Ortiz v. Menu Foods, Inc. et al

Filing 30

MOTION for Leave to File to File a Reply to 28 "Plaintiffs' Response to Its Objections to the Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs' Motion for Remand and Order Denying Defendants'Motion to Stay as Moot, filed 8/21/07", filed 09/14/07 by Menu Foods Holdings, Inc.. (Attachments: # 1 Memorandum in Support of Motion# 2 Exhibit 1# 3 Certificate of Service)(Love, Chad) Modified on 9/24/2007 to include link to correlate to plaintiff's response (doc 28) and include link to F&R: doc 23 (afc).

Ortiz v. Menu Foods, Inc. et al

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LOVE & KIRSCHENBAUM A LIMITED LIABILITY LAW COMPANY CHAD P. LOVE 1617-0 BARBARA J. KIRSCHENBAUM 5825-0 1164 Bishop Street, Ste. 1105 Honolulu, Hawaii 96813 Tel. No. 546-7575 Attorneys for Menu Foods, Inc., Menu Foods Holdings, Inc., and Menu Foods Income Fund IN THE UNITED STATES DISTRICT COURT CIRCUIT FOR THE DISTRICT OF HAWAII YVONNE ORTIZ, Individually and ) on behalf of all other similarly ) situated persons, ) ) ) Plaintiff, ) ) vs. ) ) ) MENU FOODS, INC., a New Jersey ) corporation; MENU FOODS ) HOLDINGS, INC., a Delaware ) corporation; MENU FOODS ) INCOME FUND, an unincorporated ) Canadian business; DOE ENTITIES ) and INDIVIDUALS 1-100, ) ) Defendants. ) ) _______________________________) CIVIL NO. CV07-00323 DAE LEK (Class Action) MENU FOODS HOLDINGS, INC.'S [PROPOSED] REPLY TO "PLAINTIFFS' RESPONSE TO ITS OBJECTIONS TO THE FINDINGS AND RECOMMENDATION GRANT IN PART AND DENY IN PART PLAINTIFFS' MOTION FOR REMAND AND ORDER DENYING DEFENDANTS' MOTION TO STAY AS MOOT, FILED 8/21/07", FILED 09/14/07; EXHIBITS A AND B

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EXHIBIT 1
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MENU FOODS HOLDINGS, INC.'S [PROPOSED] REPLY TO "PLAINTIFFS' RESPONSE TO ITS OBJECTIONS TO THE FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS' MOTION FOR REMAND AND ORDER DENYING DEFENDANTS' MOTION TO STAY AS MOOT, FILED 8/21/07", FILED 09/14/07 Defendant MENU FOODS HOLDINGS, INC. ("Menu Foods") submits this reply to Plaintiffs' Response (filed September 14, 2007) to Menu Foods' Objections to the Findings and Recommendation of U.S. Magistrate Judge Leslie E. Kobayashi, filed August 21, 2007 (the "Recommendation"), pursuant to LR 74.2. ARGUMENT I. At a Minimum, This Court Should Stay the Case Pending the Determination of the JPML, as the District Court of Nevada did in Picus. Plaintiffs attempt to liken this case to Picus v. Walmart, et al. (USDC Nevada) (see Pl. Mem. at 19), because Menu Foods has sought to vacate the conditional transfer order for that case. Notably, in Picus, the district court stayed the action pending a decision on transfer by the JPML. (See Ex. A, Stay Order in Picus.) This is precisely the relief that Menu Foods seeks here. In any event, the claims asserted in this case and those in Picus bear little resemblance. This case is just like all the other products liability cases arising out of the pet food recall that have been transferred to the MDL pending in New Jersey District Court. See Pl. Mem. at 1 (Plaintiffs admit that this case stems from their "purchase[] [of] adulterated pet food products manufactured by Defendants"). The
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fact that one of Plaintiffs' seven causes of action is based on Hawaii's consumer protection law does not transform this into a consumer protection case. See Complaint, ¶¶ 54-61 (Plaintiffs' other causes of action include strict products liability and negligence/gross negligence). Picus, on the other hand, is not a products liability case and makes no claim about the quality or safety of pet food manufactured by Menu Foods. Instead, Picus seeks damages for alleged misrepresentations concerning the "Made in USA" label on certain pet foods manufactured by Menu Foods. With the exception of this and another case in Hawaii involving the same counsel, every products liability action against Menu Foods in federal court arising out of the pet food recall has been transferred to the MDL, or soon will be without objection. This case (as well as the other pet food recall case pending in this District) already has been conditionally transferred to the MDL by the JPML (see Ex. B, CTO). Plaintiffs have objected to the transfer, and the matter should be fully briefed by early October, after which the JPML will make a final decision on whether to transfer this action to the MDL. During this short time period, this Court should, at the very least, do as the Picus court did and stay this action. Such a stay would defer ruling on Plaintiffs' remand motion until the JPML determines where this case should proceed, and thus, whether Plaintiffs' remand motion will be decided here or in the MDL. "Courts frequently grant stays pending a decision

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by the MDL Panel regarding whether to transfer a case." Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 809 (N.D. Cal. 1998); see also Michael v. WarnerLambert Co., 2003 U.S. Dist. LEXIS 21525, at *3-4 (S.D. Ca. Nov. 20, 2003) ("The general rule is for federal courts to defer ruling on pending motions to remand in MDL litigation until after the [JPML] has transferred the case to the MDL panel."); see, e.g., McClelland v. Merck & Co., CIV. No. 06-00543, 2007 WL 178293 at *4 (D. Haw. Jan. 19, 2007) ("stay[ing] th[e] proceeding pending a decision on transfer by the [JPML] and den[ying] Plaintiffs' Motion to Remand without prejudice"). In light of this case's relationship to the MDL litigation, and in furtherance of judicial economy and the policy underlying multi-district litigation, the balance of equities clearly tips in favor of federal jurisdiction. See McClelland, 2007 WL 178293 at *3 ("The uniform treatment of remand motions avoids inconsistent rulings, promotes respect for the law, and conserves judicial resources....Accordingly, after balancing the competing interests, the court finds that this matter should be stayed pending a decision on transfer by the JPML."); North v. Merck & Co., Inc., 2005 U.S. Dist. LEXIS 27628, at *6 (W.D.N.Y. Nov. 4, 2005) ("Finally, I find that the equities tip in favor of [defendant] for staying this action until the issue of transfer is resolved. Although plaintiff claims that she will suffer prejudice by imposition of the stay, I find that the risk of hardship to

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[defendant] of engaging in duplicative motion practice and discovery proceedings outweighs any prejudice that could potentially inure to her."). Accordingly, this Court should either deny Plaintiffs' motion to remand or follow common federal practice and defer ruling the remand motion until the JPML decides whether this case appropriately belongs with the approximately one hundred other class actions that have been transferred to the pet food recall MDL.

II.

If the Court Chooses to Reach the Merits of Plaintiffs' Remand Motion, De Novo Review Pursuant to Local Rule 74.2 Is Proper Here. Plaintiffs are incorrect in stating that the standard of review of this matter is

governed only by Local Rule 74.1. As this Court recognized in State of Hawaii v. Abbott Laboratories, Inc., 469 F.Supp.2d 842, 846 (DAE) (D. Haw. 2006), when objecting to a Magistrate Judge's findings and recommendations relating to a motion to remand, the proper standard of review is the de novo review articulated by Local Rule 74.2, and the Court "may also receive further evidence or recommit the matter to the magistrate with instructions." See also McClelland, 2007 WL 178293 (treating "motion to remand as a dispositive motion, subjecting it to a de novo standard of review"). Therefore, it is entirely proper for this Court to receive the Declaration of Paul Henderson.

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CONCLUSION For the reasons stated herein and in Menu Foods' prior submissions, Magistrate Judge Kobayashi's Recommendation should be vacated, and Plaintiffs' Motion for Remand should be denied or, alternatively, the Court should stay a decision on Plaintiffs' motion while the JPML determines whether to transfer this case to the MDL. DATED: Honolulu, Hawaii, ___________________________.

__________________________________ CHAD P. LOVE BARBARA J. KIRSCHENBAUM Attorneys for Menu Foods, Inc,, Menu Foods Holdings, Inc., and Menu Foods Income Fund

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