WINN-DIXIE STORES, INC. et al v. EASTERN MUSHROOM MARKETING COOPERATIVE, INC. et al

Filing 122

MEMORANDUM AND ORDER THAT DEFENDANTS' MOTIONS [98,99,101, AND 102] TO DISMISS PLAINTIFFS' AMENDED COMPLAINT ARE GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED THAT WINN-DIXIE PLAINTIFFS' CLAIMS AGAINST THE FOLLOWING DEFENDA NTS ARE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO SERVE PURSUANT TO RULE 4(M) OF THE FRCP: CARDILE BROTHERS MUSHROOM PACKAGING, INC., HARVEST FRESH FARMS, INC., LRP-M MUSHROOMS, LLC, LRP MUSHROOMS, INC., MASHA & TOTO, INC. T/A M&T MUSHROOM, UNITED MUSHROOM FARMS COOPERATIVE, AND W&P MUSHROOMS, INC. ALL REMAINING DEFENDANTS SHALL FILE AN ANSWER TO THE AMENDED COMPLAINT ON OR BEFORE FRIDAY, 7/12/19. SIGNED BY HONORABLE BERLE M. SCHILLER ON 4/8/19. 4/8/19 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WINN-DIXIE STORES, INC., et al.
v.
EASTERN MUSHROOM MARKETING
COOPERATIVE, et al.

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CIVIL ACTION

No. 15-6480

ORDER
AND NOW, this 8th day of April 2019, upon consideration of Defendants’ motions to
dismiss the Amended Complaint of Plaintiffs Winn-Dixie Stores, Inc. and Bi-Lo Holdings, LLC
(“Winn-Dixie Plaintiffs”),1 Plaintiffs’ response, and for the reasons stated in the Court’s
memorandum dated April 8, 2019, it is ORDERED that the motions (Document Nos. 98, 99, 101,
and 102) are GRANTED in part and DENIED in part as follows:
1.

Defendants’ motions are GRANTED to the extent that they seek to dismiss WinnDixie Plaintiffs’ claims under Section 2 of the Sherman Act against all Defendants
other than Defendant EMMC;

2.

Defendants’ motions are GRANTED to the extent that they seek to dismiss WinnDixie Plaintiffs’ claims for antitrust violations extending beyond December 31,

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The following Defendants have filed motions to dismiss: (1) M.D. Basciani & Sons, Inc. (Dkt.
No. 98); (2) Eastern Mushroom Marketing Cooperative, Inc., Robert A. Feranto, Jr. t/a Bella
Mushroom Farms, Brownstone Mushroom Farms, Inc., Country Fresh Mushroom Co., Forest
Mushroom, Inc., Gaspari Bros., Inc., Gino Gaspari & Sons, Inc., Kaolin Mushroom Farms, Inc.,
South Mill Mushroom Sales, Inc., Louis M Marson, Jr., Inc., Modern Mushroom Farms, Inc.,
Monterey Mushrooms, Inc., Sher-Rockee Mushroom Farm, LLC, C&C Carriage Mushroom Co.,
Oakshire Mushroom Farm, Inc., Phillips Mushroom Farms, Inc., To-Jo Fresh Mushrooms, Inc.,
Michael Pia, and John Pia (Dkt. No. 99); (3) Creekside Mushrooms, Ltd. (Dkt. No. 101); and (4)
Giorgi Mushroom Co. and Giorgio Foods, Inc. (Dkt. No. 102). J-M Farms, Inc. (Dkt. No. 100),
Mushroom Alliance, Inc. (Dkt. No. 103), and Cardile Mushrooms, Inc. (Dkt. No. 104) join in
Certain Defendants’ motion to dismiss. Cardile also joins in the Creekside and Giorgi motions.
Creekside joins in the motions of Certain Defendants and the Giorgi Defendants.

2008; and
3.

Defendants’ motions are DENIED in all other respects.

It is FURTHER ORDERED that Winn-Dixie Plaintiffs’ claims against the following
Defendants are DISMISSED without prejudice for failure to serve pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure: 1) Cardile Brothers Mushroom Packaging, Inc; 2) Harvest Fresh
Farms, Inc.; 3) LRP-M Mushrooms, LLC; 4) LRP Mushrooms, Inc.; 5) Masha & Toto, Inc. t/a
M&T Mushroom; 6) United Mushroom Farms Cooperative; and 7) W&P Mushrooms, Inc.
All remaining Defendants shall file an Answer to the Amended Complaint on or before
Friday, July 12, 2019.
BY THE COURT:

Berle M. Schiller, J.

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