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Patton v. Topps Meat Co.

June 30, 2009


The opinion of the court was delivered by: William M. Skretny United States District Judge



Plaintiffs commenced this action on October 3, 2007, alleging that they became ill after eating ground beef products infected with E. coli that were manufactured, sold, marketed, and distributed by Defendants. On March 27, 2009, Plaintiffs filed a Motion for Leave to File a Class Certification Motion. (Docket No. 99.) This Court referred Plaintiffs' motion to United States Magistrate Judge Jeremiah J. McCarthy to hear the matter and issue a Report and Recommendation for the undersigned's consideration, pursuant to 28 U.S.C. § 636(b)(1)(B).

Magistrate Judge McCarthy issued a Report and Recommendation on April 17, 2009, in which he recommended that Plaintiffs' motion be granted. (Docket No. 105.) Defendants filed objections to the Report and Recommendation, Plaintiffs have responded to the objections, and Defendants have filed a reply. The matter is now before this Court for review.


Before any Defendant's time to answer the Complaint had expired, on November 28, 2007, Plaintiffs filed an Amended Complaint adding Strategic Investments & Holdings, Inc. as a defendant. (Docket No. 5.) That same day, Defendant Topps Meat Company, LLC filed a Suggestion of Bankruptcy. (Docket No. 6.) On January 14, 2008, Plaintiffs moved for an Extension of Time to File a Motion for Class Certification in light of the bankruptcy stay then in place. (Docket No. 15.) This Court granted Plaintiffs' motion on January 28, 2008, and extended Plaintiffs' time to file their class certification motion until 120 days after the bankruptcy stay was lifted. (Docket No. 21.)

While the stay relative to Defendant Topps remained in place, the newly named defendant, Strategic Investments, moved to dismiss the Amended Complaint as to it. (Docket No. 32.) Plaintiffs sought, and were granted, the opportunity to conduct limited discovery relative to Strategic Investment's motion. (Docket Nos. 36 and 46.) On April 29, 2008, Plaintiffs' moved for Leave to File a Second Amended Complaint to correct the name of one defendant and add ten additional defendants. (Docket No. 48.)

The bankruptcy stay as to Defendant Topps was lifted on May 22, 2009 (Docket No. 57), and, shortly thereafter, Topps filed its opposition to Plaintiffs' Motion for Leave to File a Second Amended Complaint (Docket No. 60.) Briefing on the pending motions continued thereafter. Based on the date the bankruptcy stay was lifted, Plaintiffs class certification motion was due no later than September 19, 2008.

On September 29, 2008, Plaintiffs voluntarily dismissed this action as to Strategic Investments. (Docket No. 83.) Thereafter, on December 1, 2008, Plaintiffs withdrew their Motion for Leave to File a Second Amended Complaint. (Docket No. 85.) Issue was joined on December 22, 2008, when Defendant Topps answered the First Amended Class Action Complaint. (Docket No. 88.)

A status conference was held on March 18, 2009. At the conference, the parties proposed a revised schedule for a class certification motion. Magistrate Judge McCarthy noted that the time to move for class certification had expired, and that Plaintiffs would be required to seek relief from the Court upon a showing of excusable neglect and good cause. (Docket No. 98.) Plaintiffs filed their motion on March 27, 2009 (Docket No. 99), which motion was opposed by all Defendants (Docket No. 102).

In his Report and Recommendation, Magistrate Judge McCarthy addressed the provisions of this Court's Local Rule 23. He went on to discuss the factors considered in determining excusable neglect as applied by both the United States Supreme Court and the Second Circuit-to wit, danger of prejudice to the non-moving party; length of the delay and its potential impact on judicial proceedings; reason for the delay, including whether it was within the reasonable control of the movant; and whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392, 395, 113 S.Ct. 1489, 123 L.Ed. 2d 74 (1993); Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 415-16 (2d Cir. 2004). Among other things, Judge McCarthy noted that Plaintiffs had filed their motion within a reasonable time after issue was joined, Defendants did not object to an extended deadline for class certification until Judge McCarthy raised the issue, and they do not claim any prejudice. He went on to conclude that, in light of the circumstances and procedural history here, the equities weigh in favor of extending the time in which Plaintiffs may move for class certification.

Defendants object to Magistrate Judge McCarthy's conclusion on two grounds. First they argue that by focusing on the timing of Defendants' opposition, the Magistrate Judge sought to impose a de facto estoppel and, in effect, blame the Defendants for failing to alert Plaintiffs to their own failures. Second, they urge that the Magistrate Judge incorrectly concluded Defendants did not object to Plaintiffs' stated reasons for delay, thereby placing undue significance on the prejudice factor. Each is considered below.


A. Standard of ...

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