The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
This matter comes before the Court upon appeal by defendant Ungar's Food Products, Inc., d/b/a Dr. Praeger's Sensible Foods's and Sensible Foods LLC d/b/a Dr. Praeger's Sensible Foods (collectively, ―defendants‖) of Magistrate Judge Shwartz's order of December 19, 2008 (D.E. 91) denying defendants' request for leave to file a motion for summary judgment and motion to decertify the class. This action, with which familiarity is assumed, alleges that independent testing of defendants' products, which are marketed as foods that contribute to a healthy lifestyle, revealed that the nutritional information on the packaging misrepresents the fat and caloric content of those products. The Court's June 30, 2008 opinion (D.E. 69) certified ―claims under the NJCFA and for breach of express warranty for the following class: All persons in the United States who purchased Dr. Praeger's Frozen California Veggie Burgers, Tex-Mex Veggie Burgers, Broccoli Pancakes, Potato Pancakes, and Spinach Pancakes from May 30, 2000 through August 31, 2007.‖
In their appeal papers, defendants describe the motions proposed before Judge Shwartz:
(1) a motion for summary judgment on the ground that the named plaintiffs -- New York residents who purchased the Defendant's food products in New York and Maryland -- have no claim under the New Jersey Consumer Fraud Act (―NJCFA‖), either because New Jersey law does not apply to their claims under a new choice-of-law standard adopted recently by the New Jersey Supreme Court [P.V. v. Camp Jaycee], or because they lack standing under the remedy to non-resident consumers who purchase products beyond New Jersey's borders; and
(2) a motion for decertification of the class previously certified by this Court, not only because the new choice-of-law test mandates the application of the laws of the fifty states, but also because a different standard now applies to the class certification issue, a standard the Plaintiffs cannot satisfy.
(Defs.' Br. 1.) The Court will consider whether Judge Shwartz's ruling in denying leave to file the motions was clearly erroneous or contrary to law.
I. Judge Shwartz's December 19, 2008 Order
Judge Shwartz's order denying leave found that the proposed motions were not listed in the Final Pretrial Order where the parties were directed to list all contemplated motions. Judge Shwartz also found that because the analysis originally performed regarding choice-of-law issues in her Report and Recommendation included consideration of the factors set forth in P.V. v. Camp Jaycee, 197 N.J. 132 (2008), and because the analysis was consistent with the views expressed in Camp Jaycee, then the motion would not result in a different outcome. She found that defendants did not present any new facts or law that would support their request to add a pretrial motion challenging the availability of a private right of action for out-of-state purchasers, as the existence of such purchasers and the statute were known to the parties, and the settled decisional law indicated to Judge Shwartz that the motion would be futile.
Based upon defendants' request for leave, Judge Shwartz determined that they intended to reargue issues already decided on class certification and raised in objections to the earlier Report and Recommendation, and that no new facts were presented following the Final Pretrial Conference that called for the presentation of the decertification motion. She also concluded that no manifest injustice would result if the defendants were to seek amendment of the Final Pretrial Order and it was subsequently denied.
In non-dispositive pretrial matters such as this, a district court must ―modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.‖ Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). ―The district court is bound by the clearly erroneous rule in findings of facts; the phrase ‗contrary to law' indicates plenary review as to matters of law.‖ Haines v. Liggett Group Inc., 975 F.2d 81, 91 (3d Cir. 1992). The burden rests with the party filing the appeal to show that a ruling is ―clearly erroneous or contrary to law.‖ Kounelis v. Sherrer, 529 F. Supp. 2d 503, 518 (D.N.J. 2008).
A. Effect of Final Pretrial Order on Ability to File the Motions
Defendants argue that Section 2 of the Final Pretrial Order required the parties to list ―pending or contemplated motions‖ but that it did not provide that motions not listed are barred. (Defs.' Br. 13.) Thus, defendants posit that the Final Pretrial Order ―cannot be interpreted to preclude their filing.‖ (Id.) Defendants argue that because ―the Order does not contain an explicit deadline for the filing of summary judgment motions, the Defendants ...