IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Filing 370

MANDATE of USCA as to #302 Notice of Appeal (USCA) filed by Donald R. Earl. (Attachments: #1 Letter to D.C. Clerk, #2 Opinion)(ca3dm, )

IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Do c. 370 Att. 2

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT _____________ N o . 09-1580 _____________ IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION D O N A L D R. EARL, A p p e lla n t (P u rsu a n t to Fed. R. App. P. 12(a)) (A p p e lla n t is "an objector and nonparty in interest") ____________________________________ O n Appeal from the United States District Court f o r the District of New Jersey (D.C. Civil Action No. 07-cv-02867) D is tric t Judge: Honorable Noel L. Hillman ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) S e p te m b e r 22, 2009 B e f o re : FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges (O p in io n filed: September 23, 2009) ___________ O P IN IO N ___________ P E R CURIAM D o n a ld Earl, pro se, appeals from the District Court's order denying his motion to in ter v e n e and his Rule 60(b) motion to vacate. For the reasons that follow, we shall

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a f f irm the District Court's order. This case relates to a civil class action products liability lawsuit filed in the District o f New Jersey, and currently on appeal. See In Re: Pet Food Products Liability L itig a t io n , D.N.J. Civ. No. 07-cv-02867; C.A. No. 08-4741 & 08-4779. That suit arose o u t of a March 2007 recall of pet food products that allegedly contained contaminated w h ea t gluten and/or rice protein concentrate obtained from China. Plaintiffs filed more th a n one hundred lawsuits against several defendants, including Menu Foods, one of the m a n u f a c tu re rs of the recalled pet food products. As a part of discovery, Menu Foods and several other defendants stored large q u a n titie s of various recalled food products. Those products were divided into three c a te g o rie s: 1) cases of pet food subject to the recall ("organized inventory"); 2) thousands o f pounds of unprocessed, perishable raw wheat gluten; and 3) cases containing recalled a n d unrecalled pet food, pet food made by other companies, and other items ("u n o rga n i zed inventory"). The defendants sought an order from the District Court p e rm ittin g them to limit the amount of material they had to store. On December 18, 2007, th e District Court entered an order granting the defendants' motion, which allowed them to retain a statistically significant representative sampling of the organized inventory and to dispose of the remaining recalled pet food, the raw wheat gluten and the unorganized

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in v e n to ry.1 None of the plaintiffs in the class objected to the Court's order. M e a n w h ile, in Washington State, Appellant Donald Earl had initiated a separate la w s u it alleging that his cat had died after consuming pet food manufactured by Menu F o o d s and sold by The Kroger Company, a grocery store.2 Menu Foods notified Earl of th e New Jersey District Court's order permitting the disposal of the unorganized in v e n to ry. Earl filed an objection in the District Court, arguing that the unorganized in v e n to ry was material to his case and should not be destroyed. The District Court denied h is objection. Menu Foods then filed a motion in the Superior Court of Washington for p e rm is s io n to dispose of the unorganized inventory as it related to Earl's case, which the c o u rt granted. Earl attempted to reverse the preservation order, but was denied by the W a sh in g to n state courts.3 Menu Foods completed its disposal of the unorganized in v e n to ry in June 2008. Earl then returned to the New Jersey District Court, where in January 2009, he

Defendants argued this was done so as to limit the significant costs of storing the m a te ria ls and to dispose of materials that had become a public health hazard. At no point has Earl ever been a party to the class action lawsuit in the Pet Food R e c a ll litigation. Furthermore, the pet food in Earl's case was manufactured and sold b e f o re the period subject to the recall, although it is unclear from the record exactly how lo n g before the recall. The Supreme Court of Washington found that the Superior Court had not abused its d is c re tio n in entering the disposal order. Earl, it held, had his own samples of the cat f o o d from the relevant era, and had not shown "that his plan to retrieve 500 samples from th e unorganized inventory, without any methodology establishing how these samples w o u ld be representative, would lead to admissible evidence." 3
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f ile d a Rule 60(b) motion to vacate the District Court's order disposing of the u n o rg a n iz e d materials, and a motion to intervene as a matter of right in the class action. However, Earl filed his motions nearly two months after the District Court entered a final ju d g m e n t in the underlying Pet Food Recall Litigation and after the case was on appeal. The District Court denied his motions, finding that he did not demonstrate a sufficient interest in the unorganized inventory. It also denied his motion for reconsideration. Earl f ile d a timely notice of appeal. This Court reviews the denial of a motion to intervene under Fed. R. Civ. P. 2 4 (a )(2 ) for an abuse of discretion and should reverse only if the District Court "has a p p lied an improper legal standard or reached a decision [the Court is] confident is inco rrect." United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir. 1994); s e e also Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 n.4 (3d Cir. 2005). A litig a n t seeking intervention as a matter of right under Fed. R. Civ. P. 24(a)(2) must e sta b lis h : "1) a timely application for leave to intervene, 2) a sufficient interest in the u n d e rlyin g litigation, 3) a threat that the interest will be impaired or affected by the d is p o s itio n of the underlying action, and 4) that the existing parties to the action do not a d e q u ate ly represent the prospective intervenor's interests." Treesdale, 419 F.3d at 220 (c itin g Kleissler v. United States Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998)). Each of th e se requirements "must be met to intervene as of right." Mountain Top Condo. Ass'n v. D a v e Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995) (citation omitted).

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T h e District Court denied the motion to intervene on the ground that Earl's interest w a s insufficient to warrant intervention stating that Earl had not "demonstrated that he h a s an interest in the `unorganized inventory' requiring that this Court vacate its prior o rd e rs regarding that inventory." It then denied his motion to vacate. We agree with the D is tric t Court that Earl did not show an interest in the unorganized inventory, as d e sc rib e d below, but will also affirm on the basis that Earl's motion to intervene was not tim e ly filed. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (stating th a t the Court may affirm an order on any ground that is supported by the record). Here, Earl filed his motions to intervene and vacate nearly two months after the D is tric t Court had entered a final judgment in the underlying Pet Food Recall Litigation, a n d beyond the thirty-day statutory time period for filing an appeal. See Fed. R. App. P. 4 (a). He did not file his motion to intervene for purposes of appealing the District Court's f in a l judgment, but for purposes of vacating an order that had no effect on the outcome of th e underlying lawsuit. See Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 131, 1 3 4 (3d Cir. 1979) ("Certainly, an effort to intervene after a judgment has become final . . . presents an extreme example of untimeliness. . . . Where the purpose of a motion to intervene is to obtain appellate review of a district court order determining the status of a class, the motion may be considered timely if filed within the time limit for filing a n o tic e of appeal.") (citing United Airlines, Inc., v. McDonald, 432 U.S. 385, 392 (1977)). As a result, Earl's motion to intervene was untimely.

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W e also agree with the District Court that Earl did not demonstrate a sufficient in te re st in the litigation to warrant intervention. The purpose of his motion to intervene w a s to obtain an order vacating the District Court's December 18, 2007 order authorizing th e destruction of the unorganized inventory. None of the plaintiffs objected to that order an d Menu Foods destroyed the inventory in June 2008, nearly nine months before Earl f ile d his motion to intervene to prevent its destruction. As a result, he had no sufficient in ter e st in the underlying litigation. Since Earl could not intervene, he was not a party to th e lawsuit and the District Court had no choice but to deny his Rule 60(b) motion.4 M o r e o v e r , even if the District Court could have granted his Rule 60(b) motion, to do so w o u ld have been meaningless once the unorganized inventory had been destroyed. In conclusion, we agree that the District Court correctly denied Earl's motions to in te rv e n e and to vacate. Costs will be assessed to the appellant. See Fed. R. App. P. 3 9 (a )(2 ); LAR 39.5

In his brief, Earl also argues that: 1) Menu Foods attorneys violated the Rules of P rof essio n al Conduct by filing a motion to destroy evidence; and 2) that the District Court d id not have subject matter jurisdiction or legal authority to grant a motion to destroy e v id e n c e. We will not consider these arguments in light of our holding that the District C o u rt properly denied his motions to intervene and vacate. We also grant the Appellee's motion to take judicial notice of the opinions filed by th e courts of Washington state concerning Earl's attempts to prevent the destruction of th e evidence. We also grant appellee's and appellant's motions to file supplemental a p p e n d ic e s . 6
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