D&G, Inc. v. Supervalu, Inc. et al
MEMORANDUM OPINION AND ORDER that the August 3, 2017 Omnibus Case Management & Fourth Amended Pretrial Scheduling Order 838 is AFFIRMED; Defendant SuperValu, Inc.'s Objections 845 are OVERRULED (Written Opinion). Signed by Judge Ann D. Montgomery on 08/29/2017. Associated Cases: 0:09-md-02090-ADM-TNL, 0:09-cv-00983-ADM-AJB, 0:09-cv-02932-ADM-TNL, 0:09-cv-03191-ADM-TNL, 0:14-cv-04031-ADM-TNL(TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In re Wholesale Grocery Products
Court File No. 09-MD-2090 ADM/TNL
This Order Relates to All Actions
Edward T. Dangel III, Esq., Dangel & Mattchen, LLC, Boston, MA, on behalf of Plaintiffs JFM
Market, Inc., and MJF Market, Inc.
Stephen P. Safranski, Esq., Martin R. Lueck, Esq., Jeffrey S. Gleason, Esq., and Geoffrey H.
Kozen, Esq., Robins Kaplan LLP, Minneapolis, MN, on behalf of Defendant SuperValu, Inc.
This matter is before the undersigned United States District Judge for a ruling on
Defendant SuperValu, Inc.’s (“SuperValu”) Objections [Docket No. 845] to Magistrate Judge
Tony N. Leung’s August 3, 2017 Omnibus Case Management & Fourth Amended Pretrial
Scheduling Order (“Scheduling Order”) [Docket No. 838]. SuperValu argues that the
Scheduling Order is erroneous because it permits Plaintiffs JFM Market, Inc., and MJF Market,
Inc. (collectively, “Village Market”) to pursue certification of a New England class even though
the Court denied certification of a New England class in 2012 and ruled in August 2015 that
Village Market may not relitigate the issue of certification for a New England class. For the
reasons set forth below, the Objections are overruled and the Scheduling Order is affirmed.
A. Standard of Review
A magistrate judge’s order on a nondispositive pretrial matter will not be set aside unless
it is “clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “A finding is ‘clearly
erroneous’ when, although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
Chakales v. Comm’r of Internal Revenue, 79 F.3d 726, 728 (8th Cir.1996). “A decision is
‘contrary to the law’ when it ‘fails to apply or misapplies relevant statutes, case law or rules of
procedure.’” Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn.
2008) (quoting Transamerica Life Ins. Co. v. Lincoln Nat’l Life Ins. Co., 592 F. Supp. 2d 1087,
1093 (N.D. Iowa 2008)).
B. SuperValu’s Objections
SuperValu argues that the Scheduling Order is contrary to law because Village Market
has not demonstrated materially changed circumstances that warrant revisiting this Court’s 2012
denial of certification for a New England class.1 SuperValu additionally contends that allowing
Village Market to relitigate class certification functionally reverses this Court’s August 20, 2015
Order [Docket No. 534] (“August 2015 Order”) stating that Village Market is not permitted to
pursue certification of a narrower New England class.
Federal Rule of Civil Procedure 23(c)(1)(C) provides: “An order that grants or denies
class certification may be altered or amended before final judgment.” This rule “empowers
district courts to alter or amend class-certification orders based on circumstances developing as
the case unfolds.” Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455, 479 n.9
The Court denied certification of a New England class in 2012 because the evidence at
that time showed that the prices charged by Defendant C&S Wholesale Grocers, Inc. (“C&S”) to
its retail grocery customers in New England were individually negotiated, and thus class-wide
impact could not be shown with common evidence. In re Wholesale Grocery Prods. Antitrust
Litig., No. 09-MD-2090, 2012 WL 3031085, *9–*14 (D. Minn. July 25, 2012) (“Class
(2013) (internal quotations and alterations omitted). “When the decision on class certification
comes before full merits discovery has been completed, . . . [a] decision to certify or not to
certify a class may . . . require revisiting upon completion of full discovery.” Blades v.
Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005).
SuperValu argues that no previously unavailable evidence exists to justify reopening the
class determination. Village Market disagrees, contending that new evidence discovered after
the denial of class certification, including changed testimony from a C&S executive, establishes
that C&S’s pricing scheme in New England was formulaic, rather than individualized. Although
SuperValu argues that it will be prejudiced by having to relitigate the issue of certification of a
New England class, any such prejudice is outweighed by the prejudice Village Market would
suffer if it were foreclosed from arguing that developing circumstances, including newly
discovered evidence, are sufficiently compelling to warrant amending the Class Certification
Order under Rule 23(c)(1)(C).
Based on these and other developments which have unfolded in this case since the 2012
denial of certification of a New England class and the August 2015 Order, Judge Leung’s
decision to permit Village Market to move for reconsideration of class certification under Rule
23(c)(1)(C) is not clearly erroneous or contrary to law. Accordingly, SuperValu’s Objections are
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
Defendant SuperValu, Inc.’s Objections [Docket No. 845] are OVERRULED; and
The August 3, 2017 Omnibus Case Management & Fourth Amended Pretrial Scheduling
Order [Docket No. 838] is AFFIRMED.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: August 29, 2017.
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