Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc.

254 F.R.D. 68, 71 Fed. R. Serv. 3d 544, 2008 U.S. Dist. LEXIS 66951, 2008 WL 3914471
CourtDistrict Court, E.D. North Carolina
DecidedAugust 25, 2008
DocketNo. 5:06-CV-160-D
StatusPublished
Cited by12 cases

This text of 254 F.R.D. 68 (Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., 254 F.R.D. 68, 71 Fed. R. Serv. 3d 544, 2008 U.S. Dist. LEXIS 66951, 2008 WL 3914471 (E.D.N.C. 2008).

Opinion

ORDER

JAMES C. DEVER III, District Judge.

Named plaintiffs Farrar & Farrar Dairy, Inc. and Farrar & Farrar Farms (“named plaintiffs”) moved for class certification pursuant to Federal Rule of Civil Procedure 23. Defendant Miller-St. Nazianz, Inc. (“Miller” or “defendant”) responded in opposition, and named plaintiffs replied. For the reasons discussed below, named plaintiffs’ motion for class certification is denied.

I.

The named plaintiffs in this action are Farrar & Farrar Dairy, Inc., a North Carolina corporation, and Farrar & Farrar Farms, a North Carolina general partnership. Second Am. Class Action Compl. 11117-8 [hereinafter “SACA Compl.”]. Named plaintiffs operated a dairy farm during the time period relevant to this action. Id. H 9. Defendant is a Wisconsin corporation that [70]*70deals in farm equipment. Id. K10; Aff. of Michael Malesevich 112 [D.E. 127-4]. By approximately November 30, 2004, defendant had purchased certain assets of á company called Ag-Bag International, Inc. (“Ag-Bag”), which sold agricultural silage bags under the name “Ag-Bag.” Malesevich Aff. HH 4-6; SACA Compl. 1121.

Silage is green forage or fodder that has been chopped and compacted into an anaerobic container such as a bunker or fixed silo. SACA Compl. IT 12. Silage undergoes an acid fermentation process inside of the anaerobic container that prevents it from spoiling. Id. This process is called “ensilage.” Id. 1113. “Silage bags” are a common type of anaerobic container used in the ensilage process. See id. 1ÍU12, 14. Silage bags were developed as an alternative to storing silage in bunkers or fixed silos. Aff. of Stashia Sutton K 3 [D.E. 127-7].

Silage bags are extremely sensitive. “Anything that weakens the plastic can cause the bag to split all the way down from one [end] to the other.” Def.’s Mem. in Opp’n to Pl.’s Mot. for Class Certification 11 [hereinafter “Def.’s Mem.”] [D.E. 126]. Silage bags fail for numerous reasons, including:

• Overfilling the bag (see Dep. of Steven Pesik 193:11-14, Dec. 6, 2006 [D.E. 127-8]);
• Weather, such as hail (see id. at 193:14-15);
• Punctures from animals, such as rodents or raccoons (see id. at 193:15):
• Mechanical problems with the machine that stuffs the silage bag (see Aff. of Karen Tidwall, Ex. 16 at 5 [D.E. 127-17]);
• Bad bag handling practices (id.);
• Silage that is too wet (Dep. of Arthur Schuette 128:22-129:2, Apr. 26, 2007 [D.E. 127-6]);
• Silage that is too dry (id. at 132:4-16);

• Silage composed of crops that tend to expand inside the silage bag (id at 129:9-13);

• Storing the silage bag on a slope (Expert Report of Dr. Keith Bolsen 8 [D.E. 127-18]);

• Storing the silage bag on an improperly-drained surface (see id.):

• Storing the silage bag on a surface that is not solid (see id.).

Although defendant’s main goal in purchasing Ag-Bag was to acquire its farm equipment business, defendant decided to continue distributing silage bags under the “Ag-Bag” name. See Malesevich Aff. K6. When defendant purchased most of Ag-Bag’s assets, Ag-Bag had a supply agreement with a company called Up North Plastics, Inc. (“Up North”). SACA Compl. H 21; Malese-vich Aff. H 6. Up North manufactured the plastic that Ag-Bag used for its silage bags. SACA Compl. H1121-22; see Malesevich Aff. 116. Defendant did not assume Ag-Bag’s supply agreement with Up North when it purchased Ag-Bag’s assets, and defendant therefore began looking for another plastic supplier to manufacture the material for the silage bags. SACA Compl. 1123; Malesevich Aff. H116-7. Defendant eventually began a business relationship with a Belgian company called Hyplast NV (“Hyplast”), which it engaged to manufacture plastic for the silage bags. See Malesevich Aff. HIT 7, 9, 14, 17.

Defendant did not receive a formula for the plastic that Ag-Bag used in making its silage bags when defendant purchased Ag-Bag. Id. 1116. Instead, defendant gave Hy-plast an Ag-Bag silage bag that Up North had manufactured, and Hyplast reverse-engineered a formula. Id. H1115-16. According to named plaintiffs, Hyplast’s reverse-engineered plastic formula did not properly address many of the necessary qualities that a plastic formula for silage bags requires. See SACA Compl. H 24.1 However, according to named plaintiffs, defendant used the Hy-plast-formulated plastic to put Ag-Bags to [71]*71market, even though defendant knew that the Hyplast-formulated plastic was insuffi-eient. See id. 1125.

Beginning in or about April 2005, named plaintiffs purchased Ag-Bag silage bags from defendant’s authorized dealers. SACA Compl. It 27. According to named plaintiffs, these silage bags were defective, and failed even though they were used properly. See id. U 30. Named plaintiffs allege that they suffered various damages from these failures, including the costs of re-bagging the silage that did not spoil, disposing of the silage that did spoil, acquiring new silage bags and silage storage techniques, acquiring new silage to feed the livestock, decreased farm profitability, decreased dairy production, and other costs. Id. U 31.

Named plaintiffs bring claims for negligence (id. U1147-53); breach of express warranty (id. UU 54-61); breach of implied warranty of merchantability (id. Hit 62-66); unfair trade practices in violation of Wisconsin law (id. UU 67-70); and restitution/disgorgement of unjust enrichment (id. UU 71-73). Named plaintiffs seek to represent a class consisting of all persons (both natural and corporate) who purchased “Ag-Bag” brand silage storage bags that were manufactured between November 30, 2004 and January 1, 2006. See id. U 40.

II.

Federal Rule of Civil Procedure 23(a) provides that a plaintiff may bring a class action as a representative party if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a). These basic prerequisites are commonly referred to as numerosity, commonality, typicality, and adequacy, respectively. To bring a class action, the proposed class representative must not only satisfy these requirements, but also one of the requirements from Federal Rule of Civil Procedure 23(b). See Fed.R.Civ.P. 23(b).

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Bluebook (online)
254 F.R.D. 68, 71 Fed. R. Serv. 3d 544, 2008 U.S. Dist. LEXIS 66951, 2008 WL 3914471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farrar-farrar-dairy-inc-v-miller-st-nazianz-inc-nced-2008.