Blaszkowski et al v. Mars Inc. et al

Filing 554

NOTICE by Natura Pet Products, Inc. re 539 Sealed Document of Filing Objection to or, in the Alternative, Motion to Strike Plaintiffs' Agreed Motion to File Financial Affidavits and Supporting Documents of Renee Blaszkowski and Jennifer Damron and Accompanying Memorandum of Law (Attachments: # 1 Declaration of Kristen E. Caverly)(York, Jeffrey)

Blaszkowski et al v. Mars Inc. et al

Doc. 554

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21221-CIV-ALTONAGA/BROWN

RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs, vs. MARS, INCORPORATED, et al., Defendants. ___________________________________ DEFENDANT NATURA PET PRODUCTS, INC.'S OBJECTION TO OR, IN THE ALTERNATIVE, MOTION TO STRIKE PLAINTIFFS' AGREED MOTION TO FILE FINANCIAL AFFIDAVITS AND SUPPORTING DOCUMENTS OF RENEE BLASZKOWSKI AND JENNIFER DAMRON AND ACCOMPANYING MEMORANDUM OF LAW Pursuant to Federal Rule of Civil Procedure Rule ("Rule") 5(a)(1)(D), Natura Pet Products, Inc. ("Natura") hereby objects to the Plaintiffs' Agreed Motion to File Financial Affidavits and Supporting Documents of Renee Blaszkowski and Jennifer Damron under Seal and all supporting documents, including the evidence to be sealed, filed on November 6, 2008 (collectively, "Motion to File under Seal"). [D.E. 539.] In the alternative, pursuant to Rule 12(f), Natura hereby moves to strike the Motion to File under Seal. In support, Natura states as follows: 1. Plaintiffs' Motion to File under Seal and its supporting documents and

evidence were not exchanged with or served upon Natura. 2. Plaintiffs' Motion to File under Seal is an immaterial, impertinent,

and/or scandalous matter that should be stricken because it seeks to admit evidence offered in support of a reply brief in violation of Local Rule 7.1.C.3.

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In support of this objection and motion in the alternative, which is justified by the filings of record in this case, Natura submits the attached Memorandum of Law. MEMORANDUM OF LAW I. INTRODUCTION Natura objects to Plaintiffs' Motion to File under Seal because it was never served on Natura and Natura is unaware of its contents. Because Natura does not know what the Motion to File under Seal states, the motion is not an "agreed" motion. Until the issuance of Judge Altonaga's order [D.E. 546] denying the Motion to File under Seal on November 14, 2008, Natura was unaware that the Motion to File under Seal had been filed. Natura was under the impression that Docket Entry 539 contained only financial documents related to Plaintiffs Blaszkowski and Damron that have not been provided to Natura. Through the financial documents, Plaintiffs Blaszkowski and Damron improperly seek to have the Court grant their Motion for Voluntary Dismissal with Prejudice without an Award of Costs and Fees ("Motion for Dismissal") [D.E. 518] based upon evidence never provided to Natura and filed under seal in support of a reply brief. The issue of Blaszkowski and Damron's alleged financial hardship was first raised in the Motion for Dismissal's original moving papers, not Natura's opposition. Accordingly, the evidence is not permitted to be introduced with the reply and should be stricken. II. BACKGROUND On October 13, 2008, the plaintiffs Blaszkowski and Damron filed their Motion for Dismissal. [D.E. 518.] The Motion for Dismissal argued that Blaszkowski and Damron should be dismissed from this action because they were allegedly financially unable to continue. [D.E. 518.] In support of this contention, Blaszkowski and Damron each filed declarations with the Motion for Dismissal. [D.E. 516 & D.E. 517.] On October 20, 2008, Natura filed its opposition to the Motion for Dismissal. [D.E. 522.]

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On or about October 30, 2008, Plaintiffs' attorney Jonathan C. Schwartz contacted Natura's counsel, Kristen E. Caverly, to request a stipulation allowing plaintiffs Blaszkowski and Damron to file financial documents under seal in support of their upcoming reply brief. (Caverly Decl., Nov. 14, 2008.) Natura informed Plaintiffs that the submission of evidence with a reply brief was inappropriate and that Natura would object. As Natura informed Plaintiffs, it generally does not oppose the filing of sensitive financial documents under seal if they are being offered for a proper purpose. Here, however, no proper purpose was present. Natura further made clear that it would not stipulate to the filing of any motion and documents under seal unless Natura first had an opportunity to review and consent to the proposed motion and documents. (Caverly Decl.) Plaintiffs' counsel subsequently represented that Natura would be provided with a copy of the motion and all documents that Plaintiffs sought to submit under seal prior to their filing. (Caverly Decl., ex. A.) On November 6, 2008, Plaintiffs filed their reply brief in support of the Motion for Dismissal [D.E. 541] and their Motion to File Under Seal [D.E. 539]. To date, Natura has not seen the contents of the Motion to File Under Seal. (Caverly Decl.) Natura objects here and files the instant motion to strike the Motion to File under Seal on the grounds that it violates Local Rule 7.1.C.3. and that the contents of Plaintiffs' Motion have never been disclosed to Natura. III. LEGAL ARGUMENT A. Plaintiffs May Not File Evidence With Their Reply.

Rule 12(f) permits the Court to strike from pleadings any redundant, immaterial, impertinent, or scandalous matter on its own or upon the motion of a party. Local Rule 7.1.C.3. provides that evidence filed in support of a reply memorandum is strictly limited to the rebuttal of matters raised in the opposing memorandum. The issue of Plaintiffs Blaszkowski's and Damron's alleged financial hardship was raised in Plaintiffs' moving

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papers, not the opposing memorandum. [D.E. 518.] Therefore, the Sealed Document that offers evidence regarding Blaszkowski's and Damron's financial condition may not be submitted with the reply. B. Natura is Prejudiced because It Was Not Served with the Motion to File under Seal.

Rule 5(a)(1)(D) requires that written motions be served on all parties. Here, plaintiffs never served Natura with the Motion to File under Seal or the documents presumably attached. Further, Natura is unable to obtain the Motion to File under Seal from the Court because it is under seal. Natura is unaware of the exact contents of Plaintiffs' Motion. Consequently, Natura is unable to make relevant evidentiary

objections or opposing legal argument that may apply to the Motion to File under Seal. As a result, it is possible that the Court will grant the motion under the false assumption that Natura agreed to it. Additionally, Natura would be prejudiced if the Court, in ruling on the Motion for Dismissal, considered inadmissible evidence in support Plaintiffs' the reply brief to which Natura had no opportunity to object. To prevent prejudice to Natura, the Court should disregard the contents of the Motion to File under Seal. IV. CONCLUSION For the foregoing reasons, Defendant Natura Pet Products, Inc. respectfully requests that the Court sustain Natura's objection to the Motion to File under Seal or, in the alternative, grant Defendant's Motion to strike Plaintiffs' Motion to File Financial Affidavits and Supporting Documents of Renee Blaszkowski and Jennifer Damron under Seal and all supporting documents, including the evidence to be sealed. [D.E. 539.] RULE 7.1 CERTIFICATE Prior to filing this motion, Natura's attorney, Robert C. Mardian III, made reasonable efforts to confer with the plaintiffs in a good faith effort to resolve the issue raised in this motion. Plaintiffs did not respond to the meet and confer efforts, thus necessitating the instant motion. 4

McGUIREWOODS LLP By: s/Jeffrey S. York Jeffrey S. York Florida Bar No. 0987069 Michael M. Giel Florida Bar No. 0017676 50 N. Laura Street, Suite 3300 Jacksonville, Florida 32202 [phone] [phone] (fax) [e-mail] [e-mail]

and HENDERSON, CAVERLY, PUM & CHARNEY LLP Kristen E. Caverly Admitted Pro Hac Vice Robert C. Mardian III Admitted Pro Hac Vice Post Office Box 9144 Rancho Sante Fe, California 92067 [phone] [phone] (fax) [e-mail] [e-mail] ATTORNEYS AND TRIAL COUNSEL FOR DEFENDANT NATURA PET PRODUCTS, INC.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 17, 2008, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the counsel so indicated on the attached Service List. s/Jeffrey S. York Attorney

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CERTIFICATE OF SERVICE RENEE BLASZKOWSKI, ET AL., VS. MARS, INCORPORATED, ET AL. Case No. 1:07-21221-CIV-ALTONAGA/TURNOFF SERVICE LIST

Catherine J. MacIvor, Esquire Jeffrey Eric Foreman, Esquire Jeffrey Bradford Maltzman, Esquire Darren W. Friedman, Esquire Bjorg Eikeland MALTZMAN FOREMAN PA One Biscayne Tower 2 South Biscayne Boulevard, Suite 2300 Miami, FL 33131-1803 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs Patrick N. Keegan, Esquire Jason E. Baker, Esquire KEEGAN & BAKER, LLP 4370 La Jolla Village Drive, Suite 640 San Diego, CA 92122 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs John B.T. Murray, Jr., Esquire SQUIRE, SANDERS & DEMPSEY L.L.P. 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401-6198 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants PETCO Animal Supplies Stores, Inc., PetSmart, Inc., Wal-Mart

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Stores, Inc., Target Corporation and Meijer, Inc. Mark C. Goodman, Esquire SQUIRE, SANDERS & DEMPSEY L.L.P. One Maritime Plaza, Suite 300 San Francisco, CA 94111 Telephone: [phone] [e-mail] Attorneys for Defendants PETCO Animal Supplies Stores, Inc., PetSmart, Inc., Wal-Mart Stores, Inc., Target Corporation and Meijer, Inc. Rolando Andres Diaz, Esquire Peter S. Baumberger, Esquire KUBICKI DRAPER 25 W. Flagler Street Penthouse Miami, FL 33130-1712 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Defendant Pet Supermarket, Inc. Lonnie L. Simpson, Esquire S. Douglas Knox, Esquire DLA PIPER LLP 100 N. Tampa Street Suite 2200 Tampa, Florida 33602-5809 [e-mail] [e-mail] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund Alexander Shaknes, Esquire DLA PIPER LLP 1251 Avenue of the Americas New York, New York 10020-1104 [e-mail] [e-mail] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund

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William C. Martin, Esquire DLA PIPER LLP 203 North LaSalle Street Suite 1900 Chicago, Illinois 60601-1293 [e-mail] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund Hugh J. Turner, Jr., Esquire AKERMAN SENTERFITT 350 E. Las Olas Boulevard Suite 1600 Fort Lauderdale, FL 33301-2229 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants Publix Super Markets, Inc and H.E. Butt Grocery Co. Gary L. Justice, Esquire Gail E. Lees, Esquire Omar Ortega, Esquire DORTA AND ORTEGA, P.A. Douglas Entrance 800 S. Douglas Road, Suite 149 Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Mars, Incorporated, Mars Petcare U.S., and Nutro Products, Inc. Benjamine Reid, Esquire Olga M. Vieira, Esquire CARLTON FIELDS, P.A. 100 S.E. Second Street, Suite 4000 Bank of America Tower at International Place Miami, Florida 33131-9101 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Colgate-Palmolive Company and Hill's Pet Nutrition, Inc.

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John J. Kuster, Esquire James D. Arden, Esquire SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Colgate-Palmolive Company and Hill's Pet Nutrition, Inc. Kara L. McCall, Esquire SIDLEY AUSTIN LLP One South Dearborn Chicago, Illinois 60603 Telephone: [phone] [e-mail] Attorneys for Defendants Colgate-Palmolive Company and Hill's Pet Nutrition, Inc. Marcos Daniel Jiménez, Esquire Robert J. Alwine II, Esquire KENNY NACHWALTER, P.A. 1100 Miami Center 201 South Biscayne Boulevard Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Safeway, Inc. and The Stop & Shop Supermarket Company LLC Sherril M. Colombo, Esquire COZEN O'CONNOR Wachovia Center, Suite 4410 200 South Biscayne Boulevard Miami, FL 33131 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Del Monte Foods, Co.

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Richard Fama, Esquire John J. McDonough, Esquire COZEN O'CONNOR 45 Broadway New York, New York 10006 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant Del Monte Foods John F. Mullen, Esquire COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Del Monte Foods, Co. Carol A. Licko, Esquire HOGAN & HARTSON L.L.P. Mellon Financial Center 1111 Brickell Avenue, Suite 1900 Miami, FL 33131 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants Nestlé USA, Inc. and Nestlé Purina Petcare Co. Robert C. Troyer, Esquire HOGAN & HARTSON L.L.P. 1200 17th Street One Tabor Center, suite 1500 Denver, Colorado 80202 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants Nestlé USA, Inc. and Nestlé Purina Petcare Co. Craig A. Hoover, Esquire Miranda L. Berge, Esquire E. Desmond Hogan, Esquire HOGAN & HARTSON L.L.P.

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555 13TH Street, NW Washington, D.C. 20004 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Nestlé USA, Inc. and Nestlé Purina Petcare Co. Alan G. Greer, Esquire RICHMAN GREER, P.A. Miami Center ­ Suite 1000 201 South Biscayne Boulevard Miami, FL 33131 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants Procter & Gamble Co. and The Iams Co. D. Jeffrey Ireland, Esquire Brian D. Wright, Esquire Laura A. Sanom, Esquire FARUKI IRELAND & COX P.L.L. 500 Courthouse Plaza, S.W. 10 North Ludlow Street Dayton, Ohio 45402 [e-mail] [e-mail] [e-mail] Attorneys for Defendant Procter & Gamble Co. and The Iams Co. Robin L. Hanger, Esquire SQUIRE, SANDERS & DEMPSEY L.L.P. 200 S. Biscayne Boulevard 40th Floor Miami, Florida 33131-2398 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants PETCO Animal Supplies Stores, Inc.

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Ralph G. Patino, Esquire Dominick V. Tamarazzo, Esquire Carlos B. Salup, Esquire PATINO & ASSOCIATES, P.A. 225 Alcazar Avenue Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Defendants Pet Supplies "Plus" and Pet Supplies Plus/USA, Inc. Robert Valadez, Esquire Javier Thomas Duran, Esquire SHELTON & VALADEZ, P.C. 600 Navarro, Suite 500 San Antonio, Texas 78205 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant H.E. Butt Grocery Co. Craig P. Kalil, Esquire Joshua D. Poyer, Esquire ABALLI, MILNE, KALIL & ESCAGEDO, P.A. 2250 Sun Trust International Center One Southeast Third Avenue Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants New Albertson's Inc. and Albertson's LLC W. Randolph Teslik, Esquire Andrew Dober, Esquire AKIN GUMPSTRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, D.C. 20036 Telephone: [phone] Facsimile: [phone] [e-mail]

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[e-mail] Attorneys for Defendants New Albertson's Inc. and Albertson's LLC Jason Joffe, Esquire SQUIRE SANDERS & DEMPSEY, LLP 200 South Biscayne Boulevard Suite 4000 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Meijer, Inc.

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