IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Filing 299

ORDER Motions of Donald R. Earl to intervene [287-2] and vacate #287 are DENIED. Signed by Judge Noel L. Hillman on 2/10/2009. (nf, )

IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Doc. 299

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MDL Docket No. 1850 (All Cases) Civil Action No. 07-2867 (NLH) ORDER

IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

This matter having come before the Court on the motions of non-party Donald R. Earl ("Earl") to intervene [287-2] and to vacate the product retention orders [287]; and Earl requesting to intervene in this matter because he claims that he is a party-in-interest with regard to the "unorganized inventory" of pet food that is the subject of this Court's orders regarding retention and destruction of that "unorganized inventory"; and Earl claiming that he has an interest in the "unorganized inventory" because he filed a product liability action in Washington state court against Menu Foods and Kroger Company regarding "cake-style" pet food, which although not at issue in this case, Earl claims that the "cake-style" pet food is part of the "unorganized inventory"; and Earl further claiming that the Court should vacate its product retention orders concerning the "unorganized inventory" because it would result in the destruction of evidence relevant to his case pending in Washington state court; and

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Defendants representing that the Washington state court has issued an almost identical order to this Court's product retention order; and Defendants further representing that Earl has challenged the state court's order seven times, with each challenge being rejected1; and The Court noting that Fed. R. Civ. P. 24(a) providing that a party may intervene as a matter of right if he "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest . . ."; but The Court finding that because Earl has made the same application regarding the "unorganized inventory" in the state court where his underlying suit is pending, and the state court has rejected his request seven times, he has not demonstrated that he has an interest in the "unorganized inventory" requiring that this Court vacate its prior orders regarding that inventory;

Defendants also represent that the Washington state court has awarded Menu Foods $4,491.09 in attorneys' fees and expenses relating to Earl's continuous relitigation of the retention issue. The Commissioner of the Washington Supreme Court issued a ruling denying review, which stated, in part, that "Mr. Earl's pleadings to this court are legally frivolous. They present nothing even minimally resembling a basis for review by the court . . . . Mr. Earl should rethink his misguided litigation strategy." 2

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Accordingly, IT IS HEREBY on this 10th day of February, 2009 ORDERED that the motions of Donald R. Earl to intervene [287-2] and vacate [287] are DENIED.

s/ Noel L. Hillman NOEL L. HILLMAN, U.S.D.J. At Camden, New Jersey

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