United States District Court, W.D. Missouri, Western Division
ARNOLD E WEBB, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; Plaintiff,
DR PEPPER SNAPPLE GROUP, INC., DR PEPPER/SEVEN UP, INC., Defendants.
ORDER DENYING MOTION TO INTERVENE
ROSEANN A. KETCHMARK, JUDGE.
the Court is the Motion to Intervene and Motion to Dismiss
or, in the Alternative, to Stay or Transfer this Action
Pursuant to the First-to-File Rule (“Motion to
Intervene”) and suggestions in support filed by Jackie
Fitzhenry-Russell and Robin Dale (“Proposed
Intervenors”). (Doc. 44.) Defendants Dr Pepper Snapple
Group, Inc., and Dr Pepper/Seven Up, Inc. and Plaintiff
Arnold Webb filed separate suggestions in opposition. (Docs.
53, 54.) Proposed Intervenors filed reply suggestions. (Doc.
59.) For the reasons below, the Motion to Intervene (doc. 44)
December 28, 2016, Proposed Intervenors filed a putative
class action in California Superior Court against Defendants,
which was later removed to the Northern District of
California. Fitzhenry-Russell and Dale v. Dr Pepper
Snapple Group, Inc. et al, No. 17-cv-00564-NC (N.D.
Cal.) (the “Fitzhenry-Russell action”).
In the Fitzhenry-Russell action, Proposed
Intervenors seek to certify a California statewide
class of all persons who purchased certain soft
drinks sold by Defendants between December 23, 2012, and the
present. (Doc. 45-1 at ¶¶ 21, 72.) Proposed
Intervenors allege Defendants manufacture, market, advertise,
and sell soft drinks under several brand names, including
“Canada Dry, ” and falsely advertise these
products as being “Made from Real Ginger” when
the products are manufactured with a flavoring substitute.
(Id. at ¶¶ 3, 24.) Proposed Intervenors
further allege consumers relied on Defendants'
representations and paid a premium for these products due to
the misrepresentation that they are made from, and contain,
real ginger root. (Id. at ¶¶ 23, 40, 49.)
27, 2017, Plaintiff filed this putative class action against
Defendants alleging Defendants falsely advertised Canada Dry
Ginger Ale (the “Product”) as being “Made
from Real Ginger” when the Product does not contain a
detectable amount of ginger (the “Webb
action”). (Doc. 1.) Plaintiff alleges Defendants
violated the Missouri Merchandising Practices Act in addition
to common law allegations of breach of express warranty,
breach of implied warranty of merchantability, fraud,
intentional misrepresentation, negligent misrepresentation,
and quasi contract/unjust enrichment/restitution. Plaintiff
seeks to represent a nationwide class as well as a Missouri
subclass. (Id. ¶ 6.)
Intervenors seek to permissively intervene in the
Webb action pursuant to Federal Rule of Civil
Procedure 24(b). If permissive intervention is granted,
Proposed Intervenors seek to dismiss, stay, or transfer the
Webb action to the Northern District of California.
(Doc. 45.) Plaintiff and Defendants oppose all three requests.
Motion to Intervene Under Rule 24(b)
timely motion, the court may permit anyone to intervene who:
. . . has a claim or defense that shares with the main action
a common question of law or fact.” Fed.R.Civ.P.
24(b)(1)(B). “The decision to grant or deny a motion
for permissive intervention is wholly discretionary.”
S.D. ex rel. Barnett v. U.S. Dep't of Interior,
317 F.3d 783, 787 (8th Cir. 2003) (citations omitted). When
considering a motion for permissive intervention, the court
principally considers “whether proposed intervention
would unduly delay or prejudice the adjudication of the
[original] parties' rights.” Id. In
addition, the Eighth Circuit requires a party seeking to
intervene to establish Article III standing. U.S. v.
Metro. St. Louis Sewer Dist., 569 F.3d 829, 833 (8th
Timeliness of the Motion to Intervene
timeliness of a motion to intervene is determined from all
circumstances and is within the court's discretion.
United States v. Ritchie Special Credit Invs. Ltd.,
620 F.3d 824, 831-32 (8th Cir. 2010) (citation omitted).
Courts apply several factors to determine timeliness:
“(1) the extent the litigation has progressed at the
time of the motion to intervene; (2) the prospective
intervenor's knowledge of the litigation; (3) the reason
for delay in seeking intervention; and (4) whether the delay
in seeking intervention may prejudice the existing
parties.” American Civil Liberties Union of
Minnesota v. Tarek Ibn Ziyad Academy, 643 F.3d 1088,
1094 (8th Cir. 2011).
Progress of the Webb Action at the Time of the