Kerr v. Daily Harvest, Inc. et al
| James Kerr |
| Daily Harvest, Inc., Second Bite Foods, Inc. d/b/a Stone Gate Foods, Smirk's Ltd., Molinois Asociados SAC, John Doe Corporations 1-5, Second Bite Foods, Inc. doing business as Stone Gate Foods and Molinos Asociados SAC |
| 1:2023cv01736 |
| February 28, 2023 |
| US District Court for the Southern District of New York |
| Denise L Cote |
| Personal Inj. Prod. Liability |
| 28 U.S.C. § 1332 Diversity Action |
| Plaintiff |
Docket Report
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Filing 22
COORDINATION ORDER: Accordingly, it is hereby ORDERED that the parties are to work together to coordinate discovery to the maximum extent feasible in order to avoid duplication of discovery and to promote the efficient and speedy resolution of the Daily Harvest Litigation and the Coordinated Actions. To that end, the following procedures for discovery, settlement conferences, and other pretrial proceedings shall be adopted: 1. All discovery and pretrial scheduling in the Coordinated Actions will be coordinated to the fullest extent possible with the discovery and pretrial scheduling in the lead case in the Daily Harvest Litigation, Albright v. Daily Harvest, Inc., et al., l:22-cv-5987 (the "Albright Proceeding"). The Albright Proceeding shall be used as the lead case for discovery and pretrial scheduling in the Coordinated Actions. Additional discovery, including case-specific discovery, may be taken upon consent or a showing of good cause. The parties in each Coordinated Action shall follow the Albright Proceeding's discovery schedule, are bound by the discovery rulings in the Albright Proceeding, and shall not engage in duplicative discovery already taken or being taken in the Albright Proceeding. 2. The Albright Defendants shall apprise the Albright Court and opposing counsel at each status conference in the Albright Proceeding of matters of significance in Coordinated Actions to enable the Albright Court and the parties to effectuate appropriate coordination; as further set forth herein. 8. Any Court in a Related Action wishing to grant the parties before it access to coordinated discovery may do so by executing the attached Order or otherwise indicating adoption of this Coordination Order for their action; and as further set forth herein. 16. Nothing contained herein shall constitute or be deemed to constitute a waiver of any objection of any defendant or plaintiff to the admissibility at trial, of any documents, deposition testimony or exhibits, or written discovery responses provided or obtained in accordance with this Order, whether on grounds of relevance, materiality or any other basis, and all such objections are specifically preserved. The admissibility into evidence in any Coordinated Action of any material provided or obtained in accordance with this Order shall be determined by the court in which such action is pending. 17. Each Court that joins this Order shall retainjurisdiction to modify, rescind, and/or enforce the terms ofthis Order. (As further set forth in this Order.) (Signed by Judge Denise L. Cote on 4/28/2023) (Attachments: #1 Exhibit 1) (vfr)
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Filing 20
ORDER: It is hereby ORDERED that the parties shall review the proposed Coordination Order attached hereto and shall, by April 19, file a red-lined version of the proposed Coordination Order indicating their suggestions for additions and deletions, as well as letters no longer than two (2) pages explaining those suggestions. IT IS FURTHER ORDERED that the parties shall, by April 19, submit the names and contact information of any judges presiding over a Related Action (as defined in the proposed Coordination Order) that has progressed sufficiently to warrant coordination between this Court and the court presiding over that Related Action. (Signed by Judge Denise L. Cote on 4/12/2023) (Attachments: #1 Exhibit 1) (vfr)
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Filing 21
ORDER granting (152 in case 1:22-cv-05987-DLC) Letter Motion for Extension of Time to Answer to Complaints in Related Cases addressed to Judge Denise L. Cote from All Counsel dated April 11, 2023. It is hereby ORDERED that the request for an extension of time for defendants Daily Harvest, Inc., Second Bite Foods, Inc., and Smirk's Ltd. to file answers to the complaints in the below cases is granted. The defendants' answers to the complaints in the following cases shall be due June 5, 2023: Burkatsky v. Daily Harvest, Inc., et al., 23cv1607; Jannerone v. Daily Harvest, Inc., et al., 23cv1617; Kroon v. Daily Harvest, Inc., et al., 23cv1620; Lindgren v. Daily Harvest, Inc., et al., 23cv1627; Livsey v. Daily Harvest, Inc., et al., 23cv1633; Long v. Daily Harvest, Inc., et al., 23cv1640; MacPhee v. Daily Harvest, Inc., et al., 23cv1643; Morris-Metzger v. Daily Harvest, Inc., et al., 23cv1648; Selby v. Daily Harvest, Inc., et al., 23cv1649; Slaughter v. Daily Harvest, Inc., et al., 23cv1651; Strafaci v. Daily Harvest, Inc., et al., 23cv1653; Lopez v. Daily Harvest, Inc., et al., 23cv1658; Merrill v. Daily Harvest, Inc., et al., 23cv1659; Niculescu v. Daily Harvest, Inc., et al., 23cv1660; Noel v. Daily Harvest, Inc., et al., 23cv1662; Ocasio v. Daily Harvest, Inc., et al., 23cv1663; Proulx v. Daily Harvest, Inc., et al., 23cv1664; Rubinowitz v. Daily Harvest, Inc., et al., 23cv1666; Sansweet v. Daily Harvest, Inc., et al., 23cv1668; Sela v. Daily Harvest, Inc., et al., 23cv1672; Vitali v. Daily Harvest, Inc., et al., 23cv1673; Espinal v. Daily Harvest, Inc., et al., 23cv1681; Eviston v. Daily Harvest, Inc., et al., 23cv1683; Capretta v. Daily Harvest, Inc., et al., 23cv1686; Porzel v. Daily Harvest, Inc., et al., 23cv1688; Tipton v. Daily Harvest, Inc., et al., 23cv1692; Hines v. Daily Harvest, Inc., et al., 23cv1694; Butalid v. Daily Harvest, Inc., et al., 23cv1703; Churchill v. Daily Harvest, Inc., et al., 23cv1705; Cornutt v. Daily Harvest, Inc., et al., 23cv1709; Dean v. Daily Harvest, Inc., et al., 23cv1712; Deeke v. Daily Harvest, Inc., et al., 23cv1713; Downing v. Daily Harvest, Inc., et al., 23cv1718; Effner v. Daily Harvest, Inc., et al., 23cv1721; Ertel v. Daily Harvest, Inc., et al., 23cv1725; Fischer v. Daily Harvest, Inc., et al., 23cv1727; Fitzgerald v. Daily Harvest, Inc., et al., 23cv1732; Goldbach v. Daily Harvest, Inc., et al., 23cv1734; Kerr v. Daily Harvest, Inc., et al., 23cv1736; Justice v. Daily Harvest, Inc., et al., 23cv1737; Hobbie v. Daily Harvest, Inc., et al., 23cv1740; Lynch v. Daily Harvest, Inc., et al., 23cv1741; Mercado v. Daily Harvest, Inc., et al., 23cv1742; Puissegur v. Daily Harvest, Inc., et al., 23cv1743; Kraynick v. Daily Harvest, Inc., et al., 23cv1744; Mount v. Daily Harvest, Inc., et al., 23cv1745; Doran v. Daily Harvest, Inc., et al., 23cv1748; Ion v. Daily Harvest, Inc., et al., 23cv1750; Greene v. Daily Harvest, Inc., et al., 23cv2038; Street v. Daily Harvest, Inc., et al., 23cv2466; Thomas v. Daily Harvest, Inc., et al., 23cv2607. Daily Harvest, Inc. answer due 6/5/2023; Second Bite Foods, Inc. answer due 6/5/2023; Smirk's Ltd. answer due 6/5/2023. (Signed by Judge Denise L. Cote on 4/11/2023) (vfr)
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Filing 19
ORDER: The parties are hereby ORDERED to show cause by April 21 why an Order with the following language should not be issued: Where defendant Daily Harvest, Inc. ("Daily Harvest") has a right to arbitration as described in the Opinion of November 10, 2022 issued in Peni v. Daily Harvest, Inc., 22cv5443 (DLC), 2022 WL 16849451, but where (1) plaintiff has sued co-defendants who do not have a right to arbitration and whose cases will proceed before this Court, and (2) those co-defendants have impleaded Daily Harvest, the following procedures shall apply: The plaintiff shall have the right to pursue discovery from Daily Harvest to the extent that plaintiffs have been permitted to take such discovery in related actions where Daily Harvest has no right to enforce arbitration. Daily Harvest shall have the right to take discovery of the plaintiff to the extent that it has been permitted to take such discovery in related actions where Daily Harvest has no right to enforce arbitration. (Signed by Judge Denise L. Cote on 4/10/2023) (vfr)
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Filing 18
ORDER terminating 140 Letter Motion for Discovery; terminating 141 Letter Motion for Discovery; terminating 144 Letter Motion for Discovery; terminating 145 Letter Motion for Discovery in case 1:22-cv-05987-DLC. It is hereby ORDERED that by Wednesday, April 12, Daily Harvest shall identify to its co-defendants to which one of the subparts which it has already propounded it wishes its co-defendants to respond. Daily Harvest's requests to require answers to each of the subparts is denied. IT IS FURTHER ORDERED that the parties are advised that objections to Daily Harvest's demands not raised in these letters are not deemed waived. Should any objections be made, the parties shall promptly meet and confer and bring any unresolved disputes to the Court's attention promptly. (Signed by Judge Denise L. Cote on 4/10/2023) (vfr)
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Filing 17
ORDER terminating (147 in case 1:22-cv-05987-DLC) Letter Motion for Discovery. Pursuant to the operative schedule in this litigation, all plaintiffs represented by William Marler must, by June 1, submit completed plaintiff fact sheets to the defendants. In letters of April 5 and 7, plaintiffs and defendant Stone Gate Foods, Inc. ("Stone Gate") dispute whether defendants can, at this time, serve plaintiffs with discovery requests beyond the plaintiff fact sheets. Having reviewed the parties' submissions, it is hereby ORDERED that Stone Gate's request to serve, at this time, additional discovery on plaintiffs is denied. IT IS FURTHER ORDERED that the defendants' use of the plaintiff fact sheets shall be without prejudice to defendants' right to serve additional, non-duplicative discovery on individual plaintiffs as individual cases are set for trial. Otherwise, the defendants shall not serve any additional discovery without either consent of a plaintiff or prior authorization from the Court. (Signed by Judge Denise L. Cote on 4/10/2023) (vfr)
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| Filing 16 WAIVER OF SERVICE RETURNED EXECUTED. Daily Harvest, Inc. waiver sent on 3/6/2023, answer due 5/5/2023. Document filed by James Kerr..(Marler, William) |
| Filing 15 NOTICE OF APPEARANCE by Alyssa L. Rebensdorf on behalf of Daily Harvest, Inc...(Rebensdorf, Alyssa) |
| Filing 14 NOTICE OF APPEARANCE by Sarah L Brew on behalf of Daily Harvest, Inc...(Brew, Sarah) |
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Filing 13
ORDER ON APPLICATION FOR ADMISSION TO PRACTICE PRO HAC VICE FOR SARAH L. BREW IN RELATED ACTIONS: IT IS HEREBY ORDERED that Sarah L. Brew is admitted to practice Pro Hac Vice in all of the above-listed related cases in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing the discipline of attorneys. (Signed by Judge Denise L. Cote on 3/24/2023) (vfr)
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Filing 12
ORDER ON APPLICATION FOR ADMISSION TO PRACTICE PRO HAC VICE FOR ALYSSA L. REBENSDORF IN RELATED ACTIONS: IT IS HEREBY ORDERED that Alyssa L. Rebensdorf is admitted to practice Pro Hac Vice in all of the above-listed related cases in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing the discipline of attorneys. (Signed by Judge Denise L. Cote on 3/24/2023) (vfr)
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Filing 11
ORDER: It is hereby ORDERED that, by March 27, Daily Harvest may serve, on each of its co-defendants, no more than five (5) interrogatories and five (5) document demands. IT IS FURTHER ORDERED that the parties shall meet and confer and Smirks and Second Bite shall, by April 7, advise the Court in a letter no longer than two (2) pages whether they have any objections to Daily Harvest's discovery demands. (Signed by Judge Denise L. Cote on 3/22/2023) (vfr)
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Filing 10
ORDER It is hereby ORDERED that the following schedule shall govern the further conduct of pretrial proceedings in this litigation: The next pretrial conference will be held telephonically on May 19, 2023 at 2:00 p.m. The parties shall be prepared to discuss a schedule for depositions and expert discovery. The parties shall use the following dial-in credentials for the telephone conference: Dial-in: 888-363-4749. Access code: 4324948.The parties shall use a landline if one is available. The defendants shall, by May 26, 2023, complete their productions of documents to plaintiff Albright and to co-defendants. All current and potential plaintiffs in this litigation represented by William Marler shall provide their medical release forms and plaintiff fact sheets to the defendants by June 1, 2023. (Telephone Conference set for 5/19/2023 at 02:00 PM before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 3/20/2023) (jca)
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| Filing 9 WAIVER OF SERVICE RETURNED EXECUTED. Second Bite Foods, Inc. waiver sent on 3/6/2023, answer due 5/5/2023. Document filed by James Kerr..(Marler, William) |
| Filing 8 NOTICE OF APPEARANCE by William Marler on behalf of James Kerr..(Marler, William) |
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Filing 7
ORDER: On July 13, 2022, the plaintiff filed a complaint in the lead case in this litigation, Albright v. Daily Harvest, Inc., 22cv5987 ("Albright"). On March 8, 2023, the following cases (the "Related Cases") were accepted as related to Albright, as further set forth herein.The lead case in this litigation, Albright, currently has the following pretrial schedule: 1. All current and potential plaintiffs in this litigation represented by William Marler shall provide their medical release forms and plaintiff fact sheets to the defendants by March 31, 2023. 2. The defendants shall, by April 28, 2023, complete their productions of documents to plaintiff Albright and to co-defendants. 3. The next pretrial conference will be held telephonically on May 19, 2023 at 2:00 p.m. The parties shall be prepared to discuss a schedule for depositions and expert discovery. The parties shall use the following dial-in credentials for the telephone conference: Dial-in: 888-363-4749 Access code: 4324948. 4. The parties shall engage in settlement discussions under Magistrate Judge Cave's supervision in June 2023. IT IS HEREBY ORDERED that the parties in the Related Cases shall confer and shall, by March 17, 2023, file a letter no longer than two (2) pages indicating whether any further scheduling is necessary in the Related Cases. ( Telephone Conference set for 5/19/2023 at 2:00 PM before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 3/9/2023) (vfr)
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Filing 6
ORDER ON APPLICATION FOR ADMISSION TO APPEAR PRO HAC VICE FOR WILLIAM D. MARLER IN RELATED ACTIONS: William D. Marler, Esq., having been granted permission to appear Pro Hac Vice for all purposes for Plaintff, Justin Albright, on behalf of his daughter, T.A., a minor, in the above entitled action, has requested admission to appear Pro Hac Vice for all Plaintiffs in the following related United States District Court for the Southern District of New York actions... IT IS HEREBY ORDERED that William D. Marler, Esq. is admitted to practice Pro Hac Vice in all of the above listed related cases in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing the discipline of attorneys. (Signed by Judge Denise L. Cote on 3/6/2023) (jwh)
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| CASE ACCEPTED AS RELATED. Create association to 1:22-cv-05987-DLC. Notice of Assignment to follow. (aea) |
| NOTICE OF CASE REASSIGNMENT to Judge Denise L. Cote. Judge Unassigned is no longer assigned to the case..(aea) |
| Magistrate Judge Sarah L. Cave is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (aea) |
| Filing 5 ELECTRONIC SUMMONS ISSUED as to Daily Harvest, Inc., Molinos Asociados SAC, Second Bite Foods, Inc., Smirk's Ltd...(pc) |
| Filing 4 REQUEST FOR ISSUANCE OF SUMMONS as to Daily Harvest, Inc., Second Bite Foods, Inc., Smirk's Ltd., Molinos Asociados SAC, re: #1 Complaint,. Document filed by James Kerr..(Nunes, Paul) |
| Filing 3 STATEMENT OF RELATEDNESS re: that this action be filed as related to 22-5987. Document filed by James Kerr..(Nunes, Paul) |
| ***NOTICE TO ATTORNEY TO ELECTRONICALLY FILE RELATED CASE STATEMENT. Notice to Attorney Paul Vincent Nunes, for non compliance with Local Rule 13 of the Division of Business Among Judges. Attorney must electronically file the Related Case Statement. Use the event type Statement of Relatedness found under the event list Other Documents. (sj) |
| ***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Paul Vincent Nunes. The party information for the following party/parties has been modified: Molinois Asociados SAC, Second Bite Foods, Inc. d/b/a Stone Gate Foods. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; alias party type was entered incorrectly. (sj) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Unassigned. (sj) |
| Case Designated ECF. (sj) |
| CASE REFERRED TO Judge Denise L. Cote as possibly related to 1:22cv5987. (sj) |
| Filing 2 CIVIL COVER SHEET filed..(Nunes, Paul) |
| Filing 1 COMPLAINT against Daily Harvest, Inc., John Doe Corporations 1-5, Molinois Asociados SAC, Second Bite Foods, Inc. d/b/a Stone Gate Foods, Smirk's Ltd.. (Filing Fee $ 402.00, Receipt Number ANYSDC-27403136)Document filed by James Kerr..(Nunes, Paul) |
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