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Webb v. Dr Pepper Snapple Group, Inc.

United States District Court, W.D. Missouri, Western Division

April 26, 2018

ARNOLD E WEBB, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; Plaintiff,
v.
DR PEPPER SNAPPLE GROUP, INC., DR PEPPER/SEVEN UP, INC., Defendants.

          ORDER DENYING MOTION TO INTERVENE

          ROSEANN A. KETCHMARK, JUDGE.

         Before 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) is DENIED.

         Background

         On 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[1] 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.)

         On July 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.)

         Proposed 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[2] oppose all three requests.

         Discussion

         I. Motion to Intervene Under Rule 24(b)

         A. Legal Standard

         “On 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 Cir. 2009).

         B. Analysis

         1. Timeliness of the Motion to Intervene

         The 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).

         a. Progress of the Webb Action at the Time of the ...


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