Dennis Lynch v. TROPICANA PRODUCTS, INC.
Filing
327
OPINION. Signed by Judge William J. Martini on 12/28/18. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
IN RE: TROPICANA ORANGE JUICE
MARKETING AND SALES PRACTICES
LITIGATION
Civ. No. 2:11-07382
MDL 2353
OPINION
This Document Relates To:
ALL CASES
WILLIAM J. MARTINI, U.S.D.J.:
THIS MATTER comes before the Court upon the Motion for Certification of
Modified Class, Appointment of Class Representatives, and Appointment of Class
Counsel, filed by Plaintiff Angelena Lewis1 on October 19, 2018. ECF No. [320]
(“Renewed Motion”). Ten days after Plaintiff filed her motion, Defendant filed a letter
brief arguing that the Court should stay briefing on the Renewed Motion and should allow
Defendant to first move for summary judgment on the claims of the individually named
plaintiffs in this multi-district litigation. ECF No. [323]. Plaintiff objected by way of letter
brief on November 1, 2018, ECF No. [324], and Defendant filed a reply letter brief on
November 5, 2018, ECF No. [325]. The Court now resolves the issues raised by the parties
in their letters.
I.
BACKGROUND
The Renewed Motion is Plaintiff’s third attempt to move for class certification. See
ECF Nos. [144], [270], & [320]. On January 22, 2018, the Court denied certification by
way of a written opinion. ECF No. [311]. In the opinion, the Court found that Plaintiff
met the Rule 23(a) requirements for certification but failed to meet the requirements set
forth under Rule 23(b)(2) and (b)(3). Specifically, the Court held that the common law
claims of unjust enrichment and breach of express warranty and the claims under the New
Jersey Consumer Fraud Act failed because individual issues predominated over common
issues concerning consumers’ motivations when deciding to purchase Defendant’s orange
juice product Tropicana Pure Premium. Id. at 5–11. The Court further found that the
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The Court will refer to “Plaintiff” in the singular based on her representation in the Renewed
Motion that she alone seeks certification on behalf of the putative class.
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consumer protection claims under New York and California law failed because Plaintiff
did not show by a preponderance of the evidence that she could successfully implement a
reliable and administratively feasible mechanism for determining whether putative class
members fall within the class definition. See id. at 11–16. Finally, the Court found that
Plaintiff lacked standing to pursue injunctive relief under Rule 23(b)(2) because Plaintiff
failed to show a real and immediate threat of future injury by a preponderance of the
evidence. See id. at 16–17.
Plaintiff then moved for reconsideration. ECF No. [313]. The Court denied
reconsideration on May 24, 2018. Approximately five months later, Plaintiff filed the
Renewed Motion. ECF No. [320].
II.
THE INSTANT MOTION
In the Renewed Motion, Plaintiff seeks certification of two subclasses that Plaintiff
argues correct the deficiencies noted by the Court in its opinion denying class certification.
Plaintiff moves for certification of two modified subclasses as follows:
All consumers who were or are members of a Costco Wholesale
Store in the State of California and who purchased Tropicana Pure
Premium Orange Juice at a Costco Wholesale store in the State of
California between January 1, 2008 and the present (“California
Class”).
All consumers who were or are members of a Costco Wholesale
Store in the State of New York and who purchased Tropicana Pure
Premium Orange Juice at a Costco Wholesale store in the State of
New York between January 1, 2008 and the present (“[New York]
Class”).
Instead of responding to the Renewed Motion, Defendant filed a letter brief
requesting leave of Court to file motions for summary judgment in lieu of responding to
the Renewed Motion. ECF No. [323]. In sum, Defendant argues that moving for summary
judgment against the named plaintiffs prior to any renewed motion for class certification
would be a more efficient use of the resources of the Court and the parties because the
Renewed Motion merely rehashes arguments already rejected by the Court on class
certification and reconsideration. Id. at 2. As noted above, Plaintiff objected to the letter
brief by way of its own letter brief. ECF No. [324]. Defendant filed a reply. ECF No.
[325].
III.
ANALYSIS
Despite its arguments that the Court should not permit Plaintiff to pursue the
Renewed Motion, Defendant has not cited, and the Court has not found, authority which
would suggest that once Plaintiff moved unsuccessfully for class certification or
reconsideration of her class certification motion, Plaintiff is precluded from filing the
Renewed Motion. ECF No. [324]. In fact, Federal Rule of Civil Procedure 23(c)(1)(C)
expressly allows courts to alter or amend orders granting or denying class certification
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“prior to the entry of final judgment.” Gutierrez v. Johnson & Johnson, 523 F.3d 187, 199
n. 12 (3d Cir. 2008) (citing McNamara v. Felderhof, 410 F.3d 277, 280 (5th Cir. 2005).
Thus, on a successive motion for class certification such as Plaintiff’s here, the district
court has “ample discretion to consider (or to decline to consider) a revised class
certification motion after initial denial.” In re Initial Pub. Offering Sec. Litig., 483 F.3d
70, 73 (2d Cir. 2007) (collecting cases).
However, while a district court may revisit a prior denial of class certification, such
motions are generally only proper when “there is a change in the circumstances or facts
since that prior denial.” Barton v. RCI, LLC, No. 10-CV-03657 PGS, 2014 WL 5762214,
at *1 (D.N.J. Nov. 5, 2014) (citing Gutierrez v. Johnson & Johnson, 269 F.R.D. 430, 433–
34 (D.N.J. 2010)). A change in circumstances or facts includes “developments in the
factual background, a modified proposed class definition, new class representatives, or any
other changes which may cure defects earlier found by the court.” Gutierrez, 269 F.R.D.
at 434 (citing Zenith Labs., Inc. v. Carter–Wallace, Inc., 530 F.2d 508, 512 (3d Cir. 1976);
Bayshore Ford Truck v. Ford Motor Co., Civ. No. 99–741, 2010 WL 415329, at *2 (D.N.J.
Jan. 29, 2010); In re Fleetboston Fin. Corp. Sec. Litig., 253 F.R.D. 315, 338 (D.N.J. 2008).
Thus, “it is not uncommon for district courts to permit renewed certification motions that
set out a narrower class definition or that rely upon different evidence or legal theories.”
D.C. by & through Garter v. Cty. of San Diego, No. 15CV1868-MMA (NLS), 2018 WL
692252, at *1 (S.D. Cal. Feb. 1, 2018) (citing Hartman v. United Bank Card, Inc., 291
F.R.D. 591, 597 (W.D. Wash. 2013).
Here, Plaintiff’s Renewed Motion seeks certification of two narrowed subclasses.
Upon review of the record and the applicable law, the Court finds Plaintiff’s Renewed
Motion is both permitted and appropriate. The Court’s prior opinion denying class
certification highlighted specific deficiencies under Rule 23, and Plaintiff has refiled her
motion ostensibly seeking to cure those deficiencies. Initial, 483 F.3d at 73 (“Nothing in
our decision precludes the Petitioners from returning to the District Court to seek
certification of a more modest class, one as to which the Rule 23 criteria might be met,
according to the standards we have outlined.”). And, while the Court properly declined to
consider a modified class definition for the first time on reconsideration, that ruling does
not necessarily preclude a new motion based on a modified class.
While Defendant may have strategic reasons for its request, the Court sees no reason
to deny Plaintiff the opportunity to file her motion. Plaintiff ultimately may not prevail on
certification. Franco v. Conn. Gen. Life Ins. Co., 299 F.R.D. 417, 420 (D.N.J. 2014), aff’d,
647 F. App’x 76 (3d Cir. 2016) (noting that the renewed “motion corrects some of the
problems identified in Franco I,” but ultimately denying class certification); Gutierrez, 269
F.R.D. at 432 (“It was plaintiffs’ prerogative to file a renewed motion, and they did so,”
but finding certification improper). However, that does not preclude her from properly
filing her motion now. The Court accordingly finds that briefing the Renewed Motion
prior to summary judgment is appropriate.
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IV.
CONCLUSION
For the reasons stated above, Defendant’s request to stay briefing for the Renewed
Motion is DENIED. Defendant’s request for leave to file for summary judgment prior to
adjudication of the Renewed Motion is DENIED. An appropriate order follows.
Dated: December 28, 2018
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
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