City of Perry, Iowa v. Proctor & Gamble Company et al
| City of Perry, Iowa |
| Procter & Gamble Company, Kimberly-Clark Corporation, Nice-Pak Products, Inc., Professional Disposables International, Inc., Tufco Technologies, Inc. and Rockline Industries |
| 1:2015cv08051 |
| October 13, 2015 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Jesse M. Furman |
| Contract Product Liability |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing
193
MEMORANDUM OPINION AND ORDER re: 185 LETTER MOTION for Local Rule 37.2 Conference RE Protective Order Request addressed to Judge Jesse M. Furman from S. Clinton Woods dated June 14, 2017, filed by City of Perry, Iowa, 167 MO TION for Sanctions, filed by Kimberly-Clark Corporation, 186 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Jesse M. Furman from S. Clinton Woods dated June 14, 2017, filed by City of Perr y, Iowa. The fact-discovery deadline is hereby extended to August 14, 2017. In light of that extension, the pretrial conference scheduled for July 18, 2017, is adjourned to August 15, 2017, at 10:45 a.m. The parties shall confer and advise the Co urt, either at or before that conference, if they believe that the any other deadlines in the case should be modified as well. No further extensions of the fact-discovery deadline will be granted absent extraordinary circumstances. The City att aches declarations from only two City officials who allege that their simultaneous absence would interfere with orderly municipal operations (id. Exs. C-D), and Defendants explicitly state that they "are willing... to work with [Perry] to stag ger deposition dates" of those and other witnesses "to best accommodate Perry's day-to-day operations." (Docket No. 191, at 2). Based on that representation, and Perry's failure to show that depositions in New York would re sult in any other hardship, the request for a protective order requiring that the depositions take place in or near Iowa is denied. To the extent Perry seeks an order precluding Defendants from deposing the City's mayor, the motion is denie d as unripe, without prejudice to a renewed application after the parties have conferred in good faith and exhausted efforts to resolve any dispute. The Court declines to impose sanctions on Perry under Rule 11 or under Section 1927, which requires an additional showing of "bad faith." United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 948 F.2d 1338, 1345 (2d Cir. 1991). The Clerk of Court is directed to terminate Docket Nos. 167, 185, and 186, and as further set forth herein. (Signed by Judge Jesse M. Furman on 6/20/2017) (ras)
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Filing
150
MEMORANDUM OPINION AND ORDER re: 136 MOTION to Change Venue filed by Rockline Industries: that Rockline's motion is DENIED. The Clerk of Court is directed to terminate Docket No. 136. (Signed by Judge Jesse M. Furman on 9/28/2016) (tn) Modified on 9/28/2016 (tn).
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Filing
114
OPINION AND ORDER re: 96 JOINT MOTION to Dismiss Plaintiff's First Amended Class Action Complaint. filed by Professional Disposables International, Inc., Kimberly-Clark Corporation, Nice-Pak Products, Inc., Procter & Gam ble Company, Tufco Technologies, Inc., Rockline Industries: For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. In particular, all of Perry's claims against Defendants Tufco and PDI a re dismissed, as are Perry's declaratory judgment (Count One), breach of implied warranty of fitness for a particular purpose (Count Four), fraudulent misrepresentation (Count Five), nuisance (Count Seven), and negligence per se (Count Eight ) claims. By contrast, Perry's breach of express warranty (Count Two), breach of implied warranty of merchantability (Count Three), and negligent misrepresentation (Count Six) claims survive Defendants' motion. Perry does not request leave to amend its Complaint for a second time, and the Court declines to grant such leave sua sponte. Perry has already been granted one such opportunity. (See Docket Nos. 67, 78). "[L]eave may be denied where amendment would be futile," ; and that appears to be the case here. Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160, 190 (2d Cir. 2015). As to the two dismissed Defendants, Perry has already canvassed the available flushable wipes in the vicinity and has found none implicating either Tufco or PDI. Perry's DJA, nuisance, and trespass claims fail as a matter of law. And as for the implied warranty of fitness for a particular purpose and fraudulent misrepresentation claims, there is no indi cation that Perry would be able to plead specific facts about interactions between Defendants and actual consumers that would cure the FAC's deficiencies; it was already unable to do so in its previous round of amendments. (See Defs.' Me m. Law Supp. Joint Mot. To Dismiss Pl.'s Compl. (Docket No. 65) 19-23 (making similar arguments to dismiss the warranty and misrepresentation claims on the previous motion to dismiss)). See, e.g., Ruotolo v. City of N.Y., 514 F.3d 184, 191 ( 2d Cir. 2008) (affirming the district court's denial of leave to amend in part because of the previous opportunities that the plaintiff had received to amend the complaint). Finally, Perry was explicitly cautioned that it "w[ould] not b e given any further opportunity to amend the complaint to address issues raised by the motion to dismiss." (Docket No. 67). In light of the foregoing, Defendants shall file their answers with respect to Perry's remaining claims by June 9, 2016, and the parties shall appear for an initial pretrial conference with the Court on June 21, 2016, at 3:45 p.m. in Courtroom 1105 of the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York 10007. In addition to th e matters referenced in the Notice of Initial Pretrial Conference (Docket No. 16), the parties should be prepared to address at that conference (1) whether the case should be transferred to the District of Iowa pursuant to Title 28, United St ates Code, Section 1404; (2) whether (and, if so, how) the case should be consolidated (or at least coordinated) with City of Wy., et al. v. Procter & Gamble Co., et al., No. 15-CV-2101 (JRT) (D. Minn.); and (3) whether the case should be stayed, pending proceedings before the FTC, for the reasons stated by Judge Weinstein in Belfiore. See 311 F.R.D. at 78-80. The parties should include brief summaries of their respective views on those issues in the joint letter that they are to submit by the Thursday prior to the initial pretrial conference, as directed in the Notice of Initial Pretrial Conference. The Clerk of Court is directed to terminate Docket No. 96. (Signed by Judge Jesse M. Furman on 5/19/2016) (tn)
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