document #: 19 Filed: 11/12/20 Page 1 of 3 PageID #:45
`Case: 1:20-cv-05543 Document #: 19 Filed: 11/12/20 Page 1 of 3 PageID #:45
`
`UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`No.
`
`l:20—cv-05543
`
`Judge Andrea R. Wood
`Magistrate Judge Jeffery Cummings
`
`)
`)
`
`) )
`
`)
`)
`)
`)
`
`) )
`
`)
`
`KENNETH MEYERS,
`on behalf of Plaintiff and the
`class members described herein,
`
`Plaintiff,
`
`vs.
`
`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,
`
`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
`
`(“Complaint”), Kenneth Meyers (“Plaintiff”), with prejudice,
`
`for the reasons more fully
`
`discussed in ABU’s Memorandum of Law filed contemporaneously herewith for reasons,
`
`including, but not limited to: (i) Plaintiff’s claims are preempted; (ii) the Complaint does not
`
`contain a plausible claim for relief; (iii) lack of pre-suit notice bars the warranty claims; (iv) no
`
`claim for implied warranty exists under the Magnuson-Moss Warranty Act; (V) the Safe Harbor
`
`provisions in the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”) and the Indiana
`
`Deceptive Consumer Sales Act (“IDCSA”) apply so as to bar those causes of action; (vi) lack of
`
`pre-suit notice precludes claims under the IDCSA; (vii) failure to plead fraud with particularity
`
`as required by Rule 9(b); and (viii) for failure to state a claim for common law fraud.
`
`

`

`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
`
`2.
`
`Alternatively, pursuant to 28 U.S.C. § 1404(a), this action ought to be transferred
`
`to the United States District Court for the Eastern District of New York. Transfer of venue is
`
`warranted for the convenience of the parties, and witnesses, and to promote the interest ofj ustice.
`
`3.
`
`WHEREFORE, for the reasons set forth in its Memorandum of Law, ABU
`
`respectfully requests that this Court grant its Rule 12(b)(6) Motion to Dismiss, dismiss Plaintiff s
`
`Complaint with prejudice, or, alternatively, transfer venue of this action to the United States
`
`District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1404(a), or grant any
`
`such further relief this Court deems equitable and just.
`
`Respectfully submitted,
`
`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
`
`Chicago, Illinois 60601
`Telephone No.: (312) 876-7810
`casey. grabenstein@saul. com
`
`Attorneys for Defendant, Arizona Beverages USA LLC
`
`#4355206
`
`

`

`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
`
`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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