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Kelli Catanese, Ross Corriette and v. Unilever D/B/A/ Breyers

March 28, 2011


The opinion of the court was delivered by: Walls, Senior District Judge



Defendant moves to dismiss, stay or transfer this matter pursuant to the first-filed rule. Plaintiffs oppose the motion. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the motion is decided without oral argument. Defendant's motion to transfer is granted.


Plaintiffs filed this action (the "Catanese action") on November 4, 2010, as a "nationwide class action against Breyers on behalf of all persons and entities in the United States who purchased Breyers All Natural Original Ice Cream containing alkalized cocoa or Breyers Smooth & Dreamy 1/2 fat All Natural Ice Cream containing alkalized cocoa" in any state from November 4, 2004, to present. (Pl. Ex. A, Compl. at ¶ 1.) Alternatively, the plaintiffs seek to represent any person or entity who purchased Breyers Ice Cream in the State of New Jersey. (Id.) Plaintiffs' complaint alleges that the defendant misrepresented Breyers Ice Cream as "all natural," when in fact it contained alkalized cocoa powder. (Id. at ¶ 2.) The plaintiffs allege that alkalized cocoa powder is chemically altered (making it non-natural). The chemically-altered cocoa powder (sometimes referred to as "Dutch cocoa") is "lower in the health-promoting flavanol antioxidants than natural cocoa." (Id. at ¶ 4.) The plaintiffs claim that the United States Food and Drug Administration ("FDA") "recognizes alkalization as a non-natural process," and that food created using an alkali ingredient must contain an appropriate disclaimer. (Id. at ¶ 5.)

The plaintiffs assert that the term "all natural" means "a product that does not have any chemically-altered or man-made ingredients." (Id. at ¶ 6.) They claim to be injured by "Breyers' misleading, inaccurate and deceptive labeling." They say that "Plaintiffs and the Class would not have purchased Breyers Ice Cream, or would have paid significantly less for Breyers Ice Cream," if the "all natural" representations had not been made. (Id. at ¶ 7.) The plaintiffs assert violations of the New Jersey Consumer Fraud Act, breach of warranty claims, unjust enrichment and common law restitution. (Id., Counts I-V.) They seek injunctive and declaratory relief, including disgorgement of profits and compensatory damages. (Id., Prayer for Relief.)

The defendant argues that this case is virtually identical to an earlier-filed putative class action pending in the United States District Court for the Northern District of California, entitled Thurston v. Conopco, Inc. d/b/a Unilever, No. 10-cv-4937. Thurston was filed on November 1, 2010. The Thurston plaintiffs seek to bring an action on behalf of themselves and "all consumers who, on or after October 20, 2006, purchased in the United States Breyers' Ice Cream products that were labelled all natural but contained alkalized cocoa processed with a synthetic ingredient." (Df. Ex. 2, Thurston Am. Compl. at ¶ 25.) Alternatively, the plaintiffs seek to represent purchasers of Breyers Ice Cream in California. (Id. at ¶ 26.) The plaintiffs have brought claims for common law fraud, violations of California state law, unjust enrichment and common law restitution. (Id., Causes of Action.) They seek injunctive and declaratory relief, including disgorgement of profits and compensatory and punitive damages. (Id., Prayer for Relief.)

The defendants also point to another class action, Astiana v. Ben & Jerry's Homemade, Inc., No. 10-cv-4387 (PJH), which has been pending in the Northern District of California since September 2010. This action also concerns the use of the term "all natural" on ice cream containing alkalized cocoa, albeit ice creams bearing the Ben & Jerry's label. (Df. Ex. 3, Astiana Am. Compl.) Ben & Jerry's and Breyers are both Unilever brands.


"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district . . . where it might have been brought." 28 U.S.C. § 1404(a). To transfer an action under Section 1404(a), venue must be proper both in the transferor court and the transferee court. Osteotech, Inc. v. GenSci Regeneration Scis., Inc., 6 F. Supp. 2d 349, 357 (D.N.J. 1998). The party seeking to transfer must show that the alternative venue is not only adequate, but also more convenient than the current one. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). "[T]he decision to transfer must incorporate all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Rappoport v. Steven Spielberg, Inc., 16 F. Supp. 2d 481, 498 (D.N.J. 1998) (quotation and citations omitted).

A court balances private and public interests when deciding to transfer venue. Jumara, 55 F.3d at 879. Private interests include a plaintiff's choice of forum, a defendant's preference, convenience of the parties as indicated by their physical and financial condition, convenience of witnesses to the extent that they may be unavailable in one forum, and the location of books and records to the extent they could not be produced in alternative fora. Id. The public interests that a court considers include enforceability of a judgment, practical considerations that could make the trial easy, expeditious or inexpensive, relative administrative difficulty in the two fora resulting from court congestion, local interest in deciding a local controversy, public policies of the fora, and familiarity of the district court with applicable state law. Id. at 879-80.

The Third Circuit Court of Appeals has adopted the first-filed rule, which states that "in all cases of federal concurrent jurisdiction, the court which first has possession of the subject must decide it." EEOC v. Univ. of Pennsylvania, 850 F.2d 969, 971 (3d Cir. 1988) (quoting Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929 (3d Cir. 1941)). The rule "encourages sound judicial administration and promotes comity among federal courts of equal rank." Id. at 971. Its primary purpose is to "avoid burdening the federal judiciary and to prevent the judicial embarrassment of conflicting judgments." Id. at 977 (citing Church of Scientology v. United States Dept. of Army, 611 F.2d 738, 750 (9th Cir.1979)). Although exceptions to the rule are rare, it is not a "rigid or inflexible rule to be mechanically applied" because it is grounded in principles of equity. Id. at 976-77 (quoting Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir.1982)). Rare or extraordinary circumstances, inequitable conduct, bad faith, and forum shopping are proper bases upon which a court may decline to apply the first-filed rule. Id. at 976.


A.Applicability of the ...

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