Hohenberg v. Ferrero USA, Inc

Filing 89

MOTION to Strike 83 Response in Support of Motion,, Motion to Strike Paragraphs 3 Through 6 of the Declaration of Melanie Persinger and Exhibit 5 Thereto by Ferrero USA, Inc. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration Declaration of Amir Steinhart in Support of Motion to Strike, # 3 Exhibit 1 to Declaration of Amir Steinhart, # 4 Exhibit 2 to Declaration of Amir Steinhart, # 5 Proof of Service)(Eggleton, Keith) (ag).

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KEITH E. EGGLETON, State Bar No. 159842
COLLEEN BAL, State Bar No. 167637
DALE R. BISH, State Bar No. 235390
EDMUNDO C. MARQUEZ, State Bar No. 268424
AMIR STEINHART, State Bar No. 275037
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Attorneys for Defendant
FERRERO U.S.A, INC.

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UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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In re FERRERO LITIGATION

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CASE NO.: 11 CV 0205 H (CAB)
DEFENDANT FERRERO U.S.A.,
INC.’S MEMORANDUM IN
SUPPORT OF MOTION TO STRIKE
PARAGRAPHS 3 THROUGH 6 OF
THE DECLARATION OF MELANIE
PERSINGER AND EXHIBIT 5
THERETO
Date: November 7, 2011
Time: 10:30 a.m.
Location: Courtroom 13
Judge: Honorable Marilyn L. Huff

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FERRERO U.S.A, INC.’S MOTION TO STRIKE
PERSINGER DECLARATION

CASE No.: 11 CV 0205 H (CAB)

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I.

INTRODUCTION
Defendant Ferrero U.S.A., Inc. (“Ferrero”) respectfully requests that the Court strike

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Paragraphs 3 through 6 of the Declaration of Melanie Persinger (“the Persinger Declaration”)

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(Dkt. 83) and Exhibit 5 to that declaration (Dkt. 83-6), both filed with plaintiffs’ reply in support

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of their motion for class certification. First, the Persinger Declaration and 51-page “exhibit”

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violate the Local Rule limiting reply briefs to 10-pages and embody plaintiffs’ sole and belated

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attempt to satisfy their burden under Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

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Second, the Persinger Declaration should be stricken since it improperly contains legal argument.

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II.

THE DECLARATION AND EXHIBIT ATTEMPT TO CIRCUMVENT THE
PAGE LIMITATION ESTABLISHED IN THE RULES

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Local Rule 7.1(h) states that “[n]o reply memorandum will exceed ten (10) pages without

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leave of the judge.” CivLR 7.1(h). After Ferrero filed its 25-page opposition to plaintiffs’

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motion for class certification (Docket Number (“Dkt. No.”) 76), plaintiffs requested that Ferrero

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stipulate to allow plaintiffs to file a 30-page reply memorandum, in lieu of the 10 pages allowed

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under Local Rule 7.1(h). Declaration of Amir Steinhart (“Steinhart Decl.”), Exhibit (“Ex.”) 1.

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As is apparent from plaintiffs’ reply papers, a primary reason for plaintiffs’ request for additional

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pages was to respond to Ferrero’s argument that, considering the nature of Ferrero’s contacts

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with California, the Supreme Court’s Shutts decision prohibits the certification of a nationwide

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class of consumers under California law. Specifically, as highlighted in Ferrero’s opposition

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brief (“Opp.”), plaintiffs bear the burden of showing, among other things, that no material

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conflict exists between the consumer protection laws of California and other states. Opp. at 5.

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While Ferrero was amenable to a reasonable expansion of plaintiffs’ page limits, it would

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not agree to the 30-page reply memorandum sought by plaintiffs. Steinhart Decl., Exs. 1-2.

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Plaintiffs therefore “decided to cut to 10 pages[.]” Steinhart Decl., Ex. 2. In doing so, they

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adopted a self-help strategy designed to circumvent the Local Rules. In addition to their 10-page

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reply brief, plaintiffs filed the 3-page Persinger Declaration that includes legal argument. See,

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e.g., Persinger Decl. ¶3 (“Ferrero’s assertion that its Nutella messaging greatly varied is

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contradicted by the record. [citing deposition testimony]”); id. ¶ 4 (“Evers’ testimony
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FERRERO U.S.A, INC.’S MOTION TO STRIKE
PERSINGER DECLARATION

Case No.: 11 CV 0205 H (CAB)

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demonstrates that Plaintiffs’ claims can be proved or disproved by common evidence. [citing

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deposition transcripts].”); id. ¶ 6 (“In sum, any responses Plaintiffs provided that Ferrero

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characterizes as ‘not objecting’ to the claims are based on incomplete knowledge and clarified by

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other testimony.”). Plaintiffs’ reply brief liberally relies on the Persinger Declaration to make

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plaintiffs’ arguments. See, e.g., Reply at 2 (“Finally, questions of science, such as the effect of

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Nutella on human health, are demonstrated on a generalized basis. Ferrero agrees its messaging

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may be evaluated by reference to such common evidence. Persigner Decl. ¶ 4”).
Worse still, instead of using their reply brief to try to respond to their failure to satisfy

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their Shutts burden, plaintiffs’ reply brief includes just a sentence-long reference to material

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conflicts in the law. Reply at 10. It then cites to Exhibit 5 to the Persinger Declaration, which is

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a 51-page, purported state-by-state comparison of California’s consumer protection laws with

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those of the other 49 states and District of Columbia. This exhibit, with its citations to case law

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and state statutes, as well as over 200 footnotes, is an obvious attempt by plaintiffs to evade the

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page limits imposed by Local Rule 7.1(h). It is also an improper effort by plaintiffs to try to

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meet their affirmative burden by raising issues on reply.

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In total, between their reply brief, the Persinger Declaration, and Exhibit 5, plaintiffs filed

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64-pages worth of argument. Good cause exists for the Court to strike Paragraphs 3 through 6 of

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the Persinger Declaration and Exhibit 5 in its entirety.

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III.

THE DECLARATION SHOULD BE STRICKEN ON THE GROUND THAT IT
IMPROPERLY CONTAINS LEGAL ARGUMENTS

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A declaration should be limited to facts and should not include legal argument.

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Okada v. Green Tree, C-10-00487, 2010 WL 700660, at *1 n.1 (N.D. Cal. Feb. 25, 2010) (“A

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declaration is a statement of facts which are personally known to the person making the

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declaration. The facts in a declaration must be admissible in evidence, i.e., evidentiary facts and

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not conclusions or argument.”). Paragraphs 3 through 6 of the Persinger Declaration comprise

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legal argument, not statements of fact that Ms. Persinger could possibly “declare under penalty

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of perjury” are “true and correct.” See Dkt. No. 83. For this additional reason, Ferrero requests

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that the Court strike Paragraphs 3 through 6 of the Persinger Declaration.
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FERRERO U.S.A, INC.’S MOTION TO STRIKE
PERSINGER DECLARATION

Case No.: 11 CV 0205 H (CAB)

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IV.

CONCLUSION
Ferrero respectfully requests that the Court strike Paragraphs 3 through 6 of the Persinger

Declaration and Exhibit 5 thereto.

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Respectfully submitted,

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Dated: October 27, 2011

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

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By:

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/s/ Keith E. Eggleton
Keith E. Eggleton

Attorneys for Defendant
FERRERO U.S.A., INC.

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FERRERO U.S.A, INC.’S MOTION TO STRIKE
PERSINGER DECLARATION

Case No.: 11 CV 0205 H (CAB)