Silva v. B&G Foods, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SABRINA SILVA, et al., Case No. 20-cv-00137-JST

8 Plaintiffs, ORDER DENYING PLAINTIFFS’ 9 v. ADMINISTRATIVE MOTION TO MODIFY CASE SCHEDULE 10 B&G FOODS, INC., et al., Re: ECF No. 154 Defendants. 11

12 13 Plaintiffs Sabrina Silva and Nancy Schier have filed an administrative motion requesting 14 that the Court continue the trial date and set a schedule for Plaintiffs to file a renewed motion for 15 class certification. ECF No. 154. Defendants B&G Foods, Inc. and B&G Foods North America, 16 Inc. (collectively, “B&G”) oppose the motion. ECF No. 155. The Court will deny Plaintiffs’ 17 motion. 18 First, Plaintiffs improperly filed their request as an administrative motion under Civil 19 Local Rule 7-11, which governs motions “with respect to miscellaneous administrative matters, 20 not otherwise governed by a federal statute, Federal Rule, local rule, or standing order of the 21 assigned judge.” Civil L.R. 7-11. Plaintiffs argue that the relief they seek is appropriate under 22 Rule 16 of the Federal Rules of Civil Procedure. ECF No. 154 at 2. Thus, their request is 23 governed by a Federal Rule and is not a “miscellaneous administrative matter” within the meaning 24 of Civil Local Rule 7-11. See United States v. Cathcart, No. C 07-4762 PJH, 2009 WL 1817006, 25 at *1 (N.D. Cal. June 24, 2009) (“As an initial matter, the court notes that [the defendant’s] motion 26 is incorrectly brought pursuant to Civil Local Rule 7-11. A motion to amend a scheduling order 27 should be brought pursuant to Rule 16 of the Federal Rules of Civil Procedure.”). 1 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Good cause does not 2 exist where, as here, “Plaintiffs do not identify any new evidence or legal theories of which they 3 were not previously aware at no fault of their own.” Stockinger v. Toyota Motor Sales, U.S.A., 4 Inc., No. 2:17-cv-00035-VAP-KSx, 2020 WL 7314794, at *3 (C.D. Cal. Nov. 30, 2020). As this 5 Court has previously explained, “[c]ourts within the Ninth Circuit have . . . rejected efforts by 6 plaintiffs to modify case scheduling orders to allow for second motions for class certification 7 simply because the Court denied a first motion and the time for filing class-certification motions 8 had passed.” Siino v. Foresters Life Ins. & Annuity Co., No. 20-cv-02904-JST, 2022 WL 9 20184654, at *1 (N.D. Cal. July 26, 2022) (collecting cases). 10 Plaintiffs argue that the Court’s summary judgment ruling and its exclusion of certain 11 evidence by B&G’s expert, Dr. Robert Palmatier, ECF No. 153, provide good cause to allow a 12 renewed motion for class certification, but neither ruling affects the Court’s denial of class 13 certification, ECF No. 118. That the Court excluded portions of Palmatier’s testimony as 14 irrelevant to Plaintiffs’ individual claims does not mean that the evidence does not remain relevant 15 to class certification issues. Likewise, the Court’s summary judgment ruling that the “0g Trans 16 Fat! per serving” representation violated 21 C.F.R. §§ 101.13 and 101.62 does not change the 17 Court’s prior conclusion that, “[e]ven if materiality and reliance could be established on a 18 classwide basis, the record in this case suggests that individualized questions over whether class 19 members suffered concrete harm would overwhelm common questions regarding whether there 20 was a statutory violation.” ECF No. 118 at 5. Plaintiffs have presented no evidence that anyone 21 other than the named plaintiffs “would not have purchased the products if the front of the 22 packaging did not [contain the challenged representation],” and the Court found “it implausible to 23 conclude that B&G’s use of the ‘0g Trans Fat! per serving’ label caused every member to 24 purchase taco shells that they would not otherwise have purchased.” Id. at 3–5. Plaintiffs argue 25 that individualized inquiries are unnecessary to award restitution, but, as a case they rely on 26 explains, restitution under California’s unfair competition law “is based on what a purchaser 27 would have paid at the time of purchase had the purchaser received the information.” Pulaski & 1 it denied class certification, Plaintiffs’ “alleged concrete harm . . . is that class members would not 2 || have purchased the products if they did not contain [the challenged representation],” but 3 “Plaintiffs present no mechanism for determining which class members suffered [that] economic 4 || injury.” ECF No. 118 at 5. B&G, on the other hand, presented uncontested survey evidence 5 “finding no statistical difference in the proportion of consumers who would be likely to purchase 6 || Ortega taco shells with ‘Og Trans Fat! per serving’ on the label as compared to the same packaging 7 without that statement,” and that, on average, respondents were willing to pay 2% more when the 8 statement was removed. Jd. at 4 (citing ECF No. 106-9 §f[ 56-58, 61). The Court’s more recent 9 || rulings do not alter its analysis on the propriety of class certification. 10 Plaintiffs’ motion to modify the case schedule is denied. 11 IT IS SO ORDERED. 12 Dated: August 9, 2023 . .

JON S. TIGA Y 14 nited States District Judge

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