Majerczyk v. Menu Foods, Inc.

MOTION

N.D. Ill.April 19, 2007

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS HEATHERAMRO, on behalf of herself and all others similarly situated, Plaintiff, v. MENU FOODS INCOME FUND, MENU FOODS, INC., a New Jersey corporation, MENU FOODS HOLDINGS, INC., MENU FOODS MIDWEST CORPORATION, a Delaware corporation, CHEMNUTRA INC., a Delaware corporation, CHEMNUTRA LLC, THE PROCTOR & GAMBLE COMP ANY, an Ohio corporation and THE lAMS COMPANY, Defendants. DAWN MAJERCZYK, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. MENU FOODS, INC., a New Jersey corporation, MENU FOODS INCOME FUND, MENU FOODS OPERATING TRUST, unincorporated open-ended trusts established under Ontario law, MENU FOODS LIMITED PARTNERSHIP, a limited partnership organized under Ontario law, MENU FOODS ACQUISTION INC., MENU FOODS LIMITED, business corporations organized under Ontario law, MENU FOODS HOLDINGS, INC., and MENU FOODS MIDWEST CORPORATION, a Delaware corporation, Defendants. Case No. 07 C 2162 Judge John W. Darrah JURY TRIAL DEMANDED Case No. 07 CV 1543 Judge Wayne R. Andersen JURY TRIAL DEMANDED MOTION FOR A FINDING OF RELATEDNESS Case 1:07-cv-01543 Document 19 Filed 04/19/2007 Page 1 of 6 Majerczyk v. Menu Foods, Inc. Doc. 19 Dockets.Justia.com Pursuant to Local Rule 40.4 of the District Court for the Northern District of Illinois, plaintiff Heather Amro ("Plaintiff'), by her attorneys, moves this Court to make a finding that the above-captioned class actions Amro v. Menu Foods Income Fund, et ai., (No. 07 C 2162), currently assigned to Judge John W. Darrah, and Majerczyk v. Menu Foods Inc., et ai. (No. 07 CV 1543), currently assigned to this Court, are related. In support of this Motion, Plaintiff states as follows: 1. Local Rule 40.4(b) provides: A case may be reassigned to the calendar of another judge if it is found to be related to an earlier-numbered case assigned to that judge and each of the following criteria is met: (1) both cases are pending in this Court; (2) the handling of both cases by the same judge is likely to result in a substantial saving of judicial time and effort; (3) the earlier case has not progressed to the point where designating a later filed case as related would be likely to delay the proceedings in the earlier case substantially; and (4) the cases are susceptible of disposition in a single proceeding. LR 40.4(b). 2. Cases are deemed related and may be reassigned if the Court determines that management of the related cases will save judicial time and effort, and the cases have at least one of the following characteristics: (1) the cases involve the same property; (2) the cases involve some of the same issues of fact or law; (3) the cases grow out of the same transaction or occurrence; or (4) in class actions, one or more of the classes involved in the cases is or are the same. 2 Case 1:07-cv-01543 Document 19 Filed 04/19/2007 Page 2 of 6 LR 40.4(a). 3. Plaintiff filed her Class Action Complaint (the "Amra Class Action Complaint") (attached hereto as Exhibit A) on April 18, 2007. The case is presently assigned to Judge Darrah. 4. The Amra Class Action Complaint alleges that the defendants breached their duties and warranties to its customers by selling contaminated pet food, which resulted in the deaths of numerous pets, and failing to issue a recall of such contaminated pet food products in a timely manner. (Amra Class Action Compi. at ~~ 1, 16-26.) Plaintiff seeks certification of a class comprised of all "persons and entities that purchased recalled dog or cat food exported, imported, manufactured, distributed, marketed and/or sold by Defendants." (Id. at ~ 31.) 5. The First Amended Class Action Complaint in Majerczyk (the "Majerczyk First Amended Class Action Complaint') (attached hereto as Exhibit B) was filed on April 4, 2007 and is pending in this Court. 6. The Majerczyk First Amended Class Action Complaint, which has the lower docket number of the two cases, makes allegations almost identical to those raised in the Amra Class Action Complaint and also seeks relief as a result the defendants' sale of contaminated pet food and failure to issue a timely recall of such products. (Majerczyk First Am. Class Action Compi. at ~~ 1-9, 23-42.) The Majerczyk First Amended Class Action Complaint seeks certification of a class of consisting of all individuals "who purchased pet food in the United States that was ultimately subject to the March 16, 2007 Menu Foods recall or any subsequently announced recall." (Id at ~ 49.) 7. As evidenced above, both Amra and Majerczyk arise from substantially identical claims based upon the defendants' improper conduct of manufacturing, distributing or selling 3 Case 1:07-cv-01543 Document 19 Filed 04/19/2007 Page 3 of 6 contaminated pet food products. Further, both Complaints seek certification of a class that is virtually identical. (Amra Class Action Compl. at ~ 31; Majerczyk First Am. Class Action Compl. at ~ 49.) Thus, these actions are nearly indistinguishable on each applicable criteria listed in Local Rule 40.4(a). 8. Moreover, the reassignment of Amra to this Court will save a substantial amount of judicial time and effort. Relating these actions will prevent the duplication of motion practice, discovery and effort in pre-trial proceedings and possible inconsistent rulings on similar issues. LR 40.4(b )(2). 9. Both Amra and Majerczyk have requested a trial by jury. Therefore, both of these cases are susceptible of disposition in a single proceeding. LR 40.4(b)( 4). These class actions can also be consolidated pursuant to F. R. Civ. P. 42(a). 10. Further, although not identical, both of these actions name substantially the same defendants. Thus, any differences in the number and identity of named defendants can be cured through the filing of a consolidated complaint. LR 40.4(b)( 4). 11. Majerczyk has not significantly progressed and will not be delayed by the reassignment of Amra as the defendant's appearance and responsive pleading have yet to be filed inMajerczyck. LR 40.4(b)(3). WHEREFORE, Plaintiff respectfully requests that this Court make a finding that Amra and Majerczyk are related and reassign Amra to this Honorable Court, to whom the action with the lowest docket number, Majerczyk, is assigned. 4 Case 1:07-cv-01543 Document 19 Filed 04/19/2007 Page 4 of 6 Dated: April 19, 2007 5 HEATHERAMRO, on behalf of herself and all others similarly situated, By: Isl Kenneth A. Wexler Kenneth A. Wexler Andrae P. Reneau Wexler Toriseva Wallace LLP One North LaSalle St., Suite 2000 Chicago, Illinois 60602 Telephone: (312) 346-2222 Facsimile: (312) 346-0022 Mark 1. Tamblyn Wexler Toriseva Wallace LLP 1610 Arden Way, Suite 290 Sacramento, California 95815 Telephone: (916) 568-1100 Facsimile: (916) 568-7890 Stuart C. Talley Kershaw, Cutter, & Ratinoff, LLP 980 9th Street, 19th Floor Sacramento, California 95814 Telephone: (916) 448-9800 Facsimile: (916) 669-4499 Attorneys for Plaintiff and the Class Case 1:07-cv-01543 Document 19 Filed 04/19/2007 Page 5 of 6 CERTIFICATE OF SERVICE I,Andrae P. Reneau, hereby certify that I am one of plaintiff s attorneys and I caused copies of the foregoing Motion for a Finding of Relatedness to be served on: John Blim Jay Edelson Myles McGuire (Of Counsel) Blim & Edelson LLC 53 W. Jackson Blvd., Suite 1642 Chicago, IL 60604 Telephone: (312) 913-3400 Facsimile: (312) 913-9401 Counsel for Plaintiff Dawn Marjerczyk via the Court's Electronic Filing System, and Edward B. Ruff, III Michael P. Turiello Pretzel & Stouffer Chartered One South Wacker Drive Suite 2500 Chicago, IL 60606 Telephone: (312) 346-1973 Facsimile: (312) 346-8242 Counsel for Defendants Menu Foods, Inc., Menu Foods Income Fund, Menu Foods Operating Trust, Menu Foods Limited Partnership, Menu Foods Acquisition Inc., Menu Foods Limited, Menu Foods Holdings, Inc. and Menu Foods Midwest Corp. (Not Yet Appeared) via facsimile and U.S. Mail, with proper postage prepaid, this 19th day of April, 2007. Isl Andrae P. Reneau 6 Case 1:07-cv-01543 Document 19 Filed 04/19/2007 Page 6 of 6