Blaszkowski et al v. Mars Inc. et al

Filing 567

RESPONSE in Opposition re 545 MOTION to Strike 543 Notice (Other) and Accompanying Memorandum of Law and Cross-Motion to Allow Leave to File Objection filed by All Plaintiffs. (Schwartz, Jonathan)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21221 CIV ALTONAGA/Turnoff RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs/Class Representatives, vs. MARS INC., et al., Defendants. ______________________________________________/ RESPONSE TO NATURA PET PRODUCTS, INC.'S MOTION TO STRIKE PLAINTIFFS' EVIDENTIARY OBJECTION TO REPLY BRIEF AND CROSS-MOTION TO ALLOW LEAVE TO FILE OBJECTION The Plaintiffs hereby respond to Defendant's, Natura Pet Products, Inc. ("Natura"), Motion to Strike Plaintiffs' Evidentiary Objections to Reply Brief [DE 545] and Cross-Motion to Allow Leave to File Objection, and state as follows: I. Introduction On October 10, 2008, Natura filed a Motion for Summary Judgment against Non-Natura Plaintiffs Linda Brown, et al. [DE 515]. The Plaintiffs filed a Response to that Motion and Natura filed a Reply on November 5, 2008. [DE 534]. Two days later, on November 7, the Plaintiffs filed an Evidentiary Objection to Natura's Reply because the Reply contained a substantial amount of information that relied upon evidence that was irrelevant to the motion before this Honorable Court, mischaracterized the law, and unfairly confused the issues. [DE 543]. Natura subsequently filed a motion to strike the Evidentiary Objection, alleging that it was a sur-reply. [DE 545]. Because the Evidentiary Objection was limited to objecting to irrelevant

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evidence put forth by Natura in its Reply and was not a "legal memoranda" as Natura suggests, the Plaintiffs respectfully request that the Evidentiary Objection be considered and that Natura's Motion to Strike the Evidentiary Objection be denied. II. The Evidentiary Objection is not a Sur-Reply under Local Rule 7.1 Natura uses Local Rule 7.1 for the basis of its motion and improperly claims that the Plaintiffs' evidentiary objection constituted a sur-reply filed by the Plaintiffs without first obtaining leave of Court. [DE 545, p. 3]. Natura asserts that the evidentiary objection "does not actually address any evidence" and instead "responds to legal argument raised in the reply." [DE 545, p. 3]. Natura also erroneously suggests that the only point of the Plaintiffs' evidentiary objection was to "tenuously argue that plaintiffs who pled no claims against Natura can nonetheless maintain an action and seek legal recovery against Natura by using discovery responses to amend the pleadings." [DE 545, p. 3]. As explained in more detail supra, the Plaintiffs were not attempting to make any legal argument, but were instead simply objecting to the evidence relied upon by Natura to disingenuously support the issues raised in its Reply that were irrelevant to the motion for summary judgment, mischaracterized the question before this Honorable Court, and ultimately attempted to confuse the issues. More specifically, in its Reply in Support of its Motion for Summary Judgment as to all non-Natura Plaintiffs, Natura used three pleadings that, as relied upon by Natura, were unrelated to Natura's particular motion for summary judgment in its attempt to make a number of legal arguments and factual assertions regarding the Plaintiffs in this case who have demonstrated that they have viable claims against Natura and who are clearly not the subject of the motion for summary judgment as to the nonNatura plaintiffs. In doing so, Natura put forth factual and legal assertions that, pursuant to

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Federal Rules of Evidence 402 and 403, are outside the scope of this Honorable Court's consideration and which are therefore objectionable. Natura filed a motion for summary judgment as to all non-Natura Plaintiffs. However, Natura devoted its Reply brief to arguing that Plaintiffs Jennifer Damron, Cindy Tregoe, Jo-Ann Murphy, and Susan Peters do not have valid claims against Natura. The evidence relied upon to support this argument is not germane to Natura's Motion for Summary Judgment, which does not pertain to these four plaintiffs. In fact Natura's Motion for Summary Judgment explicitly pertains to only non-Natura Plaintiffs, 1 which does not include Jennifer Damron, Cindy Tregoe, Jo-Ann Murphy, or Susan Peters. For this very reason, the Plaintiffs object to the Reply itself to the extent that it uses and represents any evidence concerning the claims that Jennifer Damron, Cindy Tregoe, Jo-Ann Murphy, and Susan Peters have against Natura. This includes the Fourth Amended Complaint, [DE 349], the Notice of Pending and Dismissed Claims, [DE 494], and a Motion for Voluntary Dismissal [DE 518], all of which are cited to in pages two through five of Natura's Reply, 2 are relied upon as the sole base of Natura's argument, and are considered evidence. See Pruitt v. Mote, 503 F.3d 647, 659 n.14 (7th Cir. 2007) (explaining that the complaint and legal memoranda are considered evidence); Stat-Tech Int'l Corp. v. Delutes (In re Stat-Tech Int'l Corp.), 47 F.3d 1054, 1058 (10th Cir. 1995); May v. Vanlandingham, 2008 U.S. Dist. LEXIS 43642, *14 (E.D.N.C. June 3, 2008). It is at this point that Natura fundamentally misunderstands the Evidentiary Objection filed by the Plaintiffs. The purpose of the Evidentiary Objection is not an attempt to argue that
The caption of Natura's Motion for Summary Judgment as to the non-Natura Plaintiffs lists the following plaintiffs: LINDA BROWN, TONE GAGLIONE, JANE HERRING, DEBORAH HOCK, RAUL ISERN, CLAIRE KOTZAMPALTIRIS, MICHELE LUCARELLI, MARIAN LUPO, SHARON MATHIESEN, DEBORAH MCGREGOR, JULIE NELSON, ANN QUINN, MARLENA RUCKER, SANDY SHORE, STEPHANIE STONE, BETH WILSON, PATRICIA HANRAHAN, DONNA HOPKINS-JONES, DANIELLE VALORAS, CAROLYN WHITE, AND LOU WIGGINS. 2 As stated in the Evidentiary Objection, these pages and the content therein, which arises only from these three filings, are the portions of the Reply to which the Plaintiffs object. 3
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Plaintiffs Damron, Tregoe, Murphy and Peters have valid claims against Natura. Instead, the purpose of the Evidentiary Objection is to object to the factual and legal assertions improperly raised by Natura based on the evidence Natura improperly relied upon in its Reply as such evidence is irrelevant to the motion for summary judgment in support of which the Reply was submitted, will cause undue delay and unfairly confuse the issues contained in the Motion for Summary Judgment in support of which the Reply was submitted, and otherwise mischaracterizes the law. If Natura wishes to argue that Natura Plaintiffs Damron, Tregoe, Murphy and Peters do not have valid claims against Natura, they must do so in a separate motion; however, using the three aforementioned filings by the Plaintiffs to litigate, in the Reply to the Motion for Summary Judgment against all non-Natura Plaintiffs, the validity of the claims that Natura Plaintiffs Damron, Tregoe, Murphy, and Peters have against Natura is inappropriate. Moreover, consideration of the evidence presented by Natura in its Reply that is intended to encourage this Court to consider the validity of these four Plaintiffs' claims in a Motion for Summary Judgment that concerns only non-Natura plaintiffs confuses the issues as they are completely distinct considerations for this Court. 3 III. If this Court were to determine that the Plaintiffs' Evidentiary Objection to the Reply Brief is a sur-reply, then the Plaintiffs respectfully request leave that it be accepted as such As discussed supra, the purpose of the Evidentiary Objection is to object to the evidence used for the purpose for which Natura used it in its Reply. However, while the Plaintiffs respectfully suggest that the Evidentiary Objection is not a sur-reply, if this Court were to reach the opposite conclusion, the Plaintiffs respectfully request this Court grant the Plaintiffs leave under Local Rule 7.1 to file the Evidentiary Objection as a sur-reply. Local Rule 7.1(C) grants

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This is especially true given that the Reply mischaracterizes the law and prejudices the Plaintiffs who have no opportunity to respond because this new mischaracterization of the law was first filed in the Reply. 4
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this Court the discretion to allow a sur-reply to be filed with leave of the Court. See Local Rule 7.1(C). Accordingly, although the Plaintiffs contend that the Evidentiary Objection is not a surreply, if this Court were to determine otherwise, the Plaintiffs respectfully request leave to file a sur-reply and that the Evidentiary Objection be accepted as such. IV. Conclusion The Plaintiffs respectfully request this Court deny all relief requested by Natura in its Motion to Strike Plaintiffs' Evidentiary Objection to Reply Brief or, in the alternative, grant leave to file the objection as a sur-reply, and for all other relief that this Court deems just and proper. RULE 7.1 CERTIFICATE The undersigned has conferred with counsel for Natura, Kristen Caverly, who opposes the filing of a sur-reply and opposes a motion to treat the Evidentiary Objections as a sur-reply. Dated: November 28, 2008 Miami, FL By: s/ Jonathan C. Schwartz ______ Jeffrey B. Maltzman (FBN 0048860) [e-mail] Catherine J. MacIvor (FBN 932711) [e-mail] Jonathan C. Schwartz (FBN 0051540) [e-mail] MALTZMAN FOREMAN, PA One Biscayne Tower 2 South Biscayne Boulevard -Suite 2300 Miami, Florida 33131 Tel: [phone] / Fax: [phone] PATRICK N. KEEGAN [e-mail] JASON E BAKER [e-mail] KEEGAN & BAKER, LLP 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122
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Tel: [phone] / Fax [phone] Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE WE HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the Court via CM/ECF on this 28th day of November, 2008. We also certify that the foregoing was served on all counsel or parties of record on the attached Service List either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Filing.

s/ Jonathan C. Schwartz Jonathan C. Schwartz

______

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SERVICE LIST CASE NO. 07-21221 ALTONAGA/Brown CATHERINE J. MACIVOR [e-mail] JEFFREY B. MALTZMAN [e-mail] JEFFREY E. FOREMAN [e-mail] DARREN W. FRIEDMAN [e-mail] MALTZMAN FOREMAN, PA One Biscayne Tower 2 South Biscayne Boulevard -Suite 2300 Miami, Florida 33131 Tel: [phone] / Fax: [phone] Attorneys for Plaintiffs EDGAR R. NIELD [e-mail] 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Telephone: [phone] Facsimile: 858-552-6749 Attorney for Plaintiffs Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund LONNIE L. SIMPSON E-Mail: [e-mail] S. DOUGLAS KNOX E-Mail: [e-mail] DLA PIPER US LLP 100 N. Tampa Street, Suite 2200 Tampa, Florida 33602-5809 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund WILLIAM C. MARTIN E-Mail: [e-mail] DLA PIPER RUDNICK GRAY CARY US LLP 203 North LaSalle Street Suite 1900 Chicago, Illinois 60601-1293 Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund ALEXANDER SHAKNES E-Mail: [e-mail] AMY W. SCHULMAN E-Mail: [e-mail] DLA PIPER US LLP 1251 Avenue of the Americas New York, New York 10020 Telephone: [phone] PATRICK N. KEEGAN [e-mail] JASON E BAKER [e-mail] KEEGAN & BAKER, LLP 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Telephone: [phone] Facsimile: 858-552-6749 Attorneys for Plaintiffs

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MARK C. GOODMAN [e-mail] SQUIRE, SANDERS & DEMPSEY LLP One Maritime Plaza Suite 300 San Francisco, CA 94111-3492 Telephone: [phone] Facsimile: [phone]

BARBARA BOLTON LITTEN [e-mail] SQUIRE, SANDERS & DEMPSEY LLP 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401-6198 Telephone: [phone] Facsimile: [phone]

Attorneys for Defendants PETCO Animal Attorneys for Defendants PETCO Animal Supplies Stores Inc., PetSmart, Inc., Wal-Mart Supplies Stores Inc., PetSmart, Inc., Wal-Mart Stores, Inc. and Target Corporation Stores, Inc. and Target Corporation JEFFREY S. YORK E-Mail: [e-mail] MICHAEL GIEL E-Mail: [e-mail] McGUIRE WOODS LLP 50 N. Laura Street, Suite 3300 Jacksonville, FL 32202 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Natura Pet Products, Inc. OMAR ORTEGA Email: [e-mail] DORTA & ORTEGA, P.A. Douglas Entrance 800 S. Douglas Road, Suite 149 Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Mars, Inc. and Mars Petcare U.S. and Nutro Products, Inc. KRISTEN E. CAVERLY E-Mail: [e-mail] ROBERT C. MARDIAN III [e-mail] HENDERSON CAVERLY PUM & CHARNEY LLP 16236 San Dieguito Road, Suite 4-13 P.O. Box 9144 (all US Mail) Rancho Santa Fe, CA 92067-9144 Telephone: [phone] x)101 Facsimile: 858-756-4732 Attorneys for Natura Pet Products, Inc. ALAN G. GREER [e-mail] RICHMAN GREER WEIL BRUMBAUGH MIRABITO & CHRISTENSEN 201 South Biscayne Boulevard Suite 1000 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants The Iams Co.

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BENJAMIN REID E-Mail: [e-mail] ANA CRAIG E-Mail: [e-mail] CARLTON FIELDS, P.A. 100 S.E. Second Street, Suite 4000 Miami, Florida 33131-0050 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc. KARA L. McCALL [e-mail] SIDLEY AUSTIN LLP One S. Dearborn Street Chicago, ILL 60633 Telephone: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc.

JOHN J. KUSTER [e-mail] JAMES D. ARDEN [e-mail] SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019-6018 Telephone: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc. RICHARD FAMA E-Mail: [e-mail] JOHN J. McDONOUGH E-Mail: [e-mail] COZEN O'CONNOR 45 Broadway New York, New York 10006 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods

SHERRIL M. COLOMBO E-Mail: [e-mail] COZEN O'CONNOR 200 South Biscayne Boulevard Suite 4410 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods Co.

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JOHN F. MULLEN E-Mail: [e-mail] COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods, Co.

CAROL A. LICKO E-Mail: [e-mail] HOGAN & HARTSON Mellon Financial Center 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 Telephone [phone] Facsimile [phone] Attorneys for Defendants Nestle Purina Petcare Co.

ROBERT C. TROYER E-Mail: [e-mail] HOGAN & HARTSON 1200 17th Street One Tabor Center, Suite 1500 Denver, Colorado 80202 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Nestle Purina Petcare Co. JAMES K. REUSS E-Mail: [e-mail] LANE ALTON & HORST Two Miranova Place Suite 500 Columbus, Ohio 43215 Telephone: [phone] Attorneys for Defendant The Kroger Co. of Ohio

CRAIG A. HOOVER E-Mail: [e-mail] MIRANDA L. BERGE E-Mail: [e-mail] HOGAN & HARTSON L.L.P. 555 13th Street, N.W. Washington, D.C. 20004 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Nestle Purina Petcare Co. D. JEFFREY IRELAND E-Mail: [e-mail] BRIAN D. WRIGHT E-Mail: [e-mail] LAURA A. SANOM E-Mail: [e-mail] FARUKI IRELAND & COX 500 Courthouse Plaza, S.W. 10 North Ludlow Street Dayton, Ohio 45402 Attorneys for Defendant The Iams Co.

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W. RANDOLPH TESLIK CRAIG P. KALIL E-Mail: [e-mail] E-Mail: [e-mail] ANDREW J. DOBER JOSHUA D. POYER E-Mail: [e-mail] E-Mail: [e-mail] AKIN GUMP STRAUSS HAUER & FELD ABALLI MILNE KALIL & ESCAGEDO 2250 Sun Trust International Center LLP 1333 New Hampshire Avenue, NW One S.E. Third Avenue Washington, D.C. 20036 Miami, Florida 33131 Telephone: [phone] Telephone: [phone] Facsimile: [phone] Facsimile: [phone] Attorneys for Defendants New Albertson's Inc. Attorneys for New Albertson's Inc. and and Albertson's LLC Albertson's LLC RALPH G. PATINO E-Mail: [e-mail] DOMINICK V. TAMARAZZO E-Mail: [e-mail] CARLOS B. SALUP E-Mail: [e-mail] PATINO & ASSOCIATES, P.A. 225 Alcazar Avenue Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Pet Supplies "Plus" and Pet Supplies Plus/USA, Inc. HUGH J. TURNER, JR. E-Mail: [e-mail] AKERMAN SENTERFITT & EDISON 350 E. Las Olas Boulevard Suite 1600 Fort Lauderdale, Florida 33301-2229 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Publix Super Markets, Inc. C. RICHARD FULMER, JR. E-Mail: [e-mail] FULMER, LEROY, ALBEE, BAUMANN, & GLASS 2866 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant The Kroger Co. of Ohio ROLANDO ANDRES DIAZ E-Mail: [e-mail] PETER S. BAUMBERGER E-Mail: [e-mail] KUBICKI DRAPER 25 W. Flagler Street, Penthouse Miami, Florida 33130-1712 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Pet Supermarket, Inc.

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