United States District Court, D. New Jersey
IN RE TROPICANA ORANGE JUICE MARKETING AND SALES PRACTICES LITIGATION MDL 2353 This Document Relates To ALL S
WILLIAM J. MARTINI, U.S.D.J.
bring this class action against Defendant Tropicana Products,
Inc. (“Defendant”), alleging numerous violations
of common law and state consumer protection laws, in
connection with Defendant's sale of orange juice. This
matter comes before the Court on Plaintiffs' motion for
reconsideration of the Court's January 2018 opinion and
order denying class certification. There was no oral
argument. Fed.R.Civ.P. 78(b). For the reasons set forth
below, Plaintiffs' motion for reconsideration is
Court assumes the parties' familiarity with the facts and
procedural history of the instant case and writes solely for
their benefit. On January 22, 2018, the Court issued an
opinion (the “Class Opinion”) and order denying
Plaintiffs' motion for class certification. See
Op. (“Class Op.”), ECF No. 311; Order, ECF No.
312. The Court found that Plaintiffs met the Rule 23(a)
requirements for certification but failed to meet the
requirements set forth under Rule 23(b)(2) and (b)(3).
Specifically, the Court found that Plaintiffs' common law
claims of unjust enrichment and breach of express warranty,
and their claims under the New Jersey Consumer Fraud Act
(“NJCFA”) failed because individual issues
predominated over common issues concerning consumers'
motivations when deciding to purchase Defendant's orange
juice product Tropicana Pure Premium (“TPP”).
See Class Op. at 5-11. The Court further found that
Plaintiffs' consumer protection claims under New York and
California law failed because Plaintiffs did not show by a
preponderance of the evidence that they could successfully
implement a reliable and administratively feasible mechanism
for determining whether putative class members fall within
the class definition. See id. at 11-16. Finally, the
Court found that Plaintiffs lacked standing to pursue
injunctive relief under Rule 23(b)(2) because Plaintiffs
failed to show a real and immediate threat of future injury
by a preponderance of the evidence. See id. at
now move for reconsideration, arguing first that the Court
made a clear legal error in misconstruing Plaintiffs'
theory of liability that contradicts the Court's earlier
findings made in its June 2013 opinion addressing
Defendant's motion to dismiss. See Pls.' Br.
in Supp. of Mot. for Reconsideration (“Pls.'
Br.”) 4-6, ECF No. 314. Plaintiffs further submit that
the Court made clear legal errors and overlooked dispositive
factual circumstances concerning its decision that individual
issues predominate Plaintiffs' common law and NJCFA
claims. See id. at 7-15. Second, Plaintiffs argue
that the Court inappropriately gave more weight to
Defendant's expert opinions over Plaintiffs' expert
opinions. See id. at 16-17. Moreover, Plaintiffs
argue that the Court held Plaintiffs' expert opinions to
a higher standard than was otherwise permissible and that the
Court essentially ruled on the merits as to whether
Plaintiffs' class-wide proof would succeed at trial
without allowing such evidence to go before a jury. See
id. 17-19. Third, Plaintiffs argue that the Court
overlooked evidence of class-wide injury by focusing solely
on a small portion of Plaintiffs' expert survey and
ignoring Plaintiffs' other expert opinions and survey
results. See id. at 19-20. Fourth, Plaintiffs argue
that the Court erred in its ascertainability analysis because
it “treated any supposed imperfection in the records as
fatal, ” it conflated the federal rules of discovery
with Rule 23, and it overlooked the clear evidence in the
record that class members can be identified. See id.
at 20-21. Finally, Plaintiffs argue that the Court should
have certified New York and California sub-classes of
individuals who purchased TPP at Members Only Club stores as
an alternative to Plaintiffs' proposed class. See
id. at 21-22.
opposes reconsideration, arguing first that Plaintiffs
forfeited their “law of the case” argument
regarding the Court's earlier findings because they
failed to raise it in their motion for class certification.
See Def.'s Opp'n to Pls.' Mot. for
Reconsideration (“Def.'s Opp'n”) 2, ECF
No. 315. Even if they had, Defendant submits that the
law-of-the-case doctrine does not apply here. See
id. at 3-4. Second, Defendant argues that Plaintiffs
attempt to rehash legal arguments that the Court previously
rejected, which is impermissible. See id. at 4-6.
Third, Defendant argues that Plaintiffs' assertions
concerning the Court's treatment of Plaintiffs'
expert opinions are meritless because it is the Court's
role to determine whether Plaintiffs' evidence satisfies
Rule 23, not the role of a jury. See id. at 6-8.
Fourth, Defendant submits that Plaintiffs' disagreement
with the Court's ascertainability analysis does not
amount to clear legal error. See id. at 8-9.
Finally, Defendant argues that Plaintiffs cannot use their
motion for reconsideration to obtain certification of two new
classes, which they failed to ask the Court to consider in
their original motion for class certification. See
id. at 9-12.
Civil Rule 7.1(i) provides that “a motion for
reconsideration shall be served and filed within 14 days
after the entry of the order or judgment on the original
motion by the Judge or Magistrate Judge.” “A
motion for reconsideration is properly treated as a motion
under Rule 59(e) . . . to alter or amend the judgment.”
Koshatka v. Phila. Newspapers, Inc., 762 F.2d 329,
333 (3d Cir. 1985). “[A] judgment may be altered or
amended if the party seeking reconsideration shows at least
one of the following grounds: (1) an intervening change in
the controlling law; (2) the availability of new evidence
that was not available when the court granted the motion . .
.; or (3) the need to correct a clear error of law or fact or
to prevent manifest injustice.” Max's Seafood
Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,
677 (3d Cir. 1999).
word ‘overlooked' is the operative term in [Rule
7.1(i)].” Lentz v. Mason, 32 F.Supp.2d 733,
751 (D.N.J. 1999) (citation omitted). “Only dispositive
factual matters and controlling decisions of law which were
presented to the court but not considered on the original
motion may be the subject of a motion for
reconsideration.” Id. (quotation and citation
omitted). “[S]uch motions are not an opportunity to
argue what could have been, but was not, argued in the
original set of moving and responsive papers.”
Id. (quotation and citation omitted).
move under the clear error of law or manifest injustice
rationale. The Court briefly addresses each of
Plaintiffs' arguments, but ultimately finds that
Plaintiffs do not raise any clear errors of law that warrant
The Class Opinion Does Not Conflict with the Court's June
2013 Opinion Addressing Defendant's Motion to Dismiss and
the Court Did Not Misconstrue Plaintiffs' Theory of
grossly mischaracterize the Court's June 2013 opinion in
arguing that the Class Opinion violates the law-of-the-case
doctrine. For example, Plaintiffs cite the following sentence
as a finding made by the Court: “Tropicana does not
disclose the use of flavor packing on its label nor is it
mentioned in its advertising.” See Pls.'
Br. at 5. Plaintiffs conveniently ignore that the Court's
citation for this sentence, and many others, was
Plaintiffs' consolidated amended complaint. The Court was
compelled to assume the truth of all allegations therein at
the motion to dismiss phase, but that assumption is wholly
separate from the Court finding or holding
that Plaintiffs did, in fact, prove the truth of their
allegations. The Court made no finding or holding regarding
Plaintiffs' theory of liability in its June 2013 opinion;
instead, it merely reiterated Plaintiffs own allegations in
considering whether their claims should survive
Defendant's motion to dismiss.
of what Plaintiffs represented in 2013, the Court holds
Plaintiffs accountable to their representations of their
theory of liability in their moving ...