United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS
CERTIFICATION; DENYING PLAINTIFFS' EX PARTE MOTION FOR
LEAVE TO SUBMIT NEWLY DISCOVERED EVIDENCE; AND DENYING
DEFENDANTS' MOTION TO STAY THE COURT'S RULING [DOC.
NOS. 93, 187, 276]
A. HOUSTON United States District Judge
Laura Cyphert and Milt Cyphert originally filed an action on
June 27, 2012, asserting a class action against Defendants
The Scotts Miracle-Gro Company (“SMG”) and The
Scotts Company, LLC (“Scotts”). Upon the
parties' joint motion, the Court consolidated the matter
with several other cases seeking the same relief against the
same defendants. Plaintiffs filed a Consolidated Class Action
Complaint on October 9, 2012, and an Amended Consolidated
Class Action Complaint on January 31, 2013. After the Court
granted leave to amend, Plaintiffs filed a Second Amended
Consolidated Class Action Complaint on October 9, 2015,
asserting claims for violations of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”),
California Consumer Remedies Act (“CLRA”),
California's Unfair Competition Law (“UCL”),
California False and Misleading Advertising law
(“FAL”), Kentucky Consumer Protection Act
(“KCPA”), Minnesota Consumer Fraud Act, Missouri
Merchandising Practices Act, breach of implied warranty of
merchantability, breach of the common law implied warranty of
fitness for consumption by animals, intentional
misrepresentation, and negligent misrepresentation against
SMG, Scotts and James Hagedorn.
now seek an order certifying the class. See Doc. No. 93.
Defendants filed an opposition to the motion to certify and
Plaintiffs filed a reply. See Doc. Nos. 115, 140. Defendants
filed a surreply with leave of Court, and Plaintiffs filed a
response to the surreply. See Doc. Nos. 161-2, 174.
Defendants also filed a notice of supplemental authority in
support of its opposition. See Doc. No. 169. The motion was
taken under submission without oral argument. The parties,
however, filed numerous documents addressing the issues in
the pending motion, including: Plaintiff's request to
submit newly discovered evidence in support of their motion,
Defendants' response and Plaintiffs' reply (Doc. Nos.
187, 194, 195); Plaintiffs' application for leave to
submit new evidence, summary of the evidence and
Defendants' response to the summary (Doc. Nos, 210, 237,
247); Plaintiffs' notice of recent authority in support
of their motion and Defendants' response (Doc. Nos. 240,
246); Defendants' ex parte motion seeking leave to file
recent decisions regarding materials sought by Plaintiffs in
their request to submit newly discovered
evidence (Doc. No. 248); Defendants' motion to
stay the decision on the motion for class certification,
Plaintiffs' opposition and Defendants' reply (Doc.
Nos. 276, 295, 298); Plaintiffs' request for judicial
notice in support of the motion to certify the class,
Defendants' response and Plaintiffs' reply (Doc. Nos.
305, 306, 307); Plaintiffs' notice of recent authority
and Defendants' response (Doc. Nos. 319, 323).
Hagedorn sought and was granted leave to file a response to
the motion following this Court's ruling on his motion to
dismiss. He filed an opposition to which Plaintiffs filed a
reply (Doc. Nos. 317, 318).
reasons discussed in detail below, the Court DENIES
Defendants' motion to stay and GRANTS Plaintiffs'
motion to certify the class.
Motion to Stay
ask the Court to stay its decision on Plaintiffs' motion
for class certification pending the outcome of cases pending
before the Ninth Circuit and the Supreme Court, namely
Brazil v. Dole Packaged Foods, LLC, No. 14-17480
(9th Cir., filed Dec. 18, 2014), Jones v. ConAgra Foods,
Inc., No. 14-16327 (9th Cir., filed July 15, 2014),
Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (U.S.,
cert. granted June 8, 2015), and Spokeo, Inc. v.
Robins, No. 13-1339 (U.S., cert. granted April 27,
2015). Defendants maintain the pending appeals will offer
further guidance regarding key issues in the motion for class
certification. They further maintain a stay will permit
Defendant Hagedorn, who was recently added to this matter as
a defendant, to conduct discovery and challenge class
allegations himself. Defendants also contend a stay would
preserve the Court's resources and prevent the parties
from incurring unnecessary costs.
opposition, Plaintiffs argue they will be harmed by a stay
because discovery has already been stayed pending ruling on
the class certification. They further argue Defendants will
not be harmed by proceeding because new defendants are
routinely added to cases without the proceedings as to the
original defendants being stayed. Plaintiffs maintain it will
not take Defendant Hagedorn an excessive amount of time to
“catch up” because he is not a stranger to the
litigation and there is no indication he would have any
unique defenses as to certification.
further maintain a stay will not forward the orderly course
of justice because the four cases pending before the Supreme
Court are unlikely to alter the Court's analysis of
certification in this case. Specifically, they maintain
Jones, which Defendants contend will provide
guidance on ascertainability and damage models, will not
effect the pending motion because Plaintiffs have gone beyond
the existing ascertainability requirements. Additionally,
they maintain the factual differences in Jones
demonstrate any ruling is unlikely to alter the Court's
analysis. With regard to Brazil, Plaintiffs contend
the damages model issue in the case is inapplicable to this
action because it involves the difference between a product
marketed as “all natural” and the product sold,
whereas, here, Plaintiffs are seeking full refunds of every
bag of bird food they purchased. Plaintiffs further contend
Tyson/Spokeo, involve questions of standing where
numerous class members suffered no injury as compared to this
case where Plaintiffs have limited the class to only those
who purchased the tainted wild bird food, and therefore
suffered an injury.
reply, Defendants argue Plaintiffs provide a misleading
characterization of the stay on discovery. They maintain both
parties have been addressing ongoing discovery needs.
Defendants also contend the stay will allow this Court to
have the benefit of the Ninth Circuit's and Supreme
Court's guidance on controlling issues of law before
ruling on the class certification. They argue the class
certification motion implicates Jones,
Brazil, and Tyson/Spokeo. Specifically,
they argue the Ninth Circuit is poised to articulate the
Circuit's standard for ascertainability in
Jones. Defendants contend Plaintiffs oversimplify
the facts of this case and they overstate their ability to
identify consumers through retailer records to meet the
ascertainability requirement. Additionally, they contend
Jones will likely provide guidance on
Plaintiffs' “full refund” model of class
damages. Defendants further argue the Ninth Circuit's
decision in Brazil will provide guidance on damages
issues in Plaintiffs' motion for class certification
because Plaintiffs will be forced to engage in the
difference-in-value calculations at issue in Brazil.
They also argue the Supreme Court's decision in
Tyson/Spokeo bears on the issues in this case
because the proposed class contains uninjured class members
in that their injury turns on whether each consumer perceived
a benefit of his or her bargain.
has the inherent power to stay proceedings in order “to
control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for
litigants.” Landis v. North Am. Co., 299 U.S.
248, 254 (1936). A stay may be granted pending the outcome of
other legal proceedings related to the case in the interests
of judicial economy. Leyva v. Certified Grocers of Cal.,
Ltd., 593 F.2d 857, 863- 64 (9th Cir.1979). The district
court's determination of whether a stay is appropriate,
“must weigh competing interests and maintain an even
balance.” Landis, 299 U.S. at 254-55.
competing interests include:
the possible damage which may result from the granting of a
stay, the hardship or inequity which a party may suffer in
being required to go forward, and the orderly course of
justice measured in terms of the simplifying or complicating
of issues, proof, and questions of law which could be
expected to result from a stay.
CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir.
1962) (citing Landis, 299 U.S. at 254-55).
the cases pending before the Ninth Circuit and Supreme Court
may lend some guidance to this Court in issuing a decision on
the motion to certify the class, the Court finds a
significant stay of the motion would serve to prejudice
Plaintiff in light of the length of time the case and motion
have been pending, and the fact that certain discovery is
stayed pending the ruling on the motion to certify.
Furthermore, this Court delayed ruling on the motion to
permit Defendant Hagedorn to file a separate opposition to a
motion to certify the class. The Court also notes it retains
discretion to revisit class certification throughout the
legal proceedings and may rescind, modify, or amend the class
certification in light of subsequent developments.
See Fed.R.Civ.P. 23(c)(1)(C); General Telephone
Co. Of Southwest v. Falcon, 457 U.S. 147, 160 (1982).
the motion to stay is DENIED.
Motion to Certify the Class
Plaintiff's Requests to Submit Evidence
Application to Submit Newly Discovered Evidence
filed a request seeking to submit newly discovered evidence
in support of their motion, in which they request leave to
file under seal documents that contradict Defendants'
representations in their opposition and surreply. They
maintain the documents are critical evidence because it
confirms that there were significant questions about the
safety of Defendants' product at issue in this matter.
oppose the request. They argue the evidence is not newly
discovered because Plaintiffs have known for over a year
before seeking leave that the government believed there was
some harm from Defendants' product and made those
contentions in the criminal proceedings in the United States
District Court for the Southern District of Ohio. They
further argue Plaintiffs' unauthorized use of the
inadvertently produced materials is prohibited by federal
law. Defendants contend Plaintiffs sought authorization from
the Ohio court to release the presentence materials that were
inadvertently produced by Defendants and the request was
still pending at the time Plaintiff filed the current
application. They argue Plaintiff should not be rewarded for
circumventing the Ohio court and its rules. Even if Plaintiff
is permitted to produce the materials, Defendants contend,
they do not support class certification.
also notified this Court of the decisions rendered by the
Honorable Ruben B. Brooks and the District Court of Ohio
rejecting Plaintiff's arguments regarding the presentence
materials and denying Plaintiff's requests.
Brooks denied Plaintiffs' request to use presentence
materials from the Ohio court in this litigation and to
compel Defendants to produce other sentencing submissions
related to the presentence materials. Judge Brooks determined
the Ohio court is in a better position to interpret and apply
its rules which principles of comity and sound judicial
administration dictate should apply. See Doc. No.
217. Judge Brooks, later, denied Plaintiffs' motion for
reconsideration upon finding Plaintiffs did not offer any new
law or facts justifying consideration. See Doc. No.
Ohio District Court also denied Plaintiffs' request for
authorization to disclose the presentence report and related
documents. The court found Plaintiffs did not meet
their burden to demonstrate the disclosure was necessary to
meet the ends of justice and the information is not available
through other means, and policy considerations support
nondisclosure of the requested documents.
their response, Plaintiffs maintain the decisions are not
dispositive of the instant request, because the Ohio court
did not include whether this Court has the authority to
consider, under seal, portions of the sentencing letters
Defendants produced in discovery.
Court finds the documents Plaintiffs seek to submit under
seal are not newly discovered and finds the rationale of the
district court and the Sixth Circuit Court of Appeals
persuasive. The Court further finds the documents are not
relevant to the pending motion. As discussed further below,
the Court finds the dispute over the toxicity levels of the
bird food at issue in this matter requires this Court address
the merits of the claims further than the limited inquiry
necessary to make a decision on the motion to certify the
class. Accordingly, Plaintiff's application is DENIED.
Request for Judicial Notice
seek judicial notice of a statement contained in the Sixth
Circuit's decision affirming the Ohio District
Court's denial of Plaintiffs request for authorization to
use presentence documents. Defendants oppose the request.
the Court finds the subject fact or statement irrelevant to
its decision on the pending motion, the request for judicial
notice is DENIED as moot.
to grant class certification is within the discretion of the
court. Montgomery v. Rumsfeld, 572 F.2d 250, 255
(9th Cir. 1978). A cause of action may proceed as a class
action if a plaintiff meets the threshold requirements of
Rule 23(a) of the Federal Rules of Civil Procedure:
numerosity, commonality, typicality, and adequacy of
representation. Fed.R.Civ.P. 23(a). In addition, a party
seeking class certification must meet one of the three
criteria listed in Rule 23(b).
should certify a class only if they are “satisfied,
after a rigorous analysis, ” that Rule 23 prerequisites
have been met. Falcon, 457 U.S. at 161.
“Frequently that ‘rigorous analysis' will
entail some overlap with the merits of the plaintiff's
underlying claim, ” which “cannot be
helped.” Wal-Mart Inc. v. Dukes, 564 U.S. 338,
351 (2011). However, examination of the merits is limited to
determining whether certification is proper and “not to
determine whether class members could actually prevail on the
merits of their claims. Ellis v. Costco Wholesale
Corp., 657 F.3d 970, 983 n. 8 (9th Cir. 2011) (citation
requests the Court certify the following class for their RICO
All persons who purchased, and have not yet received a full
refund for, a Scotts Miracle-Gro wild bird food product
containing Storcide II, Actellic 5E, or their active
ingredients, chlorpyrifos-methyl or pirimiphos-methyl,
further ask the Court to certify three subclasses for claims
in California, for counts 3 through 5; in Missouri for count
10; and Minnesota, for count 9.
argues class certification is warranted and maintain the
requirements of Rule 23(a) are met. Defendants argue the
proposed class is not ascertainable, and Plaintiffs cannot
meet the commonality and typicality requirements of Rule