Belfiore v. Procter & Gamble Co.

140 F. Supp. 3d 241, 2015 U.S. Dist. LEXIS 144446, 2015 WL 6448696
District Court, E.D. New York·Decided October 22, 2015·No. Nos. 14-CV-4090, 14-CV-1142, 15-CV-2909, 15-CV-2910, 15-CV-2928, 15-CV-4579·Published·Cited by 16 cases

Opinion

MEMORANDUM AND ORDER ON MOTION FOR RECONSIDERATION

JACK B. WEINSTEIN, Senior District Judge:

Table of Contents

I. Introduction. 243

II. Procedural Background.244

III. Standard for Motion for Reconsideration.244

IV. Discussion. 245

A. Stay of class certification and referral to the FTC.245

B. Present denial of damages class certification.246

V. Stay does not affect settlement discussions.248

VI. Conclusion.-248

I. Introduction

This case is a putative class action of consumers who purchased wipes manufactured by defendant marked “flushable.” Sought is class certification supporting both monetary and injunctive relief as follows: (1) statutory (fifty dollars per purchase) or actual damages pursuant to the New York General Business Law; (2) individual plumbing damages; and (3) an injunction preventing defendant from labeling its product “flushable” and “safe for sewer and septic systems.” Belfiore v. Procter & Gamble Co., No. 14-CV-4090, 311 F.R.D. 29, 38, 2015 WL 5781541, at *1 (E.D.N.Y. Oct. 5, 2015).

Five related actions are pending in this court. Similar cases have been brought by [244]*244consumers as well as municipalities in other jurisdictions. Id. at Section III.A.

The Federal Trade Commission (“FTC”) has been investigating the use of the term “flushable.” , It filed a complaint on May-18, 2015 against a competitor of defendant — Niee-Pak Products, Inc. (“Niee-Pak”) — which manufactures “flushable” wipes and is a defendant in one of the putative class actions currently pending in this court. In its complaint, the FTC alleged, among other things, that the representations made by Niee-Pak in relation to the “flushability” of the wipes were unsubstantiated and amounted to “unfair or deceptive acts or practices.” The FTC subsequently released a proposed agreement and consent order with Nice-Pak. See id. at Section III.B. The FTC has also commenced an ongoing informal inquiry into defendant’s activities, which appears to focus on “flushability” representations. Id. at Section III.C.

II. Procedural Background

On October 5, 2015 the court issued a comprehensive memorandum and order staying class certification motions and referring issues to the FTC, including the determination of an appropriate definition of “flushable,” pursuant to the primary jurisdiction doctrine. Id. at 79-80, at *51-52.

On October 9, plaintiff moved to reconsider the court’s October 5 memorandum and order. See Hr’g Tr., Oct. 9, 2015, 14-CV-1142. He seeks reconsideration of the court’s decision: (1) to stay class certification pending action by the FTC; (2)- assuming that'plaintiff waived price premium damages claims; and (3) prospectively denying certification of a money damages class. PL’s Mem. in Supp. of Recons., Oct. 16.2015, ECF No. 157 (“Pl.’s Mem.”).

III. Standard for Motion for Reconsid-ératiori

Local Civil Rule 6.3 governs motions for reconsideration. It provides:

[Njotice of motion for reconsideration or reargument of a court order determining a motion shall be served within fourteen (14) days after the entry of the Court’s determination of the original motion, or in the case of a court order resulting in a judgment, within fourteen (14) days after the entry of the judgment. There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court has overlooked.

Local Rule 6.3.

The rale “is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that 'have been considered fully by the court.” T.Z. v. City of N.Y., 634 F.Supp.2d 263, 268 (E.D.N.Y.2009) (quoting Ades v. Deloitte & Touche, 843 F.Supp. 888, 890 (S.D.N.Y. 1994); see also Ferring B.V. v. Fera Pharm., LLC, No. 13-CV-4640, 2015 WL 5307793, at *1 (E.D.N.Y. Sept. 10, 2015)). A motion for reconsideration is not to be used as a substitute for appeal. T.Z., 634 F.Supp.2d at 268. “An attempt to ... relitigate an issue that was already decided will not be granted reconsideration.” In re Zyprexa Products Liability Litig., 653 F.Supp.2d 181, 182 (E.D.N.Y.2009) (citing Wall v. Constr. & Gen. Laborers’ Union, No. 06-1264-CV, 2009 WL 230122, at *1 (2d Cir. Feb. 2, 2009)). In a motion for reconsideration, a party may not introduce new facts or raise new arguments that could have been previously presented to the court. See Ferring B.V., 2015 WL 5307793, at *2; Frey v. Bekins Van Lines, Inc., No. CV 09-5430, 2012 WL 2701642, at *1 (E.D.N.Y. July 5, 2012) (quotation omitted); see also Nat’l Union Fire Ins. Co. v. [245]*245Stroh Cos., 265 F.3d 97, 115 (2d Cir.2001) (quotation omitted).

The standard for a motion for reconsideration. “is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked— matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also T.Z., 634 F.Supp.2d at 267-68; Zyprexa, 653 F.Supp.2d at 182.

A motion for reconsideration will only be granted on one of the following three grounds: (1) an intervening change in the law; (2) the availability of new evidence; or (3) the need to correct a clear error or prevent manifest injustice. Frey, 2012 WL 2701642, at *1 (citing Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992)); Zyprexa, 653 F.Supp.2d at 182.

The court has wide discretion to grant or deny a motion for reconsideration. See T.Z., 634 F.Supp.2d at 268 (citing Devlin v. Transp. Commc’ns Union, 175 F.3d 121, 132 (2d Cir.1999)).

Plaintiff has not established a reason for reconsideration. The motion for reconsideration is denied. ' '

IV. Discussion

A. Stay of class certification and referral to the FTC

The named plaintiff argues that stay of a class certification ruling and referral to the FTC are hot warranted because: (1) the FTC has already provided a definition of “flushable” in its draft consent order with Nice-Pak; and (2) staying the case would cause undue and detrimental delay to consumers purchasing defendant’s “flushable” wipes. PL’s Mem. at Section I. He suggests that the definition provided by the FTC in the draft consent order with Nice-Pak" is sufficient “to guide courts and legislative bodies to a ‘single national resolution,’” and that, “albeit not; required, other flushable wipe manufacturers appear willing to accept this definition.” Pl.’s Mem. at 2 (internal citations omitted).

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Belfiore v. Procter & Gamble Co., 140 F. Supp. 3d 241, 2015 U.S. Dist. LEXIS 144446, 2015 WL 6448696 (E.D.N.Y. 2015).

140 F. Supp. 3d 241 (Belfiore v. Procter & Gamble Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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