Blaszkowski et al v. Mars Inc. et al

Filing 610

MOTION for Reconsideration re 605 Order on Motion to Compel,, by All Plaintiffs. (Attachments: # 1 Declaration of Edgar R. Nield)(MacIvor, Catherine)

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/Class Representatives, vs. MARS INC., et al. Defendants. ______________________________________________/ MOTION FOR RECONSIDERATION REGARDING COURTS RULING ON DEFENDANT NATURA PET FOODS PRODUCTS INC.'S MOTION TO COMPEL PLAINTIFFS' JO-ANN MURPHY, CINDY TREGOE AND PATRICA DAVIS TO PROVIDE ADDITIONAL RESPONSES TO WRITTEN DISCOVERY I. FACTUAL SUMMARY In mid to late October of 2008, defendant Natura Pet Food Products Inc. served multiple sets of written discovery on Plaintiffs Jo-Ann Murphy, Cindy Tregoe and Patrica Davis. This included Written Interrogatories to each of the Plaintiffs and Requests for Admissions and Requests for Production of Documents to Plaintiff Patricia Davis. After a mutually agreed upon extension to respond, each of the Plaintiffs timely served responses to those discovery requests. Subsequently, the Defendant indicated it was not satisfied with the responses provided and filed Motions to Compel further responses relating to each of the Plaintiffs for each set of the written discovery propounded. Plaintiffs disagreed with the requests for further responses in several respects and decided to file Oppositions to the Defendant's Motions with the Court setting out their position relating thereto. (See Declaration of Edgar R. Nield ¶ 3).

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The Defendant's motions were electronically served upon this office on January 13, 2009. Based upon Local Rule 7.1 (C) (1) of the Federal District Courts for the Southern District of Florida, this office, as well as co-counsel located in Miami, calculated the due date for the Oppositions to be January 28, 2009 and up to February 2, 2009. Although not official, the Electronic Filing Notices relating to the Motions generated by the CM/ECF system (See Exhibit "A" to the declaration of Edgar R. Nield attached in Support of this Motion) set out a response due date of February 2, 2009. Based upon these calculations we calendared the due dates for filing of the Plaintiffs' Oppositions to Defendant's Motions to Compel as January 28, 2009. (See Declaration of Edgar R. Nield ¶ 4). Based upon these calculations, we were surprised to receive the Court's ruling on the Defendant's Motion to Compel to Plaintiff Davis to provide further Requests for Admission, via Electronic Notice on January 26, 2009, followed by the Court's Ruling as to the other Motions to Compel on January 27, 2009. Confused as to why the Court had apparently issued its rulings on these Motions before what we had believed to be the due date for the Oppositions we, and Miami co-counsel, recalculated the due dates and came up with the same dates as previously. (See Declaration of Edgar R. Nield ¶ 6). Thereafter, this office contacted Judge Brown's chambers directly and spoke to his paralegal about why the rulings on these motions had been issued prior to what we believed to be the due date for the filing of our Oppositions. After researching the issue she indicated that the filing dates on discovery motions had been expedited by an earlier April 25, 2008 Scheduling Order issued by Judge Altonaga, of which this office was unaware. She also indicated that this was not an uncommon error with these types of orders, since they changed the Local Rule requirements in regards to motions, and recommended we submit a Motion for Reconsideration

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of the Judges rulings on the Motions to Compel, seeking relief from the scheduling error relating to the due date for the Oppositions to those Motions to allow the Motions to be determined on their merits. (See Declaration of Edgar R. Nield ¶ 7). As a consequence of this, the Plaintiffs have filed this Motion for Reconsideration and hereby request that the Court excuse the error in the calendaring of the Opposition date, vacate its prior Orders relating to the Defendant's multiple Motions to Compel and allow the Plaintiffs' Oppositions to those Motions (attached to the Declaration of Edgar R. Nield) to be filed and considered, together with whatever Replies the Defendant might submit, before the Court provides its rulings as to those motions. (See Declaration of Edgar R. Nield ¶ 8). II. LEGAL ARGUMENT Federal Rule of Civil Procedure 60 allows the Court to correct "a mistake arising from oversight . . . when one is found in a judgment, order, or any other part of the record." (See Federal Rules of Civil Procedure Rule 60). Rule 60 (b) states that that the grounds for such relief can be based upon "mistake, inadvertence, surprise or excusable neglect". (See Federal Rules of Civil Procedure Rule 60 (b)(1)). A motion seeking such relief "must be made within a

reasonable time. . . " when based upon mistake, inadvertence, surprise or excusable neglect. (See Federal Rules of Civil Procedure Rule 60 (c)(1)). Still further, the treatise Federal Practice & Procedure, Federal Rules of Procedure, Chapter 8, Judgment, Rule 60, Relief From A Judgment or Order states that relief under Rule 60 has been exercised in cases where there has been "a miscalculation about the date that a pleading or other documents were due." Here the error made with respect to the due date for filing of Plaintiffs' Oppositions to the Defendant's Motions to Compel was made as a result of a mistake, inadvertence and excusable neglect. (See Declaration of Edgar R. Nield ¶ 7). Consequently Plaintiffs request that the Court

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reconsider its ruling on the Defendant's Motions to compel and vacate those ruling to allow the filing of the Plaintiffs' Oppositions to those motions, and allow a determination of the Defendant's Motions based upon the merits of those Motions instead of upon the mistake of the Plaintiffs' legal representatives in calculating the correct filing date for those oppositions. III. CONCLUSION

The error which occurred in the calendaring process was made in good faith and not done in anyway to prejudice or delay the process of having these motions heard expeditiously. To the contrary, the Oppositions could and would have been submitted on a timely basis had this error not occurred, which can probably be determined by reviewing the nature of the Oppositions. Essentially all of the objections Defendant raised in its motions have been acceded to by the Plaintiffs with the exception of the request that Plaintiff Davis produce her personal computer for inspection by the Defendant's, which has been opposed on justifiable grounds. Still further the few days delay which will occur because of this error will not delay the progress on this issue, or this lawsuit, in any appreciable way and is thereof not prejudicial to the defense. However, to rule on the Defendant's motions without the benefit of Plaintiffs'

Oppositions to the motions would be highly detrimental and prejudicial to the interests of the Plaintiffs'. Consequently the Plaintiffs respectfully request that this court, based upon the above, excuse the error that has occurred and vacate its rulings thereon on the Defendants Motions until Plaintiffs' Oppositions thereto have been considered. Dated: January 28, 2009 Respectfully submitted, s/ Edgar R. Nield (Ca. State Bar # 135018) E-mail: [e-mail] Law Offices of Edgar R. Nield 4 CASE NO. 07-21221 ALTONAGA/Brown

Carlsbad Gateway Center 5650 El Camino Real Carlsbad, California, 92008 Telephone: [phone] Facsimile: [phone] And PATRICK N. KEEGAN [e-mail] JASON E BAKER [e-mail] KEEGAN & BAKER, LLP 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Tel: [phone] / Fax [phone] And Jeffrey B. Maltzman (FBN 0048860) [e-mail] Jeffrey E. Foreman (FBN 0240310) [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] 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 January 28, 2009. 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/ Edgar R. Nield Edgar R. Nield

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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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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. 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.

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. 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.

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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.

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. 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. 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.

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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

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. CRAIG P. KALIL E-Mail: [e-mail] JOSHUA D. POYER E-Mail: [e-mail] ABALLI MILNE KALIL & ESCAGEDO 2250 Sun Trust International Center One S.E. Third Avenue Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for New Albertson's Inc. and Albertson's LLC

W. RANDOLPH TESLIK ROLANDO ANDRES DIAZ E-Mail: [e-mail] E-Mail: [e-mail] ANDREW J. DOBER PETER S. BAUMBERGER E-Mail: [e-mail] E-Mail: [e-mail] AKIN GUMP STRAUSS HAUER & FELD KUBICKI DRAPER 25 W. Flagler Street, Penthouse LLP 1333 New Hampshire Avenue, NW Miami, Florida 33130-1712 Washington, D.C. 20036 Telephone: [phone] Telephone: [phone] Facsimile: [phone] Facsimile: [phone] Attorneys for Defendant Pet Supermarket, Inc. Attorneys for Defendants New Albertson's Inc. and Albertson's LLC

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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

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