Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/8

 In terms of the pending motion by McDonalds to dismiss the complaint, these principles require the complaint to be dismissed for lack of specificity, with leave granted to replead within the limits set forth below.

Prior Proceedings

The plaintiffs commenced suit on August 22, 2002, in the State Supreme Court of New York, Bronx County. Defendants removed the action to the Southern District of New York on September 30, 2002, alleging as the basis of removal that the plaintiffs had fraudulently joined non-diverse parties in order to defeat diversity jurisdiction pursuant to 28 U.S.C. § 1332.

McDonalds filed the instant motion to dismiss plaintiffs’ complaint (the “Complaint”) on October 7, 2002. The plaintiffs cross-moved to remand and in opposition to the motion on October 25, 2002. Oral argument on both motions was held on November 20, 2002, and the motions were considered fully submitted at that time.

Facts

As befits a motion to dismiss, the following facts are drawn from the allegations in the Complaint and do not constitute findings of fact by the Court.

Parties

Ashley Pelman, a minor, and her mother and natural guardian Roberts Pelman are residents of the Bronx, New York.

Jazlen Bradley, a minor, and her father and natural guardian Israel Bradley are residents of New York, New York.

The infant plaintiffs are consumers who had purchased and consumed the defendants’ products and, as a result thereof, have become overweight and have developed diabetes, coronary heart disease, high blood pressure, elevated colestorol intake, and/or other detrimental and adverse health effects as a result of the defendants’ conduct and business practices.

Defendant McDonald’sMcDonalds [sic] Corp. is a Delaware corporation with its principal place of business at One McDonald’s Plaza, Oak Brook, Illinois. It does substantial business with outlets in the State of New York, as well as throughout the fifty states and the world.

Defendant McDonalds of New York is a New York State corporation with a registered agent office located at 80 State Street, Albany, New York. It does substantial business with outlets and/or franchises in the State of New York.

McDonalds is the owner, manager, franchisee and operator of defendants the Bruckner Boulevard and Jerome Avenue outlets. Ashley and Roberta Pelman purchased and consumed food products at the Bruckner Boulevard outlet. Jazlen and Israel Bradley purchased and consumed food products at the Jerome Avenue outlet. All products, ingredients, promotions and advertisements sold, provided, utilized, advertised and promoted by the Jerome Avenue and Bruckner Boulevard outlets were authorized by McDonalds Corp. and McDonalds of New York.

McDonalds Corp. and McDonalds of New York, through its agents, servants, and/or employees, operate both company-owned outlets and franchises, and prescribe their ingredients, qualities and quantities of the food products served, so as to insure that its food products sold in one state or location is substantially identical to food products sold elsewhere in the country.

Obesity in Young Persons and its Effects

Today there are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. In 1999, an estimated 61 percent of U.S. adults were overweight or obese and 13 percent of children aged 6 to 11 years and 14 percent of adolescents