Pasarell v. Cargill, Inc.

Filing 26

ORDER DENYING TRANSFER re: pldg. (16 in FLS/1:13-cv-23433, 16 in HI/1:13-cv-00336, 1 in HI/1:13-cv-00685, 20 in MDL No. 2512, 15 in MN/0:13-cv-02563), ( 1 in MDL No. 2512) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge John G. Heyburn II, Chairman, PANEL ON MULTIDISTRICT LITIGATION, on 2/12/2014. Associated Cases: MDL No. 2512, FLS/1:13-cv-23433, HI/1:13-cv-00336, HI/1:13-cv-00685, MN/0:13-cv-02563 (LH)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: TRUVIA NATURAL SWEETENER
MARKETING AND SALES PRACTICES
LITIGATION

MDL No. 2512

ORDER DENYING TRANSFER

Before the Panel:* Pursuant to 28 U.S.C. § 1407, defendant Cargill, Inc., moves to
centralize this litigation in the District of Minnesota. This litigation currently consists of four actions
pending in the Southern District of Florida, the District of Hawaii, and the District of Minnesota, as
listed on Schedule A. The cases in this litigation involve allegations that Cargill misleadingly labels
and markets its Truvia Natural Sweetener products (Truvia) as “natural,” when, according to the
plaintiffs: (1) Truvia is primarily made from erythritol, which is produced through fermentation of
corn-derived dextrose; and (2) the stevia leaf extract ingredient—the focal point of Cargill’s
marketing—is obtained through extensive processing involving various toxic chemicals.
Plaintiffs in the action pending in the District of Minnesota support the motion and,
alternatively, suggest centralization in the Northern District of California. All other plaintiffs oppose
centralization on the basis of pending motions to transfer or show cause orders in each of the actions.
Alternatively, these plaintiffs support the District of Hawaii as the transferee forum.
On the basis of the papers filed and hearing session held, we conclude that Section 1407
centralization will not serve the convenience of the parties and witnesses or further the just and
efficient conduct of this litigation. Though these actions share common questions of fact as to
whether the labeling and marketing of Truvia as “natural” is false or misleading, there exists a
reasonable prospect that resolution of the pending transfer motions could eliminate the multidistrict
character of these actions. See In re Gerber Probiotic Prods. Mktg. & Sales Practices Litig., 899
F. Supp. 2d 1378, 1380-81 (J.P.M.L. 2012).
Two of the four actions on the motion are pending in the District of Hawaii. One of those
actions, Calderon, was initially filed in the Central District of California and, midway through the
briefing on the present motion, was transferred pursuant to the “first-to-file rule” to the District of
Hawaii.1 Both of the Hawaii actions are now subject to a pending motion by Cargill to transfer to
*

1

Judges Paul J. Barbadoro and Lewis A. Kaplan took no part in the decision of this matter.

The “first-to-file rule”is a doctrine of federal comity, pursuant to which, “‘when related cases
are pending before two federal courts, the court in which the case was last filed may refuse to hear
(continued...)

-2the District of Minnesota. In the Southern District of Florida action, the plaintiff has filed a motion
to transfer that action to the District of Hawaii. Finally, the court in the District of Minnesota action
sua sponte ordered the parties to show cause why that action, too, should not be dismissed or
transferred to the District of Hawaii on the basis of the first-to-file rule. While the Panel does not
judge the merits of either the transfer motions or the show cause order, it seems quite possible that
this litigation ultimately will proceed in either the District of Hawaii or the District of Minnesota
without Panel intervention. Transfer thus appears preferable to centralization in this instance. See
Gerber, 899 F. Supp. 2d at 1380 (discussing the advantages of Section 1404 transfer over
centralization).
Cargill argues that we should proceed to centralize this litigation, as we did the litigation in
In re Schnuck Markets, Inc., Customer Data Security Breach Litigation, MDL No. 2470, __ F. Supp.
2d __, 2013 WL 5670861 (J.P.M.L. Oct. 18, 2013), because of the large nationwide classes asserted
by the plaintiffs and the potential for future tag-along actions. Unlike Schnuck Markets, however,
no potential tag-along actions have been noticed in this litigation, and two months-old demand letters
from plaintiffs’ counsel, alone, are an insufficient basis for centralization. Likewise, in Schnuck
Markets there were no final rulings on the Section 1404 motions or other evidence sufficient for us
to find a reasonable prospect that the Section 1404 motions would moot the multidistrict character
of that litigation. Id. at *1. Here, in contrast, one motion to transfer has already been granted, and
another court sua sponte raised the issue of transfer with the parties. As we have previously held,
“centralization under Section 1407 should be the last solution after considered review of all other
options,” including transfer pursuant to Section 1404 and the first-to-file rule. In re Best Buy Co.,
Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011).

1

(...continued)
it if the issues raised by the cases substantially overlap.’” In re Spillman Dev. Group, Ltd., 710 F.3d
299, 307 (5th Cir. 2013) (quoting Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th
Cir.1999)). The parties vigorously dispute which of the actions was first-filed. We need not weigh
in on which action was the first-filed or whether application of the first-to-file rule is appropriate in
these actions, however, in order to decide the present motion before us.

-3IT IS THEREFORE ORDERED that the motion, pursuant to 28 U.S.C. § 1407, for
centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
John G. Heyburn II
Chairman
Marjorie O. Rendell
Sarah S. Vance

Charles R. Breyer
Ellen Segal Huvelle

IN RE: TRUVIA NATURAL SWEETENER
MARKETING AND SALES PRACTICES
LITIGATION

SCHEDULE A

Southern District of Florida
Ruth Pasarell v. Cargill, Inc., C.A. No. 1:13-23433
District of Hawaii
Denise Howerton v. Cargill, Inc., C.A. No. 1:13-00336
Erin Calderon v. Cargill, Inc., et al., C.A. No. 1:13-00685
District of Minnesota
Molly Martin, et al. v. Cargill, Inc., C.A. No. 0:13-02563

MDL No. 2512