In re Packaged Seafood Prods. Antitrust Litig.

Decision Date26 September 2017
Docket NumberCase No.: 15–MD–2670 JLS (MDD)
Citation277 F.Supp.3d 1167
Parties IN RE: PACKAGED SEAFOOD PRODUCTS ANTITRUST LITIGATION
CourtU.S. District Court — Southern District of California

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS

Hon. Janis L. Sammartino, United States District Judge

Presently before the Court are:

(1) Defendants StarKist Co.'s, Dongwon Industries Co., Ltd.'s, Bumble Bee Foods, LLC's, Tri-Union Seafoods, LLC's, Thai Union Group PCL's, and Del Monte Corporation's ("Joint Defendants") Motion to Dismiss all Plaintiffs' Complaints1 for (A) failure to allege any factual allegations supporting a post–2013 packaged tuna conspiracy, (B) improperly claiming an entitlement to discovery concerning non-tuna products, and (C) failing to allege a plausible claim for injunctive relief (" Twombly MTD," ECF Nos. 408–1, 409–1); and Motion to Dismiss (D) certain of End Payer Plaintiffs ("EPPs") and Commercial Food Preparer Plaintiffs' ("CFPs") state law claims due to failure to comply with the Court's prior Order Granting in Part and Denying in Part Defendants' Remaining Motions to Dismiss (ECF No. 295), pleadings contrary to dispositive state law, and lack of Article III or statutory standing ("State Law Br.," ECF No. 409–2); and (2) Defendants StarKist Co.'s, Dongwon Industries Co., Ltd.'s, and Del Monte Corporation's ("StarKist Defendants") Motion to Dismiss (A) all Plaintiff's pre–2011 allegations and (B) all Plaintiffs' alter ego and agency allegations against Dongwon ("SK Defs.' MTD," ECF No. 412).

Also before the Court are various responses—including Direct Purchaser Plaintiffs' ("DPPs") Omnibus Opposition to Motions to Dismiss Second Consolidated Amended Complaints ("DPPs' Opp'n," ECF No. 423); EPPs' and CFPs' Joint Opposition to Defendants' Joint Motions to Dismiss Second Amended Complaints ("EPPs' & CFPs' Opp'n," ECF No. 438); and Direct Action Plaintiffs' ("DAPs") Joint Omnibus Response to Defendants' Motions to Dismiss ("DAPs' Opp'n," ECF No. 427)—and various replies—including Joint Defendants' Reply Memorandum of Points and Authorities in Support of Defendants' Joint Motion to Dismiss Operative Complaints (" Twombly Reply," ECF No. 452), and ("State Law Reply," ECF No. 453).2

Having considered the Parties' arguments and the law, the Court GRANTS IN PART AND DENIES IN PART each Motion to Dismiss.3

BACKGROUND

The case concerns a conspiracy to fix the prices of packaged seafood throughout the United States. Plaintiffs are proceeding against "the three largest domestic producers of packaged seafood products" and their parent corporations (e.g. , DPPs' SCCC ¶¶ 1, 23–53), and are composed of four distinct groups:

DAPs , who are direct purchasers proceeding against Defendants individually;• DPPs , who are direct purchasers proceeding on behalf of a putative class;
CFPs , who are indirect purchasers proceeding on behalf of a putative class; and
EPPs , who are indirect purchasers proceeding on behalf of a putative class.

(Order Appointing Interim Lead Counsel 1–2, ECF No. 119.) Defendants previously moved to dismiss all Plaintiffs' complaints, which the Court resolved by issuing two Orders together granting in part and denying in part Defendants' requested relief. (See Order Granting in Part and Den. in Part Defs.' Mots. to Dismiss ("Prior MTD Order I") 4–6, ECF No. 283; Order Granting in Part and Den. in Part Defs.' Remaining Mots. to Dismiss ("Prior MTD Order II") 4–6, ECF No. 295.) All dismissals in the two previous Orders were without prejudice. (Prior MTD Order II 102.) Accordingly, Plaintiffs have now filed amended complaints and Defendants have again moved to dismiss various aspects of those complaints.

However, the factual footing has shifted since the Court issued its prior Orders. Whereas previously the United States Department of Justice had merely convened a Grand Jury to investigate potential violations of the Sherman Act, 15 U.S.C. § 1, in the packaged seafood industry (U.S. Notice of Mot. to Intervene 1, ECF No. 34), there have now been multiple guilty pleas either entered or agreed to pursuant to the Grand Jury investigation, including by senior executives of the Bumble Bee Corporation (e.g. , DPPs' SCC ¶¶ 5–7), and the Bumble Bee Corporation itself. (Id. ¶¶ 8–9). Furthermore, "Tri-Union has confirmed to counsel for Plaintiffs that it has sought leniency from the DOJ" for its participation in the alleged conspiracy (id. ¶ 10), and a former StarKist and Del Monte executive, Stephen Hodge, has pled guilty to participating in the same conspiracy (DAPs' Opp'n Ex. 1).4 Finally, a little over a month prior to Plaintiffs filing their amended complaints, Plaintiffs received approximately 2,000,000 pages of documents that were previously only available to the Grand Jury. (DAPs' Opp'n 3–4.) The ensuing Complaints therefore contain much more information than their predecessors.

Although the instant Complaints largely share the same factual material, they nonetheless vary such that—at least in this procedural posture—a comprehensive account of the facts would not here be appropriate. Accordingly, the Court below addresses Plaintiffs' distinct allegations within the specific context of each of Defendants' dismissal arguments.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8"does not require 'detailed factual allegations,'...it [does] demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation."

Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' " Iqbal , 556 U.S. at 677, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts " 'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). Further, the court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the court's "judicial experience and common sense." Id. at 678, 129 S.Ct. 1937 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]''that the pleader is entitled to relief.' " Id.

ANALYSIS

Defendants diverge slightly in the particular arguments they advance: (I) Defendants StarKist Co., Dongwon Industries Co., Ltd., Bumble Bee Foods, LLC, Tri-Union Seafoods, LLC, Thai Union Group PCL, and Del Monte Corporation move to dismiss (A) all Plaintiffs' post–2013 conspiracy allegations; (B) all Plaintiffs' claimed right to discovery regarding non-tuna products; (C) all Plaintiffs' claims for injunctive relief; and (D) EPPs' and CFPs' state-law (i) anti-trust, (ii) consumer protection, (iii) unjust enrichment, and (iv) nationwide California class claims; along with (v) claims in states where EPPs' named plaintiffs lack Article III or statutory standing. Separately, (II) Defendants StarKist Co., Dongwon Industries Co., Ltd., and Del Monte Corporation additionally move to dismiss all Plaintiffs' (A) pre–2011 conspiracy allegations as insufficient to state a claim regarding all three Defendants ((i) StarKist and Del Monte, and (ii) Dongwon), including allegations that any of the three Defendants reached an agreement with competitors to reduce can sizes, and time-barred as to StarKist; and (B) pre–2012 allegations against Dongwon, including under either (i) alter ego or (ii) agency theories of liability. The Court addresses each argument in turn.

I. StarKist's, Dongwon's, Bumble Bee's, Tri-Union's, TUG's, and Del Monte's Motions to Dismiss
A. All Plaintiffs' Post–2013 Conspiracy Allegations

Defendants move to dismiss all Plaintiffs' post–2013 allegations as implausible. ( Twombly Br. 3–8.) However, Plaintiffs argue that the Court need not even reach Defendants' arguments pursuant to Federal Rule of Civil Procedure 12(g)(2). (E.g. , DAPs' Opp'n 37–38.) The Court agrees with Plaintiffs.

Specifically, when "a party...makes a motion under [ Federal Rule of Civil Procedure 12(b) then she generally] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." Fed. R. Civ. P. 12(g)(2). The sole Rule 12 exception is that a party may subsequently raise the foreclosed issue "in a post-answer motion under Rule...

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7 cases
  • In re Packaged Seafood Prods. Antitrust Litig.
    • United States
    • U.S. District Court — Southern District of California
    • 5 September 2018
    ...Seafood Prod. Antitrust Litig. , No. 15-2670, 2017 WL 35571, at *12 (S.D. Cal. Jan. 3, 2017) ; and In re Packaged Seafood Prod. Antitrust Litig. , 277 F.Supp.3d 1167, 1176 (S.D. Cal. 2017) ).) They argue that Plaintiff, like the plaintiffs in the previous orders, have pleaded no facts suppo......
  • Jien v. Perdue Farms, Inc.
    • United States
    • U.S. District Court — District of Maryland
    • 10 March 2021
    ...relies on persuasive case law from other Circuits, the precedent cuts in both directions. Compare In re Packaged Seafood Prods. Antitrust Litig., 277 F. Supp. 3d 1167, 1186 (S.D. Cal. 2017) (dismissing an antitrust claim because "a defendant must enter the conspiracy 'with knowledge of what......
  • Grace v. Apple, Inc.
    • United States
    • U.S. District Court — Northern District of California
    • 18 September 2018
    ...cannot find that the differences are material. A similar problem confronted the district court in In re Packaged Seafood Products Antitrust Litigation, 277 F. Supp. 3d 1167 (S.D. Cal. 2017). As here, the defendants argued that statutes of limitations were materially different and therefore ......
  • Gardner v. StarKist Co.
    • United States
    • U.S. District Court — Northern District of California
    • 31 March 2020
    ...dismiss and therefore Rule 12(g) precludes it from now asserting it. Oppo. StarKist MTD 2. They cite In re Packaged Seafood Prod. Antitrust Litig., 277 F. Supp. 3d 1167 (S.D. Cal. 2017), in which the court barred StarKist and its co-defendants from bringing a successive 12(b)(6) motion. In ......
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