Webb v. Dr Pepper Snapple Group, Inc. et al
Filing
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ORDER denying 44 Motion to Intervene. Signed on 4/26/2018 by District Judge Roseann Ketchmark. (Stout, Courtney)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
ARNOLD E WEBB, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED;
Plaintiff,
v.
DR PEPPER SNAPPLE GROUP, INC.,
DR PEPPER/SEVEN UP, INC.,
Defendants.
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No. 4:17-00624-CV-RK
ORDER DENYING MOTION TO INTERVENE
Before the Court is the Motion to Intervene and Motion to Dismiss or, in the Alternative,
to Stay or Transfer this Action Pursuant to the First-to-File Rule (“Motion to Intervene”) and
suggestions in support filed by Jackie Fitzhenry-Russell and Robin Dale (“Proposed
Intervenors”). (Doc. 44.) Defendants Dr Pepper Snapple Group, Inc., and Dr Pepper/Seven Up,
Inc. and Plaintiff Arnold Webb filed separate suggestions in opposition. (Docs. 53, 54.)
Proposed Intervenors filed reply suggestions. (Doc. 59.) For the reasons below, the Motion to
Intervene (doc. 44) is DENIED.
Background
On December 28, 2016, Proposed Intervenors filed a putative class action in California
Superior Court against Defendants, which was later removed to the Northern District of
California. Fitzhenry-Russell and Dale v. Dr Pepper Snapple Group, Inc. et al, No. 17-cv00564-NC (N.D. Cal.) (the “Fitzhenry-Russell action”).
In the Fitzhenry-Russell action,
Proposed Intervenors seek to certify a California statewide class1 of all persons who purchased
certain soft drinks sold by Defendants between December 23, 2012, and the present. (Doc. 45-1
at ¶¶ 21, 72.) Proposed Intervenors allege Defendants manufacture, market, advertise, and sell
1
The Court notes Proposed Intervenors’ Motion to Intervene and suggestions in support (doc. 44)
states Proposed Intervenors seek to certify a nationwide class. However, Proposed Intervenors filed a
Motion for Class Certification in the Fitzhenry-Russell action on April 9th, 2018. This motion seeks
certification of a California statewide class, not a nationwide class. (Doc. 153.) Despite this variation,
the Court’s conclusion in denying the Motion to Intervene does not change.
soft drinks under several brand names, including “Canada Dry,” and falsely advertise these
products as being “Made from Real Ginger” when the products are manufactured with a
flavoring substitute. (Id. at ¶¶ 3, 24.) Proposed Intervenors further allege consumers relied on
Defendants’ representations and paid a premium for these products due to the misrepresentation
that they are made from, and contain, real ginger root. (Id. at ¶¶ 23, 40, 49.)
On July 27, 2017, Plaintiff filed this putative class action against Defendants alleging
Defendants falsely advertised Canada Dry Ginger Ale (the “Product”) as being “Made from Real
Ginger” when the Product does not contain a detectable amount of ginger (the “Webb action”).
(Doc. 1.) Plaintiff alleges Defendants violated the Missouri Merchandising Practices Act in
addition to common law allegations of breach of express warranty, breach of implied warranty of
merchantability, fraud, intentional misrepresentation, negligent misrepresentation, and quasi
contract/unjust enrichment/restitution. Plaintiff seeks to represent a nationwide class as well as a
Missouri subclass. (Id. ¶ 6.)
Proposed Intervenors seek to permissively intervene in the Webb action pursuant to
Federal Rule of Civil Procedure 24(b).
If permissive intervention is granted, Proposed
Intervenors seek to dismiss, stay, or transfer the Webb action to the Northern District of
California. (Doc. 45.) Plaintiff and Defendants2 oppose all three requests.
2
Defendants do not provide a complete discussion of permissive intervention in their response to
the Motion to Intervene and instead address some of Proposed Intervenors’ arguments concerning
transfer, allegations of collusion, and a California local rule violation. Defendants state permissive
intervention is inappropriate and that 28 U.S.C. § 1404 does not allow transfer in this situation.
Defendants also address Proposed Intervenors’ arguments regarding collusion surrounding the notice
provided regarding the existence of the Webb action.
While Proposed Intervenors accuse Plaintiff and Defendants of collusion, the Court finds these
accusations are not supported by evidence in the record or briefing by the parties. Proposed Intervenors
also argue Plaintiff and Defendants violated Northern District of California Local Rule 3-13; however,
this Court will not opine on the enforcement or interpretation of the Northern District of California’s
Local Rules. Finally, the Court need not address Proposed Intervenors’ argument regarding transfer
pursuant to 28 U.S.C. § 1404(a) because the Court finds permissive intervention is unavailable.
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Discussion
I.
Motion to Intervene Under Rule 24(b)
A.
Legal Standard
“On timely motion, the court may permit anyone to intervene who: . . . has a claim or
defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P.
24(b)(1)(B). “The decision to grant or deny a motion for permissive intervention is wholly
discretionary.” S.D. ex rel. Barnett v. U.S. Dep’t of Interior, 317 F.3d 783, 787 (8th Cir. 2003)
(citations omitted). When considering a motion for permissive intervention, the court principally
considers “whether proposed intervention would unduly delay or prejudice the adjudication of
the [original] parties’ rights.” Id. In addition, the Eighth Circuit requires a party seeking to
intervene to establish Article III standing. U.S. v. Metro. St. Louis Sewer Dist., 569 F.3d 829,
833 (8th Cir. 2009).
B.
Analysis
1.
Timeliness of the Motion to Intervene
The timeliness of a motion to intervene is determined from all circumstances and is
within the court’s discretion. United States v. Ritchie Special Credit Invs. Ltd., 620 F.3d 824,
831-32 (8th Cir. 2010) (citation omitted). Courts apply several factors to determine timeliness:
“(1) the extent the litigation has progressed at the time of the motion to intervene; (2) the
prospective intervenor’s knowledge of the litigation; (3) the reason for delay in seeking
intervention; and (4) whether the delay in seeking intervention may prejudice the existing
parties.” American Civil Liberties Union of Minnesota v. Tarek Ibn Ziyad Academy, 643 F.3d
1088, 1094 (8th Cir. 2011).
a.
Progress of the Webb Action at the Time of the Motion to
Intervene
Proposed Intervenors argue the Webb action had not progressed substantially when the
Motion to Intervene was filed because Defendants have not yet answered and a motion to
dismiss is still pending. Plaintiff counters that the Webb action had progressed significantly at
the time the Motion to Intervene was filed because by that time, a motion to dismiss had been
filed, a scheduling order and discovery plan had been filed, parties had exchanged discovery, a
protective order had been filed, and the parties had engaged in court-ordered mediation. The
Court finds this factor could weigh in favor of either party and is thus, neutral. See Worthington
v. Bayer Health Care LLC, 2011 U.S. Dist. LEXIS 144369, at * 12 (D.N.J. Dec. 15, 2011) (the
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court held the case was still in its early stages where some written discovery had occurred, but no
depositions had been held and the court had not ruled on any dispositive motions); compare with
American Civil Liberties Union of Minnesota, 643 F.3d at 1094-95 (the Eighth Circuit found the
district court did not abuse its discretion in finding a motion to intervene was untimely where, in
addition to other factors, the original parties had engaged in significant motion practice,
commenced written discovery, and begun taking depositions).
b.
Proposed Intervenors’ Knowledge of the Existence of the Webb
Action
Next, the parties dispute when Proposed Intervenors first learned of the Webb action.
Proposed Intervenors assert they were unaware of the existence of the Webb action until
January 15, 2018, at which point, they promptly filed the Motion to Intervene. In response,
Defendants and Plaintiff maintain Proposed Intervenors were provided notice of the Webb action
on three separate occasions in the Fitzhenry-Russell action. First, on July 31, 2017, Defendants
disclosed the existence of the Webb action to Proposed Intervenors in Defendants’ written
response to Proposed Intervenors’ discovery requests. Second, on August 15, 2017, a draft joint
case management conference statement was provided to Proposed Intervenors by Defendants
that disclosed the existence of the Webb action.
Further, on August 31, 2017, Proposed
Intervenors edited Defendants’ draft of this case management conference statement and sent their
edits to Defendants. Third, on September 5, 2017, Defendants provided responses to Proposed
Intervenors’ discovery demands in the Fitzhenry-Russell action that again disclosed the existence
of the Webb action. Proposed Intervenors argue the notice provided was inadequate because the
notice was placed in single lines of text in lengthy discovery documents, and neither the Plaintiff
nor Defendants directed Proposed Intervenors’ attention to the Webb action’s existence.
The
Court finds that Proposed Intervenors were first given adequate notice of the existence of the
Webb action by Defendants’ disclosure in their July 31, 2017 discovery response. See EEOC v.
Westinghouse Elec. Corp., 675 F.2d 164, 165-66 (8th Cir. 1982) (the court held the proposed
intervenor had sufficient knowledge of pending action because the proposed intervenor was
given notice of the existence of the action on several occasions).
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c.
Proposed Intervenors’
Intervention
Reason
for
Delay
in
Seeking
Proposed Intervenors concede that they overlooked the disclosure of the Webb action
during the exchange of documents from July 2017 through September 2017 between themselves
and Defendants. Proposed Intervenors also argue the delay was caused by the failure of the
Plaintiffs and Defendants to adequately notify Proposed Intervenors of the Webb action. The
Court finds this reasoning unpersuasive. Proposed Intervenors were given adequate notice of the
Webb action on July 31, 2017, and this oversight is not sufficient to excuse the delay.
d.
Whether the Delay in Seeking Intervention Prejudiced the
Existing Parties
After reviewing the parties’ arguments addressing prejudice in the permissive
intervention analysis, the Court finds Proposed Intervenors’ delay in seeking intervention would
prejudice the existing parties. This analysis is identical to the prejudice analysis discussed in
Section I.B.3. below.3 See American Civil Liberties Union of Minnesota, 643 F.3d at 1095
(“when the discovery schedule is set, written discovery has commenced, and some depositions
have been taken in a lawsuit, the addition of new parties often results in some prejudice to the
existing parties”) (citation omitted).
Based on all of the circumstances, and in considering the specific factors discussed
above, the Court finds the Motion to Intervene is not timely.
2.
Common Questions of Law or Fact Exist
Fed. R. Civ. P. 24(b)(1)(B) provides for permissive intervention by a party which “has a
claim or defense that shares with the main action a common question of law or fact.” Proposed
Intervenors contend that common questions of law and fact exist because both cases involve the
same Defendant: Dr Pepper Snapple Group, Inc.; the same product produced by Defendant; and
the same allegations. Plaintiff argues that while both actions involve some common questions of
fact, the two actions have different named plaintiffs; different defendants because the Webb
action does not name Canada Dry Motts as a defendant whereas the Fitzhenry-Russell action
does, and the Webb action names Dr Pepper/Seven Up Inc., as a defendant whereas the
Fitzhenry-Russell action does not; different putative classes because the Webb action proposes a
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The parties do not address whether the delay in seeking intervention prejudiced the parties as
part of the timeliness inquiry; instead, the parties address prejudice independently under the permissive
intervention inquiry.
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nationwide class and a Missouri subclass while the Fitzhenry-Russell action proposes a
California class; and different causes of action because the Webb action involves claims under
Missouri law and the Fitzhenry-Russell action does not.
As noted by the parties, both actions involve different named Plaintiffs; different
defendant groups; and different specific causes of action. However, both actions involve a
common defendant, Dr Pepper Snapple Group, Inc., and the same claims concerning the central
issue in both actions. The central issue in both is whether Defendants engaged in false and
misleading business practices with respect to the marketing, labeling, and sale of Defendants’
soft drinks. Finally, although the Fitzhenry-Russell action involves several of Defendants’
products, both the Webb and Fitzhenry-Russell actions involve the Product, Canada Dry Ginger
Ale. Accordingly, both actions share common questions of law or fact.
3.
Prejudice to Existing Parties
The Court now turns to “the principal consideration” when ruling on a Rule 24(b) motion
to intervene—“whether the proposed intervention would unduly delay or prejudice the
adjudication of the parties’ rights.” S.D. ex rel. Barnett, 317 F.3d at 787 (citations omitted).
Proposed Intervenors argue intervention would not prejudice the existing parties because: (1) the
Fitzhenry-Russell action would adequately protect Plaintiffs’ rights if the case was transferred to
California because the same issues are being litigated in both cases, and (2) there is no potential
issue concerning personal jurisdiction over non-California purchases because the FitzhenryRussell court has previously rejected this argument. Plaintiff contends it would be prejudiced by
allowing Proposed Intervenors to intervene because: (1) the California court may not have
jurisdiction of the Webb action as a result of the recent Supreme Court decision in Bristol-Myers
Squibb v. Superior Court of California, San Francisco Cnty., 137 S. Ct. 1773 (2017); (2)
Proposed Intervenors do not seek to litigate in this Court and instead only seek intervention to
dismiss, transfer to California, or stay the Webb action; and (3) a lengthy stay of the Webb action
would cause witnesses’ memories to fade.
Weighing a number of different arguments discussed below, the Court finds intervention
would prejudice the existing parties.
First, Plaintiff and Defendants are not prejudiced by the fact that a federal court outside
of Missouri would be addressing Missouri state law claims. As discussed above, both actions
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contain similar issues; therefore, the Northern District of California can sufficiently address the
claims and defenses at issue in the Webb action.
Next, the Court is not persuaded by Plaintiff’s argument that a stay would cause
witnesses’ memories to fade. See Degnen v. Free Continuing Education Assoc., LLC, 2015 WL
9646001, at *2 (E.D. Mo. June 17, 2015) (rejecting fading memories argument and granting stay
“in the interest of reaching consistent results in similar [] cases”); Degnen v. Gerzog, 2015 WL
9645986, at *2 (same).
However, the Court finds Plaintiff and Defendants are prejudiced. First, the Court finds
merit in Plaintiff’s concern that Proposed Intervenors do not seek to litigate and only seek
intervention to stay, transfer, or dismiss the Webb action. See Bui v. Sprint Corp., 2015 U.S.
Dist. LEXIS 80126, at *6-7 (E.D. Ca. June 19, 2015) (“Courts may consider various relevant
factors [when considering a motion to intervene], including ‘the nature and extent of the
[proposed] intervenors’ interest.”) (quoting Spangler v. Pasadena City Bd. of Educ., 552 F.2d
1326,1329 (9th Cir. 1977)); Glover v. Ferrero USA, Inc., 2011 U.S. Dist. LEXIS 121352, at *21
(D.N.J. October 20, 2011) (“[T]he Proposed Intervenors’ stated interest in only having this
action dismissed or transferred . . . will clearly prejudice the rights of the existing parties in this
action, [and] the Court declines to permit the Proposed Intervenors to intervene.”).
Next, the existing parties may be prejudiced if permissive intervention is granted and the
Webb action is transferred to California due the Supreme Court’s recent decision in BristolMyers. In Bristol-Myers, the Supreme Court held the California court did not have specific
jurisdiction over a non-resident defendant with respect to non-resident Plaintiff’s claims because
the defendant did not have sufficient contacts with California. 137 S. Ct at 1781-1782. While
the Fitzhenry-Russell Court has already considered and determined Bristol-Myers did not apply
to putative class actions, courts have not interpreted Bristol-Myers uniformly concerning its
application to putative class actions. See DeBernardis v. NBTY, Inc., 2018 WL 461228, at *6-7
(N.D. Ill. Jan. 18, 2018) (the court found the holding in Bristol-Myers did apply to putative class
actions); compare with Sanchez v. Launch Tech. Workforce Solutions, 2018 U.S. Dist. LEXIS
28907, at *16-17 (N.D. Ga. Jan. 26, 2018) (the court found the holding in Bristol-Myers did not
apply to putative class actions.) Thus, while it is uncontested that this Court has personal
jurisdiction over Defendants, is it unsettled if the Northern District of California would have
personal jurisdiction over Defendants with respect to claims raised in the Webb action.
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Accordingly, after considering the parties’ arguments, the Court finds intervention would
prejudice the existing parties.
4.
Article III Standing
To demonstrate Article III standing, the movant must allege facts showing each of the
following elements: (1) an injury in fact that is concrete, particularized, and either actual or
imminent if the Motion to Intervene is denied; (2) “the injury is fairly traceable to the
defendant’s conduct[;]” and (3) “a favorable [court] decision will likely redress the injury.”
American Civil Liberties Union of Minnesota, 643 F.3d at 1092 (citations omitted).
The issue of Article III standing is first raised by Plaintiff in response to Proposed
Intervenors’ Motion to Intervene. Plaintiff argues Proposed Intervenors do not have standing
because they will not suffer a concrete and particular injury if the Motion to Intervene is denied.
In their reply brief, Proposed Intervenors claim they easily meet the standing requirements
because they have standing for the same reasons Plaintiff has standing. Proposed Intervenors
argue they would be members of Plaintiff’s asserted nationwide class.
In their briefing, Plaintiff confuses what is required for the injury prong of the Article III
standing requirement. Proposed Intervenors do not have to prove they would be injured if the
Court would not allow them to intervene.
Instead, the Proposed Intervenors only need
demonstrate that they meet the elements of Article III standing. Here, Proposed Intervenors’
injury, traceability, and redressability aspects are similar to Plaintiff’s. As the Court has already
determined in its Order on Defendants’ Motion to Dismiss (doc. 68), such aspects meet the
elements for standing.
II.
Motion to Dismiss or, in the Alternative, to Stay or Transfer this Action Pursuant to
the First-to-File Rule
Because the Court finds that permissive intervention is inappropriate, the Court need not
address, and will not grant, Proposed Intervenors’ request to dismiss, transfer, or stay this case.
See Jiang v. Porter, 2016 WL 4415352, at *3 (E.D. Mo. Aug. 19, 2016) (“Because the Court
finds it neither necessary nor appropriate to allow the movants to intervene in this matter, the
Court need not address their motion to stay the June 27 order.”).
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Conclusion
Upon review of the parties’ arguments, the Court finds that permissive intervention is
inappropriate because the Motion to Intervene is untimely and intervention would unduly
prejudice the existing parties. The Court will not allow Proposed Intervenors to permissively
intervene for the limited purpose of seeking to dismiss, stay, or transfer this action.
Consequently, Proposed Intervenors’ Motion to Intervene and Motion to Dismiss or, in the
Alternative, to Stay or Transfer this Action Pursuant to the First-to-File Rule (doc. 44) is
DENIED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: April 26, 2018
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