1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 B&G Foods North America, Inc., No. 2:20-cv-00526-KJM-DB 12 Plaintiff, ORDER 13 v. 14 Kim Embry, et al., 1S Defendants. 16 17 Plaintiff B&G Foods North America, Inc. (B&G) brings this action under 42 U.S.C. 18 | § 1983 against defendants Kim Embry and Environmental Health Advocates, Inc. (EHA). 19 | Plaintiff alleges defendants violated its First Amendment rights by bringing sham private 20 | enforcement actions under California chemical disclosure rules commonly known as 21 | “Proposition 65.” Defendants now move to dismiss or, in the alternative, to stay proceedings 22 | under the first-to-file doctrine. Defendants also move for a protective order staying discovery 23 | pending resolution of the motion to dismiss. The court denies defendants’ motion to dismiss and, 24 | accordingly, denies the motion for a protective order. 25 | I. BACKGROUND 26 The court incorporates by reference the factual and procedural history of this case from its 27 | prior order. See Prior Order, ECF No. 82. Defendants now move to dismiss or, in the alternative, 28 | to stay this case under the first-to-file doctrine, Mot., ECF No. 85; Mem. ECF No. 85-1, arguing
1 this is a copycat action based on California Chamber of Commerce v. Bonta, No. 19-02019 2 (E.D. Cal. Oct. 17, 2019). Another judge of this court is presiding over that case, in which the 3 California Chamber of Commerce is suing Attorney General Rob Bonta on similar claims and 4 seeking similar relief, with the Council for Education and Research on Toxics as defendant- 5 intervenors. See Order, Cal. Chamber, No. 19-02019, ECF No. 263. Plaintiff opposes the 6 pending motion to dismiss, Opp’n, ECF No. 93, and defendants have replied, Reply, ECF 7 No. 100. Defendants also have moved to stay discovery pending resolution of their motion to 8 dismiss. Mot. Stay, ECF No. 110. That motion is fully briefed. Mot. Stay Opp’n, ECF No. 116; 9 Mot. Stay Reply, ECF No. 118. Both motions were submitted without a hearing. Min. Orders, 10 ECF Nos. 101, 121. 11 II. LEGAL STANDARD 12 The first-to-file rule is “a generally recognized doctrine of federal comity which permits a 13 district court to decline jurisdiction over an action when a complaint involving the same parties 14 and issues has already been filed in another district.” Pacesetter Sys., Inc. v. Medtronic, Inc., 15 678 F.2d 93, 94–95 (9th Cir. 1982); see Wallerstein v. Dole Fresh Vegetables, Inc., 16 967 F. Supp. 2d 1289, 1294 (N.D. Cal. 2013) (explaining first-to-file rule can also be applied to 17 cases filed in same district). “The most basic aspect of the first-to-file rule is that it is 18 discretionary; ‘an ample degree of discretion, appropriate for disciplined and experienced judges, 19 must be left to the lower courts.’” Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 628 20 (9th Cir. 1991) (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183–84 21 (1952)). Thus, the district court in the later-filed action has discretion to “transfer, stay, or 22 dismiss” that action. Id. at 623. This rule “is designed to avoid placing an unnecessary burden on 23 the federal judiciary, and to avoid the embarrassment of conflicting judgments.” Church of 24 Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 750 (9th Cir. 1979), overruled in part on 25 other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 26 2016) (per curiam) (en banc). And the rule “should not be disregarded lightly.” Alltrade, 27 946 F.2d at 625 (quoting Church of Scientology, 611 F.2d at 750). The court in the later-filed 1 case considers the “chronology of the lawsuits, similarity of the parties, and similarity of the 2 issues.” Kohn Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1240 (9th Cir. 2015). 3 III. ANALYSIS 4 A. Timeliness of Defendant’s Motion 5 Plaintiff argues defendants waived their new first-to-file argument as grounds for 6 dismissal because defendants did not raise it in their first three motions to dismiss. See Opp’n at 7 5. In general, “[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under 8 [Rule 12] must not make another motion under [Rule 12] raising a defense or objection that was 9 available to the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). Despite that 10 general prohibition, district courts often exercise their discretion to consider new arguments in the 11 interest of judicial economy. Hamman v. Cava Grp., Inc., No. 22-593, 2023 WL 8374747, at *2 12 (S.D. Cal. Dec. 4, 2023). The Ninth Circuit has reasoned similarly, citing the “general policy of 13 the Federal Rules of Civil Procedure, expressed in Rule 1,” which “directs that the Federal Rules 14 ‘be construed, administered, and employed by the court and the parties to secure the just, speedy, 15 and inexpensive determination of every action and proceeding.’” In re Apple iPhone Antitrust 16 Litig., 846 F.3d 313, 318 (9th Cir. 2017) (quoting Fed. R. Civ. P. 1). “Denying late-filed 17 Rule 12(b)(6) motions and relegating defendants to the three procedural avenues specified in 18 Rule 12(h)(2)”—i.e., Rule 7 answers, motions for judgment on the pleadings, and arguments at 19 trial—“can produce unnecessary and costly delays, contrary to the direction of Rule 1.” Id. The 20 repeat-motion bar in Rule 12(g) thus generally applies only to successive motions whose sole 21 purpose is delay. Id. at 319. While defendants could have raised their new argument in the prior 22 three motions, the court proceeds to considering the merits of defendants’ motion in the interest 23 of efficient resolution. 24 B. First-to-File 25 1. Chronology 26 There is no dispute the Chamber of Commerce action was filed first, and thus this factor is 27 satisfied but is not dispositive. See Mem. at 13; compare Compl., ECF No. 1, and Compl., Cal. 28 Chamber, No. 19-02019, ECF No. 1. ] 2. Similarity of Parties 2 Similarity of parties requires all parties in a subsequent action to be “substantially similar” 3 | to the parties in a prior action. Kohn Law, 787 F.3d at 1240. “The rule is satisfied if some [of] 4 | the parties in one matter are also in the other matter, regardless of whether there are additional 5 | unmatched parties in one or both matters.” Intersearch Worldwide, Ltd. v. Intersearch Grp., Inc., 6 | 544F. Supp. 2d 949, 959 n.6 (N.D. Cal. 2008) (citations omitted). Here, there is no overlap 7 | among the parties. In this case, plaintiff is B&G and defendants are Kim Embry and EHA. See 8 | Second Am. Compl., ECF No. 57. In California Chamber, the plaintiff is the California Chamber 9 | of Commerce, the defendant is Rob Bonta, and the defendant-intervenor is the Council for 10 | Education and Research on Toxics.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 B&G Foods North America, Inc., No. 2:20-cv-00526-KJM-DB 12 Plaintiff, ORDER 13 v. 14 Kim Embry, et al., 1S Defendants. 16 17 Plaintiff B&G Foods North America, Inc. (B&G) brings this action under 42 U.S.C. 18 | § 1983 against defendants Kim Embry and Environmental Health Advocates, Inc. (EHA). 19 | Plaintiff alleges defendants violated its First Amendment rights by bringing sham private 20 | enforcement actions under California chemical disclosure rules commonly known as 21 | “Proposition 65.” Defendants now move to dismiss or, in the alternative, to stay proceedings 22 | under the first-to-file doctrine. Defendants also move for a protective order staying discovery 23 | pending resolution of the motion to dismiss. The court denies defendants’ motion to dismiss and, 24 | accordingly, denies the motion for a protective order. 25 | I. BACKGROUND 26 The court incorporates by reference the factual and procedural history of this case from its 27 | prior order. See Prior Order, ECF No. 82. Defendants now move to dismiss or, in the alternative, 28 | to stay this case under the first-to-file doctrine, Mot., ECF No. 85; Mem. ECF No. 85-1, arguing
1 this is a copycat action based on California Chamber of Commerce v. Bonta, No. 19-02019 2 (E.D. Cal. Oct. 17, 2019). Another judge of this court is presiding over that case, in which the 3 California Chamber of Commerce is suing Attorney General Rob Bonta on similar claims and 4 seeking similar relief, with the Council for Education and Research on Toxics as defendant- 5 intervenors. See Order, Cal. Chamber, No. 19-02019, ECF No. 263. Plaintiff opposes the 6 pending motion to dismiss, Opp’n, ECF No. 93, and defendants have replied, Reply, ECF 7 No. 100. Defendants also have moved to stay discovery pending resolution of their motion to 8 dismiss. Mot. Stay, ECF No. 110. That motion is fully briefed. Mot. Stay Opp’n, ECF No. 116; 9 Mot. Stay Reply, ECF No. 118. Both motions were submitted without a hearing. Min. Orders, 10 ECF Nos. 101, 121. 11 II. LEGAL STANDARD 12 The first-to-file rule is “a generally recognized doctrine of federal comity which permits a 13 district court to decline jurisdiction over an action when a complaint involving the same parties 14 and issues has already been filed in another district.” Pacesetter Sys., Inc. v. Medtronic, Inc., 15 678 F.2d 93, 94–95 (9th Cir. 1982); see Wallerstein v. Dole Fresh Vegetables, Inc., 16 967 F. Supp. 2d 1289, 1294 (N.D. Cal. 2013) (explaining first-to-file rule can also be applied to 17 cases filed in same district). “The most basic aspect of the first-to-file rule is that it is 18 discretionary; ‘an ample degree of discretion, appropriate for disciplined and experienced judges, 19 must be left to the lower courts.’” Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 628 20 (9th Cir. 1991) (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183–84 21 (1952)). Thus, the district court in the later-filed action has discretion to “transfer, stay, or 22 dismiss” that action. Id. at 623. This rule “is designed to avoid placing an unnecessary burden on 23 the federal judiciary, and to avoid the embarrassment of conflicting judgments.” Church of 24 Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 750 (9th Cir. 1979), overruled in part on 25 other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 26 2016) (per curiam) (en banc). And the rule “should not be disregarded lightly.” Alltrade, 27 946 F.2d at 625 (quoting Church of Scientology, 611 F.2d at 750). The court in the later-filed 1 case considers the “chronology of the lawsuits, similarity of the parties, and similarity of the 2 issues.” Kohn Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1240 (9th Cir. 2015). 3 III. ANALYSIS 4 A. Timeliness of Defendant’s Motion 5 Plaintiff argues defendants waived their new first-to-file argument as grounds for 6 dismissal because defendants did not raise it in their first three motions to dismiss. See Opp’n at 7 5. In general, “[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under 8 [Rule 12] must not make another motion under [Rule 12] raising a defense or objection that was 9 available to the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). Despite that 10 general prohibition, district courts often exercise their discretion to consider new arguments in the 11 interest of judicial economy. Hamman v. Cava Grp., Inc., No. 22-593, 2023 WL 8374747, at *2 12 (S.D. Cal. Dec. 4, 2023). The Ninth Circuit has reasoned similarly, citing the “general policy of 13 the Federal Rules of Civil Procedure, expressed in Rule 1,” which “directs that the Federal Rules 14 ‘be construed, administered, and employed by the court and the parties to secure the just, speedy, 15 and inexpensive determination of every action and proceeding.’” In re Apple iPhone Antitrust 16 Litig., 846 F.3d 313, 318 (9th Cir. 2017) (quoting Fed. R. Civ. P. 1). “Denying late-filed 17 Rule 12(b)(6) motions and relegating defendants to the three procedural avenues specified in 18 Rule 12(h)(2)”—i.e., Rule 7 answers, motions for judgment on the pleadings, and arguments at 19 trial—“can produce unnecessary and costly delays, contrary to the direction of Rule 1.” Id. The 20 repeat-motion bar in Rule 12(g) thus generally applies only to successive motions whose sole 21 purpose is delay. Id. at 319. While defendants could have raised their new argument in the prior 22 three motions, the court proceeds to considering the merits of defendants’ motion in the interest 23 of efficient resolution. 24 B. First-to-File 25 1. Chronology 26 There is no dispute the Chamber of Commerce action was filed first, and thus this factor is 27 satisfied but is not dispositive. See Mem. at 13; compare Compl., ECF No. 1, and Compl., Cal. 28 Chamber, No. 19-02019, ECF No. 1. ] 2. Similarity of Parties 2 Similarity of parties requires all parties in a subsequent action to be “substantially similar” 3 | to the parties in a prior action. Kohn Law, 787 F.3d at 1240. “The rule is satisfied if some [of] 4 | the parties in one matter are also in the other matter, regardless of whether there are additional 5 | unmatched parties in one or both matters.” Intersearch Worldwide, Ltd. v. Intersearch Grp., Inc., 6 | 544F. Supp. 2d 949, 959 n.6 (N.D. Cal. 2008) (citations omitted). Here, there is no overlap 7 | among the parties. In this case, plaintiff is B&G and defendants are Kim Embry and EHA. See 8 | Second Am. Compl., ECF No. 57. In California Chamber, the plaintiff is the California Chamber 9 | of Commerce, the defendant is Rob Bonta, and the defendant-intervenor is the Council for 10 | Education and Research on Toxics. Here, the plaintiffs are “wholly separate and unrelated 11 | entities” and “impacted by [the issues] in different ways.” Behring Reg’] Cir. LLC v. Wolf, 12 | No. 20-09263, 2021 WL 1164839, at *2 (N.D. Cal. Mar. 26, 2021). The court finds the similarity 13 | of parties requirement is not met. See id. (“Defendants have not identified any case, and the 14 | Court is not aware of any, where a court transferred a case under the first-to-file rule when there 15 | was no overlap in parties on one side of the ‘v’.”). 16 Because this requirement is not met, the court need not reach the similarity of the issues, 17 | and the court declines to dismiss or stay the case. See, e.g., id. (declining to exercise discretion 18 | under first-to-file rule because there was no overlap among the parties). 19 | IV. CONCLUSION 20 The court denies the motion to dismiss without prejudice and denies the motion to 21 | stay discovery as moot. 22 This order resolves ECF Nos. 85 and 110. 23 IT IS SO ORDERED. 24 DATED: March 29, 2024. 25 CHIEF ED STATES DISTRICT JUDGE