In re Packaged Seafood Prods. Antitrust Litig., Case No.: 15-MD-2670 JLS (MDD)

Citation338 F.Supp.3d 1079
Decision Date05 September 2018
Docket NumberCase No.: 15-MD-2670 JLS (MDD)
CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)


Hon. Janis L. Sammartino, United States District Judge

Presently before the Court is Defendants StarKist Co., Dongwon Industries, Co., Bumble Bee Foods LLC, Del Monte Corporation, Tri-Union Seafoods LLC d/b/a Chicken of the Sea International Inc., and Thai Union Group PCL's ("Defendants") Joint Motion to Dismiss, ("MTD," ECF No. 983). Also before the Court are Plaintiff the Cherokee Nation's Opposition to, ("Opp'n," ECF No. 1267), and Defendants' Reply in Support of, ("Reply," ECF No. 1284), the Motion. The Court heard oral argument on July 30, 2018. Having considered the parties' arguments and the law, the Court rules as follows.


This case concerns an alleged conspiracy to fix the prices of packaged seafood throughout the United States. Plaintiff the Cherokee Nation is a federally recognized sovereign Indian nation and brings this action in its proprietary capacity and under its parens patriae authority against Defendants as part of a broader multi-district litigation ("MDL") currently pending before this Court. (First Am. Compl. ("FAC"), ECF No. 823, ¶¶ 11–12.)1 This particular aspect of the MDL concerns whether the Court has subject matter jurisdiction over Plaintiff's claims.

In 2015, various plaintiffs across the country brought civil suits concerning defendants StarKist, Chicken of the Sea, and Bumble Bee's conduct. The several civil actions relating to this alleged conspiracy were consolidated in an MDL and the judicial panel on MDLs centralized pretrial proceedings to this Court on December 9, 2015, (see Transfer Order, ECF No. 1). The Cherokee Nation was a latecomer to this litigation and filed suit on November 16, 2017, (see No. 17-CV-2332, ECF No. 1), which was then consolidated with the MDL. Plaintiff originally requested the Court create a track solely for itself, (ECF No. 751-1, at 3), but later amended its motion to request placement in the indirect End Purchaser Payer ("EPP") track, while also maintaining its own complaint, (ECF No. 798-1, at 2). On February 5, 2018, Plaintiff filed a First Amended Complaint, (ECF No. 823), and on February 23, 2018, the Court granted Plaintiff's amended motion and assigned Plaintiff to the EPP track, (ECF No. 859).

Plaintiff's amended Complaint sets forth detailed allegations concerning alleged price-fixing schemes in the packaged seafood industry, which has resulted in a Department of Justice investigation into Defendants' activities and guilty pleas by several packaged seafood executives. (FAC ¶¶ 213, 221–28.) Defendants are major producers of packaged seafood. The complaint presents allegations of increased packaged seafood prices resulting from anticompetitive behavior on the part of Defendants. (See id. ¶¶ 205, 208–10.) Plaintiff's citizens, members of the Cherokee Nation, are indirect purchasers of packaged tuna. (Id. ¶ 10.) Plaintiff alleges that Defendants' anticompetitive behavior has resulted in fixed or higher prices of packaged seafood, that indirect purchasers of packaged seafood have been deprived of free and open competition, and that indirect purchasers paid artificially inflated prices. (Id. ¶ 229.)

Plaintiff's amended Complaint brings the following claims. First, Plaintiff asserts a cause of action under section 1 of the Sherman Act, 15 U.S.C. § 1, which is Plaintiff's only federal cause of action. Second, Plaintiff asserts causes of action for violation of State law; specifically, California, Kansas, Arizona, Colorado, New Mexico, Oklahoma, and Florida. Third, Plaintiff brings two causes of action under Cherokee Nation law—Unfair and Deceptive Practices Act ("CNUDPA"), 12 CNCA § 21 et seq. , and unjust enrichment. (See generally FAC.) Defendants have filed the present joint motion to dismiss, (ECF No. 983), challenging this Court's jurisdiction to hear Plaintiff's claims under Rule 12(b)(1) and asserting, in the alternative, that the amended Complaint fails to state a claim under Rule 12(b)(6).

I. Rule 12(b)(1)

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction" and are "presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A–Z Int'l v. Phillips , 323 F.3d 1141, 1145 (9th Cir. 2003) (internal quotations and citations omitted). The plaintiff bears the burden of establishing jurisdiction. Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 ; In re Dynamic Random Access Memory (DRAM) Antitrust Litig. , 538 F.3d 1107, 1110 (9th Cir. 2008).

Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. To adjudicate the factual challenge, the Court may review evidence beyond the complaint without converting the Rule 12(b)(1) motion into one for summary judgment. Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty. , 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) ; David v. Giurbino , 488 F.Supp.2d 1048, 1054 (S.D. Cal. 2007). Once the moving party makes a factual challenge by bringing evidence before the Court, the opposing party must furnish its own affidavits or other evidence to establish subject matter jurisdiction. Safe Air , 373 F.3d at 1039 ; Savage , 343 F.3d at 1039 n.2. Without assuming the truth of the complaint's factual allegations, the Court nonetheless resolves factual disputes in favor of the non-moving party. Dreier v. United States , 106 F.3d 844, 847 (9th Cir. 1996) ; Farrah v. Monterey Transfer & Storage, Inc. , 555 F.Supp.2d 1066, 1067-68 (N.D. Cal. 2008).

Alternatively, in a facial challenge, the defendant asserts the insufficiency of the complaint's allegations to invoke federal jurisdiction as a matter of law. Whisnant v. United States , 400 F.3d 1177, 1179 (9th Cir. 2005) ; Cross v. Pac. Coast Plaza Invs., L.P. , No. 6 CV 2543 JM (RBB), 2007 WL 951772, at *1 (S.D. Cal. Mar. 6, 2007). To adjudicate the facial challenge, the Court assumes the truth of the allegations in the complaint and draws all reasonable inferences in favor of the plaintiff. Whisnant , 400 F.3d at 1177 ; Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004).

II. Rule 12(b)(6)

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) ). A complaint will not 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 ).

In order 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." Iqbal , 556 U.S. at 677, 129 S.Ct. 1937 (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.

Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to amend unless it determines that no modified contention "consistent with the challenged pleading ... [will] cure the deficiency." DeSoto v. Yellow Freight Sys., Inc. , 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co. , 806 F.2d 1393, 1401 (9th Cir. 1986) ).

I. The Cherokee Nation's Standing to Bring a Parens Patriae Action

Plaintiff brings its...

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