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New round for dog distemper suit vs. Naperville pet shop

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Current and former dog owners whose pets were sickened or died after purchasing their puppies at a local pet shop sustained a legal setback this week, but they have vowed to press on.

Cook County Circuit Court Judge Diane Joan Larsen on Tuesday dismissed the most recent complaint against several of the Happiness Is Pets stores — including the one in Naperville and its owner, Ron Berning — citing shortcomings in the filing.

“The Court … finds that loss causation is not adequately pled. The Court also finds that claims against Ronald Berning are not factually alleged,” Larsen said, according to a transcript of the proceedings.

Naperville attorney David Fish, who is defending Berning in the suit, hailed the ruling.

“This is now the second Cook County judge that has dismissed the plaintiffs’ complaint,” Fish said in an email. “This lawsuit is over two years old and the plaintiffs still have not been able to establish claims that a judge has allowed to go forward.”

Cook County Circuit Court Judge Moshe Jacobius last May granted a request filed by Fish to dismiss the action, but allowed provisions for filing an amended complaint naming the specific stores being implicated, within a specified time period.

Attorney Stephanie Capps of the Chicago-based Clinton Law Firm , who represents the pet owners in the class-action suit, filed an amended complaint in late August that narrowed the number of entities accused of fraud, deceptive practices and other transgressions related to the sale of several puppies infected with distemper in late 2011.

The suit, among other things, alleged that the dogs’ new owners should have been informed that their puppies had been given daily medications and had undergone breathing treatments, deworming and other procedures before they were sold. The complaint also called “materially misleading and false” store employees’ denials that the chain does business with large-scale breeding operations, often called puppy mills, and their claims that the dogs were healthy while living at the stores.

Capps was optimistic about the outcome of this week’s session before Larsen.

“It got dismissed without prejudice, and the judge wants us to file an amended complaint pursuant to certain instructions,” she said, adding that the next move must be made within 28 days.

Fish had requested that Larsen dismiss the case with prejudice or, if that couldn’t be done, that she stipulate the new complaint, if it is filed, must be the final one. Larsen made no promises.

“We’re reaching the end of the road,” she said. “The appellate court instructs that we’re not to be arbitrary about it, but we’ve given a number of opportunities on this. So the Court is mindful of defendant’s concerns.”

Fish, who filed the most recent motion to dismiss last October, acknowledged that the other side has “the right to try to amend their complaint, for the fourth time,” but continued to assert that Berning and his stores committed no wrongdoing.

“This lawsuit is an attack on a family-run business that provides joy to families throughout the Chicago-land by providing them with a time-honored tradition of a family pet. Happiness is Pets believes the lawsuit has no merit and is committed to maintaining its business,” he said. “In the event that the plaintiffs file another complaint (their fourth), Happiness is Pets will continue to vigorously defend itself.”

That event, Capps said, is assured.

“We’ll be working very hard on that,” she said.

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