Nestle Purina PetCare Company v. The Blue Buffalo Company Ltd.

Filing 1393

ORDER AND MEMORANDUM re: 1371 IT IS HEREBY ORDERED that Wilbur-Ellis's motion for reconsideration, or in the alternative, for certification under 28 U.S.C. § 1292(b) 1371 , is DENIED. Signed by District Judge Rodney W. Sippel on 6/6/19. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BLUE BUFFALO COMPANY, LTD.,
Plaintiff,
vs.
WILBUR-ELLIS COMPANY, LLC and,
DIVERSIFIED INGREDIENTS, INC.,
Defendants.

AND RELATED ACTIONS

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Case No. 4:14 CV 859 RWS

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ORDER AND MEMORANDUM
This matter is before me on Wilbur-Ellis’s motion for reconsideration, or in
the alternative, for certification to the Eighth Circuit, of my ruling on Blue
Buffalo’s motion to compel production of the Ironshore Brief. Wilbur-Ellis
contends that I should reconsider that order because I failed to properly consider
California’s interest in protecting Wilbur-Ellis in this matter, and because I failed
to properly articulate my authority to deny Blue Buffalo’s motion. In the
alternative, Wilbur-Ellis argues that this is a question of extraordinary significance,
and I should therefore certify my resolution of this discovery dispute for appeal.
For the reasons below, I will deny Wilbur-Ellis’s motion.

I.

Motion to Reconsider
Wilbur-Ellis moves for me to reconsider the original order under Federal

Rule of Civil Procedure 54(b), which provides that an order like the one at issue
“may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Under Rule
54(b), I have “wide discretion over whether to grant a motion for reconsideration
of a prior order.” SPV-LS, LLC v. Transamerica Life Ins. Co., 912 F.3d 1106,
1111 (8th Cir. 2019) (citing In re Charter Commc’ns, Inc., Sec. Litig., 443 F.3d
987, 993 (8th Cir. 2006)), reh’g denied (Feb. 1, 2019).
In its original opposition to Blue Buffalo’s motion, Wilbur-Ellis discussed
the importance of comity. In its memorandum in support of reconsideration,
Wilbur-Ellis contends that I did not properly consider the importance of comity.
Wilbur-Ellis argues that while “there is no rule requiring a court to deny a motion
to compel a sealed document,” I should apply a different test and more fully
consider California’s interest in protecting Wilbur-Ellis from providing discovery
material in this litigation. [See Wilbur-Ellis Reply, ECF Doc. No. 1380, at 1]. In
making this argument, Wilbur-Ellis provides a more in-depth discussion of the
comity argument it raised in its original motion. The memorandum
comprehensively reviews cases in which other judges facing different
circumstances have decided to defer to state court protective orders.
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To the extent Wilbur-Ellis discusses comity in a novel way in its
memorandum in support of reconsideration, it does so based on “facts or legal
arguments that could have been, but were not, raised at the time the relevant
motion was pending.” Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir.
2015). As part of the basis for its motion to reconsider, Wilbur-Ellis argues I
should consider Riddell, Inc v. Super. Ct., a relatively new case that it contends
expanded the Montrose Doctrine protections available to California policyholders.
See Riddell, 14 Cal. App. 5th 755 (Ct. App. 2017) (discussing Montrose Chem.
Corp. v. Super. Ct., 6 Cal. 4th 287 (1993)).
Wilbur-Ellis could have submitted Riddell between when it filed its original
brief and the date of my order, January 4, 2019. Regardless, the case supports my
authority to order production of the Ironshore Brief. In Riddell, the California
Court of Appeal determined that the Montrose Doctrine supported a stay of
discovery so that the insured party could avoid developing facts that are prejudicial
to it in the underlying action. This was, in part, because a federal district court “is
not bound by a state court confidentiality order in the coverage action.” Riddell,
14 Cal. App. 5th at 768 (Ct. App. 2017).
When I originally ordered that Wilbur-Ellis must produce the Ironshore
Brief, I was aware that I could decline to order the brief’s production out of
deference to the state court. I acknowledged the comity interests at play and
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ordered production despite the fact that my order ran contrary to the state court’s
aim of constraining discovery in the litigation before me. In making the
determination that Wilbur-Ellis must produce the brief, I considered and gave little
weight to the state court’s application of California’s interest insofar as it was
specifically designed to help Wilbur-Ellis avoid discovery in this case.
The California case law that the parties have provided me supports Blue
Buffalo’s argument that the appropriate effectuation of the Montrose Doctrine is a
stay, not a protective order. In this case, the protective order relied on what
appears to be a novel, or at best rarely used, application of the Montrose Doctrine.
I agree with Wilbur-Ellis that the values of comity and federalism are important in
our federal system. I do not agree that this is a situation in which I should defer to
the state court’s sealing order, and I will not reconsider my initial order.
II.

Motion to Certify the Question to the Eighth Circuit Court of Appeals
This dispute does not present a question for which certification to the Eighth

Circuit is appropriate. A district court may certify an appeal to the circuit court
when an order “involves a controlling question of law as to which there is
substantial ground for difference of opinion and [] an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b); see also Union Cty., Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646
(8th Cir. 2008) (setting forth the certification factors as a three part test).
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Interlocutory review under § 1292(b) “must be granted sparingly” and “only in
exceptional cases where a decision on appeal may avoid protracted and expensive
litigation, as in antitrust and similar protracted cases.” White v. Nix, 43 F.3d 374,
376 (8th Cir. 1994) (concluding that a district court abused its discretion in
certifying an interlocutory appeal of a discovery dispute) (quoting S.Rep. No.
2434, 85th Cong., 2d Sess. (1958)).
Wilbur-Ellis concedes that my decision did not violate an applicable rule of
law. [See Wilbur-Ellis Reply, ECF Doc. No. 1380, at 8]. Wilbur-Ellis nonetheless
contends that the discovery dispute presents a controlling question of law: the
extent to which I correctly considered comity, federalism, judicial administration,
and deference to California’s applicable public policy. An “allegation of abuse [of
discretion] does not create a legal issue.” White v. Nix, 43 F.3d 374, 377 (8th Cir.
1994); see also id. at 377-78 (“the discretionary resolution of discovery issues
precludes the requisite controlling question of law.”). Because Wilbur-Ellis has
not identified a controlling question of law, and the “the requirements of § 1292(b)
are jurisdictional,” I will deny Wilbur-Ellis’s motion for certification under 28
U.S.C. § 1292(b).

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Accordingly,
IT IS HEREBY ORDERED that Wilbur-Ellis’s motion for
reconsideration, or in the alternative, for certification under 28 U.S.C. § 1292(b)
[1371], is DENIED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 6th day of June, 2019.

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